186 CASES IN THE SUPREME COURT LITTLE ROCK, July, 1838, MARTIN ANDREWS against CHRISTIAN FENTER. Anne ElliS FENTER. APPEAL front Hot . Spring Circuit Court. To antborize. a party to lie relieVed in Chancery against a judgment at law, it must Conclusively appear that the judginent was obtained . by fraud, accident, or mistake, unmixed , with any negligence or fault on his part. The defendantnt law. .cannot come into a Court of Chancery for a new trial or relief, when there is no special ground of surprise or ignOrance of important faets sjiggested, or Where no equitable circumstances have arisen since the trial, and when he has ,neglected to defend himself with due diligence in the, proper place. If a. party becomes remediless at law by negligence, he shall not be relieved in equity. To entitle him to relief, he must show that he has lost his remedy:at law . by. fraud, accident,. casualty, misfortune, or misrepresentation. Where 'courts of law and equity have concurrent jurisdiction, and the factS alleged are all examined at law, after the case has been decided, equity will not interfere. • To give to equity jurisdiction in such cases, it is indispensa- ble to show that the party having the law in 'his fayor, was prevented by some unaVoidable oceurrence from bringing his .case fairly and fully before the court at law. The refusai pf the court of law to grant a continuance, when applied for on the ground. that after March Term, 1834, the defendant had obtained a subpm-na for the only , Witness by whom 'he could 'prove certain material facts, which subpcena he sent by mail in due time before the next term of the court, to the Sheraf of the adjoining county, where the witness resided; that the subpmna was returned without service, of which return the defendant was ignorant;. and that such Witness was not in attendance at March Term, 1835, when the apPlication was . made and overruled, is no foundation for the interference of equity. The appellee filed his bill in Chancery in the Hot Spring Circuit Court, on the 21st September, 1835, in which he set forth that on the 17th of March, 1827, he ,executed his writing obligatory to the appellant, at thirty days, for $192 63 cents, with interest at 10 per cent. per annum from time due till paid that On the 3d of June, , 1828, he exe... cuted to the ar a seCond writing obligatory, at three months, for $71 82 CCI1L iitio to bear interest at 10 per cent; and that on the 13th of April, 1825, he and one Andrew Fenter executed to the ap-, note, at:eight months, for $29 37i cents. He pellant their promissory further alleged, that when the first writing Obligatory was execut2d there was a contract between him and one Joseph Henderson, partner of the appellant, for the deliVery to them by him, at Little Rock, of a quantity of oil-stones; that on the day when the , first writing obligatory was executed, he agreed with Henderson, partner and agent of the appellant, that if he 'should deliver the oil-stones in Little Rock by the 1st of April, 18 . 29, in case there should be a steam-boat at Little Rock, the appellant would receive them at 74 cents per pound, in pay-
OF THE STATEOF ARKANSAS. 187 ment of the first ,writing obligatory ; that before the day , appOinted, LITTLE ROCK, the oil-stones were delivered aCeording to the contract, and that a Ju ly , los. steam-boat was then lying,at Little RoCk; that the oihstones were re- ANDREWS 279. ceived in payment of the first writing obligatory, to Wit, 3873 pound§ FENTER, or upward, at 7,1. cents per pound, amounting to $281 15i cents, leay= ing a balance dud the appellee of $88 50 cents; that when he exe:- cutcd the second writing obligatory he did not know tint the oihstones had been received in payment as aforesaid, but supposed them to have been shipped by the appellant, on his, the appellee's accOunt, and that he was indebted to the appellant in the amount of the second writing obligatory, for freightage on the oil-stones to Little Rock, and under that supposition, and upon Henderson's representation to that effect, he executed the second , writing obligatory for that amount; and further that the promissory note had long been barred by the statute of limitations. He further alleged that on the 10th of January, 1834, the appellant commenced an action of debt against him in Hot , Spring Court, on the two writings obligatory and.the promissory notc, to Ih-hich he pleaded payment of the Writings obligatory, and , the statute of limitations as to the nOte; that after a continuance at March Term, 1834, he obtained a subpmna for a witness by whibm alone he could prove the number and price of the oil-stones; that the subpcena was sent by mail, in due time before the next tern' of the court, to the Sheriff of Pulaski county, where