Mr. Justice Breese
delivered the opinion of the Court:
On the assignment of errors the plaintiff in error makes the following points : First. A party sued at law, having a defense of which he does not know, or of which he cannot avail himself at law, either for the reason that it is purely equitable in its nature, or because by the rules of law he cannot avail himself of it, may enjoin the judgment by bill in equity.
In support of this proposition many authorities are cited, all of which we have looked into, and find the doctrine to be as stated.
As a general rule, if a party against whom an action is brought has a legal defense, he must avail himself of it in the suit at law. In the case of the Marine Insurance Company v. Hodgson, 7 Cranch, 333, Marshall, Ch. J., said: “ Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.”
The spirit of all the cases to which reference has been made, is that a party must avail himself of every means of defense within his knowledge and power at the time of going to trial, or he will be afterwards precluded from urging it.
In Le Grun v. Governeur and Kemble, 1 Johns. Cas. 502, Kent, J., said: “ Every person is bound to take care of his own rights, and to urge them in due season and proper order. This is a sound and salutary principle of law. Accordingly, if a defendant having the means of defense in his power neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.”
Where a party is ignorant of a material fact, without any inattention or negligence on his part, so that he could not use it in any way until after the trial at law, a court of equity will in such case give relief after judgment when justice demands it. This was said by Vice-Chancellor Whittlesey in the case of Patterson v. Bangs, 9 Paige Ch. 630. In that case, the proof the complainants wanted was the testimony of one of their co-defendants at law, proof which, of course, could not be reached by a bill of discovery. They seemed to suppose that a bill of discovery against the plaintiff at law would furnish the necessary proof. They tried that experiment and failed. They knew, then, before going to trial, that they must either file a bill in this court for relief, so as to secure the testimony of one of their co-defendants, or that they must go to trial upon such proof as they had. All the facts which had a bearing upon their case had been within their knowledge. The only question now is, can they come here after deliberately going to trial at law with a full knowledge of the facts of their case ? Id. 632.
On these grounds the injunction was dissolved; the complainants had gone to trial at law with a full knowledge of all the facts of their case, and having failed, were not allowed to resort to a court of equity.
This decision is placed distinctly on the ground that the complainant knew of his defense at law, and neglected to make it in the proper mode.
In the case now before us, the complainant did not Imow of any defense until after his land was sold, then, for the first time, he received the knowledge that the debt for which the recovery was had was not his debt, and that he was in no manner responsible for its payment.
It is said, however, by the defendants in error, that when he was served with process, he was informed of the nature of the claim. This could hardly be, for the process was the ordinary summons, in which he, with W. Yennum and King, were required to answer the plaintiff. Maturally supposing it was a debt due by the firm, incurred by the managing partner, for which King might' be security, there was nothing to arouse suspicion; and having no suspicion, there was nothing in the case to prompt inquiry. He could not have supposed it was a summons to answer for a debt due by Yennum & King, when he knew he was not liable and had never undertaken to be liable for any of those debts.
Here, then, is a plain case, where the complainant did not know of any defense to the suit at law. It may be likened to a case of newly discovered testimony on a motion for a new trial. Such motions, if well supported, are seldom refused.
In the case of Crisman et al. v. Beasely, Adm., 1 Sme. & Mar. Ch. 561, it was held that an allegation, in a bill in chancery, that the complainant did not come to the knowledge of the defect of his vendor’s power to sell, who was an administrator, until after the judgment at law in favor of the vendor for the purchase-money, is a sufficient excuse for not having made the defense at law.
One of the principles of this bill, one of the strong reasons on which it is founded, is the total ignorance of the complainant of the facts of the transaction, disabling him from setting up a defense, by which a recovery, inequitable and iniquitous, has been had against him. Shall it be said that a court of equity has no power to relieve in such a case ?
