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Application denied when there is a want of diligence.

out, I should not have inclined to grant it, because it was in his power to have been non-suited. For, if his counsel had been of opinion that there was evidence that they were not apprized of, and too strong for them to encounter, they might have advised him to suffer a non-suit, and then he might have come back to the court for new directions, who would have ordered another issue at law, notwithstanding the non-suit. Upon the whole, there are no grounds for a new trial, and it would be of extreme dangerous consequence to grant it, merely upon a suggestion that the party was not apprized of this evidence, and, therefore, was not prepared to give an answer."(1)

So in Standen v. Edwards (2) Devise of an estate to be sold, and the produce with the personal, for all the legitimate children of- Standen, living at the death of his wife. Standen, after cohabitation for seven years under one marriage, married again during the life of his first wife. There were children by both marriages. Upon an inquiry, directed by the Lord Chancellor, the master reported Charles Stunden, who was a son by the first marriage, to be the only legitimate child. Upon an issue directed, Charles Stunden to be plaintiff, he obtained a verdict. A motion was made for a new trial, on the ground that there was more evidence to impeach the first marriage than had [*565] been produced; but no circumstances of fraud *or sur

prise were laid. Lord Chancellor.—" I had no doubt, in my mind, that the second marriage was good, and the first bad; but, as it depended on circumstantial evidence, I thought it a proper case for the consideration of a jury. There was evidence on both sides. The non-production of any farther evidence did not proceed from the imposition or control of the court, but from the discretion or neglect of the parties themselves; and in that case I cannot decide against the common rule of the court, not to grant a new trial, unless upon circumstances of fraud or surprise. It is wonderful, that in this case, no circumstances of that kind can be alleged. I wish that could be (1) Vide supra, "Surprise," 174-178.

Application denied when there is a want of diligence.

shown, for the justice of the case calls loudly for re-examination. Here is a whole family rendered illegitimate by a mere accident. I can do nothing in it, for I cannot permit parties to keep back their evidence at the trial, in order to bring it forward alterwards, and to try it again with more advantage."(1)

The rule has been recognized and established, as the well settled practice of our own courts, by a series of decisions.

In Barker v. Elkins.(2) The defendants had commenced an action at law, and the plaintiff had suffered the cause to proceed to verdict without making a defence, and then applied to equity for an injunction to stay the proceedings at law, and have a new trial. On motion to dissolve the injunction. The Chancellor."The plaintiff should have made his defence at law, by way of payment or set off, and he might perhaps have called for a discovery in aid of his defence at law. No reason is assigned why he did not call for a discovery, or prepare and defend himself in due season. He has not stated what were the obstacles to a defence at law. A defendant cannot come here for a new trial, when no special ground of fraud or *surprise [*566] is suggested, and when he neglects, or omits due dili gence, and without due excuse, to defend himself, in his proper place. This is a fundamental doctrine in this court. The prin ciple has been so often declared, that it is useless to enlarge; and without resting on minor objections, the injunction cannot be retained on the merits of the case."(3)

So in Dodge v. Strong, (4) where the party lost his opportunity of defence by his own negligence, rule for a new trial having been granted by the Supreme Court, on conditions which the

(1) Vide 2 Ves. sen. 552, 579.

(2) 1 Johns. C. R. 465.

(3) Et vide M Vickar v. Wolcott, 4 Johns. Rep. 510; Lansing v. Eddy, 1 Johns. C. R. 49; Smith v. Lowry, 1 Johns. C. R. 320; De Lima v. Glassell, Hen. &

Munf. 369; Turpin v. Thomas, 2 Hen & Munf. 139.

(4) 2 Johns. C. R. 228.

Application denied when there is a want of diligence.

party failed to perform, within the time prescribed by the rule, the court refused its aid, it not appearing that the failure arose from the act of the opposite party, or from unavoidable necessity. The Chancellor.-"This is a motion to dissolve the injunction, staying execution at law, upon the coming in of the answer. The object of the bill was to obtain a new trial at law. The defence of the present plaintiffs, if any they have, was legal and available at law, and if this court could grant relief, it would be by requiring the present defendant to submit to a new trial. But it appears to me, after a very careful consideration of the case, as disclosed by the bill and answer, that I cannot retain the injunc tion consistently with the established doctrines of this court. The plaintiffs, by their own negligence, or that of their attorney, suffered an inquest to be taken against them, by default. They applied to the Supreme Court for relief, and relief was granted upon certain conditions, and those conditions were not fulfilled.

