Mr. Justice Trotter,
after stating the case, .proceeded as follows:
When the motion was made to withdraw the plea, the cause had been submitted to the jury, and the defendant took no exception at the time to the action of the court in overruling it. Motions of this sort are generally made ore terms, at the bar of the court, and the record is silent, both as to the motions and the decision of the judge. Such was the case here. The record says nothing of this motion, and we are'only informed of it by the affidavit of the attorney in support of the motion for a new trial, in which he details the previous history of the cause, and in which this motion-to withdraw the plea is stated. The only bill of exceptions in the record is that which was drawn up after the question of a new trial was disposed of. This contains the affidavit of Coleman reciting the previous motion, but the judge has not certified to. us, that the motion was made;- nor could he properly do so.. The law has established a certain method of communication between an appellate court' and the inferior tribunals. The record certified by the judge of the court below is the only legal evidence of' the, history of the proceedings in the' cause, and if that is silent we cannot look to other sources.. And the party who excepts- to the conduct of the court must take care to make the matter of exception a part of the record, either by bill of exceptions taken at. the. time, or in some other mode pointed out by law. The only evidence before us of the motion to withdraw the plea is the affidavit of the attorney, and the bill of exceptions does nothing more than to certify that the affidavit was presented. It does not aver its truth. We are constrained, therefore, to disregard this assignment of error. It has been held by repeated decisions of this court, that the party who excepts to the opinion of the judge must tender his; bill of exceptions at the time, or it is too late. The defendant, below did not except; he is, therefore, deemed to have acquiesced in the decision. And so, in truth, he appears, to have done, for he: immediately applied to the court for leave to amend the plea, which was equivalent to a waiver of the first application. The court refused to allow the amendment. Whether the court acted properly or not in refusing this application, is not for us to decide. It was a matter resting in the sound discretion of the judge, and-[118]*118his decision is not open to review in this court. The allowance or disallowance of amendments is not ground for error. 11 Wheaton, 280. But( a conclusive answer to this assignment of error is the fact stated by the attorney himself, that he could not, when the application was made by him, “point out or specify the defects and amendments wished to be made.” How, then, could the judge determine whether an amendment was necessary to reach the merits of the cause?
The only question left for the determination of this court is, whether the judge below was right in refusing a new trial. This was a question which addressed itself to the sound discretion of the court, regulated as that discretion must be by such rules as have been adopted to prevent injustice and guard against abuse. It is the cherished policy of the law to suppress litigation and secure repose to society. Hence it has become a settled rule that when the matter of controversy has been determined by a competent court it shall not be again agitated, except when manifest injustice has been done, by the mistakes of the judge or the jury, or the improper and fraudulent conduct of the party. To vacate a judgment obtained by any of these means is the province of the judge who presides at the trial; or, by our act of assembly, it may be done on error to the appellate court. And to exert this power in such a case, is a duty required no less by the settled rules of law than the essential principles of justice. In such case it is the proud and boasted privilege of an independent and upright judge to interpose and set aside the determination. When, however', the diligent suitor has obtained his judgment fairly, and by the regular modes of proceeding and of proof, he must be permitted to enjoy its benefit. He is not to be again turned into a litigant, or otherwise prejudiced, for no better reason than that his adversary, through neglect or ignorance, omitted in proper time to come forward and contest his right. Therefore courts of justice have constantly refused to disturb judgments when the alleged injustice of them is the result of thé palpable inattentiou and supineness of the party himself; or, when he had a full opportunity to oppose it, but by carelessness omitted to do so. The cases in which new trials have been granted, when the attorney neglected to attend to the cause, will be found to be those where glaring injustice has [119]*119been done. The case of Martyn v. Padger and Others, 5 Burrow, 26, 32, which has been so much relied on by the counsel of the plaintiff in error was of this description. The action was trespass against the sheriff and his baliff for seizing certain goods alleged to be the property of the plaintiff. The defendants produced in evidence upon' the trial an execution against Win. Martyn, the son of the plaintiff, but showed no copy of the judgment. The plaintiff produced a bill of sale from the son embracing the property in question. There was a verdict for the plaintiff for want of the judgment. A new trial was granted, but it was done because the court was satisfied that the recovery was manifestly contrary to reason and justice — the bill of sale being fraudulent. The judges say it would be shameful that the plaintiff should reap an advantage from so gross an act of fraud. They put the case upon the palpable fraud of the plaintiff; and this was so clear that Lord Mansfield himself advised the motion for a new trial, and ■very properly determined that the inadvertence of the attorney in not producing a copy of the judgment should not be the means of consummating and perpetuating what he terms a most shameful fraud. That case' was decided upon the fixed maxim that fraud vitiates every thing, and that on no account shall a man be suffered to reap a benefit from' it. The case of Bright v. Enyon, 1 Burrow, 395, was likewise urged with much warmth as authority to control the present question, and particularly what is there said by the judges upon the subject of netv trials. There' is nothing said in the case in regard to what sort of negligence will be relieved against. That case, like the other, was placed upon the palpable injustice of the verdict. The defendant recovered upon a written discharge of the debt on which he was sued. The facts were laid before the jury, and Lord Mansfield said, in giving his reasons for a new trial, “ what I go upon is the apparent manifest fraud and imposition in obtaining this discharge from the testatrix if she really signed it. And again, he says, “ the writing upon the face of it speaks fraud and imposition.” The defendant, upon his own case stated by himself, and the evidence on both sides, showed that he had obtained the hand of the plaintiff to the writing fraudulently, and therefore he was not permitted to avail ■himself of it. That case was fully warranted by the general rule [120]*120laid down by the judges, that is, that a new trial should be granted in all cases where it may be necessary to do justice to the party, or to attain the justice of the case. But what proof have we.
