Ames, C. J.
The main ground laid in the bill, upon which we are asked to enjoin the respondents from prosecuting their suit at law against the complainants as garnishees, is, that the complainants were prevented from answering or making affidavit in the suit in which they were served, by the confidence which they reposed in a positive agreement entered into between them and the attorneys of the respondent, in violation or fraud of which a judgment was obtained in that suit. We are not satisfied, by the proof, that any such agreement, or' any agreement, was made by the attorneys of the respondent with the complainants. The testimony of Stevens, the secretary of the complainant company, is fully met and explicitly contradicted by the testimony of Caesar Updike ; and the contemporary correspondence between him, on the part of his firm, with his clients, appended to his deposition, at the call of the complainants, strongly corroborates his testimony. It shows, at least, that if he entered into any such arrangement as that pretended by the bill, he did so contrary to the directions of his clients, and to his own assurances to them. The burthen of proof is
upon the complainants; and upon a mere balance of testimony they must of course fail. In weighing the evidence upon this point, we have altogether excluded the answer from our consideration ; since it responds to this matter only upon information and belief.
The other ground of defence, that, admitting the agreement to be proved, the complainants cannot avail themselves of it, because the proof shows that they have not, by properly contesting the suit in New York, performed the condition annexed to the agreement, the answer does not permit us to consider. It contents itself with a denial of the making of any such agreement, and contains no averment, by way of defensive allegation, avoiding it on account of the non-performance of any condition proved or supposed to form a part of it.
But it has been argued on the part of the complainants, that admitting there is not sufficient evidence to warrant relief upon the ground of the agreement set up in the bill, yet, it is evident from the proof, that the complainants acted, or, rather, neglected to act, upon a mistake that there was such an understanding between them and the attorneys of the respondents, and that, too, induced by the conduct of the attorneys, and by their acting as the advisers of the complainants, as to the suits then pending against the complainants here and in New York. We are not satisfied, from the proof, that the complainants, or their secretary and agent, had any just ground for believing that the respondents, through their attorneys, had waived the filing of an affidavit by the complainants, as garnishees, at the time required by law; and the neglect to perform so obvious a duty, upon an unauthorised presumption, from circumstances, to that effect, does not constitute such a mistake as is relievable in a court of equity. It is the mistake of the vigilant only, in a case free from fraud, which will induce the court to interfere with the ordinary course of proceedings at law. Still less are we satisfied from the proof, that the attorneys of the respondents, by acting for, or as the advisers of the complainants, intentionally induced them to trust that their interests, as garnishees, would, without answer or affidavit, be safe, in the suit, in which these attorneys were placed in an adversary position to them.
On the contrary, according to the testimony of Csesar Updike, notice was early given by him to Stevens, the secretary of the complainant company, that whatever might be the result of the suit in New York, they should insist upon their attachment. At one time, he swears, that he asked Stevens if he had answered, or made affidavit in the garnishee suit here; and receiving answer that he had not,- and did not intend to make any, replied, “ It makes no difference to us ; we shall get our money if you do make an affidavit, and we shall get it if you don’t.” Taken in its connection, this is rather the language of threatening assurance than of advice ; and considering that it was used at a time when the complainants might have answered the suit, and long before it was necessary for them to file their affidavit, as garnishees, was calculated, one would think, to put them upon their guard, and to lead them to seek counsel elsewhere for the protection of their interests. The fact, that Updike, at the request of Stevens, and at the expense of the complainants, and to save Stevens the trouble of going to the clerk’s office, procured a copy of the proceedings in the garnishee suit here for the use of the complainants in the suit in New York, and left it at their office, is not sufficient to warrant us in believing, contrary to his explicit and detailed statements to the complainants, expressing or implying the precise contrary, that he acted in the suit here, or was believed by Stevens to act as
Ms
adviser in regard to it. Indeed, there is a discrepancy, in this respect, between the bill, which is sworn to by Stevens, and his deposition, given at a later date, which indicates some confusion of memory, to say the least of it, on his part. In the bill, it is alleged, that “ they (the orators) advised with their counsel in the city of Providence, concerning the propriety of the arrangement made with the attorneys of Wilson, Gall & Co., and were assured that the same was a fair, legal, and valid arrangement, and that, if carried, out in good faith, your orators would be under no necessity of answering, or in any way defending or contesting the suit of said Wilson, Gall & Co. against said Wage & Scott, or of filing any affidavit therein setting forth the amount of funds in their hands; and in consequence of said agreement,
and such advice
thereon,
your orators gave no instructions to have said case answered or contested, and filed no affidavit as garnishees in said suit, but instructed and urged their counsel and agent in said city of Buffalo, to have the suit of said Barnum against your orators brought on for trial as soon as possible, in order that your orators might ascertain their liabilities, or save themselves therefrom, by settling with the person authorized to discharge the same.”
