Hill v. Harris , 42 Ga. 412 ( 1871 )

McCay, J.

We do not doubt but that, according to the statement of facts contained in this record, the plaintiff, in this common law judgment, has not a just right to so much of the same as is in excess of the value of the Confederate money advanced by him. But we are not clear that the complainant is'en titled to the benefit of the acknowledged fraud practiced 'by Harris and Dennis upon the estate of Mitchell. Harris has received, in the credit on his note, the advantage of the payment, as though in gold. If he, still holding to his credit, gets, now, off from Harris by paying only the value of Confederate money, does he not claim the benefit of the fraud, and by adopting it become liable to the Mitchell estate for the money? Besides, if the fraud was really practiced, has not the Mitchell estate a right of action against Harris for the damages? To make a dear case, even under the facts, the Mitchells ought to be parties to this bill, and a proffer be made to put them right. If Mr. Hill does this, his equity against Harris would be clear, unless he has lost it by his negligence.

A judgment at law ought to be conclusive on the matter in dispute. Such is not only the right of the successful party, but it is to the public interest that litigation shall end. The time of the country has already been occupied by the parties, and it is due to it that they shall not make another draft upon it, if they have negligently used the opportunity previously given them. It is rather extraordinary that Mr. Hill permitted this judgment to go against him, in ignorance of the truth of the case. In the first place, the story, it is said Harris told of his buying an interest in the note, was extraordinary; such a thing is very unusual, since the buyer has no showing, the note remaining in the hands of the holder. Again, it was Hill’s duty, and always in his power to see the note. Indeed, it is apparent that long before this judgment was obtained, he had seen a copy of the note, and had the means of knowing that, in fact, instead of a sale, the note was credited with the money paid by Harris. But we do not care to go into a discussion of the whole merits of this case. We-think the bill does not show that the failure of Hill to set up his defense was unmixed with negligence on his part. The very claim of Harris was suspicious ; the fact that he did not have the note, or any showing from the Mitchells, made it still more suspicious, and the fact, which Hill is charged with knowing, that the Mitchell note was credited, shows, in our judgment, a degree of carelessness, to say the least of it, in the conduct of Hill that gives him but little claim for an interference with the regular course of law.

We are of opinion, too, that the bill is defective, in not stating by whom this proof can be made, and producing, to the satisfaction of the Court, evidence that the facts are as stated. Even at law this is required on a motion for new trial, and it will hardly be thought that equity would interfere, by injunction, in a weaker case than is required for a new trial, at law. The amount admitted to be due ought also be offered to be brought into Court. Perhaps if this were done, Harris would be satisfied and the country be saved the expense and trouble of a new hearing. Altogether, we affirm the judgment of the Court in refusing the injunction.

Judgment affirmed.