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Mr. Justice Trotter,
after stating the case, .proceeded as follows:
When the motion was made to withdraw the plea, the cause had been submitted to the jury, and the defendant took no exception at the time to the action of the court in overruling it. Motions of this sort are generally made ore terms, at the bar of the court, and the record is silent, both as to the motions and the decision of the judge. Such was the case here. The record says nothing of this motion, and we are'only informed of it by the affidavit of the attorney in support of the motion for a new trial, in which he details the previous history of the cause, and in which this motion-to withdraw the plea is stated. The only bill of exceptions in the record is that which was drawn up after the question of a new trial was disposed of. This contains the affidavit of Coleman reciting the previous motion, but the judge has not certified to. us, that the motion was made;- nor could he properly do so.. The law has established a certain method of communication between an appellate court' and the inferior tribunals. The record certified by the judge of the court below is the only legal evidence of' the, history of the proceedings in the' cause, and if that is silent we cannot look to other sources.. And the party who excepts- to the conduct of the court must take care to make the matter of exception a part of the record, either by bill of exceptions taken at. the. time, or in some other mode pointed out by law. The only evidence before us of the motion to withdraw the plea is the affidavit of the attorney, and the bill of exceptions does nothing more than to certify that the affidavit was presented. It does not aver its truth. We are constrained, therefore, to disregard this assignment of error. It has been held by repeated decisions of this court, that the party who excepts to the opinion of the judge must tender his; bill of exceptions at the time, or it is too late. The defendant, below did not except; he is, therefore, deemed to have acquiesced in the decision. And so, in truth, he appears, to have done, for he: immediately applied to the court for leave to amend the plea, which was equivalent to a waiver of the first application. The court refused to allow the amendment. Whether the court acted properly or not in refusing this application, is not for us to decide. It was a matter resting in the sound discretion of the judge, and-[118]*118his decision is not open to review in this court. The allowance or disallowance of amendments is not ground for error. 11 Wheaton, 280. But( a conclusive answer to this assignment of error is the fact stated by the attorney himself, that he could not, when the application was made by him, “point out or specify the defects and amendments wished to be made.” How, then, could the judge determine whether an amendment was necessary to reach the merits of the cause?
The only question left for the determination of this court is, whether the judge below was right in refusing a new trial. This was a question which addressed itself to the sound discretion of the court, regulated as that discretion must be by such rules as have been adopted to prevent injustice and guard against abuse. It is the cherished policy of the law to suppress litigation and secure repose to society. Hence it has become a settled rule that when the matter of controversy has been determined by a competent court it shall not be again agitated, except when manifest injustice has been done, by the mistakes of the judge or the jury, or the improper and fraudulent conduct of the party. To vacate a judgment obtained by any of these means is the province of the judge who presides at the trial; or, by our act of assembly, it may be done on error to the appellate court. And to exert this power in such a case, is a duty required no less by the settled rules of law than the essential principles of justice. In such case it is the proud and boasted privilege of an independent and upright judge to interpose and set aside the determination. When, however', the diligent suitor has obtained his judgment fairly, and by the regular modes of proceeding and of proof, he must be permitted to enjoy its benefit. He is not to be again turned into a litigant, or otherwise prejudiced, for no better reason than that his adversary, through neglect or ignorance, omitted in proper time to come forward and contest his right. Therefore courts of justice have constantly refused to disturb judgments when the alleged injustice of them is the result of thé palpable inattentiou and supineness of the party himself; or, when he had a full opportunity to oppose it, but by carelessness omitted to do so. The cases in which new trials have been granted, when the attorney neglected to attend to the cause, will be found to be those where glaring injustice has [119]*119been done. The case of Martyn v. Padger and Others, 5 Burrow, 26, 32, which has been so much relied on by the counsel of the plaintiff in error was of this description. The action was trespass against the sheriff and his baliff for seizing certain goods alleged to be the property of the plaintiff. The defendants produced in evidence upon' the trial an execution against Win. Martyn, the son of the plaintiff, but showed no copy of the judgment. The plaintiff produced a bill of sale from the son embracing the property in question. There was a verdict for the plaintiff for want of the judgment. A new trial was granted, but it was done because the court was satisfied that the recovery was manifestly contrary to reason and justice — the bill of sale being fraudulent. The judges say it would be shameful that the plaintiff should reap an advantage from so gross an act of fraud. They put the case upon the palpable fraud of the plaintiff; and this was so clear that Lord Mansfield himself advised the motion for a new