bama, 438, and applies a fortiori,
when a party goes to trial, in reliance
upon the testimony of a witness who
is intoxicated; or when judgment is
rendered against him in consequence
of the absence of his witnesses ; The
State Bank v. Stanton, 2 Gilman,
352 j Governor v. Barrow, 13 Ala.
bama, 540. A strong opinion was
expressed in these cases, that ques-
tions regularly and finally determined
ought not to be opened on allegations
impeaching the credit of the witnes-
ses ; and this restriction appears essen-
tial to the practical validity of the
rule, which prohibits a re-examina-
tion of matters which have received a
final adjudication. Whether witnesses
speak the truth, is obviously a ques-
tion for the court or jury, before whom
they testify, and consequently one
which should not be heard again by an-
other tribunal; Vaughan v. Johnson,
1 Stockton, Ch. 173. Cases in which
one party has tampered with the wit-
nesses of the other, stand on different
ground, and it seems, that a judg-
ment procured by such means, will be
194 INJUNCTIONS AGAINST PROCEEDING AT LAW.
set aside in equity, if the fraud be not
discovered until too late to obtain re-
dress at law; Burgess v. Lovengood, 2
Jones, Eq. 457. " The cases," said
Pearson, J., in Burgess v. Lovengood,
" of Fentress v. Bobbins, N. C. Term
Rep. 177; Peagram v. King, 2 Hawk.
Rep. 295 ; lb. 605 ; Deaver v. Erwin,
7 Iredell, Eq. R. 250 ; Dyche v. Pat-
ton, 8 Id. 296, recognize the general
doctrine that if a verdict be obtained
in an action in a court of common law,
by fraud, circumvention, or perjury,
a court of equity may decide that the
party shall consent to set aside such
verdict, and have the matter tried de
novo at law ; in other words, a court
of equity may require the party to
give his adversary a new trial. But
it is agreed that this power should be
exercised with 'extreme caution/ and
the application of the doctrine is
greatly restricted, and is confined to
cases which present 'peculiar circum-
stances' under the maxim ' there must
be an end to litigation.'
" For instance, the doctrine does
not apply if the court be misled, and
from ignorance, or other cause, mis-
take the law ; for equity cannot review
the judgments of courts of law. So,
it is agreed that the doctrine only ap-
plies where there is new matter, or
something discovered after the trial at
law, and which could not have been
available either on the trial or as a
ground for a new trial in that court. So
it is agreed, that to set aside the verdict
on the ground of its being obtained
by perjury, there must be an allega-
tion that the party who used the testi-
mony knew it to be false. So there
must not only be newly discovered
evidence, but such evidence must
bear directly upon the merits of the
case, and must be decisive of it, and
not tend simply to impeach the testi-
mony of a witness in a former trial,
or to add cumulative evidence as to a
matter before controverted. In this
connection we will remark, that Pea-
gram v. King, was decided at a time
when, according to M l Farland v.
Shaw, 2 Car. L. Rep. 102, the dying
declarations of the witness, Jinks, was
evidence in chief, and not merely evi-
dence to impeach.
"In Tern/ v. Young, Pre. in Ch.
193, the lord keeper declared, "the
relief must be grounded upon new
matter, and not what was tried before.
When it consists in swearing only, I
will never grant a new trial, unless it
(that is, the falsehood,) appear by
deed or writing, or that the witness,
upon whose testimony the verdict was
given, has been convicted of perjury.'
Accordingly, in Peagram v. King,
which is the only case in which our
courts have applied the general doc-
trine, (as it is termed,) this qualifica-
tion is assumed to be correct ; and the
court treat the fact of the death of the
witness before a prosecution could be
instituted, as bringing the case within
the reason of the decision."
The doctrine above stated, applies
with full force in all cases, where the
complainant has exhibited a want of
diligence in attending to his case at
the time of trial ; or in taking proper
measures to have the trial postponed,
when he has been prevented from pre-
paring himself without his own de-
fault; Warner v. Conant, 24 Vermont,
351 ; Bodge v. Strong, 2 Johnson, Ch.
228; The Auditor v. Nicholas, 2
Munford, 31; Oswald v. Tyler, 4
Randolph, 19 ; Faulkner s Adm'r v.
