Harner v. Price

17 W. Va. 523, 1880 W. Va. LEXIS 18

• Court: West Virginia Supreme Court
• Decided: December 18, 1880
• Status: Published

Opinion

Haymomd, Judge,

announced the opinion of the Court:

In deciding this case it is necessary and proper to consider and discuss to some extent, how far a party is entitled to relief in equity from an act done by him under a mistake of law or fact. And first I will consider the effect of a mistake of law and afterwards a mistake of fact or facts. Agreements entered into in good faith but under a mistake of the law are generally held valid and obligatory upon the parties. 1 Story Eq. Jur. § 113, note 3. Mr. Story in the same work at § 11 <3 in referring to the said § 113 says: “ In a preceding section it has been stated that agreements made and acts done under a mistake of law are, if not otherwise objectionable, generally held valid and obligatory. The doctrine is.laid down in this guarded and qualified manner, because it is not to be disguised, that there are authorities which are supposed to contradict it.,; Mr. Story in § 119 of the same work says : “ The case of Evans v. Llewellyn, is expressly put in the decree upon the ground of surprise, the conveyance having been obtained and executed by the plaintiffs im providently.” It was admitted, that there was no sufficient proof of fraud or imposition practiced upon the plaintiff, though the facts might well lead to some doubt on that point, and the plaintiff was certainly not ignorant of any of the facts, which respected his rights. The Master of the Rolls (Sir Lloyd Kenyon, afterwards Lord Kenyon,) said : “The party was taken by surprise. He had not sufficient time to act with caution ; and-therefore, though there was no actual fraud, it is something like fraud; for an undue advantage was taken of his situation. I am of opinion, that the party was not competent to protect himself; and therefore this courtis bound to afford him such protection ; and therefore these deeds ought to be set aside as improvidently obtained. If the plaintiff had in fact gone back, I should have rescinded the transaction.”

In § 120 of same work Judge Story says: “The most general class of cases relied on as exceptions to the rule, is that class, where the party acted under a misconception or ignorance of his title to the property, respecting which some agreement has been made or conveyance executed. So far as ignorance in point of fact of any title in the party is an ingredient in any of these cases, they fall under a very different consideration. But so faras the party knowing all the facts, has acted upon a mistake of the law, applicable to his title, they are proper to be discussed in this place. Upon a close survey most, although not all, of the case’s in the latter predicament will be found to have turned, not upon the consideration of a mere mistake of law, stripped of all other circumstances, but upon an admixture of other ingredients, going to establish misrepresentation, imposition, undue confidence, undue influence, mental inability, or that sort of surprise, which equity uniformly regards as a just foundation for relief.”

Judge Story, in speaking of Lansdown v. Lansdown in § 125 of his said work says: “ This case has been questioned on several occasions, and is certainly open to much criticism. It appears to have been a case of family dispute and compromise, made by parties equally innocent, and upon a doubtful question of title under a mutual mistake of the law. Under such circumstances, there is great difficulty in sustaining it in point of principle or authority. It was probably decided by Lord King on the untenable ground already suggested. If indeed it proceeded upon the ground of undue confidence in Hughes’s opinion, or was induced by his undue persuasions and influence, such a misrepresentation of the law by him might, under such circumstances, furnish a reason for relief. But that does not appear in any report of the case.” But see further in regard to this case in note 2 of said section 125, and Hunt v. Rousmaniere 8 Wheat. 214, 215 and 1st Pet. Sup. C. R. 15 and 16. “The distinction between cases of mistake of a plain and settled principle of law, and cases of a mistake of a principle of law, not plain to persons generally, but which is yet constructively certain, as a foundation of title, is not of itself very intelligible, or practically.speaking very easy of application, considered as an independent element of decision. In contemplation of law all its rules and principles are deemed certain, although they have not, as yet, been recognized by public adjudications. This doctrine proceeds upon the theoretical ground that Id cerium est, quod cerium reddi potest; and that decisions do not make the law, but only promulgate it. Besides : what are to be deemed plain and settled principles ? Are they such, as have been long and uniformly established by adjudications, only ? Or is a single decision sufficient ? What degree of clearness constitutes the line of demarkation? If there have been decisions different ways at different times, which is to prevail ?” &c. 1 Story Eq. Jour. § 126. See the reasoning of Judge Kent in Lyon v. Richmond, 2 Johns. Ch. R. 60. See also upon this subject Story’s Eq. Jur. §§ 127, 128, 129, 130, 131, 132, 133. “Cases of surprise, mixed up with a mistake of law, stand upon a ground peculiar to themselves and independent of the general doctrine/’says Judge Story in his same work § 134.

