15 Vt. 78 | Vt. | 1843
The opinion of the court was delivered by
The orators, in this case, endeavor to establish, as a ground for the relief prayed for, an agreement made by the defendant, Shaw, with them, to receive wool in payment of the note, on which the judgment, in the name of Thrall, against the orators, was rendered. This agreement, together with the subsequent act of carrying the wool to the factory of the defendant, Shaw, was either a payment on the note, or an accord and satisfaction, and if either, afforded a complete defence to the action at law; and as judgment was rendered in the action at law, for the full amount of the note, and the orators were fully apprised of all the facts which were necessary to make that defence, or could have ascertained them, that judgment is a conclusive bar to this bill.
There is, moreover, a failure of proof, even if the judgment was not conclusive. The agreement is denied in the answer, and the testimony, to prove the agreement, is not sufficient to prove the agreement and the acceptance of the wool; but the acceptance is disproved by the testimony of Campbell and Boyd.
The application to submit the questions of fact, to the consideration of a jury, would not have been warranted by any principles, which govern proceedings in a court of chancery, even if it had been made to the chancellor; and this court, on the hearing of appeals, can never listen to any such application. The decree of the chancellor is affirmed with additional cost.
