Church, J.
The character of this application is somewhat equivocal. It is not a petition or bill, addressed in form to a court of equity ; and if it had not contained a prayer for an injunction, it might, well enough, have been taken for a petition to a court oflaw for a new trial, under the 68th section of our statute regulating civil actions. Rut viewing it aside from its technical and formal parts, we see, that it is a proceeding in equity for an injunction, and a new trial, founded upon the ignorance and mistake of the plaintiff regarding the pendency of several actions at law in favour of this defendant, against [537]*537him and his co-partner, growing out of what he claims to have been the improper and unexpected course of the present-defendant in bringing those suits to judgment.
Although bills in equity for injunctions against judgments,, as well as for new trials of actions at law, are not frequent; yet they are recognized as falling within chancery jurisdiction, and may be sustained in cases of mistake and accident, when no other remedy is adequate. This jurisdiction will be exercised, when to enforce a judgment recovered is against conscience, and where the applicant had no opportunity to make defence, or was prevented by accident, or the fraud or improper management of the opposite party, and without fault on his own part. 2 Sto. Eq. 173. Mitf. Pl. 131. Woodworth v. Van Buskirk, 1 Johns. Ch. R. 432. Floyd v. Paine, 6 Johns. Ch. R. 479.
The facts charged in the plaintiff’s bill, bring his case within this principle. He was, together with his co-partner, sued, by this defendant, by writs returnable to the superior court in this county, at its August term, 1841, and which wereduly served upon him personally. Neither he nor his co-partner appeared, at that or any subsequent term of the court, to make any answer to the suits. The law and the coarse of practice, in such case, required, that judgments should have been rendered by default, either at the first, or at farthest, at the next succeeding term of the court. And as the law required this, the present plaintiff, who was a defendant in those actions, could not be supposed either to know or believe, that any other than the usual and legal course would have been taken with them, and that they were still in such a position that he could, at any time, interpose the proceedings in bankruptcy as a defence. Having suffered a default, he was not bound to look after the causes, but must have believed they had passed into judgment before he instituted process in the district court to obtain his discharge. He was, therefore, warranted in alleging in his bill, that he was ignorant of the continuance of the suits, by reason of which alone, he failed to appear and avail himself of the defence then in his power to make. And he was justified in supposing, that his subsequent discharge in bankruptcy had exonerated him from these judgments, as well as from all other debts. The consequence has been, that without fault on the part of the plaintiff, these demands have [538]*538now appeared against him unexpectedly, in the shape of operative executions, by which his subsequently acquired property is threatened to be swept away.
We have no reason to say, that the plaintiff in those actions, resorted to any means to continue themopen on the doeket of the court, until the discharge was obtained, or that he supposed the then defendants ignorant of their condition ; but the injury resulting to the present plaintiff, by reason of the unwarranted delay in the rendition of the judgments, is not the less real.
The plaintiff demands a new trial. If this were all, he could have had remedy at law ; but a new trial, without an injunction to stay proceedings on the executions in the meanwhile, might be useless, and would be so, if the allegation in this bill of the defendant’s insolvency, be true.
If the plaintiff had a meritorious defence against those actions, and, under the circumstances found by the court, has been prevented from making it before, he ought to be permitted to make it on another trial. We think, that the defence proposed is a meritorious one: it is neither immoral, nor in any respect inequitable. It is one which the law of Congress has generously, and, in our opinion, constitutionally, provided, for all debtors in the same situation with this plaintiff, and of which he has an equal right with all other citizens, to avail himself, unless he has forfeited it, by some fault or negligence of his own. Lee v. Philips, 6 Hill 246, 7. This defence has been compared with that arising under the statute of limitations, and which, it has sometimes been said, should not be encouraged, and to admit which, a new trial will not be allowed. Whether even this doctrine, without exceptions, would be approved by us, we do not say. But the distinction between the plea of bankruptcy and the statute of limitations, is wide. One denies the existence of the debt; the other goes only to the time of the remedy.
If the plaintiff presented to the court below a case, in legal form, which by law he had a right to present, and which the court was bound to hear and decide, he, like all other suitors, was entitled to a hearing according to the established rules of law and usages of courts. And it is no good answer to this suggestion, to say, that applications for new trials, whether at law or in equity, are subject to the discretionary power of the [539]*539court, and therefore, that writs of error will not lie from judg-J ° ments granting or refusing them.
A petition at law for a new trial, is a remedy given by statute, and approved by the common law. An injunction to stay proceedings upon an unjust judgment, and for a new trial, under circumstances like the present, is a remedy recognized and approved in a court of equity. These remedies are to be enforced under the operation of established forms and rules of proceeding, instituted, as they are, for the development of truth and justice. Process must be duly issued and served, as in other cases ; pleadings, evidence and judgments are to follow. To be sure, the final decree or judgment to be rendered, more literally than in ordinary cases, may be the result of a reasonable judicial discretion, not of an arbitrary one. But how is such a discretion to be exercised, except under the influence of evidence produced and heard ? The facts which are to govern the final discretion of the court, can only be proved by legal evidence — such only as courts of justice recognize as admissible proofs. And if the court is bound to act at all, it must be equally bound to hear all legal testimony, or it cannot safely decide. If, therefore, the superior court erred on the trial of this petition, in rejecting the testimony of Hall, which, by the legal rules of evidence, ought to have been received, and thus excluded from its consideration facts essen tial to the safe exercise of its final discretionary power, it was an error which requires correction, as in other cases.
