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line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery. On the other hand, it may, with equal safety, be laid down as a general rule that a defense cannot be set up in equity which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law.

In addition to the grounds for relief referred to by Chief Justice MARSHALL mistake and surprise may be mentioned.

DEFENSES AVAILABLE AT LAW. “Where," as Chancellor KENT said in deciding the case of Simpson v. Hart,1“courts of law and equity have concurrent jurisdiction over a question, and it receives a decision at law, equity can no more re-examine it than the court of law in a similar case could re-examine a decree of a court of equity.” When a defense is once fairly passed upon, the decision is final, no matter how inequitable it may appear. And where a defense sought to be set up in equity, as a ground for relief against a judgment at law, might have been set up at law, but was not because of a lack of diligence on the complainant's part, equity will not interfere. The rule is inflexible.3 So, even where a judgment has been obtained by fraud, accident, or mistake, if there is any adequate remedy at law, as by motion for a new trial, or appeal, equity requires the injured party to avail himself of that remedy, and if he fails to do so without good excuse, will grant no relief. The fact that a defense is equitable is no excuse for not setting it up at law, if available at law under the Code practice. Ignorance of a defense constitutes no ground for the interference of equity if there was negligence in remaining ignorant. Defendants are bound to use diligence in preparing themselves for trial. If they do not, they are left to bear the consequences. Thus, if a defendant cannot appear and make his defense in person, it is his duty to employ an agent or attorney to act for him if the defense is of such a nature that it can be made in his absence. If it cannot, he should apply for a continuance. Where he fails to do either, and judgment goes against him by default, equity will not enjoin its execution. The negligence of attorneys is considered the negligence of their clients, and equity will not interefere on behalf of a complainant whose attorney has negligently failed to make a defense to a suit at law and permitted judgment to go by default, or bas neglected to assign error on appeal,3 or fraudulently caused his client to lose the benefit of an appeal, even where the attorney is insolvent. But where the defendant has both a legal defense and an equitable defense, not available at law, a failure to use diligence in making his legal defense will not, it seems, prevent a court of equity from granting an injunction upon proof of the equitable defense, in case a judgment is rendered against him.5

11 Johns. Ch. 97.

2 Bateman v. Willoe, 1 Sch. & Lef. (Eng.) 204; Emerson v. Udall, 13 Vt. 477; Agard v. Valencia, 39 Cal. 292; Duncan v. Lyons, 3 Johns. Ch. 356; Ry, Co. v. Neal, 1 Wood, 353; Hendrickson v. Hinckly, 58 U. S. 443; Truly v. Wanzer, 46 U. S. 141 ; Foster v. State Bank, 17 Ala. 672; Brush v. McCanby, 7 Gill, 189;

Snyder v. Vannoy, 1 Or. 344; Yancey v. Downer, 5 Litt. 8; Sumner v. Whitley, 1 Mo. 708; Matson v. Field, 10 Mo. 100; Ritter v. Democratic Press Co. 68 Mo. 458.

3 Foster y. Wood, 6 Johns. Ch. 86; Emerson v. Udall, 13 Vt. 477 ; Smith v. McIver, 22 U. S. 532; Lester v. Hoskins, 26 Ark. 63; Higgins v. Bullock, 73 Ill. 205; Smith v. Powell, 50 Ill. 21; Richmond Enquirer Co. v. Robinson, 24 Grat. 548; Kelly v. Hurt, 74 Mo. 561 ; Katz v. Moore, 13 Md. 566; Collier v. Easton, 2 Mo. 146; Jackson v. Patrick, 10 S. C. 207; Slack v. Wood, 9 Grat. 40; Marsh's Adm'r v. Bast, 41 Mo. 493; Prewitt v. Perry, 6 Tex. 260; Lyday v. Douple, 13 Md. 566; Selbina Hotel Ass'n v. Parker, 58 Mo. 327; Ewing v. Nickle, 45 Md. 413; Gaines v. Kennedy, 53 Miss. 103; Johnson v. Lyon, 14 Iowa,

