The ease being submitted by the appellee without argument,
Lacy, Judge,
delivered the opinion of the court:
The appellee, Christian Fenicr, exhibited his bill of complaint, to be delivered of a judgment at law, obtained against him by Martin Andrews, in the Hot Spring Circuit Court.
The bill charged that he executed two writings obligatory, and one promissory note, payable to the respondent; and that at the time of the execution of the first writing obligatory, the complainant entered into a contract with Joseph Henderson, (who is represented to be the partner and agent of the appellant.) for the purchase and delivery of a certain quantity of oil stones, and which were agreed by Henderson to be taken and accepted in discharge of the respondent’s obligation, at the rate of seven and a fourth cents per pound. That he delivered the quantity or number of pounds of oil stones agreed upon, in discharge of his obligation; and that after paying off the fall amount due upon the first obligation, there was a balance still remaining in favor of the responderle. That at the time lie executed his second obligation to Martin Andrews, be was ignorant of the fact that the oil stones had been delivered and accepted; but believed from the representation and misstatements of Henderson, that he was indebted to them for freight and charges; and consequently he agreed and did execute his second obligation. The bill further alleges, that both obligations were fully paid off, and discharged by (he purchase and delivery of the oilstones, before the respondent commenced hissdiat law in January, 1834, on the writings obligatory and promissory note. It further alleges, that the complainant put in the plea of payment to the writings obligatory, and the statute oflimitations to the promL'scry note in bar of the action of debt. That after the case was continued at the March Term, 1834, he caused a subpoena to issue for Samuel Williams, the only witness by whom he could prove the price of the oil-stones agreed to be purchased, or the amount or quantity delivered. That he forwarded the summons to the Sheriff of Pulaski county, where the witness resided, and the writ was returned, not executed.— That at the March Term, 1835, when he moved the court by his attorney, for a continuance of the cas e, he was ignorant of the fact that the subpoena had not been served on the witness. That the bill further charges, that the complainant’s motion for a continuance was overruled, and that the plaintiff had judgment against him for the amount of the debí, in the declaration mentioned, and for damages and costs. The complainant prays that a writ of injunction be granted to him io stay and restrain the proceedings upon the judgment at law, and that, on the final hearing of the cause, that the balance due him from Martin Andrczus, for the purchase and delivery of the oil-stones, be decreed in his favor, and that the injunction be made perpetual.
The bill further alleges, that the note sued on was barred by the statute of limitations; and it contains a prayer for general relief. The injunction was granted, and the proceedings on the judgment at law, were restrained and superseded by the writ issued on chancery. The answer denies all the material allegations of the bill. It admits the ' execution of the writings obligatory and promissory note, and that judgment was obtained upon them. It alleges that the plea of payment, and the statute of limitation, were withdrawn, and that judgment was given by nil dlcil. It denies that Henderson ever was a partner with the respondent; but states that he was a clerk in his store, and that the contract pretended to be set up by the complainant, is wholly unfounded; but that Henderson agreed to receive for the respondent whatever oil-stones he might think proper to deliver and to ship them for sale, and after deducting the expenses for freight, charges, and commission, to apply the nett proceeds in discharge of ^he complainant’s obligations. That on these express conditions, the oil-stones were delivered to Henderson for the respondent, at the risk and loss of the complainant. That according to the agreement, a quantity of oil-stones were delivered to different points, for the benefit of the complainant, and that the profit arising from the sales had not been sufficient to defray the expenses of the shipment and commission.
The answer sets up another matter in defence: It alleges that the complainant had a full and adequate remedy at law, and having failed tc make his defence at a proper lime, and before a competent tribunal, that a court of chancery has not jurisdiction of the case, and prays hat the bill may be dismissed with costs.