“There are also cases of peculiar trust, and confidence, and relation between the parties, which give rise to a qualification of the general doctrine.” Same author § 135. “There are also some other cases, in which relief has been granted in equity, apparently upon the ground of mistake of la.w. But they will be found, upon examination, rather to be cases of defective execution of the intent of the parties from ignorance of law, as to the proper mode of framing the instrument.” Same author § 136.

Again Judge Story in same work at § 137, says: “ We have thus gone over the principal cases, which are supposed to contain contradictions of, or exceptions to, the general rule, that ignorance of the law, with a full knowledge of the facts, furnishes no ground to rescind agreements, or to set aside solemn acts of the parties.

Without undertaking to assert that there are none of these cases, which are inconsistent with the rule, it may be affirmed, that the real exceptions to it are very few, and generally stand upon some very urgent pressure of circumstances. The rule prevails in England in all cases of compromises of doubtful, and perhaps in all cases of doubted rights; and especially in all cases of family arrangements. It is relaxed in cases, where there is a total ignorance of title, founded in the mistake of a plain and settled principle of law, and in cases of imposition, misrepresentation, undue influence, misplaced confidence, and surprise. In America, the general rule has been recognized, as founded in sound wisdom and policy, and fit to be upheld with a steady confidence; and hitherto the exceptions to it-, if any, will be found not to rest upon the mere foundation of a naked mistake of law, however plain and settled the principle may be, nor upon mere ignorance of title, founded upon such mistake.”

The genera] rule seems to be affirmed in Shotwell v. Murray, 1 Johns. Chy. 512, 515; Lyon v. Richmond, 2 Johns. Chy. 51, 60; and Storrs v. Barker, 6 Johns. Chy. 169, 170.

In Hunt v. Rousmaniere, 8 Wheat. 211, 214, 215, the court said : “Although we do not find the naked principle, that relief may be granted on account of ignorance of the law, assented to in the books, .we find no case, in which it has been decided, that a plain and acknowledged mistake in lawis beyond the reach of equity.” But when the case came again before the court upon appeal, in 1 Pet. Sup. C. 15, the Court said : “We hold the general rule to be, that a mistake of this character, (that is, a mistake arising from ignorance of the law), is not a ground for reforming a deed, founded on such mistake, and whatever exceptions there may to this rule, they are not only few in number but they will be found to have something peculiar in their character.” But the court added at page 17, that it was not their intention to lay it down, that there may not be cases, in which a court of equity will relieve against a plain mistake; arising from ignorance of law. In the case of Marshall v. Collett, 1 You. & Coll. 238, Lord Chancellor, Baron Abinger, said, that for mistake of law, equity would not set aside a contract. See also Cockerville v. Cholmeley, 1 Russ. & M. 418; and McCarty v. Decaix, 2 Russ. & M. 614.

The question again came under review before the Supreme Court of the United States in the ease of the Bank of the United States v. Daniel, 12 Pet. 32, 55, 56 where the main question was, whether a mistake of law was relievable in equity, it being stripped of all other circumstances; and it seems the court held, that it was not. In this case the court said : “That mere mistakes of law are not remediable, is well established, as was declared by this Court in Hunt v. Rousmaniere, 1 Pet. 15; and we can only repeat what was there said; ‘that whatever exceptions there may be to the rule, they will be found few in number, and to have something peculiar in ' their character; and to involve other elements of decision. * * Testing the case by the principle, that a mistake or ignorance of the law, forms no gound of relief from contracts fairly entered into, with a full knowledge of the facts, and under circumstances repelling all presumptions of fraud, imposition or undue advantage having been taken of the party, none of which are chargeable upon the appellants in this case, the ques-' tion then is, were the complainants entitled to relief? To which we respond decidedly in the negative.”