431, Mills v. Van Voorhis, 10 Abb. Pr. 10; Coffee v. Ball, 49 Tex. 16; Andrews v. Fenter, 1 Ark. 186; Cummins v. Bentley, 5 Ark. 9; Bellany v. Woodson, 4 Ga. 175; Robuck v. Harkins, 38 Ga. 174; Norris v. Hume, 2 Leigh, (Va.) 334; Green . Thomas, 17 Cal. 86; Marsh v. Edgerton, 1 Chand. (Wis.) 198; Tyler v. Hainersley, 44 Conn. 419; Phelps v. Peabody, 7 Cal. 50.

+ Huston v. Ditto, 20 Md. 305; Bellows V. Stone, 14 N. H. 203; Reed's Adm'r v. Hansard, 37 Mo. 199; Nat. Bank v. Bur. net Manuf'g Co. 33 N. J. 486 ; City of Mus. catine v. M. & M. Ry.Co.1 Dill. 536; Hudson v. Kline, 9 Grat. 379; Walker v. Robbins, 55 U. S. 584.

5 Kelly v. Hurt, 74 Mo. 561; Winfield v. Bacon, 24 Barb. 154; Savage v. Allen, 54 N. Y. 458.

6 Skinner v.. Deming, 2 Ind. 558; McCown v. Macklin's Ex'r, 7 Bush, 308; Brown v. Swann, 35 U. S. 497; Thompson v. Berry, 3 Johns. Ch. 395; Tutt v. Ferguson, 13 Kan. 45; McCollum v. Prewitt, 37 Ala. 573; Garrett v. Lynch's Adın'r, 45 Ala. 204; Marine Ins. Co. v. Hodgson, 11 U.S. 333.

DEFENSES NOT AVAILABLE AT LAW-NEWLY-DISCOVERED EVIDENCE. Equity will always restrain the execution of a judgment where it would be contrary to equity and good conscience to allow it to be executed, and where the facts which render it thus inequitable were either not available at law, or were not discovered by the complainant, notwithstanding due diligence, until it was too late to set them up there. In Wynne v. Newman's Adm'r, 75 Va. 816, BURKE, J., says that the circumstances under which equity will grant a new trial because of newly-discovered evidence "may be summed up thus: (1) The evidence must have been discovered since the trial. (2) It must be evidence that could not have been discovered before the trial by the plaintiff or defendant, as the case may be, by the exercise of reasonable diligence. (3) It must be material in its object, and such as ought, on another trial, to produce an opposite result on the merits. (4) It must not be merely cumulative, corroborative, or collateral.” The general rule governing this whole subject is that whenever a complainant can show a good defense which he has failed, without fault or negligence, to avail himself of at law, he may be relieved in chancery.8

WHERE THERE HAS BEEN NO SERVICE OF PROCESS, OR A DEFECTIVE SERVICE. Where an unjust judgment is obtained against a defendant over whom the court rendering the judgment has no jurisdiction, or who has never been served with process, or received notice of the institution or pendency of the suit against him, 10 the execution will be enjoined, unless relief can be obtained at law. But no relief will be granted where the complainant has been properly served with process, and has failed to make a defense because he thought the suit was against another person.2

1 Duncan v. Gibson, 45 Mo. 352; George v. Tutt, 36 Mo. 141 ; Powell v. Cyfers, 1 Heisk. 526; McCollum v. Prewett, 37 Ala. 573; Crim v. Handley, 94 U. S. 652.

2 Rogers v. Parker, 1 Hughes, 148; Kern V. Strausberger, 7 Ill. 413; Bowman v. Field, 9 Mo. App. 576; Winn v. Wilson, 1 Hemp. 698; Crim v. Handley, 94 U. S. 652.

