Alvey, J.,
delivered the opinion of the Court.
As it is neither alleged in the bill nor pretended as matter of fact, that the judgment before the justice of the peace, (the execution on which is sought to be restrained,) was recovered without process duly served on the proper city official, there is an entire failure of evidence to sustain the application for an injunction upon the ground of fraud and surprise. It is alleged, it is true, that the judgment was rendered ex parte, but that was the fault of the appellee. Having been duly served with process it was the duty of the appellee to have attended before the justice at the time and place designated, and there availed itself of all defences then existing. Nor can the judgment subsequently recovered against the appellee in Baltimore City Court be questioned or impeached in the way proposed. If it be true that it was for the same cause of action as that upon which the former judgment before the justice was rendered, that fact ought to have been availed of by a plea of former recovery. The fact that the attorney of the city, who tried the case in Baltimore City Court, did not know of the existence of the former judgment, can make no difference. The corporation was bound to take notice of the fact; and the want of knowledge on the part of its attorney is no excuse for the failure to make the available defences at the proper time and place. It is well settled that a party to a proceeding is bound to be present in Court, either in person or by an attorney, to [10]*10take care of his rights, and attend to their due prosecution, and that he cannot make the omission to perform this duty, of itself, the foundation for an injunction. Gott vs. Carr, 6 Gill & John., 309. And there is nothing in the nature of a corporation entitling it to be made an exception in the application of this reasonable and most salutary rule. It is also an established principle, that if a defendant has the means of defence within his power, in an action against him, and neglects to use them, and suffers a recovery to be had against him, he is forever precluded from obtaining relief in a Court of equity in respect to such defence. A Court of equity will never relieve a party against a judgment at law, unless the justice of the recovery can he impeached by facts, or on grounds of which the complainant could not have availed himself at law, or was prevented from doing so by fraud or accident, or. the act of the opposite party, unmixed with any negligence or fault on his own part; for a party can never be entitled to the aid of a Court of equity when that aid becomes necessary by his own fault or negligence. Gott vs. Carr, 6 G. & J., 309; Dilly vs. Barnard, 8 Gill & John., 170. Here there is an entire failure of evidence to show that, by due and proper diligence, the former judgment could not have been produced and used as a defence to the action in Baltimore City Court, if the two cases were really founded on one and the same cause of action. It is proper to say, however, that, from the facts disclosed in this record, it would be difficult to conclude with any degree of certainty that the two judgments were founded on the same cause of action.
The alleged ground of fraud and surprise failing the appellee, the next proposition presented and relied on is, that , an execution cannot be rightfully issued against a municipal corporation, on a judgment for debt or damages recovered against it. And whether such proposition, in the unqualified form stated, can be maintained, is a ques[11]*11tion of more than ordinary importance, and one in regard to which there exists a considerable diversity of opinion among those who have had occasion to consider it, in the Courts of some of our sister States. The question is now presented to this Court for the first time, and we must decide it, not upon precedent, but upon such reason and principle as we take to be applicable and controlling in the case.
As we understand the counsel for the appellants, it is not contended that an execution could be issued against a municipal corporation and be levied upon property owned or used by it for purely public purposes; such as a courthouse, jail, alms-house, city or town-hall, police station-houses, market-house, fire engines, &c. But it is contended that municipal corporations may hold, and that Baltimore City does hold, property in a private or quasi private character, not necessary to the execution of the public municipal functions of the corporation, and that such property is liable to execution, on a judgment recovered against the corporation, in the same manner that it would be in the hands of an individual judgment debtor.
The corporation of the City of Baltimore, by its charter, (2nd vol. Code, Art. 4, secs. 1 and 2,) is declared to be entitled to “purchase and hold real, personal and mixed property, or dispose of the same for the benefit of said city; ” and that “ all the property and funds of every kind belonging to, or in possession of the City of Baltimore, are vested in the said corporation; and the said corporation may receive in trust, and may control for the purposes of such trusts, all money or other property which may have been, or shall be, bestowed upon such corporation by will, deed or in any other form of gift or conveyance, in trust for any general corporation purpose, or in aid of the indigent and poor, or for the general purposes of education, or for charitable purposes of any description within the [12]*12said city; and the said corporation may lease or otherwise dispose of any property belonging to the said city,” &c.
As has been correctly said a municipal corporation like the City of Baltimore, is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. United States vs. Balto. and Ohio R. R. Co., 17 Wall., 322; Mayor, &c. of Balto. vs. Police Board, 15 Md., 376, 462. It is therefore incorporated for public and not private objects ; and it is invested with privileges and allowed to hold property for the purposes mentioned in its charter. And in construing the power of the City of Baltimore to hold property under its charter, it was said by the Supreme Court, in the case of McDonogh vs. Murdock, 15 How., 367, 413, that “All the property of a corporation like Baltimore is held for public uses, and when the capar city is conferred or acknowledged to it to hold property, its destination to a public use is necessarily implied.” It is true, there is a distinction taken, and, for some purposes, well maintained by the authorities, between property acquired for public municipal purposes exclusively, which is vested in or appertains to the corporation in its public, political or municipal character, and which may be essential to the complete performance of its public functions, and property acquired and held by it not essential to the discharge of ordinary public municipal functions, but for the. ease and accommodation of the public within the corporate limits. For instance, the supply of water or gas light to the entire population of a city is not essentially a public municipal function; for the supply of water or gas may be furnished by an independent corporation or by an individual as well as by the municipal corporation itself. It is no part of the duty of the State, through its municipal organizations, to supply these things to the people.