Under this decision so far as the courts of the'Uuited States are concerned the question seems to be settled and at rest.. Judge Story in the same book §138 says: “It is a matter of regret, that in the present state of the law it is not practicable to present in any more definite form the doctrine respecting the effect of mistakes of law, or to clear the subject from some obscurities and uncertainties, which still surround it. But it may be safely affirmed upon the highest authority, as a well established doctrine, that a mere naked mistake of law, unattended with any such special circumstances, as have been above suggested, will furnish no ground for the interposition of a court of equity; and the present disposition of courts of equity is to narrow rather than to enlarge the operation of exceptions. It may however be added) that where a judgment is fairly obtained at law upon a contract, and afterwards upon more solemn consideration of the subject the point of law, upon which the cause was adjudged, is otherwise decided, no relief will be granted in equity against the judgment upon the ground of mistake of the law; for that would be to open perpetual sources of renewed litigation.”

From what has preceded I think it may safely be ■affirmed, that agreements made and acts done under a mistake of law, if not otherwise objectionable, are genera^y valid and obligatory. High on Injunctions, § 124; Mum v. Rucker, 10 Gratt. 506.

I now proceed to enquire and consider as to mistakes as to questions of fact. At § 140 of 1 Story's Eq. Jur. 5 ed., it is said : “ In regard to the other class of mistakes, that is, mistakes of fact, there is not so much difficulty. The general rule is, that an act done, or contract made, under mistake or ignorance of a material tact, is voidable and relievable in equity. The ground of this distinction between ignorance of law and ignorance of fact seems to be, as every man of reasonable understanding is presumed to know the law, and to act upon the rights, which it confers or supports, when he knows all the facts, it is culpable negligence in him to do an act, or to make a contract, and then to set up his ignorance of law as a defence. The general maxim here is, as in other cases, that the law aids them, who are vigilant, and not those who slumber over their rights. And this reason is recognized as the foundation of the distinction, as well in the civil law as in the common law. But no person can be presumed to be acquainted with all matters of fact; neither is it possible by any degree of diligence.in all cases to acquire that knowledge; and therefore an ignorance of fact does not import culpable negligence. The rule applies, not only to cases where there has been a studied suppression or concealment of the facts by the other side, which would amount to fraud; but also to many cases of innocent ignorance and mistake on both sides. So, if a party has bona fide entirely forgotten the facts, he will be entitled to relief, because under such circumstances he acts under the like mistake of the facts, as if he had never known them.”

“The rule, as to ignorance or mistake of facts entitling the party to relief, has this important qualification,” (says Judge Story at § 141), “that the fact must be material to the act or contract, that is, that it must be essential to its character, and an efficient cause of its concoction. For though there may be an accidental ignorance or mistake of a fact; yet if the act or contract is not materially affected by it, the party claiming relief will be denied it.” “In cases of mutual mistake going to the essence of the contract it is by no means necessary, that there should be any presumption of fraud. On the contrary, equity will often relieve, however innocent the parties may be.” Same book § 142. See also §§ 143, 143 a, 143 b, 144, 144 a, 145. “It is not however sufficient in all cases to give the party relief, that the fact is material; but it must be such, as he could not by reasonable diligence get knowledge of, when he was put upon enquiry. For, if by such reasonable diligence he could have obtained .knowledge of the fact, equity will not relieve him; since that would be to encourage culpable negligence. Thus if a party has lost his causé at law from the want of proof of a fact, which by ordinary diligence he could have obtained, he is not relievable in equity ; for the general rule is, that if the party becomes remediless at law by his own negligence, equity will leave him to bear the consequence.” Same book § 146. “Nor is it in every case, where even a material fact is mistaken or unknown without any default of the parties, that a court of equity will interpose. The fact may be unknown to both parties, or it may be known to one party and unknown to the other. If it is known to one party and unknown to the other, that will in some cases afford a solid ground for relief, as for instance, where it operates as a surprise or a fraud upon the ignorant party. But in all such cases the ground of relief is, not the mistake or ignorance of material facts alone, but the uneonscientious advantage taken of the party by the concealment of them. For if the parties act fairly, and it is not a case, where one is bound to communicate the facts to the other upon the ground of confidence or otherwise, there the court will not interfere. Same book § 147.