trial, and ■very properly determined that the inadvertence of the attorney in not producing a copy of the judgment should not be the means of consummating and perpetuating what he terms a most shameful fraud. That case' was decided upon the fixed maxim that fraud vitiates every thing, and that on no account shall a man be suffered to reap a benefit from' it. The case of Bright v. Enyon, 1 Burrow, 395, was likewise urged with much warmth as authority to control the present question, and particularly what is there said by the judges upon the subject of netv trials. There' is nothing said in the case in regard to what sort of negligence will be relieved against. That case, like the other, was placed upon the palpable injustice of the verdict. The defendant recovered upon a written discharge of the debt on which he was sued. The facts were laid before the jury, and Lord Mansfield said, in giving his reasons for a new trial, “ what I go upon is the apparent manifest fraud and imposition in obtaining this discharge from the testatrix if she really signed it. And again, he says, “ the writing upon the face of it speaks fraud and imposition.” The defendant, upon his own case stated by himself, and the evidence on both sides, showed that he had obtained the hand of the plaintiff to the writing fraudulently, and therefore he was not permitted to avail ■himself of it. That case was fully warranted by the general rule [120]*120laid down by the judges, that is, that a new trial should be granted in all cases where it may be necessary to do justice to the party, or to attain the justice of the case. But what proof have we. that justice has not been done in the present case? Upon what evidence are we at liberty to say, in the emphatic language used by the judge in the cases referred to, that this verdict is manifestly contrary to reason and justice? Upon what part of this record is it made apparent that the verdict was obtained by the manifest fraud of the plaintiff? It is true there is the ex parte affidavit of Green that his name was signed to the note by his partner, without his consent; and this is unsupported by any proof on the trial or the record. But this is not pretended to have been brought about by any improper conduct of Robinson; and though the affidavit states that there was a stipulation in the articles of copartnership, •that neither partner should be at liberty to bind the firm as surety for others, yet it is not insinuated that Robinson knew this, and indeed the affidavit is not even fortified by the production of the agreement. It is not shown to the court. Why he chose not to do so we have not been informed. This affidavit is no more than an affidavit of merits, and as such is no ground for a new trial, 1 Caines’s Rep. 154; and this rule is founded in wisdom and sound policy. It cannot be endured that a party to a suit ip court, with full notice of its pendency, shall sit by and make no defence, and after a verdict against him have it set aside upon an affidavit of merits. That would be to pervert the maxim that the law was made to subserve the vigilant and not the negligent. But it is urged that the counsel of the defendant was taken by surprise, and was prevented from making the defence disclosed in the affidavit. This is not that sort of surprise which is sometimes considered sufficient to authorise a new trial. The attorney could not be surprised that the cause was reached on the docket, and submitted to the jury. He should have noticed the progress of the court, and been in attendance. He was in attendance, and stood in the court room and suffered the cause to be called and placed with the jury before he let the court or the opposite counsel know that he was employed. But he has made it manifest, that if he had appeared on the trial he had precluded himself from insisting on the oply defence his client had. By pleading in chief [121]*121he had admitted the execution of the note. Of what avail would it then have been if the court had arrested the cause and allowed him to offer proof? It is then, for the first time, he becomes sensible that his plea will not cover the defence of his client; and, at that moment, when the papers have gone to the jury, he asks permission to amend. It is not surprising that it should have been refused. The amendment is not sought upon newly discovered matter of defence. The only ground of his defence had been communicated to him by his client before the meeting of the court. And notwithstanding this, he had, as he tells the court, deliberately adopted the plea which excluded it. And what is still more strange, when the amendment is asked for, it is coupled with a request that his client might be sent for to point out and specify what amendments were necessary. Surely these facts do betray a degree of negligence and inattention so gross that it would be a violation of the most obvious rules to interpose. He had made no preparation. And is the plaintiff to be prejudiced by this remissness? The law says he shall not. In the case of M’Neil v. Stewart, 7 Cowen, 474, it was held that where a defendant, by the mistake of his attorney, files a plea which does not cover his defence, and there is a verdict against him, the court will not for that reason grant a new trial. And the judge remarks that a contrary practice would lead to endless excuses founded in mere practice. The inadvertence of counsel in the management of a cause is no ground for granting a new trial. Coxe’s Dig. 502; 2 Tenn. Rep. 120. And the books are full of this doctrine. The verdict must therefore stand. But, as the judgment is for a sum larger than that demanded by the suit, it must for that reason be reversed. The release which has been entered of record for the excess, however, will authorise this court to render the proper judgment, which will accordingly be done.
Judgment reversed, and rendered for the sum actually due, with damages.