The depositions taken in the cause, do not, in express terms, or by any legal or just interpretation, prove the material allegations in the bill. One of the witnesses states, that the oil-stones were delivered, and that Henderson, the agent or the partner of Andrews, paid him for the hauling. Two other witnesses proved that, in a conversation with Martin Andrews, that he spoke of having purchased oil-stenes from the complainant, and cue cf them gives the amount and price; but neither of the witnesses denied the nature of the contract, nor do they state in express terms, that the oil-stones were delivered in payment of the obligations. One of them says he polished the stones, and that in a conversation with the respondent, he understood they would be delivered in discharge of his obligations, and he was paid in the store of Andrews for bis labor. A letter from ilonderson was introduced, which states that he had concluded not to make any other contract for more oil-stones, than the complainant was willing to take goods for, until Map Andrews wrote him further on the subject The deposition of Henderson expressly disproves the allegations of the bill and states that the agreement between Fenter and himself to be literally such, as is set forth in the respondent’s answer: that the oil-stones were not received, or taken in payment of the obligations; but that a quantity of them 'were delivered at the risk and Iols of the complainant: that it was the express understanding between the parties, that Andrews was to ship the stones for complainant’s benefit; and after deducting all that was due for freight and charges, he was to apply the nett proceeds, if any was remaining, to the payment of his debt: that the sales of the stones, he believed, has not paid the freight, charges and costs of shipment. This is, in substance, the whole proof in the eause. On this state of the case, the Circuit Court rendered e. decree that the injunction be made perpetual for the amount of the proceeds of the sale of the oil-stones, and interest thereon, fiotn the time of the delivery; and that the complainant be forever released from so much of the judgment at law, had and obtained against him by the respondent, and that the balance remaining on the judgment unpaid and due, was decreed in favor of the respondent, and that he pay the costs of the suit. And it was further decreed, that the note executed by the complainant to the respondent, was not barred by the statute of limitations. From this decree, the respondeat prayed an appeal-— Admitting that a court of chance y has jurisdiction of the cause, (which is by no means conceded in this case,) the cuestión then mi-ses, does the bill upon its face show any equity, or are its ¡satería! and important allegations sestnioou by toe proof. The contract ciargcd is not established by the depo;:.'ti-;os, and if it were, it v.oukl form no ground for relief in equity.
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The ease being submitted by the appellee without argument,
Lacy, Judge,
delivered the opinion of the court:
The appellee, Christian Fenicr, exhibited his bill of complaint, to be delivered of a judgment at law, obtained against him by Martin Andrews, in the Hot Spring Circuit Court.
The bill charged that he executed two writings obligatory, and one promissory note, payable to the respondent; and that at the time of the execution of the first writing obligatory, the complainant entered into a contract with Joseph Henderson, (who is represented to be the partner and agent of the appellant.) for the purchase and delivery of a certain quantity of oil stones, and which were agreed by Henderson to be taken and accepted in discharge of the respondent’s obligation, at the rate of seven and a fourth cents per pound. That he delivered the quantity or number of pounds of oil stones agreed upon, in discharge of his obligation; and that after paying off the fall amount due upon the first obligation, there was a balance still remaining in favor of the responderle. That at the time lie executed his second obligation to Martin Andrews, be was ignorant of the fact that the oil stones had been delivered and accepted; but believed from the representation and misstatements of Henderson, that he was indebted to them for freight and charges; and consequently he agreed and did execute his second obligation. The bill further alleges, that both obligations were fully paid off, and discharged by (he purchase and delivery of the oilstones, before the respondent commenced hissdiat law in January, 1834, on the writings obligatory and promissory note. It further alleges, that the complainant put in the plea of payment to the writings obligatory, and the statute oflimitations to the promL'scry note in bar of the action of debt. That after the case was continued at the March Term, 1834, he caused a subpoena to issue for Samuel Williams, the only witness by whom he could prove the price of the oil-stones agreed to be purchased, or the amount or quantity delivered. That he forwarded the summons to the Sheriff of Pulaski county, where the witness resided, and the writ was returned, not executed.— That at the March Term, 1835, when he moved the court by his attorney, for a continuance of the cas e, he was ignorant of the fact that the subpoena had not been served on the witness. That the bill further charges, that the complainant’s motion for a continuance was overruled, and that the plaintiff had judgment against him for the amount of the debí, in the declaration mentioned, and for damages and costs. The complainant prays that a writ of injunction be granted to him io stay and restrain the proceedings upon the judgment at law, and that, on the final hearing of the cause, that the balance due him from Martin Andrczus, for the purchase and delivery of the oil-stones, be decreed in his favor, and that the injunction be made perpetual.