The present defendant, on the trial below, introduced evidence to prove, that Gideon Hall jr. Esq., an attorney, was retained as counsel, by the present plaintiff, to appear and defend in the actions at law ; thereby intending to show, that Carrington,
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Church, J.
The character of this application is somewhat equivocal. It is not a petition or bill, addressed in form to a court of equity ; and if it had not contained a prayer for an injunction, it might, well enough, have been taken for a petition to a court oflaw for a new trial, under the 68th section of our statute regulating civil actions. Rut viewing it aside from its technical and formal parts, we see, that it is a proceeding in equity for an injunction, and a new trial, founded upon the ignorance and mistake of the plaintiff regarding the pendency of several actions at law in favour of this defendant, against [537]*537him and his co-partner, growing out of what he claims to have been the improper and unexpected course of the present-defendant in bringing those suits to judgment.
Although bills in equity for injunctions against judgments,, as well as for new trials of actions at law, are not frequent; yet they are recognized as falling within chancery jurisdiction, and may be sustained in cases of mistake and accident, when no other remedy is adequate. This jurisdiction will be exercised, when to enforce a judgment recovered is against conscience, and where the applicant had no opportunity to make defence, or was prevented by accident, or the fraud or improper management of the opposite party, and without fault on his own part. 2 Sto. Eq. 173. Mitf. Pl. 131. Woodworth v. Van Buskirk, 1 Johns. Ch. R. 432. Floyd v. Paine, 6 Johns. Ch. R. 479.
The facts charged in the plaintiff’s bill, bring his case within this principle. He was, together with his co-partner, sued, by this defendant, by writs returnable to the superior court in this county, at its August term, 1841, and which wereduly served upon him personally. Neither he nor his co-partner appeared, at that or any subsequent term of the court, to make any answer to the suits. The law and the coarse of practice, in such case, required, that judgments should have been rendered by default, either at the first, or at farthest, at the next succeeding term of the court. And as the law required this, the present plaintiff, who was a defendant in those actions, could not be supposed either to know or believe, that any other than the usual and legal course would have been taken with them, and that they were still in such a position that he could, at any time, interpose the proceedings in bankruptcy as a defence. Having suffered a default, he was not bound to look after the causes, but must have believed they had passed into judgment before he instituted process in the district court to obtain his discharge. He was, therefore, warranted in alleging in his bill, that he was ignorant of the continuance of the suits, by reason of which alone, he failed to appear and avail himself of the defence then in his power to make. And he was justified in supposing, that his subsequent discharge in bankruptcy had exonerated him from these judgments, as well as from all other debts. The consequence has been, that without fault on the part of the plaintiff, these demands have [538]*538now appeared against him unexpectedly, in the shape of operative executions, by which his subsequently acquired property is threatened to be swept away.
We have no reason to say, that the plaintiff in those actions, resorted to any means to continue themopen on the doeket of the court, until the discharge was obtained, or that he supposed the then defendants ignorant of their condition ; but the injury resulting to the present plaintiff, by reason of the unwarranted delay in the rendition of the judgments, is not the less real.
The plaintiff demands a new trial. If this were all, he could have had remedy at law ; but a new trial, without an injunction to stay proceedings on the executions in the meanwhile, might be useless, and would be so, if the allegation in this bill of the defendant’s insolvency, be true.
If the plaintiff had a meritorious defence against those actions, and, under the circumstances found by the court, has been prevented from making it before, he ought to be permitted to make it on another trial. We think, that the defence proposed is a meritorious one: it is neither immoral, nor in any respect inequitable. It is one which the law of Congress has generously, and, in our opinion, constitutionally, provided, for all debtors in the same situation with this plaintiff, and of which he has an equal right with all other citizens, to avail himself, unless he has forfeited it, by some fault or negligence of his own. Lee v. Philips, 6 Hill 246, 7. This defence has been compared with that arising under the statute of limitations, and which, it has sometimes been said, should not be encouraged, and to admit which, a new trial will not be allowed. Whether even this doctrine, without exceptions, would be approved by us, we do not say. But the distinction between the plea of bankruptcy and the statute of limitations, is wide. One denies the existence of the debt; the other goes only to the time of the remedy.
If the plaintiff presented to the court below a case, in legal form, which by law he had a right to present, and which the court was bound to hear and decide, he, like all other suitors, was entitled to a hearing according to the established rules of law and usages of courts. And it is no good answer to this suggestion, to say, that applications for new trials, whether at law or in equity, are subject to the discretionary power of the [539]*539court, and therefore, that writs of error will not lie from judg-J ° ments granting or refusing them.
