M'Grew v. Tombeckbee Bank , 5 Port. 547 ( 1837 )

COLLIER, C. J.

In May eighteen hundred and twenty-eight, the plain tiff exhibited his bill, on the equity side of the Circuit Court of Washington. The bill states, that about the twenty-seventh September, eighteen hundred and twenty, Thomas ¿I. Douglass, as principal, and James S. Crawford, J. G. Lyon, and the plaintiff, as his securities, made'' 'their promissory note for the sum of five hundred dollars, payable ninety days after date, to the defendant — which note defendant discounted. That the plaintiff resided at a considerable distance from the Tombeckbee Bank ; and, confiding in the responsibility of his principal to discharge his note; gave himself no concern about it, — nor had notice,that he was looked to for payment, until sometime in the year eighteen hundred and twenty-five, a suit was brought by the defendant against him,James G. Lyon, and the representatives of James S. Crawford — Douglass having previously died — • his representatives were not sued.

The plaintiff knew of no defence, at the time suit was brought; but, supposing the amount of the note was really due to the defendant, (though his principal had been unreasonably indulged, without his knowledge,) quietly submitted to a judgment against him.

At the term of the Court, when judgment was rendered against the plaintiff, Lyon and the representatives of Crawford caused the suit to be contri nued as to them, and have since defended it successfully.

The bill then states circumstances, tending to show the note to have been paid off, by Douglass, soon after it was discounted by the bank, without having used the proceeds — and avers the plaintiff’s belief, that it was fully discharged, by his principal. That these circumstances were unknown to the plaintiff, until long after the judgment was obtained against him, — so that he could not have defended at law. — That he had hoped, the disclosure made upon the trial of the case, against Lyon and Crawford’s representatives, would have induced an abandonment of the judgment against him; but in this he has been disappointed.

The bill then prays an injunction, which was awarded.

At the Spring term of the Circuit Court in eighteen hundred and thirty, the injunction was dissolved, the bill dismissed, and execution directed against the plaintiff’s security in the bond, for an injunction.

The first question raised is this, — has Equity jurisdiction of the case disclosed in the bill'l

It has been repeatedly determined here, that a defendant may avail himself of a want of Equity in a bill, though he has submitted to answer fully, without pointing out any objection to the jurisdiction of the Court.—See Herbert & Kyle vs Hobbs & Fennell, 3 Stew. R. 9; Moore vs Dial, ib. 155.

Where a party has a defence which might have been made at law, Equity will not relieve, unless he was prevented from making it available by circumstances not attributable to his neglect or inattention.—1 Caro. Law Rep. 534; 3 Dessaus. 323; 5 Cook’s R. 175 ; Hard. R. 173; 1 Bibb R. 173.

The plaintiff’s defence was clearly legal; yet no effort was made by him, to avail himself of it, at law. When sued, instead of resorting to the officers of the Bank for information, or advising with his co-sureties, and uniting with them in a defence, he allowed a judgment to be rendered against him. We take the allegations of his bill to be true, and think they establish great neglect and inattention to his interest.

The facts disclosed would not bring the plaintiff within any established rule, which governs Courts of law, on applications for new trials, and if they would not avail there, surely they cannot be held sufficient in equity. No excuse is stated why the plaintiff did not endeavor to be informed of his rights pending the suit at law, other than the confidence he had in the honesty of the demand made by the defendant. It may be his misfortune, that he was too confiding, — it will not however authorise a Court of Chancery, to entertain a defence purelylegal. ( Williams v Baldwin—18 Johns. 489.)

If the plaintiff had distrusted the justness of the cause of action, and believed the note was paid off, he might before judgment, have gone into equity, and elicited a disclosure upon oath, from the officers of the Bank. But a bill for a discovery, where the facts are supposed to be peculiarly within the knowledge of the opposite party, cannot be entertained after judgment, unless an excuse is shewn why it was not earlier exhibited. (14 Johns. R. 63. 1 Johns. C.R. 91.)

Again: the plaintiff's bill, is in the nature of a bill for a new trial in a Court of law, and in that view, cannot perhaps be entertained. (Anderson vs Roberts, 18. Johns. R. 515. Harrison v Harrison.— 1 Littell’s R. 140.)

It is objected to the decree, that it directs an execution against the surety in the injunction bond. Such direction can be considered as nothing more than an act of supererogation, for the statute of eighteen hundred and twenty-six, (Aik. Dig. 1 ed. 291,) enacts, that such bond, on the dissolution of an injunction, shall have the force and effect of a judgment in itself.

This view being decisive of the case, we are re* Jieved from considering the other points made in the argument.

The decree is affirmed, with costs.

GOLPTHWAITE J. not sitting.