The bill further alleges, that the note sued on was barred by the statute of limitations; and it contains a prayer for general relief. The injunction was granted, and the proceedings on the judgment at law, were restrained and superseded by the writ issued on chancery. The answer denies all the material allegations of the bill. It admits the ' execution of the writings obligatory and promissory note, and that judgment was obtained upon them. It alleges that the plea of payment, and the statute of limitation, were withdrawn, and that judgment was given by nil dlcil. It denies that Henderson ever was a partner with the respondent; but states that he was a clerk in his store, and that the contract pretended to be set up by the complainant, is wholly unfounded; but that Henderson agreed to receive for the respondent whatever oil-stones he might think proper to deliver and to ship them for sale, and after deducting the expenses for freight, charges, and commission, to apply the nett proceeds in discharge of ^he complainant’s obligations. That on these express conditions, the oil-stones were delivered to Henderson for the respondent, at the risk and loss of the complainant. That according to the agreement, a quantity of oil-stones were delivered to different points, for the benefit of the complainant, and that the profit arising from the sales had not been sufficient to defray the expenses of the shipment and commission.
The answer sets up another matter in defence: It alleges that the complainant had a full and adequate remedy at law, and having failed tc make his defence at a proper lime, and before a competent tribunal, that a court of chancery has not jurisdiction of the case, and prays hat the bill may be dismissed with costs.
The depositions taken in the cause, do not, in express terms, or by any legal or just interpretation, prove the material allegations in the bill. One of the witnesses states, that the oil-stones were delivered, and that Henderson, the agent or the partner of Andrews, paid him for the hauling. Two other witnesses proved that, in a conversation with Martin Andrews, that he spoke of having purchased oil-stenes from the complainant, and cue cf them gives the amount and price; but neither of the witnesses denied the nature of the contract, nor do they state in express terms, that the oil-stones were delivered in payment of the obligations. One of them says he polished the stones, and that in a conversation with the respondent, he understood they would be delivered in discharge of his obligations, and he was paid in the store of Andrews for bis labor. A letter from ilonderson was introduced, which states that he had concluded not to make any other contract for more oil-stones, than the complainant was willing to take goods for, until Map Andrews wrote him further on the subject The deposition of Henderson expressly disproves the allegations of the bill and states that the agreement between Fenter and himself to be literally such, as is set forth in the respondent’s answer: that the oil-stones were not received, or taken in payment of the obligations; but that a quantity of them 'were delivered at the risk and Iols of the complainant: that it was the express understanding between the parties, that Andrews was to ship the stones for complainant’s benefit; and after deducting all that was due for freight and charges, he was to apply the nett proceeds, if any was remaining, to the payment of his debt: that the sales of the stones, he believed, has not paid the freight, charges and costs of shipment. This is, in substance, the whole proof in the eause. On this state of the case, the Circuit Court rendered e. decree that the injunction be made perpetual for the amount of the proceeds of the sale of the oil-stones, and interest thereon, fiotn the time of the delivery; and that the complainant be forever released from so much of the judgment at law, had and obtained against him by the respondent, and that the balance remaining on the judgment unpaid and due, was decreed in favor of the respondent, and that he pay the costs of the suit. And it was further decreed, that the note executed by the complainant to the respondent, was not barred by the statute of limitations. From this decree, the respondeat