Caton, J.
The decree in this case must be affirmed. The first bill filed was purely a bill of discovery to aid in the defence of an action at law, seeking no other relief. It was filed against the plaintiffs in the action at law, and against Hinman, who was not a party to that record. The other defendants answered satisfactorily. Hinman demurred, and for good cause. Had he answered the bill of discovery, his answer could not have been used as evidence on the trial at law. He was a competent witness on that trial, and the plaintiffs in that action had a right to insist that he should be called to the stand, that they might cross-examine him.
Upon the coming in of the answers, the injunction, which had been granted upon filing the bill of discovery, staying proceedings in the action at law, was dissolved, and there was practically an end of that suit. The complainant had then obtained all the relief which he had asked and all that the court had power to grant. Instead of entering an order formally disposing of the suit, the Circuit Court ordered it to be continued. After the dissolution of the injunction, the plaintiffs in the action at law proceeded with it and obtained a judgment. At the next term of the court the defendant in that action presented a supplemental and amendatory bill to the original suit for discovery. This bill sets up precisely the same defence to the action at law which had been set up in the original bill of discovery, not varying that defence by the introduction of a single new fact. And even the evidence relied upon in support of those facts is the same as that set up in the bill of discovery, with the exception that in this bill it is averred that the party once had some papers and receipts in relation to the breaking of the prairie and the note, which would establish the payment as contended for, and which Hinman had surreptitiously got into his possession and refused to return. What those papers were, or what their contents, is not shown. This bill, however, shows that this transaction occurred many months before the original bill was filed,.and of course within the knowledge of the party, and there can be no good reason why it was not introduced into that bill except that the party had the means of compelling the production of those papers, upon the trial at law, by means of the process of the court of law. Hinman was a competent witness, and had possession of the papers, and, by means of a subpoena duces tecum, the party could there have obtained more appropriate and complete relief than a court of chancery could properly grant him.
The reasons set forth in this bill for asking the court to open the judgment and allow a reinvestigation of the controversy are entirely insufficient. They consist in averments of the negligence of counsel employed in not attending court, the inexperience of other counsel employed and ignorance of the practice of the court, on which account the original bill was inartificially drawn, and that the defendant in the action at law was advised by his counsel that the cause would not be tried at the same term at which the injunction was dissolved, and for that reason he was not present when the cause was tried and the judgment rendered, and that no proper defence was made. It is due in justice to the solicitor who drew the original bill of discovery to say, that so far as we are capable of judging, from all that we have learned of this ease, that bill seems to have been drawn with skill and judgment.
If the grounds of relief here relied upon were held sufficient to authorize a court of chancery to set aside a judgment at law regularly obtained, and to open anew the controversy, there might never. be an end of litigation; society could no longer repose upon the security of judicial decisions, and judgments and decrees of courts would cease to be looked upon as the end of disputes. All of the defence which the party ever claimed to have was cognizable in the court of law, and the complainant shows by his own bill that all his evidence to prove that defence was at all times within the reach of the process of that court. He shows clearly that his whole defence could have been established by the testimony of Hinman, who, so far as appears, was always within the reach of the process of the court. If it be true that Hinman’s interests were hostile to him, that would not give him a right to seek his remedy in a court of equity. That is a misfortune to which suitors are often subject; and certainly he had as reasonable a prospect of getting a fair statement from Hinman on the witness stand, as in an answer to a bill in chancery; and it is nowhere pretended, that Hinman would have testified falsely had he been called upon the stand.
Another ground for the relief sought is, that since the judgment at law was obtained, the party has discovered several witnesses by whom he can prove his defence. But their testimony, as he shows it, would only be cumulative to the evidence already within his knowledge and reach; and the only excuse which he offers for not having produced them upon the trial is, that he had forgotten that those witnesses knew any thing about the matter, owing to the length of time which had intervened since the note was given. This is not sufficient to justify the interference sought. The same reason exists for rejecting an application for a new trial, made to a court of chancery, on the ground of newly discovered evidence, which would determine a court of law upon a motion for a new trial. In the case of The People v. Superior Court, 10 Wend. 294, Savage, C. J., said, “ It is certain, however, that the testimony of Russell was, at one time before the trial, known to the cashier; it was his duty to have remembered it. If he had forgotten it, I think it is no reason for granting a new trial. To open the case on such a ground, is liable to the objection, that it would enable parties to prepare testimony for a second trial, when they had seen the strength of their adversaries’ case, and the weakness of their own, and thus open a door to perjury.” The same rule was held, in the case of Bond v. Cutter, 7 Mass. R. 207. The pretended revival in the memory of long-forgotten testimony, under the quickening influence of a judgment against the party, is too suspicious to justify a court to disturb a judgment which has been regularly obtained.