Haru-ood, 6 Id. 125; Tapp's Adm'r
EARL OF OXFORD'S CASE.
195
v. Rankin, 9 Leigh, 478. And it is
not enough that such precautions were
taken, as would have been enough in
the usual course of events, but it must
appear, that no step was omitted,
which could have been taken. It
must be shown conclusively, that the
complainant had a defence which he
would have established, but for the
intervention of circumstances wholly
beyond his control, and against which
no exercise of diligence on his part
could have guarded; French v. Garner,
7 Porter, 549 ; Drew v. Hayne, 8 Ala-
bama, 438. Thus in Monk v. Gun-
cliff, 6 Porter, 24, the court refused
to enjoin a judgment, taken in the ab-
sence of the attorney employed to de-
fend the case, who had been prevented
from attending at court by sickness,
because the complainant might have
been in attendance himself, and would
then have had an opportunity of con-
tinuing the cause. A similar decision
was made in Powely. Steivart, 17 Ala-
bama, 719, where the allegation was
that the case had been sacrificed at
law, in consequence of the death of
the attorney, by whom it had been
conducted in the first instance, and
the want of familiarity with its details
on the part of the person who took
his place. Nor will the sickness of
the defendant himself be an excuse,
for the presumption will be, that he
might have employed an attorney to
defend the cause, or procured a con-
tinuance ; Robb v. Halsey, 11 Smedes
& Marshall, 140; Watson v. Palmer,
5 Arkansas, 501. And when the com-
plainant sought relief on the ground
that he had been prevented from at-
tending at the trial with his witnesses,
by the swelling of an intervening
stream, it was held insufficient, with-
out showing that the flood had con-
tinued so long, as to render it impos-
sible for him to reach the court in time
to defend the suit, or obtain a new
trial. Nothing is better settled in
general terms, thah that a judgment
will not be restrained by injunction,
on grounds purely legal, unless a de-
fence has been prevented at law by
fraud on the one side, or ignorance
unmixed with negligence on the other;
and when this is not the case, no
degree of hardship or injustice which
can result from allowing the judgment
to stand, will justify the intervention
of equity to set it aside ; Fletcher v.
Warren, 18 Vermont, 45 ; Emerson
v. Udall, 13 Id. 477 ; Warner v. Co-
nanl, 24 Id. 351; Perkins v. Clements,
1 Patton & Heath, 14 ; The Railroad
v. Shippen, 2 Id. 327; Paynter v.
Evans, 7 B. Monroe, 420 ; Buckmas-
ter v. Grundy, 3 Gilman, 626; Rohb
v. Halsey, 11 Smedes & Marshall,
141 ; Semple v. M Gatagan, 10 Id.
98 ; Williams v. Jones, lb. 108 ; Meek
v. Howard, lb. 502; Pichon v.
M Henry, 6 Blackford, 517; Parker
v. Morton, 5 Id. 1 ; Dunn v. Fish, 8
Id. 407 ; Bently v. Dillard, 1 Eng-
lish, 79 ; Graham v. Stagg, 2 Paige,
321; Smith v. Dowry, 1 Johnson,
Ch. 320; Woodworthv.VanBuskerk,
lb. 432; Duncan v. Dyon, 3 Id. 351 ;
Foster v. Wood, 6 Id. 87 ; M< Vicar
v. Wolcott, 4 Johnson, 510 ; Meem v.
Rucker, 10 Grattan, 506 ; Conway v.
Ellison, 14 Arkansas, 360; Vilas v.
Jones, 1 Comstock, 274 ; Walton v.
Hamilton, 9 Grattan, 425; George
v. Strange, 10 Id. 499 ; Vaughan v.
Johnson, 1 Stockton, 173; Keefe v.
Rice, 1 Bailey, Eq. 179; Pearce v.
Chastain, 3 Kelly, 226; Robbinsv.