the witness then resided, but was returned by the said Sheriff without service, of which return the appellee was wholly igno-'rant; that at March Terri), 1835, he, by . attorney, moved the.court for a continuance', on the ground of the absence of said witness, which motion was overruled, and judgment went against him . tor $293 821 debt and $215 47 damages, and costs Of suit. Upon this bill he prayed an injunction to restrain the appellant from further proceeding on his judgment at laW, which was granted. On the 27thof April, 1836, Andrews filed his answer, by which he alleged that the pleas filed by Fenter in . the action , at law were Voluntarily withdrawn by him on the trial; that j oseph Henderson never was his partner, but his , clerk, and as such, his agent; that no such agreement was ever made, as , ,stated by Fenter in hiS bill, nor any agreement to receive oil-stones in payment, is he had been informed by Henderson, and believed to be true; bUt that he .bad been informed by Henderson', and believed it to be true, that the agreement was that
• 188.. CASES IN THE ;SUPREME , COURT• L ig e TitE the oil-stones should be shipped and carried to different points for sale, Jul y, 1838. on the account and ,at the risk of Fenter ; that Fenter was to bear the ANDREWs expenSe, and 'that the nett proceeds were to be applied to the payment of the debts: and that the sale of the oil-stones had not covered the expenses ineurred . on them, and that he had never received one cent from the sale of them. , The answer Set up- as a defence, that Fenter had a clear and adequate remedy in' the premises at law, of which he endeavored, and mas bound, to avail himself there, and that he was entitled 'to no relief in chancery. At May • Term, 1837; Andrews moved to dissolve the•injunction on the face of the bill and answer, Which motion was overruled. The following evidence waS filed in the case: Jared McCarty, for the appellee, deposed, that in the Spring of , 1827 he was living with Jarnes Lockhart, Who was employed by Fenter to haul to Little Rock the oil-stones; that he went . in with every load, and attended to them; that Henderson , was:ur)ging him 'to hasten with them, and that when he hauled in the , two last loads he told him that if he had been two hours later he would not halt received theM; that the oiktones were taken froin his Wagon on board the steam-boat. He estirnated the, quantity delivered at over 31100,poundS. Philip S. Physic deposed, that after Fenter. delivered , the oil4tones to Andrews, Andrews told him that he had bought them of Fenter at 'either 7i- or 71 cents a • pound. Sarnuel Williams deposed, that he heard Fenter ask Andrews if he Would take oil-Stones for the artiount he owed him; that.g ndrews agreed to do so if . he would have them at Little Rock by a certain time,,when a steani-boat'would be there: that Fenter then employed the depo— nent to polish the Oil-stones, which he did, and they were hauled in, in due Aime, , by James Lockhart's wagons; that While engaged in polishing them, hp again saw Andrews and asked him to buy some oil-stones of him,,Which Andrews deelined, saying that he , had bought a• quantity of Fenter, and did not wish• to purchase any more until he saw what he ' could 'do with them, that he did not knew whether he would realise any profit from them. He stated the quantity of oil-, stones sent to Little Rock-„ at Ca -rem 3500 and 4000 pounds, at 71 cents a pound, , He further .depc:,iC ,,:tat Feng er had given his note to Am-: rfrews, at 10 per cent interest, and the agreement was that if the Stones got there by the tithe 'spoken , of, Andrews would receive thein
OF THE STATE OF ARKANSAS. 189 in payment of the note; and further that the oil-stones were started myna for Little Rock sOon- eneugh to have 'ROCK , , reached there in time—whether Jul y, l838,. they did so, he did not know. F A E N D eim s A letter of Henderson was also filed, , by which he agreed to take as NTiR. many oil-stones as he would take goods for, until Andrews arrived, which would be in December, 1826. The deposition of Henderson stated that in the spring of 1827 • he agreed with Fenter to ship oil-stones for him to different points, to be sold at Fenter's expense and on his account and risk, the nett profits to be applied to the payment of Fenter'§ debt to Andrews, due on certain nntes or obligations; that the oil-stones were shipped, but enough of them have never been sold to pay expenses; and that there never was any agreement to receive oil-stones as an absolute payment on said notes or. obligations. The court below thereupon decreed that the injunction should be • made perpetual for the sum of $268 88 cents, part of the debt, and $203 . 