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Alvey, J.,
delivered the opinion of the Court.
As it is neither alleged in the bill nor pretended as matter of fact, that the judgment before the justice of the peace, (the execution on which is sought to be restrained,) was recovered without process duly served on the proper city official, there is an entire failure of evidence to sustain the application for an injunction upon the ground of fraud and surprise. It is alleged, it is true, that the judgment was rendered ex parte, but that was the fault of the appellee. Having been duly served with process it was the duty of the appellee to have attended before the justice at the time and place designated, and there availed itself of all defences then existing. Nor can the judgment subsequently recovered against the appellee in Baltimore City Court be questioned or impeached in the way proposed. If it be true that it was for the same cause of action as that upon which the former judgment before the justice was rendered, that fact ought to have been availed of by a plea of former recovery. The fact that the attorney of the city, who tried the case in Baltimore City Court, did not know of the existence of the former judgment, can make no difference. The corporation was bound to take notice of the fact; and the want of knowledge on the part of its attorney is no excuse for the failure to make the available defences at the proper time and place. It is well settled that a party to a proceeding is bound to be present in Court, either in person or by an attorney, to [10]*10take care of his rights, and attend to their due prosecution, and that he cannot make the omission to perform this duty, of itself, the foundation for an injunction. Gott vs. Carr, 6 Gill & John., 309. And there is nothing in the nature of a corporation entitling it to be made an exception in the application of this reasonable and most salutary rule. It is also an established principle, that if a defendant has the means of defence within his power, in an action against him, and neglects to use them, and suffers a recovery to be had against him, he is forever precluded from obtaining relief in a Court of equity in respect to such defence. A Court of equity will never relieve a party against a judgment at law, unless the justice of the recovery can he impeached by facts, or on grounds of which the complainant could not have availed himself at law, or was prevented from doing so by fraud or accident, or. the act of the opposite party, unmixed with any negligence or fault on his own part; for a party can never be entitled to the aid of a Court of equity when that aid becomes necessary by his own fault or negligence. Gott vs. Carr, 6 G. & J., 309; Dilly vs. Barnard, 8 Gill & John., 170. Here there is an entire failure of evidence to show that, by due and proper diligence, the former judgment could not have been produced and used as a defence to the action in Baltimore City Court, if the two cases were really founded on one and the same cause of action. It is proper to say, however, that, from the facts disclosed in this record, it would be difficult to conclude with any degree of certainty that the two judgments were founded on the same cause of action.
The alleged ground of fraud and surprise failing the appellee, the next proposition presented and relied on is, that , an execution cannot be rightfully issued against a municipal corporation, on a judgment for debt or damages recovered against it. And whether such proposition, in the unqualified form stated, can be maintained, is a ques[11]*11tion of more than ordinary importance, and one in regard to which there exists a considerable diversity of opinion among those who have had occasion to consider it, in the Courts of some of our sister States. The question is now presented to this Court for the first time, and we must decide it, not upon precedent, but upon such reason and principle as we take to be applicable and controlling in the case.
As we understand the counsel for the appellants, it is not contended that an execution could be issued against a municipal corporation and be levied upon property owned or used by it for purely public purposes; such as a courthouse, jail, alms-house, city or town-hall, police station-houses, market-house, fire engines, &c. But it is contended that municipal corporations may hold, and that Baltimore City does hold, property in a private or quasi private character, not necessary to the execution of the public municipal functions of the corporation, and that such property is liable to execution, on a judgment recovered against the corporation, in the same manner that it would be in the hands of an individual judgment debtor.
The corporation of the City of Baltimore, by its charter, (2nd vol. Code, Art. 4, secs. 1 and 2,) is declared to be entitled to “purchase and hold real, personal and mixed property, or dispose of the same for the benefit of said city; ” and that “ all the property and funds of every kind belonging to, or in possession of the City of Baltimore, are vested in the said corporation; and the said corporation may receive in trust, and may control for the purposes of such trusts, all money or other property which may have been, or shall be, bestowed upon such corporation by will, deed or in any other form of gift or conveyance, in trust for any general corporation purpose, or in aid of the indigent and poor, or for the general purposes of education, or for charitable purposes of any description within the [12]*12said city; and the said corporation may lease or otherwise dispose of any property belonging to the said city,” &c.
