Susanna J. Gott and John F. Wilson vs. Ann Carr, 6 G. & J. 309

Buchanan, Ch. J., delivered the opinion of the court. The questions presented for the consideration of the court, are. 1st. Do the judgments at law in favor of the appellant, Susanna J. Gott, bar the defendant from maintaining this suit? 2nd. If they do not, is the defendant, upon the case made by the bill and answers, and the proof taken in the cause, entitled to a perpetual injunction of those judgments? 1. As to the preliminary question.

It is a salutary principle of law, that every person is bound to take care of and protect his own rights and interests and to vindicate them in due season, and in the proper place. And that if a defendant having the means of defence in his power in an action against him, in a competent tribunal, neglects to use them, and suffers a recovery to be had against him, he is forever precluded bom obtaining relief in Chancery, in relation to the same matter.

The application of this principle may not-be universal; but the cases in which Chancery will furnish relief against recoveries suffered to be had at law, are exceptions. The well settled general rule being, that a court of equity will not relieve against a recovery in a trial at law, unless the justice of the verdict can be impeached by facts, or on grounds, of which the. party seeking the aid of Chancery, could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed, with any negligence or fault on his own part.

And Chancery will only sustain a bill invoking its aid, upon some new matter of equity, not arising in the former case; or seeking some relief, to which the powers of the court of law were not fully adequate. It is a sound and useful rule in the administration of justice, for the prevention of negligence, and harrassing and protracted litigation, and the consequent burdensome accumulation of costs. A material departure from, or relaxation of which, would prove vexatious in practice, and be felt as a public grievance, by the great delays, and sometimes abuse of justice, to which it would lead.

The effect might often be, to prevent the prosecution of a just claim, by an injured and oppressed party, for the want of adequate means to pursue it through a protracted litigation, with a more fortunate adversary, whose object was delay, when the unavoidable expenses of the controversy would sometimes exceed the amount in dispute; and when, although he should ultimately succeed, his success might in effect prove a loss, or come too late to be of much service.

Applying then, that rule to this case, which we think is clearly within it, it appears to us, that whatever may in truth be its abstract merits, it is not a case for the interposition of Chancery, and that the injunction ought not to have been granted, or being granted, should not have been perpetuated. The suits at law were originally before a justice of the peace, on warrants issued upon three notes given by the appellee, on which judgments were rendered against the present appellant, Susanna J.

Gott, (then plaintiff) from which judgments she appealed to the county court, where the judgments were reversed, and judgments given, under the provisions of the act of Assembly, for the appellant for the amount claimed. Whereupon, this bill was filed for an injunction to prevent execution upon those judgments, which was granted, and finally perpetuated by the Chancellor. The grounds of relief alleged in the bill, are threats and fraud in procuring the notes by the agent of the appellant, Susanna J.

Gott, and that the judgments rendered in the county court, were given in consequence of the absence, by sickness, of a witness, on whose testimony the judgments by the magistrate were given, and that want of the necessary affidavit for the continuance of the cases occasioned by the absence of the appellee, for which no sufficient reason is assigned; in consequence, also, of her alleged inability, to prove in a court of law the want of consideration for the notes, they being under seal, and that the judgments of the court were founded upon the testimony of John F.

Wilson, who is stated to have been interested in the event of the suits, but who does not appear to have had the slightest interest. And all fraud is denied in the answer. As to the alleged absence of a witness, it is a settled doctrine, that Chancery will not relieve after a recovery at law, upon testimony, which with due care and diligence the party might have procured, and had the benefit of upon the trial at law. Here it is evident, that the appellee did not use due diligence, or such means as were in her power, to establish the threats and fraud, which are alleged as a ground of the relief she seeks.

The testimony that is now produced, it was equally in her power, then, as now, to have had the benefit of, with proper efforts to obtain it, for any thing appearing to the contrary. The matérial witness stated to have been absent by sickness, was known to her to be such. Indeed it is alleged in the bill, that the judgments by the magistrate were founded upon her testimony.

No reasonable and proper endeavors were made to procure her evidence; it does not appear, that a subpcena had been issued for her, or that an affidavit had been made for the continuance of the cases for the want of her testimony, or any other effort to obtain a continuance. If proper steps had been taken to procure the attendance of the witness, and obtain her testimony, accompanied by the necessary affidavit for that purpose, the cases might have been continued, and the benefit of the testimony of that witness secured.

Her own absence from the court when the cases were tried, is no sufficient excuse; but was of itself

an act of negligence. She should have been present in person, or agent, or by her attorney, to take care of her rights, and cause the proper defence to have been made, or the necessary steps taken to procure the benefit of the very testimony she now relies upon to sustain the allegation of fraud, and of which she had full knowledge at the time.

As to the allegation of inability to prove in a court of law, the want of consideration for the notes, the only evidence now relied upon to prove the want of consideration, is that which is now insisted upon to sustain the allegation of fraud in obtaining the notes, and which, if it had been offered at the trials in the county court, must have been received. The county courts having concurrent jurisdiction with Chancery, in questions of fraud.

And being moreover required by the act of 1791, ch. 68, sec. 4, in cases of appeal from the judgments of magistrates, “to determine according to the law of the land, and the equity and right of the matter, upon the petition of the appellant, and the proof of both parties,” and therefore not acting in such cases purely as courts of law. With respect to the other allegation, that the judgments of the county court were rendered upon the testimony of John F.

Wilson, who is stated to have been interested in the event of the suits, (but who, as before observed, does not appear to have had any interest,) if the object be to fix upon him the imputation of perjury as a ground of relief, it is a purpose, for the accomplishment of which, Chancery will not lend its aid. The appellee should not have gone to trial unprepared.

It is a general rule at law, that a new trial is not to be granted merely for the purpose of giving to a party the opportunity of impeaching the testimony of a witness; and Chancery acting upon that principle, will not interfere after a recovery suffered at law, to give relief on that ground. And no fraud in obtaining the judgments is alleged, or attempted to be proved. This view of the subject puts an end to the cause. It is not necessary, therefore, to inquire, what would be the effect of the proof taken, if it was a case proper for the interposition of Chancery. DECREE REVERSED, AND BILE DISMISSED WITH COSTS.