prayed an appeal-— Admitting that a court of chance y has jurisdiction of the cause, (which is by no means conceded in this case,) the cuestión then mi-ses, does the bill upon its face show any equity, or are its ¡satería! and important allegations sestnioou by toe proof. The contract ciargcd is not established by the depo;:.'ti-;os, and if it were, it v.oukl form no ground for relief in equity. Toe injury the party complains of is, that judgment was rendered against Ida», when it ought net to have been, in the absence of a material witness, and whoa the debt war ully paid off and discharged. The r.ubpBnc was sued out for the. witness in March, 1831-, and the trial vras not had until March, 1835. It does not aopear that, on the motion for the continuance of the cause, the defendant ever filed an affidavit, or that he swore to it. The bill simply charges, that by attorney, he moved the court to continue the case, which motion was overruled. Admitting the proper affidavit was made, did the court err in continuing the cause ? The only excuse that is given for the absence of the witness, is, that the subpoena was returned by the fcl'iuriif, not served; and the defendant alleges, that he was ignorant of that fact at the trial, .though it must have been returnable to the term preceding; for it issued in March, 1834, and judgment was not rendered until March, 1835. Can a judgment at law be impeached in chancery, when, by the party’s own' showing, he is guilty of gross negligence or laches, and that too, in a case where his remedy was complete and adequate at law. We are not aware that equity has ever interfered to sot acide a judgment at law, for mere irregularity. In this cuso the judgment was perfectly regular, and the continuance properly refused. To authorize a party to be relieved against a judgment at law, it must appear conclusively that the judgment was obtained by fraud, accident-or mistake, unmixed with any negligence or fault on his part. The defendant cannot come into a court of chancery for a new trial or relief, when there is no special ground of surprise, or ignorance of important facts suggested, or where no equitable circumstances have arisen since the trial, and where he has neglected to defend himself with due negligence ia the proper place.
This principle is settled in the case of Scotland vs. Wheeler, 3 Johnson's Rep. 238; Dekemer vs. DeChatillon, 4 Johnson, 92; and Baker vs. Elking, 1 Johnson's Rep. 444; Smith vs. Lowrie, 3 Johnson’s Rep. 322. In the case now before the court, has the party shown that he was taken by surprise? erhas be suggested that he was ignorant of any important diet that has since come to his knowledge, and which he could not have discovered before, by due diligence? Or has be alleged that the judgment was obtained by fraud ? It is most manifest that none of these equitable grounds are charged in the bill; and it is equally evident, from his own showing, that he was guilty of very gross negligence, in not preparing his case for trial. Upon this allegation of the bill, it is clear that the complainant has not the slightest claim or pretext to the interposition of a court of equity for relief. Is the contract set up by the bill admitted by the answer, or established by the proof? The answer expressly denies it. The proof is vague and uncertain, and does not legally establish the allegations of the bill.— The witnesses speak of a purchase of oil-stones made by Andrews from the complainant; but they neither define or illustrate the nature or condition of the contract, nor do they say that the purchase thus made was to go in discharge of the complainant’s obligation. The letter of Henderson does not state that the oil-stones were so received or accepted. It merely says that he was unwilling to make a contract for the delivery of any more oil-stones, until he heard from Andrews, and it clearly intimates what had already been delivered was paid for in . goods.
If this testimony stood uncontradicted, it would be wholly inconclusive and unsatisfactory, and would not authorize a decree upon the. bill. The answer denies that any contract was made, or any purchase entered into, for tha delivery of any quantity of oil-stones, in payment of the obligations and note held upon the complainant.