Judge Story at § 148 also says: “ And it is essential, in order to set aside such a transaction, not only that an advantage should be taken ; but it must arise from ‘some obligation in the party to make the discovery ; not from an obligation in point of morals only, but of legal duty. * * * Equity, as a practical system, although it will not aid immorality, does not affect to enforce mere moral duties. But its policy is to administer relief to the vigilant and to put all parties upon the exercise'of a searching diligence.' Where confidence is reposed, or the party is intentionally misled, relief may be granted; but in such a case there is the ingredient of what the law deems a fraud.”

“A like principle applies to cases, where the means of information are open to both parties, and where each is presumed to exercise his own skill, diligence and judgment in regard to all extrinsic circumstances. In such cases equity will not relieve.” Same book § 149. “In like manner, where the fact is equally unknown to both parties, or where each has equal and adequate means -of information, or where the fact is doubtful from its own nature, in every such case, if the parties have acted with entire good faith, a court- of equity will not interpose. For in such cases the equity is deemed equal between the parties; and when it is so, a court of equity is generally passive and rarely exerts an active jurisdiction.” Same book § 150.

- “The general ground, upon which all these distinctions proceed is, that mistake or ignorance of facts is a proper subject for -relief, only when it constitutes a material ingredient in the contract of the parties and disappoints their intention by a mutual error, or where it is inconsistent with good faith and proceeds from a violation of the obligations, which ai’e imposed by law upon the conscience of either party. But where each party is equally innocent, and there is no concealment of facts which the other party has a right to know, and no surprise or imposition exists, the mistake or ignorance, whether mutual or unilateral, is treated as laying no foundation for equitable interference. It is strictly damnum, absque irjuria.” Same book § 151. “The true definition (says Judge Story, at § 207 of same bo'ok), then, ‘ of undue concealment, which amounts to a fraud in the sense of a court of equity, and for which it will grant relief, is the non-disclosure of those facts and circumstances, which one party is under some legal or equitable obligation to communicate to the other, and which the latter has a right, not merely in foro conscientice, but juris et de jure, to know.”

In Warren et al. v. Branch et al. 15 West Va. 21, Judge Green in delivering the opinion of the Court at pp. 34, 35 and 36 says: “ We concur with Potter,. J., in his statement in the case of Atlas Bank v. Brownell et al. 9 R. I. 174, that Judge Story in his equity jurisprudence states the doctrine with reference to the eases, in which concealment of facts by a creditor will vitiate the contract of a surety of a debtor, much more strongly than the decided cases will warrant. We cannot draw from these decisions the conclusion he draws, that in the case of a surety concealment of facts, which go to increase his risk, amounts to a fraud on the surety; and the omission to disclose such is equivalent to an affirmation that the facts do not exist. See Story’s Eq. Jur. §§ 214, 215, 324 and 383. Our conclusion is, that unless enquired of by the surety a creditor is under no obligation to disclose facts in no manner connected with the business which is the subject of the suretyship, though such facts would probably have a decided influence on the surety in entering into, or declining to enter into, his contract of suretyship. * * * * So too the insolvency of the principal need not, though known to the creditor, be disclosed to the surety, when no enquiry is made by him. If a material fact connected with the contract of suretyship, which might influence the surety in entering into the contract, is fraudulently concealed with a-view to ■benefit the creditor, such concealment though no enquiry has been made by the surety, would vitiate the contract of suretyship and discharge the surety. * * * But if the surety made no enquiry on the subject, "and the failure to disclose the fact, that the money borrowed or a portion of it was to be applied to the payment of an old debt due the creditor, was not induced by the belief on the part of the creditor, that if disclosed, he would not sign the bond as surety, then such failure to communicate this fact, not being fraudulent, does not vitiate the contract and the surety would be held bound.” See also upon the subject of mistake, &c., Irick and wife v. Fulton’s ex’rs, 3 Gratt. 193; Ross v. McLaughlin, 7 Gratt. 86; French v. Touns, 10 Gratt. 513; Gaw v. Hoffman, 12 Gratt. 628.

Syllabus 2.

