AVERY vs. HOLLAND, 2 Overt. 71

Overton J. The first idea that occurred upon reading the pleadings in this cause, was the singularity of the circumstance of finding two citizens of another state before this court, upon a contract made in their own state. Upon this ground alone I should be strongly inclined to think that we ought not to take cognizance of it. This bill was filed before the act of 1801, Ch. 6, the 16th

section of which, as relating to the court of Equity,states, “that alter the answer filed, and no plea in abatement to the local jurisdiction of the court, no exception for want of such jurisdiction shall ever afterwards be made." This bill is for discovery respecting the breach of a covenant, and seeks relief upon such discovery. Bills may be for discovery alone, intending to use die discovery as evidence at law, or may be for discovery, and relief. The nature of the case disclosed in the bill, necessarily makes the discovery the principal object of the bill, and relief its dependant. Breach of covenant is properly triable at law, and as to the first part of the bill, or that respecting the

article of agreement, it is nothing more. The obligee however, had a right to come into this Court for a discovery of any matter which rested in the knowledge of the defendant only, respecting such covenant, and if a sufficient discovery was made, this court having jurisdiction of the principle ground, its incident (in this case,) relief, would follow. But if the plaintiff fail in the discovery sought, when that is the ground of Equity as it is here, its incident, or inquiry, as to damages must fall.

To proceed, when discovery fails, and the relief is proper for a court of law only, it would be converting this court at once into a court of law, and obliterating one of the principle lines of distinction between the two courts: Nothing could be easier than for a complainant in any case of contract, properly triable at law, to state a case for discovery, so as to give this court jurisdiction. It were immaterial whether such discovery were necessary or even expected, it could easily be suggested, and this court would be compelled to hear proof equally accessible to a court of law, and decree relief.

This cannot be law. The court is not concluded from looking into the bill, upon the points embraced by the demurrer which was overruled. It appears that the defendant was ordered to answer. The demurrer went to the whole bill, and if the court intended it to be conclusive, it would have dismissed the bill. A defendant may insist upon the same thing embraced by an overruled demurrer, in his answer, or ore tenus, at the bar, 2 Atk, 284 1 Har. Ch. 414. The case in 1 Atk. 571, and Har.

Ch. 351, respecting a plea of of dismissal showing matter which was res judicata does not apply, unless the bill had been dismissed, and a new bill brought, which is not the case. It has been insisted that the plea of the statute of limitations does not apply to the L. 40, 4s. being a trust. The cases collected in 1 Eq. Ca. 304 are adduced in support of this proposition.

The true ground upon which the statute does not operate in cases of trust seems to be, that the possession of the trustee is the possession of the Cestuy que trust ; and in contemplation of law, the Cestuy que trust is always in possession by his agent the trustee, who holds for him. The very ground upon which the principle rests is, that the trustee does not claim or hold adversly, or for himself. The cases, respecting Executors, legacies and charaties, are all referrible to this principle; Accounts current between Merchant and Merchant, are expressly saved by the statute.

But after being settled, are subject to its provisions. The defendant in his answer, does not admit that he received £ 40, 4s. in trust ; thus received, it was not to be subject to any future disposition of the plaintiff, as in lady Hollis’s case, which showed that in point of law, she was to have the implied possession from reserving to herself the control of the money. No such idea occurs here, and no distinction can be seen between this, and other cases, where money or other property has been received. Upon a view of the whole case, it seems that the bill to ought to be dismissed. White J.

It appears from the pleadings that this contract was made in North Carolina, and between two citizens of that state. Before the passage of the Act of 1801 Ch. 6, it was clear that this court could not decree in such a case. Act 1787. C. 22. Ird. 624. The idea conveyed by the act of 1787, is that no proceedings of this court shall be good against a person residing out of this state, unless the contract were made in this state.

The law of Nations, which we take to be part of the law of the land, will not permit individuals of foreign countries, upon contracts made there, to submit their disputes to our tribunals in local matters : Mere personal claims, may follow the delinquent. Even this seems more to result from the amenity of this law, than strict principle.

All suits in courts of Equity however, are considered local, by our law, and though the act of 1801 says it is proper matter to be used in abatement, and shall not be made an exception upon the hearing, yet I am strongly inclined to think, that if it appears upon the face of the pleadings, that both of the litigant parties are foreigners and a foreign contract, we ought not to interpose. By the nature of all governments, courts were constituted to administer justice in relation to their own citizen ; and not to do the business of citizens or subjects of other states.

The judges of their own state are employed, and paid for that purpose. To encourage the resort of foreigners to our courts, would be doing injustice to our own citizens, who have business here to be attended to. Upon the other principle however, I concur with the opinion given, but as both parties seem somewhat so blame as to troubling this court with the cause. I am of opinion that each should pay his own costs on the dismission. In this Overton J. concurred. Campbell J. accordant.