J. Dilly and A. G. Heckrotte vs. Noteley Barnard, 8 G. & J. 170

StepheN, Judge, delivered the opinion of the court. The appellants in this case, filed their bill to be relieved against a judgment rendered on the common law side of Allegany county court, on the ground of its being contrary to equity, and obtained mala fide and by surprise. The principles upon which courts of equity grant relief in such cases, have been frequently the subject of decision by that tribunal, not only in England, and in our sister states, but have also been authoritatively settled by this court.

The merits of this case, therefore, as was correctly observed in the argument, resolve themselves more into a question of fact than a question of law.

In 6 Gill & John. 312, this court, in adverting to the doctrine of courts of equity upon the subject of administering relief against judgments at law, after stating the general principle, say: “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 then lay down the following well established general rule : “ 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 parties 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.” The rule here laid down, is wise, salutary and politic, and has received the sanction, not only of the English courts of equity, but of the highest judicial tribunal in this union.

Marine Insurance Company of Alexandria vs. Hodgson, 7 Cranch, 332.

There chief justice Marshall, in delivering the opinion of the court, says: “ without attempting to draw any precise 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 elearly 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' defence cannot be set up in equity which has been fully and fairly' tried at law, although' it maybe the opinion of that court, that the defence ought to have been sustained at law.” The cause of- action upon which the judgment was obtained in this case, which is sought to be relieved against, was oiie, properly and generally speaking, exclusively cognizable in a court of law, and not. a fife subject for the exercise of equitable jurisdiction, and to bring it within the proper and legitimate cognizance of a court of equity, it is incumbent upon the party seeking redress in that forum, to state the grounds upon which he was unable to defend himself at law.

The title of the complainant to the assistance of a court of equity in such a case, must be exposed by the pleadings, and the ground principally relied upon in this case, is the want of preparation to try the cause upon its merits, arising from the false promises and fraudulent conduct of .the defendant.

That a judgment obtained mala fide and by surprise, arising from the fraudulent and deceptive conduct of the adverse party, by which the complainant has been lulled into-a security fatal to his rights, would be against conscience, arid ought to be enjoined by the remedial powers of a court of equity, is a clear and self-evident proposition, about which, in a court of conscience at least} no doubt, we think, can or ought to be entertained; and if such was the character of this case; the appellants would unquestionably be entitled to the relief which they seek to obtain.

But we think, that the proofs in the cause fully demonstrate that they have no such standing in this court, and that if injustice has been done upon the trial at law,.it was under circumstances, which will not warrant the interference of a court of equity. It is an established principle, that to enlist the countenance of such a court in his favour, a party must always enter its doors with clean hands; and ■ when he seeks to be relieved against injustice, arising from the bad faith of his adversary, be ought not to be obnoxious to the same imputation himself.

It is one of the maxims to be found in Name’s principles of ■equity, collected by Fonblanque, at the end of his treatise on equity, «that no man is entitled to the aid of a court of equity when that aid becomes necessary by his own fault.” The application of such a principle to this case, we think, decisive of the merits of this controversy. The .proof in the cause, shows beyond doubt, that the promise of the appellee to Dilly, one of the appellants, was not absolute, but conditional in its character. It was, that if he would take no

part in, but would entirely withdraw from the defence of the action instituted against himself and Ileclcrotte, that he, Dilly, should be released from all responsibility to pay the judgment, which might be obtained against them. The offer or proposition then, being conditional in its nature, to obtain the benefit of it, it was incumbent upon Dilly not only to prove that he acceded to it, but that the terms it contained have been honestly and faithfully performed on his part. This would seem to be not only the requirement of law and justice, but the dictates of common sense.

Dilly, one of the appellants in this case, as his ground of equity states, that relying upon the representations of the appellee, he did not make the necessary preparations for the trial of the cause, and the proofs necessary to a fair investigation of the matters in controversy were not had at the time of the trial. It is to be observed, as was remarked by Chancellor Kent in 1 John. Ch.