A petition at law for a new trial, is a remedy given by statute, and approved by the common law. An injunction to stay proceedings upon an unjust judgment, and for a new trial, under circumstances like the present, is a remedy recognized and approved in a court of equity. These remedies are to be enforced under the operation of established forms and rules of proceeding, instituted, as they are, for the development of truth and justice. Process must be duly issued and served, as in other cases ; pleadings, evidence and judgments are to follow. To be sure, the final decree or judgment to be rendered, more literally than in ordinary cases, may be the result of a reasonable judicial discretion, not of an arbitrary one. But how is such a discretion to be exercised, except under the influence of evidence produced and heard ? The facts which are to govern the final discretion of the court, can only be proved by legal evidence — such only as courts of justice recognize as admissible proofs. And if the court is bound to act at all, it must be equally bound to hear all legal testimony, or it cannot safely decide. If, therefore, the superior court erred on the trial of this petition, in rejecting the testimony of Hall, which, by the legal rules of evidence, ought to have been received, and thus excluded from its consideration facts essen tial to the safe exercise of its final discretionary power, it was an error which requires correction, as in other cases.
The present defendant, on the trial below, introduced evidence to prove, that Gideon Hall jr. Esq., an attorney, was retained as counsel, by the present plaintiff, to appear and defend in the actions at law ; thereby intending to show, that Carrington, while defendant in the actions against himself and his co-partner, was not ignorant of the condition of those causes, but consented to their continuance in court, until the judgments now complained of were rendered ; and by which evidence, we suppose, the superior court was chiefly induced to dismiss this petition. It was important and controuling evidence for the defendant; and to rebut and deny it, the plaintiff offered Hall himself as a witness, to testify that he never was retained, and was never, in fact, the attorney of either of the defendants in the original actions, and knew nothing of the state of those causes. He was objected to, by the defendant* [540]*540on the ground of interest; and on that ground he was exclu* - ded by the court.
In what respect Hall was interested, and for what cause disqualified as a witness, the record does not disclose. No fact is shown, by which we can discover any objectionable interest; nor does it appear, that any such fact was shown to the superior court. It is true, that there was evidence in that court that Hall had been retained as counsel to defend in the original actions. And in argument here, we are informed, that Hall was liable to be sued, by his clients, for negligence, as an attorney, in the management of those causes, and .was therefore interested to relieve himself, by procuring, by his testimony, a new trial, and an injunction against the effect of the judgments. Rut no facts appear, showing any negligence on his part, or which in any way disclose a liability. It is said, he was employed to defend the actions against his clients; but no proceedings in bankruptcy were instituted until long after the first term of the court in which those actions were pending, and no defence at that time existed against them ; and if Hall had then appeared and claimed a defence, either he or his clients would have been guilty of a fraud upon the court. And it no where appears, that Hall, at any time, knew of any bankruptcy process in the district of New-York, which could be interposed to prevent judgments against his clients; or that he had ever been instructed to make any such defence. We discover nothing, therefore, to persuade us, that Hall was liable to his clients for negligence or other cause, which should disqualify him as a witness in the cause. It is not enough to create an interest in a witness, that he may be sued in respect of the matter about which he is called to testify, without showing, at least, a prima facie case of liability against him. Nor is it enough to exclude a witness, that he is placing himself, by his testimony, in a state of security, without first showing, that he is at least exposed to certain danger. Carter v. Pearce, 1 Term R. 162. Rosc. Ev. 85. Taylor & al. v. The United States, 2 Howard 206. Cox’s admr. v. Hill, 3 Ohio Rep. 411. 424. Dudley v. Bolles, 24 Wend. 465. 2 Stark. Ev. 768.
There is a class of cases which may be referred to as inconsistent with these views, the correctness of which has, however, been considerably doubted, by the very judges, by whom [541]*541some of them were decided, and who seem to have yielded in their decisions to precedent, rather than principle : as where - it was holder), that the plaintiff’s wagoner was an incompetent witness to testify that the defendant had negligently driven his mail-coach against the wagon of the plaintiff, while the witness was driving it; and cases of like character. Rotheroe v. Ellon, Peake's N. P. Ca. 84. Miller v. Falconer, 1 Campb. 251. Moorish v. Foote, 8 Taun, 454. (4 E. C. L. 164.) Kerrison v. Coatsworth, 1 Car. & Pa. 646. (11 E. C. L. 510.) Wake v. Locke, 5 Car. & Pa. 454. (24 E. C. L. 402.) 1 Greenl. Ev. 466. n. 1.
These cases must have assumed, and the decisions cannot be justified, except upon the ground, that the alternative was such as that the witness was certainly liable, unless by his testimony he charged another in exoneration ofhimself. But as we have said, no fact appears in this case imputing to Hall negligence, or any delinquency, whereby he could have been liable in damages to his client, or any body else, for the course taken with the actions referred to. There was really nothing more in the objection to his testimony, then, than that he was the attorney of Carrington, who called him as a witness.
We are of opinion, therefore, that the decision of the court below, and the rejection of the testimony of Hall, were erroneous ; and that the judgment must be reversed.
In this opinion the other Judges concurred, except Hin-man, J., who thought that the plain till ⅛ bill was insufficient.
Judgment reversed.