By the Court,
Dixon, O. J.
These three cases depend upon substantially the same state of facts, and may therefore be disposed of by one opinion. The views which we have taken, render it unnecessary for us to discuss or determine, whether or not courts of equity have concurrent jurisdiction with courts of law in granting new trials, in actions pending in courts of law. Admitting that they have the power to do so, and that they will exercise it in all cases where the courts of law, in which the actions were pending, would, if the applications had been to them; and admitting, also, that the bills here' filed are framed for the purpose of obtaining new trials merely, on account of intervening circumstances, which operated to prevent the plaintiffs from making their defenses, and that they are not designed to obtain permanent and final relief upon facts and circumstances connected with the original controversy, still we are of opinion that the judgment of the circuit court must be affirmed.
The new trials are asked on the ground of fraud. The fraud is alleged to have consisted in the dishonest and treacherous practices of an agent of the defendants, by which the plaintiffs and their attorneys were deceived and prevented from appearing at the first trials, and making their defenses. The bills also allege that the plaintiffs have good and valid defenses to the original actions, which, if they had not been thus deceived and prevented, they could and would have established. On the trials in the court below, the deceitful practices were sufficiently made out, but no legal evidence was offered, proving, or tending satisfactorily to prove, that the plaintiffs had defenses to the whole or any part of the causes of action set forth in the original suits-.
The only testimony upon that branch of the cases, was the statements of the two attorneys for the plaintiffs (the defendants in the original suits), neither of whom testified to any knowledge whatever of the facts. One said, “we considered that we had a good defense on the merits;” the [89]*89other, “we believed there was a good defense to the entire cause of action, and we set up by plea and notice, what we believed to be a good and substantial defense on the merits, and what we believed could be .sustained by the proofs.” Tested by the rales which ordinarily govern courts of law and equity in the admissibility and weight of evidence, these statements are entirely incompetent to establish the existence of such defenses. They are hardly sufficient to raise the most shadowy presumption that they existed, or that the judgments, proceedings upon which the plaintiffs seek to restrain, are not in themselves perfectly fair and equitable. It was urged, though not very strenuously, by the appellants’ counsel, that in this respect, cases like the present are to be excepted from the general rule. But we know of no warrant or authority for this; nor can we discover any substantial reason why it should be so. We were asked to establish this distinction, in analogy to what was said to be thg practice in courts of law, upon applications for new trial. It was said that in those courts,-where the proceeding is by motion founded upon ex parte affidavits, statements upon information and belief are sufficient, and, therefore, they should be so held in equity. But here, again, we are at fault We do not so understand the rule at law. With some rare exceptions, the reasons for which must be clearly shown, we understand the practice there to require the affidavits to be made by witnesses, who can testify to a knowledge of the facts concerning which they speak. In the present case, the witnesses do not even depose that they have any information, credible or otherwise, concerning the facts set up by way of defense. It was likewise said that in a court of law judgments like those against which' the plaintiffs seek relief, would be set aside without affidavit of merit. No authority was cited, and we know of no case where a judgment regularly obtained will be set aside, without merits being shown. It was furthermore said that the rule of evidence in equity should be relaxed, because the obtaining of a new trial at law is an easy matter, for the reason that the proofs are ex parte, the witnesses not subject to cross-examination, and counter affidavits touching the merits of the controversy [90]*90caimot rec0i'v'e^ K the meaning of this is, and we can discover no other, that courts of law, by reason of their mode of proceeding in such matters, are more easily deceived and imposed upon by perjury and falsehood than courts of equity, it furnishes the strongest reason why the latter should the more stringently exercise their powers to ascertain the truth. We see no reason for changing the rules of evidence in cases of this, nature, and the plaintiffs, having elected or been compelled to seek redress in a court of equity, must be held to a compliance with the law and practice of that court.
The cases, therefore, turn upon the question, whether it was, or was not, necessary for the plaintiffs to give evidence, establishing, or tending to establish, that they had good defenses, which they had set up by way of plea or notice to the original actions. Upon this question, we are clearly of opinion, that it was necessary for them to do so, for two reasons : first, because, without such proof, the charge of fraud was not made out; and, second, because a court of equity will not disturb or restrain proceedings upon a judgment at law, unless such judgment be unjust and inequitable in itself.
Upon the first, we say that no deceptive, cunning, or treacherous art or practice, is a fraud, in its legal or equitable sense, unless it results in loss or damage to another. It may be morally dishonest, wrong and indefensible; but it is not actionable in the courts. To be so, it must be injurious. Legal or equitable fraud is well defined by Judge Story (1 Story’s Eq. Jur., § 187). He says: “Eraud, indeed, in the sense of a court of equity, properly includes all acts, omissions and concealments, which involve a breach of legal ox equitable duty, trust or confidence, justly reposed, and are injurious to another, or hy which an undue or unconsdentious advantage is taJcen of another.” The presumption of law is in favor of the justice of every judgment of a court of competent jurisdiction. There was but one way for the plaintiffs to have shown that the deceitful practices complained of were injurious, or that thereby undue or unconsdentious advantages were obtained over them, which was by show[91]*91ing that they had defenses, or in other words, that the judg-merits were, in whole or in part, unfounded. This they not do, and therefore the fraud is not shown. The hills al-1 . lege that by the deceptions practiced, they were cheated out of their defenses. Can the court determine that this was so, until they establish that they had them ? Manifestly it cannot.
