MOCK vs CUNDIFF, 6 Port. 24

OUMOND, J. This was a bill filed in Chancery by the plaintiff, enjoining a judgment at law, obtained by the defendant in error. The bill charges, that he made his note for one-hundred and seven dollars and forty cents, to one William N. Mock — -payable to him or bearer : That the defendant in error became the proprietor of the note, and as bearer brought suit thereon, and recovered judgment. The bill further alleges, that the plaintiff before he received notice that Cundiff was the owner of the note above described, became the owner of another note, made by the said, William N.

Mock, to one Mary Nibbs, or bearer — which note was for one hundred and ten dollars ; which last mentioned note fell due before the other. The bill further states, that he employed an attorney to defend the cause — informed him of the set-off, and requested him to have the same before the court, at the trial That the attorney was unable, from sickness, to attend the court, and that judgment passed against him, by nil dipit.

The court below, dismissed the bill, for want of equity — and this is now assigned for error in this court. . ■ • • To entitle a party to relief, in a- Court of Chancery, against a judgment at law, where no fraud is charged, in obtaining the jugdment, it is necessary that he should shew, that he has used reasonable diligence, to make his defence before the proper forum. Has that been done, in this case 1 The allegation in the bill is, that the plaintiff employed an attorney to defend the suit — informed him of the set-off, and requested him to have the same before the Court.— Is this sufficient?

This may all be true, and yet the attorney would not have been able to defend the suit, and get the benefit of the off-set, had he been able to attend the court. It is not stated that the attorney was put in possession of the note, intended to be set off, or that witnesses were summoned, or in attendance to prove it: and, without these, the attorney, had he been present, could not have made the de-fence. It does not appear, then, from the bill, that the absence of the attorney, from sickness, has injuriously affected the plaintiff.

It is a circumstance of great weight, in considering this question, that the plaintiff did not attend the court himself. He shews no reason for his failure to do so,! — and appears to have been negligent of' his interests. The doctrine applicable to this case, is laid down by Chancellor Kent, in 6th Johnson’s Ch.

Reports, 90. “ The rule is, that Chancery will not relieve against a judgment at law, on the ground of' its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question, pending the suit, or it could not have been received as a defence, or unless he was prevented from availing himself of the defence, by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” This has been acted on, as the same rule in such cases, by this court. It results from this, that there is no equity in the bill.

The judgment of the court below must be affirmed, with costs. 2 Porter, 262.