Drew v. Hayne , 8 Ala. 438 ( 1845 )

GOLDTHWAITE, J.

The principle which induced the Chancellor to dismiss the bill, is one entirely familiar in this Court, haviilg been frequently acted on. A party cannot be heard to insist, in a Court of Equity, upon a defence which could properly have been interposed in the Court of Law, unless he has been prevented from using it by fraud, or accident, or the act of the opposite party, unmixed with fault or negligence on his own part. [French v. Garner, 7 Porter, 549; Cullum v. Casey, 1 Ala. Rep. N. S. 357; Lee v. Col. Bank, 2 Ib. 21.]

"Here it appears that the party was perfectly advised of his defence, but failed in making it appear, because the witness supposed to be conversant with the facts, failed to establish them. This sometimes happens, but it is not a reason for equitable interposition, as the party might either have filed his bill for discovery against the plaintiff at law, as a non-resident defendant, and thus have obtained relief, even if he omitted to answer. [Arnold v. Sheppard, 6 Ala. Rep. 299.] Or have filed his interrogatories under the statute, which being served on the attorney of record, would have produced the required answers, or a non-suit. [Jackson v. Hughes, 6 Ala. Rep. 257.] The failure then of the complainant in the suit at law, must be attributed to his own laches, in not calling upon the defendant at an earlier day for the discovery which he now seeks — or if otherwise, he is precluded from coming into equity at so late a period.

Decree affirmed.