3 Miller v. Bernecker, 46 Mo. 194; Dinet v. Eigenmann, 96 Ill. 39.

4 Dobbs v. St. Jo. F. & M. Ins. Co. 72 Mo. 189.

5 Cornelius v. Thomas, 1 Tenn. Ch. 283; Winchester v. Gleaves, 3 Hay. 213.

6 Clute v. Potter, 37 Barb. 199; Marine Ins. Co. v. Hodgson, 7 Cranch, 333; Foster v. Wood, 6 Johns. Ch. 86; Gaines v. Hale, 26 Ark. 168; Key v. Knott, 9 Gill & J. 342; Pollock v. Gilbert, 16 Ga. 398; Vather y. Zane, 6 Grat. 246; Rogers v. Cress, 3 Pin. (Wis.) 36; Dunham v. Downer, 31 Vt. 249; Weaver v. Poyer, 79

Ill. 417; Bank v. Ruse, 27 Ga. 391; Odell v. Reed, 51 Ga. 142.

7 Iglehart v. Lee, 4 Md. Ch. 514; Foote v. Silsby, 1 Blatchf. 515; Taylor v. Sutton, 15 Ga. 103; Pearce v. Chastain, 3 Ga. 226; Mills v. Van Voorhis, 10 Abb. Pr. 10; Millick v. First Nat. Bank, 52 Iowa, 94.

8 Sanders v. Jennings, 2 J. J. Marsh. 513; Barr v. Deniston, 19 N. H. 170 ; Watson v. Palmer, 5 Ark. 501; Bank v. Reese, 27 Ga. 391; Humphreys v. Legett, 50 U. S. 297 ; Legett_ v. Humphreys, 62 U. S. 66; Burem v. Foster, 6 Heisk. 333; Rice v. Bank, 7 Hum. 39; Clifton v. Livor, 24 Ga. 91.

9 Grass v. Hess, 37 Ind. 193.

10 Martin v. Parsons, 49 Cal. 94; Weaver v. Poyer, 79 Ill. 417; Wilday v. McConnel, 63 Ill. 278 ; Southern Exp. Co. v. Craft, 43 Miss. 508; Brooks v. Harrison, 2 Ala. 209; Dunklin v. Wilson, 64 Ala. 162; Crafts v. Dexter, 8 Ala. 767

WHERE AN ATTEMPT IS MADE TO LEVY ON PROPERTY NOT BELONGING TO THE DEFENDANT. Equity will not permit a judgment to be executed by levying on property not belonging to th party against whom it was rendered ;3 and where a person is in quiet possession of real estate as owner, it will restrain others by injunction from dispossessing him by process growing out of litigation to which he was not a party. 4

FRAUD, ACCIDENT, SURPRISE, AND MISTAKE. Equity will never permit an unjust judgment, obtained, without negligence on the defendant's part, by surprise, fraud, accident, or mistake, to be executed where there is no legal remedy. Thus, where the plaintiff caused a false return to be made by the person deputed to serve the summons on the defendant, when he knew there had been no service, and recovered judgment by default, the judgment was annulled. So, relief was granted where the plaintiff had induced the defendants to withdraw an equitable plea they had filed in the case, by a promise that if such plea were withdrawn he would do the equity set up in the plea, and would enter into writing to that effect, but had failed to comply with his promise and taken judgment. So, where a judgment is taken by default in violation of an agreement of compromise by which a defense is prevented, its execution will be restrained. So, where the defendant is induced by false representations of the plaintiff 8 or his attorney' to believe that no further proceedings will be taken, and makes no defense, a judgment by default will not be permitted to be executed. So, where the defendant allows judgment to go against him in consideration of an agreement on the plaintiff's part that no money need be paid on it except upon the happening of a certain event, the plaintiff will not be permitted to exact payment in violation of the agreement.10 So, where defendant's counsel is shown to have acted for both parties, and advised the defendant to confess judgment.11 So, where a sheriff, whom the complainant had agreed to save harmless, fraudulently, in collusion with the plaintiff, allowed judgment to go against him when he had a good defense. 12 But he who comes into equity must do equity. If a party asks for relief against a judgment for more than is due, he must offer to pay what he admits is due.13

In Cannon v. Reynolds, 14 where a mistake was made in the defendant's favor in the statement of the account sued on, and the defendant, knowing of the mistake, allowed judgment to go by default, the judgment was set aside.