62 cents, part of the damages recovered at law ;. til a the complainant should recover bi g costs in his suit in chancery, and the defendant below should have the benefit of 'his judgment for 24i cents, residue of the debt, md $11 85 cents, residue of the damages, and costs of his suit at law. From this decree Andrews appealed. TRAPNALL, COCKE, and WATKINS, for the appeuant7 1. The groundwork of chancery jurisdiction running through al1 the books is, that the party haat no adequate remedy at law. The pleas of the . statute of limitations, and payment, are both pecnliarly defences-at laW, and afford as adequate relief at law as they could do in chancerY. 4 Inst. 36; 3 Inst. - 33; Cro. Jac. 335; Cro. Car. 595; 1 Nod. 60. 2. The doetrine in the old books is, that "a cause shall not be examined in chancery, or other court of equity, after judgment at the common law." But the severity of this general rule hus been modified by later decisions. The general principle running through those decisions, is, that where any equitable matter of defence arisei subse– quent to a trial at law, of which the party could not have availed himself on the trial, or any newly discovered evidence which the party had not the means of discovering before the trial at law, eqUity will interfere and reliesie against the judgMent: A party who has mistaken or misshapen his defence at law, cannot require relief in equity. 1 Vernon, 71; 3
.CAsrs IN THE SUPREME . COURT LRITpTaKL,E. iltklins, 223; Chan. Rep., 47; Penny Vs. Martin, 4 Johnson Chan. July. 1836 Rep., 556; ,Foster vs. Wood, 6 John. Chan. Rep, 87; 'Floyd vs. Jayne, Aithiume 6 John. Chan.' Rep.; 479; 1 Bibb, 173, 252, 351;: 2 Bibb,' 5, 192; 3 ea. VENTER: Monroe, 299; Evans vs. Solly, 9 Price, 525. Where there iS a remedy at common law, none can 'be 'given in chancery. Where a party in,an aCtion at law , W notice of a defence in time to avail himself of it, but neglected to do so, he will‘not be allowed to litigate the matter inchancery, but is forever excluded by the judgment. Cutting vs. Shackford, Cary Rep. 15, 201; Le Guer Vs. Governeur et al., 1 Johns. Cas.,436; 5 Pel. Con. Rep. Where a 'defendant neglects to set up matters of defence at law, either before arbitrators or a jury, he cannot afterwards make such matters the basis of a suit in equity, unless there was some accident or fraud of which the party could not avail himself at law. The court will not relieve a party on the ground of his having proceeded tu trial at law without sufficient evidence, when it Was in his powp t to have obtained that evidence by bill of discovery. MeVicar vs. -Wolcott, 4 John.' Rep., 510; 2 J J Marshall, p. 356; same po 573; 2 Bibb, 326, Veech vs. Pennybacicers 1 Marshall, 155. Quere,Whether a person:who has neglected at hw to plead his dis-thane under an insolvent act, can avail hiniself of it in equity.— Reily vs. Lamar, 2 Cranch, 344; Mason arguendo, 353. What jmisdiction ' court 9f equity may exercise after a trial at law. If the defence be ptii .efy legal, it should be made on the trial at law. Barrett vs. Floyd, 3' Call. 5,3,1; Maupin vs. Whiting, 1 Call. Rep. 3. Toe reasons wh y a rna, peculiarly c ocr nizable in a court of law, and there adjudicaf.eQ u p on, shall not be afterwards examinable in chancery, are, 1st. That the while jurisdiction of co-arts of chanceiy and their mode of procet:"lings are 3a derogation and subversive of the common law, which is the bizihrig*e.::o_ every Saxon, and were originally exercised omy suiA-a'nce. 2. A matter in controversy should not ■ be dra • -.vri out of a c ouit .of law into a c_oe of chcmcery, DtCuuse it will be subjectyl, act aliud exanzen, to a tr: .al by wi:r.:sses, and tbo f:3;25ri°.'''': of a single Judge, instead of the trial by jury, wileie the It: by depositions, and not oral ; in the face el the court ari tine parties, 3. Where a rna.: _:er beta once ‘'t_.een adjud-icated upon and 'decided
OF THE STATE OF ARKANSAS. 191 in a court of law, that matter should not he renewed between the saMe LITTLE IROC11;,3.8. parties, but one party should be quiet and make no more clamor, else there would be no end to litigation, and every defendant would neg- _ A N DRE.VVEL lect or refuse to obey process of law, and then set up his own laches Fal■ITElt. as ground of relief in chancery, to the utter sUbversion of the courts of common law. 4. In a court of law after judgment, if . there be any newly discovered matter of defence, or any manifest error, either of fact or of law, ample redress may be had by audita querela, motion in arrest, or new trial, or '6y appeal, or writ of error., The Circuit Court in chancery hath no authority to erect itself into an appellate court, to revise the proceedings or correct the errors of a Circuit Court at coMmon law. 4 The appellee in his bill does not alleze even, any equitable ground for the interference of chancery—no fraud—no accident—no newly discovered matter of defence or matter of -evidence—nothing but his own laches in not taking the proper steps to procure his testimony, before the third appplication for continuance. 