This court has frequently declared, that relief cannot be [*567] had here *for the purpose of a new trial at law, when the party has lost his opportunity at law, by his own negli gence. I need only to refer to the cases of Landsing v. Eddy,(1) Simpson v. Hart, (2) Smith v. Lowry, (3) and Barker v. Elkins,(4) as containing not only all, the English authorities which I have met with on the subject, but a full exposition of the principles on which the interference of this court is, in such cases, denied. I am not at liberty to depart from a rule so fully established."

And in Foster v. Wood, (5) it was held, the court will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant, in the judgment, was ignorant of the fact in question pending the suit, or it could not be received as a defence at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the

(1) 1 Johns. C. R. 49.

(2) Ibid. 91.

(3) Ibid. 320.

(4) Ibid. 465.

Application denied when there is a want of diligence.

act of the opposite party, from availing himself of the defence. As, where a defendant paid part of a judgment recovered against him, and the plaintiff in that judgment afterwards brought an action of debt on the judgment, in which F. became special bail, and recovered a second judgment, for the whole of the original debt and costs, against the defendant, who neglected to prove the payment, which was omitted to be credited by the plaintiff, who afterwards sued F., the special bail, and recovered judgment against him for the whole debt, damages and costs, by default, F. being ignorant of the payment made by the principal on the first judgment.

So, also, in Floyd v. Jane.(1) Although a strong equity was presented, the bill was dismissed, on the ground of negligence. The Chancellor.-"This is a bill for a new trial, after a verdict. The ground of the application is, *the dis- [*568] covery, since the verdict, of testimony to prove the payment of the note, and the want of power in that court to grant a new trial, otherwise than for irregularity, as none of the judges are of the degree of counsellor in the Supreme Court. Anciently, courts of equity exercised a familiar jurisdiction over trials at law, and compelled the successful party to submit to a new trial, or to be perpetually enjoined from proceeding on his verdict. This relief was not granted, unless the application was founded upon some clear case of fraud or injustice, or upon newly discovered evidence, which could not possibly have been made use of upon the first trial. But this practice has long since gone out of use, and such a jurisdiction is rarely exercised in modern times, because courts of law are now in the constant and liberal exercise of the power of granting new trials. The present case, however, seems to form an exception to the modern rule, and to require of this court the exercise of that ancient jurisdiction, because here is a case in which the court of law has no power to award a new trial upon the merits. If the particular circumstances stated in the pleadings and proofs, rendered the exercise of the power proper, by a court of law pos(1) Ibid. 479.

Application denied when there is a want of diligence.

sessing jurisdiction for that purpose, I should feel myself called upon to grant relief to the plaintiff, unless it should appear that the sum in controversy was too small to bear the expense of the remedy. But, on examining the testimony taken in chief, I think it is pretty evident that the plaintiff did not use the requisite diligence, or the means in his power, to establish on the trial at law the payment which he now sets up as his defence; and for that reason he is not entitled to the interposition of the court, on the ground of the newly discovered testimony."(1)

[*569]

*And the same consequences will follow, if the party apply to a court of law in the first instance, having competent jurisdiction, and the application be denied; it is considered res judicata in equity, if the grounds of the application in the latter court be the same. As in Simpson v. Hurt.(2) The action had been brought by the now defendant, in the Mayor's Court, where the now plaintiff had offered a judgment against the defendant and his father, by way of off-set against the judgment of the defendant, which had been overruled. The plaintiff filed his bill for relief in this court, and obtained an injunction, which the present motion was intended to dissolve. The plaintiff put no additional grounds before the court. After recapitulating the facts, the Chancellor proceeds :-" We have then here the same question, resting on the same principles ast the one considered and decided in the Mayor's Court; and it is certain that the Mayor's Court had competent jurisdiction over it. This case is one of the strongest, against the interference of this court, that could well be presented, for the party is not seeking relief against any laches, or mistake, or fraud; but he is seeking for a review of his case, after failing in a voluntary application to the equitable powers of the Mayor's Court, on the very point now submitted, and after that application had been received, heard and denied. The principle that a matter once considered and decided by a competent power, shall not be reviewed by any other tribunal having concurrent power, except in the regu

(1) Et vide Noland v. Cromwell, 4 Munf. 155, and cases there cited.

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