Mount, lb. 74 ; Stroup v. Sullivan, 2
196 INJUNCTIONS AGAINST PROCEEDING AT LAW.
Kelly, 275 ; Trippe v. Lowe, lb. 305 ;
Bellamy v. Woodson, 4 Georgia, 175 ',
Brandon v. Green, 7 Humphreys,
130; Bently v. Dillard, 1 English,
79 • Parker v. Morton, 5 Blackford,
1. Hence relief will not be afforded
on the ground that the complainant
relied on the promise of his antagonist,
to allow him all the credits to which
he was entitled, and, consequently,
neglected to come into court to prove
them ; Jarboe v. Kepler, 4 Indiana,
177. In like manner, the miscarriage
of a letter addressed to an attorney,
and requesting him to take charge of
the defence, will be equally insuffi-
cient, because the ill-effects of the ac-
cident might have been obviated or
remedied by greater diligence in writ-
ing a second time, or by personal at-
tendance; Essex Co. v. Berry, 2 Ver-
mont, 161. Nor will the ignorance
or misapprehension of the defend-
ant or his attorney, justify interfer-
ence with a judgment to which he
has assented, however clear the evi-
dence that a case has been sacrificed,
which might have been successfully
prosecuted or defended; Warner v.
Conant, 24 Vermont, 351 ; Fletcher
v. Warren, 18 Id. 45; Emerson v.
Udall, 13 Id. 477 ; Burton v. Wiley,
26 Id. 430. And proof that the de-
fendant has been unavoidably pre-
vented from making a good defence,
will not entitle him to an injunction
in equity, unless he has no adequate
legal remedy; Hudson v. Kline, 9
Grrattan, 379 ; Gilliat v. Lynch, 2
Leigh, 493 ; Morgan v. Carson, 7
Id. ^38 ; and hence to render a set-off
or partial failure of consideration, a
ground for relief against a judgment
in equity, it must appear that no re-
covery could be had upon it at law, or
that the insolvency of the other party
would render such a recovery unavail-
ing; Hudson v. Kline; Gilliat v.
Lynch; Richardson v. Williams, 3
Jones, Eq. 116.
The course of equity in granting
injunctions after the determination
of the case at law, has, notwithstand-
ing been carried further in some in-
stances than these principles would
allow, or a sound regard to the policy
which requires that there shall be
some certain term to litigation, would
seem to warrant. In Yathir v. Zane,
6 Grrattan, 246, the loss of a paper
material to the defence, was held a
sufficient reason for opening the judg-
ment in equity. This decision may
be considered as a mere extension of
the practice, under which judgments
are opened on the ground of newly
discovered evidence. But in Rust v.
Ware, 6 Grattan, 50, an injunction
was awarded on the ground of a mis-
calculation made by the jury in set-
tling the amount of their verdict;
and in Walker v. Gilbert, Freeman,
85; Crafts v. Dexter, 8 Alabama,
767 ; and in Ridgeicay v. The Bank
of Tennessee, 11 Humphreys, 523, on
that of a want of service of the sum-
mons at law, in consequence of which
judgment was taken against the de-
fendant, without his being aware of
the institution of the action ; while in
Rice v. Bank, 7 Humphreys, 39,
sickness at the time of the service of
the process, of such a nature as to
render it probable, that what occurred
during its continuance, might have
been forgotten after a restoration to
health, was held sufficient to justify
the award of an injunction to restrain
a judgment subsequently taken by de-
fault. And where a suit was brought
EARL OF OXFORD S CAPE.
197
by the assignee of a bond, who had
obtained the assignment through
fraud, in the name of the assignor,
and without his authority, an injunc-
tion was granted in equity after judg-
ment ; Jameson v. Deshields, 3 Grat-
tan, 4. So far as these cases trans-
gress the general rule above stated,
they must be regarded as anomalies,
and not as exceptions.
It is a necessary corollary of this
rule, that even when the assistance
of equity is essential to the purposes
of a defence at law, it must be sought
before the defence is made, and not
afterwards. A judgment cannot be
set aside, or opened by equity on the
ground, that facts are within the know-
ledge of one party, which render it
unconscientious to hold or enforce the
judgment against the other, for the
application should have been made
before the judgment was rendered.
Hence it is a general rule, that a bill
for a discovery and injunction comes
too late after judgment, unless it sets
up some independent ground for re-
lief apart from the discovery ; Lan-
sing v. Eddy, 1 Johns. Ch. 49 ; Brown
v. Swann, 10 Peters, 497; Thompson
v. Berry, 3 Johnson, Ch. 395 ; Kinney
v. Ogden, 2 Green, Ch. 168 ; Hill v.