Now it is quite evident,, upon any fair construction of this clause of the bill, that it carries the idea that the complainants consulted
their
counsel in the city of Providence concerning the alleged arrangement, in contradistinction from the attorneys of Wilson, Gall & Co.; “ their counsel in the city of Providence ” being put, in the sentence, in opposition to “ the attorneys of Wilson, Gall & Co.; ” and the consultation being as to the propriety of an arrangement theretofore made with those attorneys ; a singular consultation to be had, if “ their counsel ” and “ the attorneys of Wilson, Gall & Co.” were the 'same persons ; since the latter had already, according to the statement, decided upon the propriety of the arrangement, by entering into it; and altogether singular counsel to take, in order to be assured, as it were, by additional and safe advice, as to the propriety and validity of the arrangement already made with them.
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Ames, C. J.
The main ground laid in the bill, upon which we are asked to enjoin the respondents from prosecuting their suit at law against the complainants as garnishees, is, that the complainants were prevented from answering or making affidavit in the suit in which they were served, by the confidence which they reposed in a positive agreement entered into between them and the attorneys of the respondent, in violation or fraud of which a judgment was obtained in that suit. We are not satisfied, by the proof, that any such agreement, or' any agreement, was made by the attorneys of the respondent with the complainants. The testimony of Stevens, the secretary of the complainant company, is fully met and explicitly contradicted by the testimony of Caesar Updike ; and the contemporary correspondence between him, on the part of his firm, with his clients, appended to his deposition, at the call of the complainants, strongly corroborates his testimony. It shows, at least, that if he entered into any such arrangement as that pretended by the bill, he did so contrary to the directions of his clients, and to his own assurances to them. The burthen of proof is
upon the complainants; and upon a mere balance of testimony they must of course fail. In weighing the evidence upon this point, we have altogether excluded the answer from our consideration ; since it responds to this matter only upon information and belief.
The other ground of defence, that, admitting the agreement to be proved, the complainants cannot avail themselves of it, because the proof shows that they have not, by properly contesting the suit in New York, performed the condition annexed to the agreement, the answer does not permit us to consider. It contents itself with a denial of the making of any such agreement, and contains no averment, by way of defensive allegation, avoiding it on account of the non-performance of any condition proved or supposed to form a part of it.
But it has been argued on the part of the complainants, that admitting there is not sufficient evidence to warrant relief upon the ground of the agreement set up in the bill, yet, it is evident from the proof, that the complainants acted, or, rather, neglected to act, upon a mistake that there was such an understanding between them and the attorneys of the respondents, and that, too, induced by the conduct of the attorneys, and by their acting as the advisers of the complainants, as to the suits then pending against the complainants here and in New York. We are not satisfied, from the proof, that the complainants, or their secretary and agent, had any just ground for believing that the respondents, through their attorneys, had waived the filing of an affidavit by the complainants, as garnishees, at the time required by law; and the neglect to perform so obvious a duty, upon an unauthorised presumption, from circumstances, to that effect, does not constitute such a mistake as is relievable in a court of equity. It is the mistake of the vigilant only, in a case free from fraud, which will induce the court to interfere with the ordinary course of proceedings at law. Still less are we satisfied from the proof, that the attorneys of the respondents, by acting for, or as the advisers of the complainants, intentionally induced them to trust that their interests, as garnishees, would, without answer or affidavit, be safe, in the suit, in which these attorneys were placed in an adversary position to them.