As has been correctly said a municipal corporation like the City of Baltimore, is a representative not only of the State, but is a portion of its governmental power. It is one of its creatures, made for a specific purpose, to exercise within a limited sphere the powers of the State. United States vs. Balto. and Ohio R. R. Co., 17 Wall., 322; Mayor, &c. of Balto. vs. Police Board, 15 Md., 376, 462. It is therefore incorporated for public and not private objects ; and it is invested with privileges and allowed to hold property for the purposes mentioned in its charter. And in construing the power of the City of Baltimore to hold property under its charter, it was said by the Supreme Court, in the case of McDonogh vs. Murdock, 15 How., 367, 413, that “All the property of a corporation like Baltimore is held for public uses, and when the capar city is conferred or acknowledged to it to hold property, its destination to a public use is necessarily implied.” It is true, there is a distinction taken, and, for some purposes, well maintained by the authorities, between property acquired for public municipal purposes exclusively, which is vested in or appertains to the corporation in its public, political or municipal character, and which may be essential to the complete performance of its public functions, and property acquired and held by it not essential to the discharge of ordinary public municipal functions, but for the. ease and accommodation of the public within the corporate limits. For instance, the supply of water or gas light to the entire population of a city is not essentially a public municipal function; for the supply of water or gas may be furnished by an independent corporation or by an individual as well as by the municipal corporation itself. It is no part of the duty of the State, through its municipal organizations, to supply these things to the people. Yet it is a common thing for [13]*13the corporations of cities and towns to be clothed with authority to construct works at great cost, and the cost to be defrayed by taxation, for the supply of both water and gas to the population. So, such corporations may hold wharves and other property for the facility and encouragement of trade; though all such interests are generally acquired and held under special grants of power. And while property thus held may yield gain and profit to the city, it subserves the convenience and is for the accommodation of the public. As illustrative of the distinction stated between property held as purely public, and used only for those purposes of municipal government in which the State is interested, and property held by such corporation not so used, the case of Rittenhouse vs. The Mayor, &c. of Baltimore, 25 Md., 336, and the cases therein referred to of Bailey vs. The Mayor, &c. of New York, 3 Hill, 531; Masterton vs. The Mayor, &c. of Brooklyn, 7 Hill, 61; and The Western Saving Fund Society vs. Philadelphia, 31 Penn. St., 175 and 185, may be consulted. It is in view of the distinction maintained by these authorities, and several others that might be referred to, that it is contended that an execution may issue on a judgment against the corporation, and be levied on such property as the corporation may hold in what is supposed to be its quasi private character.
But, notwithstanding the distinction just stated, all the property held by the corporation is, as we have seen, when considered in an enlarged sense, held for public uses and benefits. It is not pretended, of course, that it would be competent, under an execution against the corporation, to seize any property held in trust by it; arid all other property that it holds, not used in the exercise of its public municipal functions, is held for the general benefit and advantage of the population subject to the municipal jurisdiction. In the case of the United States vs. The Balto. & Ohio R. R. Co., 17 Wall., 322, before referred to, it was held [14]*14that the city funds.invested in a loan to the railroad company were exempt from taxation, under the United States revenue law, upon the distinct grounds that the loan itself was a municipal act, and that the money due the city was public municipal property; and as the municipal corporation was an agency, and a part of the State governmental power itself, it could not therefore be taxed. But without saying that all the property held by the city is of a strictly municipal character, that is to say, essential to the performance of public municipal functions, yet, if the city funds invested in a loan to a railroad company can he so far regarded as public property, because belonging to a municipal corporation, as to be exempted from taxation, a fortiori should that property and all other property held by the municipality be exempt from execution on judgment against the corporation. Indeed, it would be attended with the most serious consequences, and involve the greatest amount of inconvenience, to lay it down as a rule that any property belonging to a municipal corporation, not actually used in the discharge of its public functions, could be levied upon and sold under ordinary execution, as upon judgment against a private corporation. Both upon principle and the reason of the thing therefore, we conclude that an execution on judgment against a municipal corporation will not lie.
And we thus conclude the more readily because the law does not leave the creditor without ample remedy against the corporation. By the Act of 1876, ch. 367, it is provided that any municipal corporation in this State, against which there may be a judgment recovered in a Court of law, shall have power to levy a sum of money upon the assessable property of such municipality sufficient to pay such judgment. And for the purposes of the remedy in such cases, a judgment rendered by a justice of the peace may well be regarded as a judgment rendered by a Court of law. It cannot be supposed that the Legislature de[15]*15signed to exclude such judgments from the purview of the Act. And it being made the duty of the corporation or those in control of its government to levy a tax for the payment of the judgment, if refused to be performed, that duty can and will be enforced by mandamus. Watts vs. President, &c. of Port Deposit, 46 Md., 500; Supervisors vs. United States, 4 Wall., 435 ; City of Galena vs. Amy, 5 Wall, 705.
[Decided 28th February, 1879.]
That part of the decree appealed from which makes perpetual the injunction against all proceeding under the execution is affirmed; but that part of the decree which forbids and enjoins all further proceedings upon the judgment against the appellee must be reversed.
Decree affirm-ed in part, and reversed in part.