Paulding v. Watson , 21 Ala. 279 ( 1852 )

PHELAN, J.

— The answer of the defendant Watson denies his having any personal knowledge of the true consideration of the note in question, and amounts only to such a formal denial of the allegation of the bill upon that subject, as puts the complainant to the necessity of making ordinary proof only. It does not require the proof of two witnesses, or of one witness with corroborating circumstances, to overcome the force of such a denial in an answer as this. 12 Ala. 29; 9 Ala. 560.

The only question, then, upon which the decision of the case must rest, is, the weight to be given to the testimony of the witness, Thomas Nelms, as tending to establish the identity of the note purchased by the defendant Watson of the other defendant, 'Eidson, upon which suit was brought and the judgment recovered against the complainant, Paulding, which he now seeks to enjoin, upon the ground that it was given for a gaming consideration. It is a pure question as to the weight of evidence. The Chancellor was of opinion that the testimony did not satisfactorily prove the identity of the note described by the witness, Nelms, with, the note on which, the judgment at law was recovered. In this we are compelled to differ from the court below. With the exception of the date of the note, or the time at which it was made, the identification in every other essential particular, is quite convincing to show that the note in question and the note which the witness saw, and which was given on a gaming consideration, are the same, especially, in the absence of all proof going to show that there were other transactions between Paulding and Eidson, in which a note was made from the former to the latter. What Eidson said after the note passed from his possession, is not noticed in coming to this conclusion.

The position assumed by the counsel for the defendant in error, that a bill in a case like the present should be likened to a bill of review, and bound by the same rules, and that therefore it should not bo entertained if filed after three years after the date of the judgment sought to be enjoined, cannot be supported. The right to defend against a note given on a gaming consideration, at law, or, if the party fails or neglects to do this, to assail the judgment afterwards on that ground by bill in equity, is conferred by statute, (Clay’s Dig. 350,) and it will not do to limit the extent of the latter right, by an implication depending for its force upon the supposed analogy between such a bill and a bill of review.

Ft appears from the record that a release of errors had been executed, and upon a motion to dissolve the injunction for want of such a release, the Chancellor allowed the release, which had been filed by mistake in the papers of the cause in Chancery, to be then withdrawn and filed in the Circuit Court. The decree of the Chancellor dismissing the bill was not put upon this ground at all, and could not be sustained if it wore. Even if there had been no release filed, he could go no further than to dissolve the injunction on that account.

Under the view which we take of the proof in the cause, the decree of the Chancellor dismissing the bill must be reversed, and a decree rendered here perpetuating the injunction of the judgment at law; but in consideration of the neglect of Paulding to make his defence at law, for which no excuse has been shown, and his long delay in filing his bill, he will be taxed with the costs which have been incurred in this proceeding, as well in tbis court as in tlie court below, and the clerk will enter judgment accordingly.