In another case, in which an appeal had been dismissed, because of a cler. ical mistake in making out the appeal bond, the judgment was enjoined.

In the case of Bell v. Cunningham 15 the defendants were non-resident foreigners. Their counsel went to trial upon the declaration as it stood, which was not supportable. New counts were filed by leave of court, which cove ered a claim not before embraced in the declaration. The defendants had no notice of the change and no means of instructing their counsel on any point of defense. The trial immediately proceeded, and a verdict obtained which would not have been recovered if the defendants had had notice of the claim. Judge STORY delivered the opinion of the court, and held that an injunction should be granted pro tanto to the judgment, on the ground of surprise.

1 Nat. Bank v. Burnet Manuf'g Co. 3 N. J. 486.

2 Higgins v. Bullock, 73 III. 205. 8 Givens v. Tidmore, 8 Ala. 745.

* Goodnough v. Sheppard, 28 Ill. 81 ; Stewart v. Pace, 30 Ark. 594.

6 Carrington v. Holabird, 17 Conn. 530; Wingate v. Haywood, 40 N. H. 437; Currier v. Esty, 110 Mass. 536; Norris v. Hume, 2 Leigh, (Va.) 334 ; Brooks v. Har. rison, 2 Ala. 209; Rogers v. Cross, 3 Pin. (Wis.) 36 ; Burem v. Foster, 6 Heisk. 333.

6 Markham v. Angier, 57 Ga. 42.
* Nealis' Adm'r v. Dicks. 72 Ind. 374;

Bridgeport Sav. Bank v. Eldredge, 28
Conn. 556; Rogers v. Gwinn, 21 Iowa, 58;
Hibbard v. Eastman, 47 N. H. 507; Kent
V. Ricards, 3 Md. Ch. 392.

8 Dobson v. Pearce, 12 N. Y, 156; Will. iams v. Fowler, 2 J.J. Marsh. 405.

Pearce v. Olney, 20 Conn. 644; Holland v. Trotter, 22 Grat. 136.

10 Moore v. Barclay, 16 Ala. 158.
11 Molyneux v. Huey, 81 N. C. 107.
12 Iglehart v. Lee, 4 Md. Ch. 514.
13 Campbell v. Morrison, 7 Paige, 157.
145 El. & Bl. 300.
15 1 Sumn, 89.

EQUITABLE REMEDIES–NEW TRIALS. In relieving against an unjust judgment recovered in a court of law, equity does not act upon the court of law, but upon the party who has recovered the judgment,--sometimes by simply enjoining him from attempting to collect it; sometimes by forcing him to agree to a new trial. The new trial should never be granted in terms. In deciding the case of C. & F. Ry. Co. v. Titus, Chancellor Runyon laid down the law as follows: “Originally chancery compelled new trials at law by perpetually enjoining the plaintiff in the judgment from enforcing it, unless he would consent to a new trial; the injunction being the means by which the plaintiff was constrained to do justice, and the practice of thus compelling new trials at la still exists. This court can, in any given case, itself give effect to the testimony, with respect to which a new trial may be ordered, and determine what difference it ought to have made in the result of the trial at law, if it had been introduced there. In such cases there will, in effect, be a new trial in this court, instead of at law. It is quite within the power of this court to order an issue at law where the facts are contradictory.”2 St. Louis.