5. The appellant insists, independent of every other consideration, thatthe weight of evidence is in his favor, from the bill, and answer, and the depositions, and that the decree is against equity and good conscience. 6. But the decree should be reversed and set aside, because it , is vague, inconclusive, and uncertain. In one part of the decree, the Chancellor says, that the plea of the statute of limitations is purely a legal defence, and that the appellee acted clearly in his own wrong when he withdrew that plea on the trial at law as to the promissory note, amounting tO $20 37i, and interest from the 13th December, 1825; but instead of allowing the appellant to have the benefit of his judgment at law for the amount of the promissory note, with interest "b y Way of damages, the dedree goes on to say that'the injunction shall be perpetual as to the sum of $268 88, part of the debt, and $203 62, part of the damages, and that the appellant have the benefit of his judgment at law for 24i cents, residue of his debt, and $11 85, residue of his damageS. So that it is uncertain; and the appellant is utterly ignorant Of the amount which the decree entitles him to sue out execution for upon his judgment at law. Rmoo, Chief Justice, having been of counsel in this case, did not sit therein.
192 CASES IN THE SUPREME COURT laTTLE The case being submitted by the appellee without argument, LAcv, ROCK, July, 1838. Judge, delivered the opinion of the, court: ANDunws The appellee, Christian Fenter, exhibited his bill of complaint, to Ws. • FENTER - be delivered of a judgment at law, obtained against him by Martin An; drews, in the Hot Spring Circuit Court. The bill charged that he executed two writings obligatory, and one promissory note, payable to the respondent; and that at the time of the 'execution of , the first writing obligatory, the complainant entered into a contract-with Joseph Henderson, (who is represented to be the partner and agent of the appellant,) for the purchase and delivery of a certain quantity of oil stones, and which were agreed by Henderson to be taken and accepted in discharge of the respondent's obligation, at the raie of seven and a fourth cents per pound. That he delivered the quantity or number . of pounds of oil stones agreed upen, in discharge of his obligation; and,that after paying off the full amount due upon the first obligation, there wa.3 a balance still remaining in fitvor of the respondent. That at the time he executed his second obligation to Martin .dndrews, he was ignorant of the fact that the oil stones had been delivered and accepted; but believed from the representation and misstatements of Henderson, that he was indebted to them for freight and charges; and consequently he agreed and did execute his second obligation. The bill further alleges, that both obligations were fully paid off, and discharged by the purchase and delivery of the oil stones, before the respondent commenced his suit at law in January, 1834, on the writings obligatory and proinissory note.' It further alleges, that the complainant put in the pica or payment to the writings obligatory, and the statute of limitations to the promissory note in bar of the action of debt. That after the case was continued at the March Term, 1834, he caused a subpcefia to issue for Samuel Williams, the only witness by whom he could prove the price of the oil-• stones agreed to be purchased, or the aniciunt or quantity delivered.' That he forwarded the summons to the Sheriff of Pulaski county,' where the witness resided, and the wrif was returned, not executed.— That at the March Term, 1835, when he moved the court by his attorney, fOr a continuance of the cas e, he was ignorant of the fact that the subpcena had not been served on the witness. That the bill further charges, that the complainant's rnotion for a continuance was overruled, and that the plaintiff had jUdgmenf against him for the h.thount of the