On the contrary, according to the testimony of Csesar Updike, notice was early given by him to Stevens, the secretary of the complainant company, that whatever might be the result of the suit in New York, they should insist upon their attachment. At one time, he swears, that he asked Stevens if he had answered, or made affidavit in the garnishee suit here; and receiving answer that he had not,- and did not intend to make any, replied, “ It makes no difference to us ; we shall get our money if you do make an affidavit, and we shall get it if you don’t.” Taken in its connection, this is rather the language of threatening assurance than of advice ; and considering that it was used at a time when the complainants might have answered the suit, and long before it was necessary for them to file their affidavit, as garnishees, was calculated, one would think, to put them upon their guard, and to lead them to seek counsel elsewhere for the protection of their interests. The fact, that Updike, at the request of Stevens, and at the expense of the complainants, and to save Stevens the trouble of going to the clerk’s office, procured a copy of the proceedings in the garnishee suit here for the use of the complainants in the suit in New York, and left it at their office, is not sufficient to warrant us in believing, contrary to his explicit and detailed statements to the complainants, expressing or implying the precise contrary, that he acted in the suit here, or was believed by Stevens to act as
Ms
adviser in regard to it. Indeed, there is a discrepancy, in this respect, between the bill, which is sworn to by Stevens, and his deposition, given at a later date, which indicates some confusion of memory, to say the least of it, on his part. In the bill, it is alleged, that “ they (the orators) advised with their counsel in the city of Providence, concerning the propriety of the arrangement made with the attorneys of Wilson, Gall & Co., and were assured that the same was a fair, legal, and valid arrangement, and that, if carried, out in good faith, your orators would be under no necessity of answering, or in any way defending or contesting the suit of said Wilson, Gall & Co. against said Wage & Scott, or of filing any affidavit therein setting forth the amount of funds in their hands; and in consequence of said agreement,
and such advice
thereon,
your orators gave no instructions to have said case answered or contested, and filed no affidavit as garnishees in said suit, but instructed and urged their counsel and agent in said city of Buffalo, to have the suit of said Barnum against your orators brought on for trial as soon as possible, in order that your orators might ascertain their liabilities, or save themselves therefrom, by settling with the person authorized to discharge the same.”
Now it is quite evident,, upon any fair construction of this clause of the bill, that it carries the idea that the complainants consulted
their
counsel in the city of Providence concerning the alleged arrangement, in contradistinction from the attorneys of Wilson, Gall & Co.; “ their counsel in the city of Providence ” being put, in the sentence, in opposition to “ the attorneys of Wilson, Gall & Co.; ” and the consultation being as to the propriety of an arrangement theretofore made with those attorneys ; a singular consultation to be had, if “ their counsel ” and “ the attorneys of Wilson, Gall & Co.” were the 'same persons ; since the latter had already, according to the statement, decided upon the propriety of the arrangement, by entering into it; and altogether singular counsel to take, in order to be assured, as it were, by additional and safe advice, as to the propriety and validity of the arrangement already made with them. Yet Stevens, when asked in the 30th direct interrogatory in his deposition, “ State whether or not said company consulted counsel in Providence as to the validity and legality of said agreement; ” referring to this very arrangement, as it is styled in the bill, replies :
“
I did not consult any other counsel than the Updikes, they agreeing to give me all the information I wanted in the matter, and to save the expense of our employing an attorney; ” and again, in answer to the 47th direct interrogatory, — which is the general and closing one, — reiterates the same thing, in the same and in another connection.
Now if we ought ever to rely upon the testimony of one witness, in a case so circumstanced that the answer weighs nothing, when that witness is expressly contradicted by another against whom nothing else appears, yet we cannot weigh down, with the testimony of a witness who thus apparently contradicts
himself, the testimony of both the Updikes; one of whom swears, that he had nothing to do with the matter but to fill out the writ of attachment at the request of his brother, and knows nothing else about it; and the other of whom, who managed this business, as both swear, exclusively, explicitly denies, and with great detail of what he did say and do, the statements, in this and other respects of the witness.
But if we gave ever so great credence in these particulars to the testimony of Stevens, how could we relieve in this case, upon the ground of mistake only, or upon mistake, induced in the complainants by the attorneys of the respondents, acting, in the garnishee suit, also as the advisers of the complainants. The bill alleges no such mistake; and above all, sets out no such peculiar practices or inducements of the attorneys of the respondents in that suit, and describes them as acting in no such double capacity. It pretends, as a ground for relief, no such delicate or complex equities. On the contrary, it places its whole title to the interposition of the court, upon the plain ground of a positive agreement entered into between the complainants and the attorneys of the respondents, acting as such in the conduct of a suit adversary to the interests of the complainants, concerning which, so far from relying upon these attorneys, it alleges, as we have seen, that the complainants consulted their own counsel, both as to its propriety and legality. We should contradict, in the most flagrant manner, the just principle of equity practice which requires, for the purposes both of answer and proof, a fair conformity between the “ alle-gata ” and the
“
probata,” upon a bill for relief, if we should allow the complainants, because their proof fails them upon the ground alleged, to obtain relief upon any other ground, and especially upon any ground inconsistent with that.
This bill must be dismissed with costs ; but it can only be, upon the respondents’ entering into such a stipulation in their suit at law, here pending - against the complainants as garnishees, as will assure to the latter, in that suit, the benefit which the respondents shall receive from the sum of $603.45, paid to them upon their claim by the Bridgeport Fire and Marine Insurance Company under a bond of indemnity, upon
which bond a suit is now pending against the respondents in one of the courts of New York. Such a stipulation was voluntarily offered by the counsel for the respondents at the hearing, and can be made, by the shape of the decree, the condition of our dismissal of this suit.