Taliaferro's Adm'r v. Branch Bank , 23 Ala. 755 ( 1853 )

LIGON, J.

A long and unbroken chain of decisions in this court hold, that when a defendant at law, after judgment, seeks the aid of a court of chancery, in matters which would have formed a good defence at law, he must show by his bill that his failure to discover and avail himself of his defence at law is not attributable to any negligence or want of diligence on his part, but to fraud, accident, or the act of the opposite party.—McGrew v. Tombeckbee Bank, 5 Por. 547; French v. Garner, 7 ib. 549; Lee & Norton v. Insurance Bank at Columbus, 2 Ala. 20; Stinnett & Townsend v. Br. Bk. at Mobile, 9 ib. 120; Foster v. The State Bank, 17 ib. 672; Powell v. Stewart, ib. 719; Perrine v. Carlisle, 19 ib. 686.

In the case of McGrew v. Tombeckbee Bank, the defence relied on by the surety was, that the principal had paid the debt to the Bank in a few days after the note was discounted, and such was proved to be the fact; but the bill there simply alleged, as does this bill, that the complainant was ignorant of his defence until long after the trial and judgment at law, but did not show that the complainant had made any inquiry at the Bank, or of any of the other parties to the note, to ascertain his defence before the trial at law, and for this reason the court held that his bill was without equity. In eases of this kind, it is not only necessary that the party should show a good and valid defence to the action, but he must exempt himself from all blame for failing to use it at law. A good defence and ordinary diligence in ascertaining and relying upon it are both required to entitle him to a standing and to relief in a court of equity.—Crafts v. Dexter, 8 Ala. 767.

While it is clear that either of the defences set up in this bill would have been available at law, it is equally evident that complainant does not even attempt to show that he used any diligence whatever to ascertain them before the judgment was obtained in the Orphans’ Court. From his own showing, culpable negligence is attributable to him, and he offers no facts to excuse himself.

The demurrer was, therefore, properly sustained by the Chancellor.

We have, however, extended our examination of this case beyond the demurrer, and find in the answer of Boyd and the Bank, and in the testimony of Whiting, facts which clearly establish that this bill was drawn under an ignorance or mistake of the true state of the case between the parties. Without pretending to say what would he the issue of a new bill, predicated on the state of the facts found in the answers and proof, we think enough is shown by them to have authorized the court below to have dismissed the bill without prejudice, and as the whole case was before the Chancellor, such should have been the decree. The decree must for this reason be reversed.

Let a decree be here rendered, dismissing the bill without prejudice, at the cost of the appellant.