Rep. 322, where a want of preparation at law was charged as a ground of equity, that it dees not appear that any application was made on his part to postpone the trial; on the contrary, it appears in proof, that during the trial term, and shortly before the jury was empannelled, he not only rejected overtures for a compromise or accommodation, made on the part of his adversary, but enlisted counsel m his defence, and threw down the gauntlet of defiance to his opponent.

It further appears, that witnesses were summon* ed- and examined upon the trial, either by Dilly or his co-defendant Heckrotte. and if it mav'not fairly be inferred from the proofs ánd proceedings in the cause, (which opinion we are inclined to .adopt,) that Dilly voluntarily waived' any advantage which he could have derived from the offers or propositions of Barnard, yet, the answer in this ease shows, that he made a full defence, and being responsive to the bill, and not rebutted or disproved by testimony, is evidence, of that fact for the defendant., and that too. even where the equity of the complainant is grounded, as in this case, upon the allegation- of fraud, 7 Cranch, 69, This fact, that the defence was a complete one, and that the cause was fully tried upon its merits is also an answer to that part'of the complainants’ equity, which is founded upon the complexity of the case, and' his inability to make his defence in a court of law.

It is further tobe observed, that as to the complexity of the case, and the difficulty of defending themselves at law, they have not made that fact an allegation in their bill, and that they should have done so, appears to have been neces-saty- See Wyatt’s Prac.

Reg. 232, where he says, “ when it is prayed to stay proceedings, it is commonly upon some matter suggested in the bill, as that the complainant is not able for some reasons shown, to make his defence in the other court, though he hath a good discharge here in equity; that the other party has a penalty on him which he proceeds for at law-, and threatens to make the complainant pay, or that the other court has not jurisdiction of the cause, but it is cognizable here, or that the other court refuses' him some rightful advantage, or does injustice to him in the proceedings, or has not power to do him right: ei similia.” To the same effect, see 1 Maddox Chan. 1089.

The principle upon which chancery interferes in such cases, is laid down in the following terms by Lord Redesdale, in 1 Sch. & Lef. 205. “ The inattention of parties in a court of law, can scarcely be made a subject for the interference of a court of equity.; there may be cases cognizable at law, and also in equity, and of Which, cognizance cannot be effectually taken at law, and therefore, equity does sometimes interfere, as in cases of complicated accounts, where the party has not made defence, because it was impossible for him to do it effectually at law.” Even, therefore, in cases where the court of equity has concurrent jurisdiction with a court of law, as in matters of account, it seems that equity will not relieve on the mere ground of the difficulty of the defence in a court of law; but it must be a case where it is impossible for the party to make an effectual defence before that jurisdiction.

In the case now before this court, no such allegation is either made or proved, and in the language of the distinguished chancellor, whose opinion has just been referred to, we think it unconscientious and vexatious to bring into a court of equity, a discussion which might have been had at law.

As to the facts which are charged in the bill, to have rested exclusively in the knowledge of the defendant, and the exhibition of which, were essential to a fair and just decision at law; it is only necessary further to remark, that after a verdict at law, the party who complains of it, comes too late with a bill of discovery. 1 Vernon, 176-7. So in 1 John. Chan. Rep. 51.

Chancellor Kent refers to a decision of Lord Hardwicke, where he says, it must appear that the defendant was ignorant at the time of the trial, of the fact, which renders the verdict at law contrary to equity, and even then, chancery will not relieve, where the defendant submits to try it at law first, when he might by a bill of discovery, have come at the fact, by the plaintiff’s answer, before the trial at law; and the complainants in this case, had ample time to file such a bill, because it appears at the trial term, they applied for, and had leave to amend their pleadings, and the cause was continued to the next court.

We do not, therefore, think that the complainants or either of them, were entitled to the equitable interposition of a court of chancery in their favour; and we are therefore of opinion, that the decree of the court below was correct, and ought to be affirmed. DECREE AFFIRMED.