Upon the second reason we say, that all courts and writers agree, that equity interferes ■ to stay proceedings at law, only to prevent injustice by the unfair use of the process of the courts in which proceedings are pending. The fundamental and governing principle is, that it is against conscience to permit the party enjoined to proceed. In case of a judgment, it must be shown to be against conscience to allow- it to be executed; otherwise the powers of the court will not be called into exercise.
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By the Court,
Dixon, O. J.
These three cases depend upon substantially the same state of facts, and may therefore be disposed of by one opinion. The views which we have taken, render it unnecessary for us to discuss or determine, whether or not courts of equity have concurrent jurisdiction with courts of law in granting new trials, in actions pending in courts of law. Admitting that they have the power to do so, and that they will exercise it in all cases where the courts of law, in which the actions were pending, would, if the applications had been to them; and admitting, also, that the bills here' filed are framed for the purpose of obtaining new trials merely, on account of intervening circumstances, which operated to prevent the plaintiffs from making their defenses, and that they are not designed to obtain permanent and final relief upon facts and circumstances connected with the original controversy, still we are of opinion that the judgment of the circuit court must be affirmed.
The new trials are asked on the ground of fraud. The fraud is alleged to have consisted in the dishonest and treacherous practices of an agent of the defendants, by which the plaintiffs and their attorneys were deceived and prevented from appearing at the first trials, and making their defenses. The bills also allege that the plaintiffs have good and valid defenses to the original actions, which, if they had not been thus deceived and prevented, they could and would have established. On the trials in the court below, the deceitful practices were sufficiently made out, but no legal evidence was offered, proving, or tending satisfactorily to prove, that the plaintiffs had defenses to the whole or any part of the causes of action set forth in the original suits-.
The only testimony upon that branch of the cases, was the statements of the two attorneys for the plaintiffs (the defendants in the original suits), neither of whom testified to any knowledge whatever of the facts. One said, “we considered that we had a good defense on the merits;” the [89]*89other, “we believed there was a good defense to the entire cause of action, and we set up by plea and notice, what we believed to be a good and substantial defense on the merits, and what we believed could be .sustained by the proofs.” Tested by the rales which ordinarily govern courts of law and equity in the admissibility and weight of evidence, these statements are entirely incompetent to establish the existence of such defenses. They are hardly sufficient to raise the most shadowy presumption that they existed, or that the judgments, proceedings upon which the plaintiffs seek to restrain, are not in themselves perfectly fair and equitable. It was urged, though not very strenuously, by the appellants’ counsel, that in this respect, cases like the present are to be excepted from the general rule. But we know of no warrant or authority for this; nor can we discover any substantial reason why it should be so. We were asked to establish this distinction, in analogy to what was said to be thg practice in courts of law, upon applications for new trial. It was said that in those courts,-where the proceeding is by motion founded upon ex parte affidavits, statements upon information and belief are sufficient, and, therefore, they should be so held in equity. But here, again, we are at fault We do not so understand the rule at law. With some rare exceptions, the reasons for which must be clearly shown, we understand the practice there to require the affidavits to be made by witnesses, who can testify to a knowledge of the facts concerning which they speak. In the present case, the witnesses do not even depose that they have any information, credible or otherwise, concerning the facts set up by way of defense. It was likewise said that in a court of law judgments like those against which' the plaintiffs seek relief, would be set aside without affidavit of merit. No authority was cited, and we know of no case where a judgment regularly obtained will be set aside, without merits being shown. It was furthermore said that the rule of evidence in equity should be relaxed, because the obtaining of a new trial at law is an easy matter, for the reason that the proofs are ex parte, the witnesses not subject to cross-examination, and counter affidavits touching the merits of the controversy [90]*90caimot rec0i'v'e^ K the meaning of this is, and we can discover no other, that courts of law, by reason of their mode of proceeding in such matters, are more easily deceived and imposed upon by perjury and falsehood than courts of equity, it furnishes the strongest reason why the latter should the more stringently exercise their powers to ascertain the truth. We see no reason for changing the rules of evidence in cases of this, nature, and the plaintiffs, having elected or been compelled to seek redress in a court of equity, must be held to a compliance with the law and practice of that court.
