Holt's Executors v. Graham

5 Ky. 192

• Court: Court of Appeals of Kentucky
• Decided: July 1, 1810
• Status: Published

Opinion

OPINION of the Court, by

Judge CLARK.

Graham filed his bill in she court below for relief against a judgment at law, obtained by Holt’s executors, in the Garrard circuit court, against him, on a record of a judgment of the state of North Carolina. On final hearing, the court decreed a perpetual injunction. To which decree Holt’s executors prosecute this writ of error.

It has been settled by various decisions of this court, that where there is a complete defence at law, equity will not grant relief,

* unless the applicant can shew the existence ofsome fact which rendered a defence at law impracticable. The equity contained in the complainant’s btll (if to be considered as a defence at all) was prbperly matter in bar on the trial at law ; nor is there a single allegation which might not have been inquired into on the trial of the original suit. The apology for not availing himself of it in the original action, does not justify the interposition of a court of chancery. He states his life would have been endangered by his attendance at Hillsborough, where the suit was instituted. The reason assigned for such apprehension is, that Holt, the testator, with whom the suit was depending, was a tory, and entertained toward him a violent animosity ; and that Hillsborough was in the immediate neighborhood of a number of men of that description. Excuses founded upon a man’s fears and apprehensions of his personal safety, ought to be admitted with caution ; nor are they sufficient to give jurisdiction to a court of chancery over subjects properly triable at law, unless it is clearly proven there were grounds for a just and rational belief that the personal security of the party would have been violated. The facts proven in this cause, we think, by no means warranted the apprehensions on the part of the complainant. And as he failed to make that defence at law which he ought to have done, chancery cannot extend relief. — —Decree reversed, See.

Vide Cowan vs. Price, vol. 1, 173, Lemon vs. Cherry 252, Roots vs. Brown 354, Hardwick vs. Forbes 212, Campbell vs. Ketcham 408.