The negligence of the counsel, whom he had employed to attend to the cause, is the same as his own negligence, and he must suffer the consequences of it. Field v. Matson, 8 Mis. 686.
Throughout this bill are reiterated charges against the plaintiffs in the action at law, and Hinman, of fraud, combination, and conspiracy, which, when carefully examined, may all be summed up in the single charge, that they were seeking to collect a note, which the complainant avers had been paid, and which, according to his own showing, might have been proved upon the trial at law, but for his own carelessness or forgetfulness, or for the carelessness or improper advice of those for whose acts he is responsible. If he had a legal defence, he had an opportunity of showing it in the proper forum, and at the the proper time. Having failed to do so, he must suffer the consequences. Perhaps but few judgments are rendered, where parties suppose they had a defence, and which they had neglected to make, in which as strong a case for relief might not be presented, as the one which is now before us. We cannot set the precedent for overturning judgments at law upon such grounds. Should this judgment be set aside, it would be offering a premium to men to neglect then: own business.
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Caton, J.
The decree in this case must be affirmed. The first bill filed was purely a bill of discovery to aid in the defence of an action at law, seeking no other relief. It was filed against the plaintiffs in the action at law, and against Hinman, who was not a party to that record. The other defendants answered satisfactorily. Hinman demurred, and for good cause. Had he answered the bill of discovery, his answer could not have been used as evidence on the trial at law. He was a competent witness on that trial, and the plaintiffs in that action had a right to insist that he should be called to the stand, that they might cross-examine him.
Upon the coming in of the answers, the injunction, which had been granted upon filing the bill of discovery, staying proceedings in the action at law, was dissolved, and there was practically an end of that suit. The complainant had then obtained all the relief which he had asked and all that the court had power to grant. Instead of entering an order formally disposing of the suit, the Circuit Court ordered it to be continued. After the dissolution of the injunction, the plaintiffs in the action at law proceeded with it and obtained a judgment. At the next term of the court the defendant in that action presented a supplemental and amendatory bill to the original suit for discovery. This bill sets up precisely the same defence to the action at law which had been set up in the original bill of discovery, not varying that defence by the introduction of a single new fact. And even the evidence relied upon in support of those facts is the same as that set up in the bill of discovery, with the exception that in this bill it is averred that the party once had some papers and receipts in relation to the breaking of the prairie and the note, which would establish the payment as contended for, and which Hinman had surreptitiously got into his possession and refused to return. What those papers were, or what their contents, is not shown. This bill, however, shows that this transaction occurred many months before the original bill was filed,.and of course within the knowledge of the party, and there can be no good reason why it was not introduced into that bill except that the party had the means of compelling the production of those papers, upon the trial at law, by means of the process of the court of law. Hinman was a competent witness, and had possession of the papers, and, by means of a subpoena duces tecum, the party could there have obtained more appropriate and complete relief than a court of chancery could properly grant him.
The reasons set forth in this bill for asking the court to open the judgment and allow a reinvestigation of the controversy are entirely insufficient. They consist in averments of the negligence of counsel employed in not attending court, the inexperience of other counsel employed and ignorance of the practice of the court, on which account the original bill was inartificially drawn, and that the defendant in the action at law was advised by his counsel that the cause would not be tried at the same term at which the injunction was dissolved, and for that reason he was not present when the cause was tried and the judgment rendered, and that no proper defence was made. It is due in justice to the solicitor who drew the original bill of discovery to say, that so far as we are capable of judging, from all that we have learned of this ease, that bill seems to have been drawn with skill and judgment.
If the grounds of relief here relied upon were held sufficient to authorize a court of chancery to set aside a judgment at law regularly obtained, and to open anew the controversy, there might never. be an end of litigation; society could no longer repose upon the security of judicial decisions, and judgments and decrees of courts would cease to be looked upon as the end of disputes. All of the defence which the party ever claimed to have was cognizable in the court of law, and the complainant shows by his own bill that all his evidence to prove that defence was at all times within the reach of the process of that court. He shows clearly that his whole defence could have been established by the testimony of Hinman, who, so far as appears, was always within the reach of the process of the court. If it be true that Hinman’s interests were hostile to him, that would not give him a right to seek his remedy in a court of equity. That is a misfortune to which suitors are often subject; and certainly he had as reasonable a prospect of getting a fair statement from Hinman on the witness stand, as in an answer to a bill in chancery; and it is nowhere pretended, that Hinman would have testified falsely had he been called upon the stand.