M'Neill, 8 Porter, 432 ; M Grew v.
The Tombeckbee Bank, 5 Id. 547 ;
French v. Garner, 7 Id. 549 ; Stin-
nett v. The Branch Bank of Mobile,
9 Alabama, 121 ; Governor v. Bar-
row, 13 Id. 546 ; Faulkner's Adm'r
v. Harwood, 6 Randolph, 125 ; Nor-
ton v. Woods, 22 Wend. 520. Thus
in Lansing v. Eddy, where relief was
sought against a judgment as having
been rendered for a debt tainted with
usury, resting in the knowledge of the
plaintiff, and not susceptible of proof
by the defendant, it was refused by
the court on the ground, that the dis-
covery should have been asked sooner,
and in time to have been used as a
defence to the judgment. The same
principle was applied in Barker v.
Elkins, 1 Johnson, Ch. 465; Billy
v. Barnard, 8 Gill & J. 170; M Grew
v. The Tombeckbee Bank, 5 Porter,
547 ; and Hill v. M'Neill, 8 Id. 432.
Equity will, however, sustain a bill
for a discovery and injunction after
judgment, when from the peculiar cir-
cumstances of the case it could not
have been effectually resorted to be-
fore ; Norton v. Woods, 5 Paige, 249.
And in Jordan v. La/tin, 13 Alaba-
ma, 547, a surety who had been sued
jointly, at law, with the principal, was
held entitled to come into equity for
discovery and relief, after judgment,
on the ground that the facts necessary
for his defence lay exclusively within
the knowledge of the principal, and
consequently could not be substanti-
ated at the trial, in consequence of the
rule which renders the testimony of
parties inadmissible.
It has been seen, and the language
held in Foster v. Wood, (ante, 181,)
conveys the impression, that equity
will relieve against a judgment, when
the defendant was ignorant of a de-
fence at the time when the judgment
was rendered, which he might have
made effectual, had he known of its
existence. The decision actually made
in that case by the chancellor, might
at first sight appear inconsistent with
his dictum, for he refused to enjoin a
judgment obtained against special bail,
while ignorant of a payment actually
made by their principal. But as it
appeared, that the payment was made
before the judgment against the prin-
198 INJUNCTIONS AGAINST PROCEEDING AT LAW.
cipal, who had suffered judgment to
go by default, the bail was held to be
concluded by his negligence, and not
within the reach of the principle, that
ignorance gives a title to relief. Equi-
ty will not, however, enjoin a judg-
ment on the ground of the existence
of a defence, of which the defendant
was ignorant, when his ignorance re-
sulted from negligence in not taking
proper steps to obtain information ;
Powers v. Butler, 3 Green, Ch. 4G5 ;
Meen v. Rucker, 10 Grattan, 506 ;
nor unless it appear that he has made
every effort to become acquainted with
the circumstances constituting his de-
fence, and to procure the evidence ne-
cessary for their substantiation ; Floyd
v. Jayne, 6 Johnson, Ch. 479 ; Slack
v. Wood, 9 Grattan, 40 ; Burine v.
Moore, 5 Leigh, 364. Thus it was
held in M l Grew v. The Tombeckbee
Bank, 5 Porter, 547, that a surety
could not rely on his ignorance of a
payment by his principal, as a reason
for opening a judgment against him-
self, unless he showed, that he had
taken proper measures to ascertain the
true state of the case, and prepare his
defence to the action. Similar deci-
sions were made in the cases of Lee
v. The Ins. Bank, 2 Alabama, 21;
and Stinnett v. The Branch Bank at
Mobile, 9 Id. 121 ; while it was said
in Taylor v. Sutton, 15 Georgia, 103,
that to give a right of relief against
a judgment at law, three things must
concur, ignorance of the defence, dili-
gence on the part of the defendant,
and inability to obtain relief by an
application to the court which ren-
dered the judgment. "It is not
enough that the defendant did not
know ©f the grounds of the defence
at the time of the trial, it must ap-
pear, that he could not have obtain-
ed the requisite knowledge by the use
of due diligence ;" Miller v. Gaskins,
Smedes & Marshall, Equity, 524 ;
Falls v. Robinson, 5 Maryland, 365.