OF THE STATE OF ARKANSAS. 193 debt, in the declaration mentioned, and for damages and costs. The LIME ROCK, complainant prays that a writ of injunction be granted to him to stay July. 1838. and restrain the proceedings upon the judgmentat law, and that, on ANDREWS the final hearing of the cause, that the balance : due him from Martin FE&R. dlndrews, for the purchase and delivery of the oil-stones, be decreed • in his favor, and that the injunction be made perpetual. The bill ffirther alleges, that the note sued on was barred by the statute of limitations; and it contains a prayer for general relief. The injunctiOn was granted, and the proceedings on the judgment at law, were restrained and superseded by the writ issued on chancery. The answer denies all the material allegations of the bill. It admits the execution of the writings obligatory and premissory note, and that judgment was obtained upon them. It 'alleges *that the plea of pay_ ment, and the statute of limitation, were withdrawn, and that judgment was-given by 7,til (licit.' It denies that Henderson ever was a , partner with the respondent; bat states that he was a clerk in his store., and that-the contract pretended to be set up by the complainant, is. wholly unfounded; but that Henderson agreed to receive for the respondent whatever oil-stones he might think proper to.deliver and to ship them for sale, and after deducting the expenses , for freight, charges, and commission, to apply the nett proceeds in discharge of t he complainant's obligations. That on these express conditions, the oil-stones were delivered to Henderson for the respondent, at the risk and loss of the complainant. That according to the agreement, a quantity of oil-stones were delivered to different points, for the benefit of the complainant, and that the profit arising from the sales had not been sufficient to defray the expenses of the shipment and commission." The answer sets up another matter in defence:. It alleges' that the complainant had a full and adequate remedy at law, a'nd having failed to Make his defence at a Proper time; and before a competent tribnnal,' that a court of chancery has , not jurisdiction of the , case, and prays t hat the bill may be dismissed with costs. The depositions taken in the cause, do , not, • in express terths, or by, any legal or just interpretation, prove the material allegatiOnsin the bill. One of the witnesses states, that the oil-stones were . - deliiered, and that Henderson, thc agent Or the partner of Andrews, paid him for the hauling. -Two other witnesses proved.th,at, in a conversation with Martin Andrews, that he -spoke of having purchased oil-stones from thc complainant, and one of them gives the amdunt and price;
194 CASES IN THE SUPREME COURT LITTLE . but neither of the witnesses denied the nature of the contract, nor ROCK, . do July, 1833. they state in express terms, that the oil-stones Were delivered in pay-ANDREWS ment of the obligations. One, of them says he 'polished the stones, FENTER. and that in a conversation with the respondent, he understood they would be delivered in discharge of his obligations, and he was paid in the store of Andrews for his labor. A letter from Henderson was introduced, which stateS that he had concluded not to make any other contract for, more oil-stones, than the complainant was willing to take goods for, until Maj. Andrews wrote himfurther on the subject. The deposition of Henderson expressly disproves the allegations of the bill, and states that the agreement between Fenter and himself to be literally . such, as is spt forth in the respondent's answer: that the oil-stones were not received, or taken in payment of the obligations; but that a quantity of them were delivered at the risk and lot . s of the complainant: that it waS the express understanding between the parties, that Andrews was to ship the stOnes for complainant's benefit; and after deducting all that was due for freight and charges, he was to apply the nett proceeds, if any was remaining, to the payment of his debt: that the sales of the stones, he believed, has not paid the freight, charges and costs of shipaient. This is, in substance, the whole.proof the cause. On this state of the case, the Circuit Court rendered a decree that the injunction be made perpetual for the, amount of the proceeds of the sale of the oil-stones, and interest thereon, from the time of the delivery ; and that the'complainant be forever, released from so much of the judgment at law, had and obtained against him by the respondent, and that the balance remaining on the judgment unpaid and due, was decreed in favor of the respondent, and that he pay the costs of the suit. And it was further decreed, that the note executed by the complainant to the respondent, was not barred by the statute of limitations. From' this decree, the respondent prayed an appeal.— Admitting that a coUrt of chancery has jurisdiction . of the cause, (which is by no means conceded in this caso,) . the luestiOn then arises, does the bill upon its face show any equity, or are its material and important allegations sustained by the proof. The contract clarged is not established by the depositions, and if it were, it would form ;110 ground for relief in equity. The injury the party complains of is, that judgment was renderet against him, when it ought tot to have been, in the absence of a Material witness, and when the debt was . ully paid off and discharged. The subpmna was sued out for the