It admits a quantity of oil-stones were received on commission, and states, after deducting the amount due ibr freight, charges, and shipment, that the nett proceeds arising from the sales, were to be applied to the payment of his debt, and that no prolit or balance is due to the complainant on that account, as the sum for which they sold is not suf-ficientlo pay the amount with which they are charged. Henderson, the witness who made the contract with the complainant, and wh® acted as the agent of the parties and factor in the business, expressly disproves the whole contract charged in the complainant’s bill, and establishes the agreement fully and completely, as set up by the answer. The bill, then, containing no equity upon its face, and all its material allegations being denied by the answer, and expressly disproved by the testimony, should have been dismissed with costs. The court might here close their inquiries, but as there is another important question raised by the answer, which is directly before us, we consider itour duty to examine and decide it. The answer alleges that the plaintiff had a full and ample remedy at law, and having failed to make his defence before the proper tribunal, he caanot now come into a Court of Equity. The picas to the action of debt in this case, were payment and the statute of limitations. It is obvious that the defence set up is entirely legal, and the pleas, if proved, formed a good bar to the action.
“The concurrent jurisdiction of equity,” says Justice Story, “has its true origin ih one of two sources, either the courts of law, though they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief, or under the actual circumstances of the case, they cannot give any relief at all.” Story's Com. on Equity, 93. Equity will embrace all cases of legal rights under peculiar circumstances, where there does not exist a complete, adequate and plain remedy at law. See Jeremy on Equity Jurisprudence, 292 and 297.
The ancient doctrine upon the subject was, that a cause shall not be examined in Equity, after it has been tried and determined at law. Cro. Jac. 335, Cro. Car. 595; 3 Inst. 33, 4 Inst. 36; Aikyns 323.— But the severity of the rule has been greatly relieved by very many recent decisions. In the case of Perry vs. Martin, 4 Johnson’s Chan. Rep. 536 and Foster vs. Wood, 4 Johnson’s Chan. Rep. 67; Floyd vs. Jayne, 6 Johnson's Rep. 479, the doctrine is clearly laid down, and the chancellor in giving his opinion remarks — “That he does not know of any principle that will authorize equity to take jurisdiction of a case where the remedy was in the first instance full and adequate at law; because the party may have lost that remedy, founded on negligence, and not on accident, misfortune, misrepresentation or fraud.” If a party becomes remediless at law by negligence, he shall not be relieved in Equity. To entitle him to relief, he must show that he has lost his remedy at law, by fraud, accident, casualty, misfortune, or misrepresentation. Fonblanque on Equity, p. 30, and the cases there cited; 2 Cran. 334; 4 Cran. 531; 1 Call, 224. Where courts of law and equity have concurrent jurisdictions, and the facts alleged are all examined at law, after the case has been decided, Equity will not interfere. To give to Equity jurisdiction in such cases, it is indispensable to show that the party having the law in his favor, was prevented by some unavailable occurrence from bringing his case fairly and fully before the court.
The question has been fully examined and settled in the case of Smith vs. McIwer, 9 Wheaton, 534. “Admitting,” says Chief Justice Marshall, “ the concurrent jurisdictions of Equity and Law, in matters of fraud, we think the cause must be decided by the tribunal which first obtained possession of it, and that each court must respect the judgment and decree of the other. A question decided at law cannot be reversed in a Court of Equity without the suggestion of some equitable circumstances of which the party could not avail himself at law.” In the case now before us, docs the bill charge any eclu*table circumstances that the complainant could not have availed himself of on the trial at law 1
Does it allege surprise or the discovery of new evidence since the trial, which by due diligence he could nothave procured before? Or does it charge either accident, mistake, misrepresentation, misfortune,, or fraud? None of these things are alleged in the bill, and as the complainant’s remedy was full and adquate at law, and he failed to make it through negligence or ignorance, he cannot now be relieved in Equity.
In every respect in whieh this case presents itself to our minds, either on its merits, or the question of jurisdiction, we are clearly of the opinion, that the decree of the court below was evidently erroneous. The judgment of the Circuit Court in entering up the decree, must, therefore, be reversed with costs; the cause remanded to be proceeded in agreeably to the opinion here delivered, with instructions that the complainant’s bill be dismissed for want of jurisdiction, with costs, and that the writ of injunction be dissolved, and that the appellant have the full benefit of his judgment at law, with six per centum damages on the amount released from the injunction.