Where, however, the complainant has
been precluded from making good his
defence at law by ignorance, not re-
sulting from, and unuyxed with, neg-
ligence, equity will interpose for his
protection ; Gardiner v. Hardy, 12
Gill & Johnson, 365 ; Winthrop v.
Lane, 3 Dessaussure, 310; Davis
v. Tileston, 6 Howard, 114; Fanning
v. The Farmers & Merchants Bank,
8 Smedes & Marshall, 139 ; Goad v.
Hart, lb. 787 ; Newton v. Field, 16
Arkansas, 216; lglehart v. Lee, 4
Maryland Ch. 514 ; and such will un-
doubtedly be its course, when he has
been fraudulently kept in the dark by
the plaintiff; Rogers v. Akins, 1
Kelly, 12; Fitch v. Police, 7 Black-
ford, 564.
Equity has in some cases interfered
to restrain a judgment, or grant a new
trial on the ground of newly discover-
ed evidence of a material fact, when
the fact itself was previously known,
but not the means of establishing it
in evidence ; Cantey v. Blair, 1
Richardson, Equity, 41 ; Billups v.
Sears, 5 Grattan, 31; ante; The
Ocean Insurance Co. v. Field, 2
Story, 59. Thus, in The Ocean In-
surance Co. v. Field, the complainants
were allowed to take advantage of a de-
fence in equity, after judgment, which
they had set up unsuccessfully at
the trial, on the ground that the facts
and evidence necessary to substantiate
it were not known at the time, and
could not have been discovered by the
utmost diligence ; but the case was
one of gross fraud, in procuring the
EARL OP OXFORD S CASE.
199
loss of a vessel, and then suing the
insurance company, and therefore ap-
pealed strongly to a court of equity.
In Williamson v. Johnson, 1 Halsted,
Eq. 537, relief was granted to a surety
after judgment, on the discovery of
a receipt for a payment made by the
principal, although the payment was
known before the judgment was ren-
dered. But to produce this result,
the evidence must establish a distinct
and substantive ground of defence, and
not be merely cumulative or confir-
matory, and it must be satisfactorily
shown, that the failure to produce it
at law, did not arise from any want of
proper diligence or exertion ; Arthur
v. Chavis, 6 Randolph, 142 ; Peg ram
v. King, 2 Hawks, 605 ; Wilson v.
Leigh, 4 Iredell, Equity, 100 ; Hen-
derson v. Mitchell, 1 Bailey, Equity,
113 ; Glover v. Hedges, Saxton, 113.
And it is well settled, that when a
defendant has once acquiesced in a
judgment by paying it, he cannot in-
stitute any subsequent proceeding to
set it aside, or recover the amount
thus paid, either at law or in equity ;
Powell v. Watson, 6 Iredell, Equity,
94 ; see 2 Smith, Leading Cases, 403,
5th Am. ed.
It is admitted on all hands, that
when a judgment has been obtained
by fraud or undue advantage, equity
will relieve by injunction, even when
relief might have been had on motion
at law; Davis v. Tileston, 6 Howard,
114 ; Moore v. Gamble, 1 Stockton,
Ch. 246 ; Munn v. Worrall, 16 Bar-
bour, 221. For, as in such cases the
judgment is voidable, it cannot be an
estoppel on the matter by which it
may be avoided ; and proceedings to
set it aside being purely original,
may be instituted either at law or in
equity at the option of the injured
party. A fraudulent judgment is void
in equity as it regards the party de-
frauded, and cannot therefore preclude
the exercise of equitable jurisdiction ;