The principles of law governing courts of equity generally, to which I have referred, and authorities cited seem to apply to contracts, and have some bearing upon the questions discussed in this cause before us by counsel, and many' of them were cited by the counsel on both sides. “It may be laid down,” says High on Injunctions, § 125, “ as a general rule, that ignorance of important facts material to the establishing of a defence to the action at law, will in the absence of laches on the part of the defendant warrant a court of equity in extending a relief by injunction against the judgment.” But, in Mum v. Rucker, 10 Gratt. 506, it was held as follows: 1. An injunction to a judgment at law will not be sustained where defendant at law has failed to make his defence at law from ignorance of the nature of the proceeding against him, and a misapprehension of the steps it was necessary to take in order to subject him. 2. The mere averment by a plaintiff in his bill asking for an injunction to a judgment at law, of the facts constituting his excuse for not defending himself at law, is not sufficient, he must prove them.”

In Shields et al. v. McClung et al., 6 W. Va. 79, i t was held : “ 3. That a party to whom a day and opportunity have been allowed to make his defence against a demand set up against him in a court at law, but who has wholly failed to avail himself of them will not be entertained in the court of chancery on a bill seeking relief against the judgment which has been rendered against him in consequence of his default, upon grounds which might have been successfully taken in the court of law, unless some reason founded on fraud, accident, surprise, or some adventitious circumstance beyond the control of the party be shown why the defence was not made in that court.”

In Smith v. McLain, 11 W. Va. 654, it was held by this Court: “2. A judgment will not be restrained by injunction on grounds purely legal, unless a defence has been presented at law by fraud on the one side, or ignorance unmixed with negligence. 3. A surety cannot rely on his ignorance of a substantial defence arising out of transactions between the plaintiff in the common law suit and the principal, as a reason for opening a judgment against the surety, unless he alleges in his bill and shows by evidence, that he took proper measures to ascertain the true state of the case, and prepare his defence in the common law action, or that he was prevented by circumstances which rendered it impossible to take such measures.”

These cases furnish some safe criteria or principles as to laches in a large class of injunction-cases, similar in some of their aspects, but perhaps not altogether, to the case at bar.

High on.Injunctions at §§ 165, 166, says: “In the absence of fraud or deception an injunction will only be allowed against a judgment which complainant has suffered to go against him by default. And where one has negligently permitted judgment to go against him by default, such negligence is sufficient to prevent him from obtaining the aid of an injunction against the judgment. Indeed in a case of default, a court of equity will refuse to consider the merits of the ease any further than the question of complainant’s negligence in asserting his rights at law, and no sufficient excuse appearing for his having neglected to defend at law, the injunction will be refused. Nor will the proceedings be enjoined merely because plaintiff obtained more relief than be was entitled to by his action, there being no misrepresentation or deception by which defendants were in any way misled. * * * With regard to judgments by confession, as in the case of judgments by default, a court of equity will not ordinarily interfere in the absence of fraud or collusion. And where a defendant has voluntarily and freely confessed judgment, without fraud or deception by the opposite party, he is thereby estopped from enjoining the proceedings on the ground of an equity existing anterior to his confession of judgment, &c.”

In the case at bar it appears that something more than five years had elapsed between the time said promissory note became due and payable and the date of the suit at law and of the confession of the said judgment thereon by the plaintiff, Harner, and from all that appears in the cause at the date of the confession of said judgment a recovery upon said note against the plaintiff, Harner, could not have been had in an action at law if he had chosen to avail himself of the benefit of the statute of limitations instead of confessing judgment thereon as he did. It also appears that the said note was just and unpaid for the amount for which said judgment was confessed, and that the plaintiff knew such to be the fact, at the time he confessed said judgment. The said promissory note was joint and several and the plaintiff might have been sued thereon separately. And although said note was barred by the statute of limitations under the 8th and 9th sections of chapter 104 of the Code of this State of 1868 it was at the time the judgment was confessed by Harner competent for him by promise of payment of the debt in writing signed by him, or by an acknowledgment in writing signed by him, from which a promise of payment might be implied, to bind himself for the payment thereof, and upon such writing an action would lie and a recovery could have been had against him. And indeed under said 8th section, in such case an action oould be brought on the original note, and if hepleaded the statute of limitations, in answer to such plea, the plaintiff might successfully reply such promise in wi’iting, and that the action had been brought within five years thereafter. This being.so, of course it cannot be successfully claimed, as it seems to me, that a debtor may not properly confess a judgment for a just- debt, after it is barred by the statute of limitations ; and there is nothing inequitable in such confession in such a case in the absence of fraud or fraudulent misrepresentation or concealment on the part of the creditor in the procurement of such confession, to require the interference of a court of equity at the instance of the debtor to prohibit the collection of th.e judgment, because the debt was barred, by the statute of limitations, at the time the action was brought and judgment confessed.