But it is said the complainant, by proper plea, could have established his defense at law, and thrown the onus of proof upon the defendants. This may be so, but this consideration brings us back to the point from which we started. The plaintiff did not know that he had any defense. Hothing had transpired to excite inquiry or put him upon his diligence. He acted as most prudent and cautious men would act under similar circumstances. Confiding in his partner and knowing he had contracted debts for which complainant had been sued, and ■been compelled to pay, another summons of a'similar character was not calculated to excite any suspicion. The complainant, therefore, had no occasion to find out a defense, as, on the supposition and belief, the summons was for an honest demand against him, as a member of the firm of W. & H. Yennum, he had no defense to make.
The same may be said of a bill of discovery. There was nothing in the knowledge of complainant about which to seek a discovery.
But, what must have been the character of the pleas if filed? They must have denied the execution of the note, or the joint liability of the parties, or both. What then would be the character of the proof under such pleas ? Proof by the plaintiffs in the action, that W. & H. Yennum were partners at the time the note was executed, and that the signature was that of a member of the firm, would be alone necessary. The very constitution of a partnership furnishes a presumption that each individual partner is an agent of the rest. 2 Stark. Ev. 800. This appears from the cases cited by the defendants in error, as decided by this court (King v. Haines et al., 23 Ill. 340), and the cases cited in the opinion.
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Mr. Justice Breese
delivered the opinion of the Court:
On the assignment of errors the plaintiff in error makes the following points : First. A party sued at law, having a defense of which he does not know, or of which he cannot avail himself at law, either for the reason that it is purely equitable in its nature, or because by the rules of law he cannot avail himself of it, may enjoin the judgment by bill in equity.
In support of this proposition many authorities are cited, all of which we have looked into, and find the doctrine to be as stated.
As a general rule, if a party against whom an action is brought has a legal defense, he must avail himself of it in the suit at law. In the case of the Marine Insurance Company v. Hodgson, 7 Cranch, 333, Marshall, Ch. J., said: “ Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery.”
The spirit of all the cases to which reference has been made, is that a party must avail himself of every means of defense within his knowledge and power at the time of going to trial, or he will be afterwards precluded from urging it.
In Le Grun v. Governeur and Kemble, 1 Johns. Cas. 502, Kent, J., said: “ Every person is bound to take care of his own rights, and to urge them in due season and proper order. This is a sound and salutary principle of law. Accordingly, if a defendant having the means of defense in his power neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.”
Where a party is ignorant of a material fact, without any inattention or negligence on his part, so that he could not use it in any way until after the trial at law, a court of equity will in such case give relief after judgment when justice demands it. This was said by Vice-Chancellor Whittlesey in the case of Patterson v. Bangs, 9 Paige Ch. 630. In that case, the proof the complainants wanted was the testimony of one of their co-defendants at law, proof which, of course, could not be reached by a bill of discovery. They seemed to suppose that a bill of discovery against the plaintiff at law would furnish the necessary proof. They tried that experiment and failed. They knew, then, before going to trial, that they must either file a bill in this court for relief, so as to secure the testimony of one of their co-defendants, or that they must go to trial upon such proof as they had. All the facts which had a bearing upon their case had been within their knowledge. The only question now is, can they come here after deliberately going to trial at law with a full knowledge of the facts of their case ? Id. 632.
On these grounds the injunction was dissolved; the complainants had gone to trial at law with a full knowledge of all the facts of their case, and having failed, were not allowed to resort to a court of equity.
This decision is placed distinctly on the ground that the complainant knew of his defense at law, and neglected to make it in the proper mode.
In the case now before us, the complainant did not Imow of any defense until after his land was sold, then, for the first time, he received the knowledge that the debt for which the recovery was had was not his debt, and that he was in no manner responsible for its payment.
It is said, however, by the defendants in error, that when he was served with process, he was informed of the nature of the claim. This could hardly be, for the process was the ordinary summons, in which he, with W. Yennum and King, were required to answer the plaintiff. Maturally supposing it was a debt due by the firm, incurred by the managing partner, for which King might' be security, there was nothing to arouse suspicion; and having no suspicion, there was nothing in the case to prompt inquiry. He could not have supposed it was a summons to answer for a debt due by Yennum & King, when he knew he was not liable and had never undertaken to be liable for any of those debts.