Humphries v. Bartee, 10 Smedes &
Marshall, 282; Nelson v. Rockwell,
14 Illinois, 375. Thus, where the
defendant is prevented from taking
proper measures to defend the action,
by the fraudulent assurances of the
plaintiff, that the suit shall be carried
no further, or that no defence is ne-
cessary, chancery will interfere to pre-
vent the guilty party from profiting
by his own fraud ; Pearce v. Olney,
20 Conn. 544 ; Lee v. Baird, 4 Hen.
6 Mun. 427; Wilrich v. Be Zoija, 2
Gilman, 385 ; Truett v. Wainwright,
4 Id. 418; Brooks v. Whitson, 7
Smedes & Marshall, 513 ; Huggins
v. Xing, 3 Barbour, 616; Powers
v. Butler, 3 Green, Ch. 465 ; Booth
v. Stamper, 6 Georgia, 172. And in
Webster v. S/cipwith, 4 Cushman,
341, an undue advantage taken on
one side, by surprise, and resulting in
injustice on the other, was held a
sufficient ground for awarding an in-
junction. Relief must, however, be
based in this case, even more empha-
tically than in others of the same na-
ture, upon a distinct allegation of the
fraud in the bill ; Patton v. Taylor,
7 Howard, 132 ; Bellamy v. Woodson,
4 Georgia, 175; and will not be grant-
ed in opposition to a full and explicit
denial in the answer; Land v. Elli-
ott, 1 Smedes & Marshall, 608; Brooks
v. Gillis, 12 Id. 538 ; nor when the
complainant has been guilty of laches
in not applying for redress within a
reasonable time after the fraud is dis-
covered ; Corwithe v. Giffing, 21 Bar-
bour, 9. It seems ; moreover, that a
200 INJUNCTIONS AGAINST PROCEEDING AT LAW.
judgment will not be set aside by equi-
ty, on the ground that it has been ob-
tained improperly, or even fraudu-
lently, unless the complainant is able
to show that he has a defence, which
would be good, if not precluded by
the judgment; Nason v. Smcdley, 8
Vermont, 118 ; Bradley v. Richard-
son, 23 Id. 720. " Although," said
Phelps, J., in Nason v. Smedley, " the
judgment has been obtained in such
a manner that it ought not to bind the
complainants, yet it would be useless
to interfere, if the debt for which it
is rendered be just and equitable, so
that if it were set aside, a court of
law would be compelled to render a
like judgment."
The rule, that a judgment which
is void or voidable, is not a bar to the
jurisdiction of equity, where it would
otherwise be exercised, applies in
other cases than those of fraud, and
it has consequen f ly been decided,
that when the statute law invalidates
judgments obtained for gambling
debts, the defendant may come into
equity after judgment, although he
might have taken advantage of the
illegality of the cause of action, as
a defence at law ; Lucas v. Waul, 12
Smedes & Marshall, 157 ; and the
same thing has been said of judg-
ments void for want of jurisdiction,
or which exceed the jurisdiction of the
court which pronounced them ; Cor-
withe v. Griffing, 21 Barbour, 9.
But chancery has no jurisdiction to
restrain judgments which are merely
irregular and not void; Shottenkirk
v. Wheeler, 3 Johnson, Ch. 275.
In Pearce v. Olney, 20 Conn. 544, a
suit brought in Connecticut, on a judg-
ment obtained in New York, was re-
strained on the ground that the de-
fendant had been prevented from
appearing and taking defence in the
original action, by a fraudulent assur-
ance that no steps would be taken for
its prosecution, notwithstanding the
objection that the record contained a
recital that he had appeared, and could
not be contradicted by extrinsic evi-
dence. And the case of Propst v.
Meadows, 13 Illinois, 160, would seem
to show that a defendant, who has been
prevented from making a just defence,
by the want of notice or knowledge
of the suit, may apply for relief to
chancery, where the record fails to
show that he had notice, although
not, as it would seem, when it con-
tains such an allegation.
Judgments rendered by default,
in proceedings commenced by at-
tachment against absent or non-resi-
dent debtors, without actual notice or
service, are also fitting subjects for
the interposition of equity, because
the defendant cannot be charged with
neglect in not appearing to or defend-
ing an action, of the institution of
which he was ignorant ; Moore v.
Gamble, 1 Stockton, Ch. 24G.
The doctrine that a defence which
has been rendered unavailing at law,
by surprise or fraud, may afterwards
be set up in equity, was carried in
Carrington v. Holabird, 17 Connec-
ticut. 530, to the extent of deciding,
that a judgment against a bankrupt
for a debt, barred by his certificate,
might be restrained by injunction on
the ground, that the delay of the
plaintiff in taking the judgment,
until several years after the de-
fendant had made default, was a
surprise on the latter, and prevent-
ed him from setting up the pro-
ceedings in bankruptcy as a defence.