I have carefully read and re-read all the evidence in the cause and considered and analyzed it, as best I could, and although it is somewhat conflicting as to some material facts, yet my conclusion is, that the evidence fails to establish the allegations of fraud or collusion against the defendant, Price, which are alleged in the bill; but on the contrary, I think, the preponderating weight of the evidence strongly supports and sustains the answer of defendant Price to such allegations of fraud and collusion ; and the answer to the allegations of fraud, collusion, &c., contained in the bill seems to be full and complete in denial of all these allegations. I think it is probable from the whole case, that the plaintiff, at the time he confessed the judgment, did not remember when the said debt became payable, and that it may not have occurred to him that the statute of limitations could be successfully pleaded against a recovery of said debt; but be this as it may, it appears abundantly in this case, that the plaintiff had every opportunity of informing himself fully as to this matter of fact as well as law. The matter of law he is presumed to know, and his ignorance, (if in fact he was ignorant of the law) is not, and can not avail as, an excuse in this case. The note was not concealed from his view and inspection — it appears that it was produced by defendant Price in the clerk’s office, in the presence of the plaintiff, and that it lay open on the table in the clerk’s office in the presence and view of the plaintiff and close to him, and open to the inspection of plaintiff and others for perhaps a half hour before he confessed the judgment, and that while' the note was so lying open on the table in the presence and view of the plaintiff, the clerk, the defendant, Price, and others, two separate calculations of the amount due on said note after deducting the credits on the back of the note were made in the presence of the plaintiff, one by defendant Price .and the other by the clerk, the result of which were announced to the plaintiff in the clerk’s office just before he confessed the judgment. Every reasonable opportunity appears to have been afforded the plaintiff to inform himself as to the date of the note, when it was payable, and whether more than five years prior to the date of the suit and confession, and still he failed to avail himself thereof.

It does not appear, and in fact is not pretended, that the plaintiff enquired of defendant, Price, or of any other person prior to his confessing the judgment as to the date of said note, or how long it had been due and payable, or whether it was barred by the statute of limitations, although he had every opportunity to do so in the clerk’s office befoi’e he confessed the judgment. If therefore the plaintiff was ignorant, at the time he confessed the judgment, of the time at which the note became due and payable, and that more than five years had elapsed since it became due and payable, it was the result of his own gross negligence and laches, and not to be attributed to the fault of the defendant, Price. It clearly appears, that the defendant, Price, informed the plaintiff on the day before the judgment was confessed, that he had seen the executors of Hagans, deceased, one of whom was a co-security with the plaintiff, about the note, and that they had not given him satisfaction about it as he thought they ought to have done, thus putting the plaintiff on his guard, as it were. At the time plaintiff confessed said judgment, it appears that the said executors were in the town at their usual place of business, but a short distance from the clerk’s office, and that usual place of business was known to the plaintiff. He had ample opportunity to see and consult them, but failed to avail himself of it. It is true, that the plaintiff claims that the defendant prevented him from seeing the executors before he confessed judgment by fraudulently and falsely representing to him that they were out of town, but I do not think the evidence all taken together bearing upon this point sufficiently proves the fact.

Although the plaintiff was a surety in said note, still I think that the mere fact, that he did not know at the time he confessed the judgment, that the debt was barred by the statute of limitations, is not in and of itself suf-ficent to entitle him to relief in a court of equity against said judgment, especially under the great negligence and laohes of the plaintiff, which appear in the case, and to which I have alluded, fraud not appearing to have been practiced upon the plaintiff by the defendant, Price, in procuring the confession of the judgment. Although the defendant, Price, knew that said note had been due and payable more than five years, still I think from the evidence that he in fact believed at the time said judgment was confessed, that an action on the note was not barred because of the payment which had been made and endorsed on the back thereof within the five years. It seems the object of the defendant, Price, in desiring a judgment, if his debt was not then paid, was to secure it by judgment-lien upon the lands of said Harner, and the object of the plaintiff in confessing the judgment foi what he knew to be a just debt was to give the defendant, Price, the benefit of such judgment-lien for the security of the debt. There was therefore no such mutual mistake or ignorance of facts in the parties as disappointed their intention by mutual error. Each party (barring the negligencé and laches aforesaid of the plaintiff) was equally innocent, and, as I have before stated, it does not sufficently appear from the evidence, that there was any fraudulent concealment from the plaintiff upon the part of defendant, Price, or in fact any fraud practiced by the said Price upon the plaintiff in procuring the confession of judgment; and in such case I apprehend under the authorities and the law • there is no foundation for equitable interference, if the case stood simply upon contract in the absence of a confessed judgment.