Here, then, is a plain case, where the complainant did not know of any defense to the suit at law. It may be likened to a case of newly discovered testimony on a motion for a new trial. Such motions, if well supported, are seldom refused.
In the case of Crisman et al. v. Beasely, Adm., 1 Sme. & Mar. Ch. 561, it was held that an allegation, in a bill in chancery, that the complainant did not come to the knowledge of the defect of his vendor’s power to sell, who was an administrator, until after the judgment at law in favor of the vendor for the purchase-money, is a sufficient excuse for not having made the defense at law.
One of the principles of this bill, one of the strong reasons on which it is founded, is the total ignorance of the complainant of the facts of the transaction, disabling him from setting up a defense, by which a recovery, inequitable and iniquitous, has been had against him. Shall it be said that a court of equity has no power to relieve in such a case ?
But it is said the complainant, by proper plea, could have established his defense at law, and thrown the onus of proof upon the defendants. This may be so, but this consideration brings us back to the point from which we started. The plaintiff did not know that he had any defense. Hothing had transpired to excite inquiry or put him upon his diligence. He acted as most prudent and cautious men would act under similar circumstances. Confiding in his partner and knowing he had contracted debts for which complainant had been sued, and ■been compelled to pay, another summons of a'similar character was not calculated to excite any suspicion. The complainant, therefore, had no occasion to find out a defense, as, on the supposition and belief, the summons was for an honest demand against him, as a member of the firm of W. & H. Yennum, he had no defense to make.
The same may be said of a bill of discovery. There was nothing in the knowledge of complainant about which to seek a discovery.
But, what must have been the character of the pleas if filed? They must have denied the execution of the note, or the joint liability of the parties, or both. What then would be the character of the proof under such pleas ? Proof by the plaintiffs in the action, that W. & H. Yennum were partners at the time the note was executed, and that the signature was that of a member of the firm, would be alone necessary. The very constitution of a partnership furnishes a presumption that each individual partner is an agent of the rest. 2 Stark. Ev. 800. This appears from the cases cited by the defendants in error, as decided by this court (King v. Haines et al., 23 Ill. 340), and the cases cited in the opinion.
What could the complainant have gained by a bill of discovery? At best, a resort to a bill of discovery is always hazardous; for if the party does not come up to the facts as the complainant in such bill has charged them to be, or they are denied or toned down, the answer would, in very many cases, be of little avail in a defense at law. Uor was the complainant obliged to resort to such bill in the first instance. Had he done so, and failed in obtaining the facts sought, he would have been precluded from filing this bill for relief, as is seen in the case cited from 9 Paige, 630, Patterson v. Bangs. A bill of discovery is only resorted to when the evidence rests exclusively with the party called upon to disclose it. If there be other evidence, such a bill cannot be sustained, and the complainant in such bill is bound to aver and swear that the facts are known to no other person. Story Eq. Juris., § 74. When, therefore, a party defendant has other testimony besides the plaintiff in the action, he must resort to it, and this he could do in this case in no other way than by an original bill for relief, making his co-defendants in the suit at law defendants to his bill, and taking their testimony. In the suit at law they are incompetent witnesses for complainant, being co-defendants on the record. In this proceeding in chancery, the bill having been taken for confessed as against them, they can be examined as witnesses for the complainant. The course, therefore, adopted by the plaintiff in error was the legitimate course by which the equity of his case can be fully presented.
The facts necessary to the relief prayed for, being established by proof, the court below should have enjoined perpetually the judgment in favor of Davis, Moody & Co., so far as this complainant is affected thereby, it being unconscionable and inequitable to retain the judgment rendered for a debt, for which the plaintiff in error is in no sense responsible. The court also should have set aside the entire levy and sale, of the-lands. Hot having done so, the decree of the Superior Court must be reversed, and the cause remanded with instructions to proceed in conformity with this opinion.
Decree reversed.