Another ground for the relief sought is, that since the judgment at law was obtained, the party has discovered several witnesses by whom he can prove his defence. But their testimony, as he shows it, would only be cumulative to the evidence already within his knowledge and reach; and the only excuse which he offers for not having produced them upon the trial is, that he had forgotten that those witnesses knew any thing about the matter, owing to the length of time which had intervened since the note was given. This is not sufficient to justify the interference sought. The same reason exists for rejecting an application for a new trial, made to a court of chancery, on the ground of newly discovered evidence, which would determine a court of law upon a motion for a new trial. In the case of The People v. Superior Court, 10 Wend. 294, Savage, C. J., said, “ It is certain, however, that the testimony of Russell was, at one time before the trial, known to the cashier; it was his duty to have remembered it. If he had forgotten it, I think it is no reason for granting a new trial. To open the case on such a ground, is liable to the objection, that it would enable parties to prepare testimony for a second trial, when they had seen the strength of their adversaries’ case, and the weakness of their own, and thus open a door to perjury.” The same rule was held, in the case of Bond v. Cutter, 7 Mass. R. 207. The pretended revival in the memory of long-forgotten testimony, under the quickening influence of a judgment against the party, is too suspicious to justify a court to disturb a judgment which has been regularly obtained.
The negligence of the counsel, whom he had employed to attend to the cause, is the same as his own negligence, and he must suffer the consequences of it. Field v. Matson, 8 Mis. 686.
Throughout this bill are reiterated charges against the plaintiffs in the action at law, and Hinman, of fraud, combination, and conspiracy, which, when carefully examined, may all be summed up in the single charge, that they were seeking to collect a note, which the complainant avers had been paid, and which, according to his own showing, might have been proved upon the trial at law, but for his own carelessness or forgetfulness, or for the carelessness or improper advice of those for whose acts he is responsible. If he had a legal defence, he had an opportunity of showing it in the proper forum, and at the the proper time. Having failed to do so, he must suffer the consequences. Perhaps but few judgments are rendered, where parties suppose they had a defence, and which they had neglected to make, in which as strong a case for relief might not be presented, as the one which is now before us. We cannot set the precedent for overturning judgments at law upon such grounds. Should this judgment be set aside, it would be offering a premium to men to neglect then: own business.
I have examined this bill upon its merits, without regard to any technical rules as applicable to the mode in which it was •presented; and we have, seen, that had it been an original bill, for the purpose of obtaining a new trial in the action at law, it does not show such a case as would justify the interference of the court. The complainant shows his own case to be destitute of merits, or if he had any, that they have been forfeited by his own laches. Had the bill shown sufficient merits to justify the interposition of the equitable powers of the court, the new fact which is averred, that is, the rendition of the judgment against him, is sufficient to give it the proper character of a supplemental bill, and the court would have erred in refusing to allow it to be filed in a suit in which such a bill could be admitted. As it was, the court exercised a sound discretion in refusing leave to file this as a supplemental bill.
As an amendment to the original bill, it was rejected with equal propriety. After the coming in of the answer to the bill of discovery, the complainant may, undoubtedly, where the answer suggests the propriety of such a course, so amend his bill, as to entitle him to relief also ; but it does not follow, that this may be done, after the court has finally acted upon the case as presented by the bill and answer, by dissolving the injunction. At least, I am not aware of any precedent for such a course. The sole object of a bill of discovery in aid of a suit at law, is to obtain a sufficient answer, and to stay the proceedings,at law in the mean time. ■ When such an answer is obtained, the end of the suit is answered, and the party has secured all the relief asked, or which the court of chancery could give; and the bare dissolution of the injunction has been held to be equivalent to an order dismissing the bill, and a final disposition of the suit.
Such, however, seems not to have been the view taken in the court below, for the complainant filed a replication to the answer, thus forming an issue in a case which was already virtually disposed of, and which the court had not the power to try. The answer was not for the usé bf the Court of Chancery, but was to be used on the trial at law. If it was untrue in any respect, there was the place to show it. The court, however, instead of treating the suit as disposed of, continued it, when no legitimate purpose could be answered by its remaining upon the docket. The complainant, if he had merits properly cognizable in a court of equity, should have presented them in the shape of an original bill, without attempting to impart vitality to the old suit.
But, admitting that all which was done was regular, and that it was not now too late so to amend the bill as to convert it into a bill for relief, the complainant ceased to have an absolute right to amend, after the replication was filed ; and could only do so by leave of the court. In determining whether leave should be granted, it was the duty of the court to look into the proposed amendment, and see whether it presented such a case as entitled the party to relief. We have already seen that such was not the character of this bill or amendment; and that being the case, the court may very properly refuse to lend its countenance to the continuance of a litigation, which could result in no good, but only serve to involve the parties in renewed vexation and further expense. The decree is affirmed.
Decree affirmed.