The cases, therefore, turn upon the question, whether it was, or was not, necessary for the plaintiffs to give evidence, establishing, or tending to establish, that they had good defenses, which they had set up by way of plea or notice to the original actions. Upon this question, we are clearly of opinion, that it was necessary for them to do so, for two reasons : first, because, without such proof, the charge of fraud was not made out; and, second, because a court of equity will not disturb or restrain proceedings upon a judgment at law, unless such judgment be unjust and inequitable in itself.
Upon the first, we say that no deceptive, cunning, or treacherous art or practice, is a fraud, in its legal or equitable sense, unless it results in loss or damage to another. It may be morally dishonest, wrong and indefensible; but it is not actionable in the courts. To be so, it must be injurious. Legal or equitable fraud is well defined by Judge Story (1 Story’s Eq. Jur., § 187). He says: “Eraud, indeed, in the sense of a court of equity, properly includes all acts, omissions and concealments, which involve a breach of legal ox equitable duty, trust or confidence, justly reposed, and are injurious to another, or hy which an undue or unconsdentious advantage is taJcen of another.” The presumption of law is in favor of the justice of every judgment of a court of competent jurisdiction. There was but one way for the plaintiffs to have shown that the deceitful practices complained of were injurious, or that thereby undue or unconsdentious advantages were obtained over them, which was by show[91]*91ing that they had defenses, or in other words, that the judg-merits were, in whole or in part, unfounded. This they not do, and therefore the fraud is not shown. The hills al-1 . lege that by the deceptions practiced, they were cheated out of their defenses. Can the court determine that this was so, until they establish that they had them ? Manifestly it cannot.
Upon the second reason we say, that all courts and writers agree, that equity interferes ■ to stay proceedings at law, only to prevent injustice by the unfair use of the process of the courts in which proceedings are pending. The fundamental and governing principle is, that it is against conscience to permit the party enjoined to proceed. In case of a judgment, it must be shown to be against conscience to allow- it to be executed; otherwise the powers of the court will not be called into exercise. In addition to this, the injured party must show, either that he could not have availed himself of the facts which make it unjust, in the court of law, or that he was prevented from so doing by fraud, accident or mistake, without negligence on the part of himself or his agents (2 Story’s Eq. Jur., § 887, and cases there cited). Courts of equity will not interfere to grant a new trial, where no substantial right has been lost, and no unfair advantage gained, simply because, by some trick or artifice, a judgment, which is just and equitable in itself, has been obtained in advance of the time when it would otherwise have been rendered. In this respect they follow the practice of courts of law, with whom it is said to be a rule of universal application and controlling efficacy, that where substantial justice has been done, no new trial will be granted; and that their discretion consists in deciding this fundamental question (2 Graham and Waterman on New Trials, 47). It . must appear that the judgment is either wholly or partially unfounded, or that the damages were excessive. They do not stay proceedings at law, merely on account of any irregularity or defect of jurisdiction in the' court where the action is pending, or when no process has been served on the defendant (2 Story Eq. Jur., § 898; Sear vs. Woodward, 8 Ala., 500, 767.
[92]*92Jt is impossible to perceive bow tbe plaintiffs, in these are in a worse position than they would have been, if no process in the original suits had ever been served upon them. In the case of Chambers vs. Hoadley, 4 Bibb, 284, a new trial at law was decreed, on account of fraud in procuring the officer to change Ms return of non esi inventus, and contrary to the truth, to return the process executed, it likewise appearing that the judgment was unjust. In the case of Stokes vs Knari*, decided at the present term, this court determined that it would not grant an injunction to restrain proceedings upon the judgment of a justice of the peace, which, for the sake of the decision, was admitted to be void for want of jurisdiction in the justice at the time it was rendered, because it was not alleged in the complaint that such pretended judgment was inequitable and unjust. The defect of jurisdiction was alleged to have consisted in an illegal adjournment of the cause, after receiving the verdict of the jury, and before pronouncing judgment, as required by statute, whereby jurisdiction was lost. The record being regular on its face, and the time to appeal having expired, the defendant sought relief in equity, which, for the reasons above stated, was denied. The means of taking advantage of the defect at law having been lost by lapse of time, the judgment became as good for all purposes of enforcing payment of the honest debt, as a valid one would have been. It was a kind of “illegal justice,” which equity would not disturb.
As to the extent to wMch the proof that injustice has been done, ought to go, we are of opinion that in proceedings in equity, for a new trial merely, the same rule should prevail as at law. The defense need not be made out clearly and beyond any doubt; but enough should be shown to make it reasonably doubtful in the mind of the court, whether the merits have been fully and fairly tested and determined; and if it is probable from the testimony, that the party applying might succeed, or if he produces such evidence, as convinces the court that he should have an opportunity of submitting Ms case to a jury, the application should be [93]*93granted. Graham & Waterman, supra, and authorities there cited; Cummins vs. Kennedy, 4 J. J. Marsh., 642.
The -judgments of the circuit court are affirmed, with ° ° 7 costs.