OF THE STATE OF ARKANSAS. 195 witness in March, 1834, and the trial was not had until March, 1835. i t T O c T K L E It does not appear that, on the motion for the continuance of the cause, July , 1838. the defendant ever filed an affidavit, or that he swore to it. The bill _ A _ NDREWS simply charges that by attorney, he moved the court to continue the FA,Ea. case, which motion was overruled. Admitting the proper affidavit was made, did the court err hi continuing the Cause ? The only excuse that is given for the absence of the witness, iS, that the subpcena was returned by the Sheriff, not served; and the defendant alleges, that he was ignorant of that fact at the trial, though it must have been returnable to the term preceding; for it issued in March, 1834, and judgment was not rendered until March, 1835. Can a judgment at law be impeached in chancery, when, by the party's ccwn' . showing, he is guilty of gross negligence or laches, and that too, in a case where his remedy wis complete and adeqUate at la*. We are not aware that equity has ever interfered to set aside a judgment at law, for mere irregulari-' ty. In this case the judgment was perfectly regular, and the continuance properly refused. To authorize a party to be relieved against a judgment at law, it must appear conclusively that the judgmenew as obtained by fraud, accident or mistake,. unmixed with any negligence or fault on his part. The defendant cannot come into a court of chancery for a new trial or relief, when there is no special ground of surprise, or ignoranee of important facts suggested, or where no equitable circumstances have arisen since the trial, and where he has neglected to defend himself with dUe 'negligence in the proper place. This principle is settled in the case'of Scotland vs. Wheeler, 3 John-son's'Rep. 288. ;; Dekerner vs. DeChatilton, 4 Johnson, 92; and Baker vs. Elking, 1 Johnson's Rep. 444; Smith vs. Lowrie, 3 Johnson's Rep. 322. In the case now before the court, has tbe party shown that he was. taken by surprise? or has he suggested that he was ignorant of any important fact that has since come to his knowledge, and which he could not have discovered before, by due diligence? Or has he alleged that the judgment was obtained by fraud? It is most manifest that none of these equitable grounds are charged in the bill; and it is equally evident, from his own showing, that he was guilty of very gross negligence, in not preparing his case for trial. Upon this allegation of the bill, it is clear that the complainantlas not the' slightest claim or pretext to the interposition of a court of equity for relief. Is the contract' set up by the bill admitted by the answer, or established by the proof? ,The answer eicpressly denies it. • The proof is vague .and
196 CASES IN THE SUPREME COURT L I I r T o T n L i E c ; uncertain, and does not legally establish thc allegations of the soli, ism. The witnesses speak of a purehase of oil-stoneS made by Andrews from ANDREWS the complainant; but they neither define or illustrate the nature or vs. PENTEIL condition Of the contract, nor do they say that the purchase thus made was to go in discharge of the complainant's obligation. The letter of Henderson does not state that the oil-stones were so received or accepted. It merely says that he was unwilling to make a contract for the delivery of any more oil-stones, until he heard from Andrews, and it clearly intimates What hdd already been delivered was paid for in goods. If this testimony stood uncontradicted, it would be wholly inconclusive and unsatisfactory, arid would not authorize a decree upon the bill. The answer denies that any contract was made, or any purchase entered into, for th6 delivery of any quantity of oil-stones, in payment • of the obligations and note held upon the complainant. It admits a quantity of oil-stones were received on commission, and states, after deducting the amount due for freight, charges, and ship--rnent, that the nett proceeds arising from the sales, were to be applied to the payment of his debt, and that no profit or balance is due to the cornplainant on that account, as the sum for which they sold is riot saf- ficient to pay the amount with which they are charged. HenderSon, the witness who made the \ contract with the complainant, and who acted as the agent of the parties and factor in the birsiness, expressly disproves the whole contract charged in the complainant's bill, and establishes the agreement fully hnd completely, as set up by the an swer. ' The bill, then, containing no equity upon its face, and all