B. F. Rex.

1 Story, Eq. Jur. & 1571 et seq.; Yancey v. lier v. Easton, 2 Mo. 146; Molyneux v. Downer, 5 Litt. 8; Bush v. Craig, 4 Bibb, Huey, 81 N. C. 106; Carrington v. Hola168; Floyd v. Jayne, 6 Johns. Ch. 479; bird, 19 Conn. 84. Wynne v. Newman's Adm'r, 75 Va. 811. 3 Key v. Knot, 9 Gill & J. 342; Foote v. Contra, McConnell's Ex'r, 63 Ill. 280; Silsby, 1 Blatchf. 545; Turney's Ex'r v. Nealis' Adm’r v. Dicks, 72 Ind. 374; Col- Young, 2 Tenn. 266.

NICHOLS v. Jones and another.!

(Circuit Court, N. D. Alabama. February, 1884.)


Where the case shows that a multiplicity of suits at law will be necessary for the complainant to obtain at law an adequate remedy, a bill in equity will be

maintained. 2. INJUNCTION.

Injunctions are granted to prevent trespasses as well as to stay waste where the mischief would be irreparable and to prevent a multiplicity of suits.

In Equity. On motion for injunction.

The complainant's bill shows that on the seventh of May, 1873, Henry Clews being the owner and in possession of certain mineral lands in Calhoun county, in this state, sold and conveyed for value the same to John M. Guiteau, who afterwards, on the sixth of June, 1876, sold and conveyed to John P. McEwan, and that the latter, with

1 Reported by Joseph P. Hornor, Esq., of the New Orleans bar.

his wife, on the sixth of March, 1880, by proper deed, sold and conveyed the same to complainant, and that all of the said conveyances were properly acknowledged and recorded in the county of Calhoun prior to the year 1880, except the one last mentioned. Further, that the defendants claim title to the same premises by virtue of an attachment suit instituted in the circuit court of Calhoun county early in the year 1880, by defendant Jones against said Henry Clews, a citizen of New York, in which suit said lands were attached, a judgment recovered, and the lands sold by the sheriff of Calhoun county under execution to said Jones on May 31, 1880. Further, that at a former term of this court complainant had instituted a suit for the possession of said lands against one Ashley, a tenant of defendant Jones in possession of the same, and recovered a judgment, which was executed by the marshal, who, under a writ of habere facias possessionem, placed complainant in possession, and that complainant took possession and held the same by his agent and tenant, and that thereafter the defendant, with fraud and illegal influence over the said tenant, dispossessed complainant, possessed himself, and has ever since detained and now holds the same. Further, that complainant has instituted an action for damages against said Jones in the circuit court of Calhoun county, because of his said trespass, which action is now pending. The bill also alleges that the lands are valuable only as mineral lands; that defendants are mining and removing ore, and thereby inflicting irreparable damage; that defendant Jones is insolvent, and defendant Morgan has little, if any, means; and that only by a multiplicity of suits at law can complainant, if at all, protect his rights.

The defendants, by answer not sworn to, deny that complainant is owner of the lands described, and allege fraud and collusion in the conveyances from Clews to complainant's grantor, and the fraud and collusion of complainant and Ashley in obtaining the judgment in this court for possession, which judgment has been set aside and defendants admitted as parties, and that the suit is still pending; and they deny all fraud and illegal influence in obtaining possession from complainant's tenant as set forth in the bill; and all other matters charged in the bill are admitted, the defendants particularly claiming bona fide title under the attachment proceedings set forth in bill and answer.

An admission is now filed in the record that when the bill in this case was filed an action of ejectment by the complainant against the defendants for the land in controversy was pending in this court; that on November 5, 1883, the complainant dismissed his said action of ejectment, and that there is now no action of ejectment pending by the complainant for the land in controversy. An inspection of the record shows that the said action of ejectment was dismissed under an order of court rendered at last term compelling the complainant to elect between his action of ejectment and this equity action. At this time a motion, after due notice, is made for an injunction to restrain,

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