But it is claimed, that the judgment is a nullity and not binding on the plaintiff, for the reason that the final judgment in the suit was against the defendant, Price, on a plea not personal to the co-security who filed it, or at least would have been so, if the plaintiff had not abandoned the-case and suffered a nonsuit, and thereby released also the plaintiff. The case of Steptoe v. Reed, 19 Gratt. 1, is cited to show, as I suppose, that the confessed judgment is a nullity. The principal subject discussed in this case has been considered by this Court in the case of Snyder v. Snyder, 9 W. Va. 415, and I do not think that either the former or latter case sustains the position that the judgment is a nullity,-and that it can beso considered by us in this case. The 43d section of chapter 125 of the Code of this State of 1868 provides, that “in any suit a defendant may confess a judgment or decree in -the clerk’s office, for so much principal and interest as the plaintiff may be willing to accept a judgment or decree for. The same shall be entered of record by the clerk in the order-book, and be as final and as valid as if entered in court on the day of such confession, except merely that the court shall have such control over it as is given by the last section of this chapter.” And the last section (which is the 60th) of said chapter is as follows: “The court shall have control over all proceedings in the office, during the preceding vacation.. It may reinstate ,any cause discontinued during such vacation, set aside any of the said proceedings or correct any mistake therein, and make such order concerning the same as' may be just.”

The effect of said 43d section of chapter 125 of the Code upon the common law rule as to joint judgments considered in said case in 9 Gratt., does not appear to have been brought to the attention of the court by counsel or to have been considered by it, nor do I find that it has been considered and passed upon in any case. I do not consider it necessary to consider that question here, because in this case we are not sitting as a court of error to pass upon the regularity of the proceedings in the common law case. I think however it is clear that said judgment so confessed must be held valid, until it shall be set aside, arrested or' reversed by proper proceedings at law in the case. The judgment of nonsuit as to the defendant, William Hagans, after the filing of the plea of the statute of limitations was .suffered and entered a considerable time after the filing of the bill in this cause, and sometime before the final decree therein, and the question as to whether the defendant, Price, in this cause, who was plaintiff in the action at law, released the said Harner from the judgment confessed by him, by suffering a nonsuit in the action at law as to the co-security, William Hagans, is not put in issue by the pleadings in this cause. If the plaintiff meant to rely upon that fact, he should regularly have done so by amended bill. But the theory of the plaintiff in this case is, that the action was barred as to said Hagans and himself each, and therefore the plea of the statute only being in and relied on as to said William Hagans, if the action was in fact barred as to said Hagans (which seems to have been the fact) a trial of the action upon that plea would have been a useless consumption of time and expenditure of costs.

• I apprehend the true question is whether the judgment of nonsuit against said Price in the case should not have been joint in favor of Harner and Hagans instead of in favor of Hagans alone, and the confessed judgment corrected, set aside or reversed as to Harner. This question is one properly for a court of law in proceedings in the case at law to determine An injunction to a judgment is not a writ of error at law to such judgment nor in the nature of such writ, as a general rule, and as before stated the equitable proceeding by injunction does not lie to correct the irregularities and errors of courts of law, when such exist. For such errors and irregularities there is ample remedy in a court of law, and the remedy is not in a court of equity. I do not mean however to express any opinion as to whether there is error in the law case, for which it could have been reversed or corrected, as that question cannot be considered in this case.

Syllabus 3.

For the foregoing reasons it seems to me, that there is no error in the decree of the circuit court of the county of Monongalia rendered in this cause on the 22d day of September, 1876, and the same must ■ therefore be affirmed with costs and $30.00 damages in favor of the appellee, William Price against the appellant, Philip W. Harner.

The otheu Judges CONCURRED.

Decree Affirmed.