its, Material allegations being denied by the answer, and expressly disproved by the testimony, should have been dismissed with costi. The court might here close their inquiries, but as there is another important question raised by the anSwer, which is directly before us, we consider it our duty to examine and decide it. The answer alleges that the pldin-tiff had a full and ample remedy at law, and having failed tO make his defence before the proper tribunal, he cannot now come into a Court of Equity. The pleas to the action of debt in this case, were payment and the statute of linuitations. It is obvious.that the defence set up is entirely legal, aad the pleas; if proved, formed a .goed bar to the action. "The concurrent jdrisdiction of equity," says Justice Story, " has its true origin in one of two sources, either the courts of law, though
OF THE STATE OF ARKANSAS. 197 they have general jurisdiction in the matter, cannot give adequate, LRITZKLE specific, and perfect relief, or under the actual circumstances of the July. 1838 case, they cannot give any relief at all." Story's Com. on Equity, 93. ANDRICWO Equity will embrace all cases of legal rights under peculiar circFuEm N E-R T . stances, where there does not exist a complete, adequate and plain remedy at law. See Jeremy on Epity Jurisprudence, '292 and 297. The ancient doctrine upon the subject was, that a cause shall not be examined in Equity, after it has been tried and determined at law. Cro. Jac. 335, Cro. Car. 595; 3 Inst. 33, 4 Inst. 36; Atkyns 323.— But the severity of the rule has been greatly relieved by very many recent decisions. In the case of Perry vs. Martin, 4 Johnson's Chan. Rep. 536 and Foster Vs. Wood, 4 Johnson's Chan. Rep. 67; Floyd vs. Jayne, 6 Johnson's Rep. 479; the doctrine is clearly laid down, and the chancellor in giving his opinion remarks-4 That he does not know of any principletriati v ill authorize equity to take jurisdiction of a case where the remedy was in the first instance full and adequate at law; because the party may have lost that remedy, founded on negligence, and not on accident, misfortune, misrepresentation or fraud." If a party becomes remediless at law by negligence, he shall not be relieved in Equity. To entitle him to relief, he must show that he has lost his remedy at law, by fraud, accident, casualty, misfortune, or misrepresentation. Fonblanque on Equity, p. 30, and the cases there cited; 2 Cran. 334; 4 Cran. 531; 1 Call, 224. Where courts of law and equity have concurrent jurisdictions, and the facts alleged are all examined at law, after the case has been decided, Equity will not interfere. To give to Equity jurisdiction in such cases,it is indispensable to show that the party having the law in his favor, was prevented by some unavailable occurrence from bringing his case fairly and fully before the court. The question has been fully examined and settled in the case of Smith vs. Mclzver, 9 Wheaton, 534. - " Admitting," says Chief Justice Marshall, " the concurrent jurisdictions of Equity and Law, in matters of fraud, we think the cause must be decided by the tribunal which first obtained possession of it, and that each court must respect the judgment and decree of the other. A question decided at law cannot be reversed in a Court of Equity without the suggestion of some equitable circumstances of which the party could not avail himself at law." In the case -now before us, does the bill charge any
198 CASES IN THE SUPREME COURT LITTLE equitable circumstances that the complainant could not have availed HOCK. P1y .838. himself of on the trial at law ? Jountsw. Does it allege surprise or the discovery of new evidence since the es. wires.. trial, which by due diligence he could not have procured before? Or does it charge either accident, mistake, misrepresentation, misfortune, or fraud? None of these things are alleged in the bill, and as the complainant's remedy wA full and adquate at law, and he failed to make it through negligence or ignorance, he cannot now be relieved in Equity. In every respect in which this case presents itself to our minds, either on its merits, or the question of jurisdiction, we are clearly of the opinion, that the decree of the court below was evidently erroneous. The judgment of the Circuit Court in entering up the decree, must, therefore, be reversed with costs; the cause remanded to be proceeded in agreeably to the opinion here delivered, with instructions that the complainant'S bill be dismissed for want of jurisdiction, with costs, and that the writ of injunction be dissolved, and that the appellant have the full benefit of his judgment at law, with six per centum damages on the amount released from the injunction.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.