#### *Tapp’s Adm’r v. Rankin.

July, 1838,

Lewisburgr.

(Absent Brookb, J.)

Equitable Relief against Judgment — Negligence—Ignorance of Counsel.* — Although It may be manifest that great Injustice has been done a defendant at law, by the verdict and judgment against him there, yet if this injustice has not been produced by any fraud or surprise on the part of the plaintiff, but is the result either of the defendant’s own negligence, or of his counsel’s ignorance or bad management a court of equity can give him no relief.

The reporter not having been furnished with the record in this case, the sta-te of it is extracted from the opinion concurred in by a majority of the judges.

M’Korkel having brought an action of assumpsit against Rankin in the county court of Augusta, obtained, a verdict and judgment therein, in August 1814. Thereupon Rankin exhibited a bill of injunction in the superiour court of chancery at Staunton. The bill alleged, that the complainant had paid the whole debt for which M’Korkel had brought suit, “as evidenced by receipts and orders in his possession that on the trial, he was unable to prove M’Korkel’s handwriting, and a verdict was found against him for the amount claimed: that M’Korkel being an obscure man, there were few persons who had ever seen him write, or knew any thing of his handwriting : that a witness by the name of Stewart, summoned on the part of M’Korkel, did prove that he was directed by M’Korkel, as his agent, to give up to the complainant the original evidences of the debt then claimed, and take his bond for a much less sum, to wit, the sum of £37. 15. which he acknowledged to be the balance due: that in relation to the proof of the receipts and orders, one of M’Korkel’s witnesses had told the complainant, he thought he would know the handwriting of M’Korkel; but the complainant did not *present his credits on the trial, because he found they could not be established: that he believes, a certain Vincent Tapp had knowledge of the principal facts stated in the bill, and, at least, a perfect knowledge of the handwriting of M’Korkel; but it being discovered that Tapp was surety in the action at law, for the costs which might be recovered against the plaintiff in that action, and therefore “ precluded from giving evidence, as. he was, on the trial, called on to do, with an offer of being relieved, which was not accepted by counsel, as he believes,” the complainant was thus deprived of his evidence, and is obliged to seek relief in equity, by appealing to the conscience of M’Korkel and Tapp : that he was surprised on the trial by these circumstances, and the jury most unexpectedly gave a verdict against him for the full amount of the claim, and more, notwithstanding Stewart’s evidence as aforesaid : and that the court refused to grant him a new trial. Tapp was made a defendant to the bill, along with M’Korkel.

Tapp died before the cause was matured as to him. In 1825, the suit was revived against his administrator, who put in an answer, stating, among other things, that since the bill was filed, his intestate had become the assignee of the judgment. The assignment was obtained in 1815, while the injunction was pending.

The answer of Tapp’s administrator was the only one filed ; the cause having been proceeded in against M’Korkel by publication.

Upon the proofs exhibited, the circuit court of Augusta (to which the case was transferred) pronounced a decree awarding a new trial at law. From this decree an appeal was allowed.

Baldwin and Michie for the appellant.

Peyton and A. H. H. Stewart for the appellee.

*

Equitable Relief — Negligence. — Where a party through his own, or his agent’s, or attorney's, negligence fails to avail himself of a defense which he might have made at law, he will not be relieved in ■equity. Slack v. Wood, 9 Gratt. 40, 43, and *foot-note-,*Wallace v. Richmond, 26 Gratt. 67, 69, and foot-note; Mackey v. Mackey, 29 Gratt. 172; Scott v. Hore, 21 Fed. Gas. 836, all citing the principal case. See also, *footnote*to Holland v. Trotter, 22 Gratt. 136. For further information on this subject, see monographic *note*■on “Laches” appended to Peers v. Barnett, 12 Gratt. 410; monographic *note*on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425.

Chancery Practice — Bill without Equity — No Objection Hade. — If at the hearing of a cause, .the case made up upon the pleading and proofs, is one of which a court of equity has no jurisdiction, the bill should be dismissed, though the defendant has made no objection to the jurisdiction, either by demurrer, plea or answer, but has defended himself •on the merits. And in such a case, an appellate court will reverse a decree in favor of the plaintiff, and dismiss the bill, though no objection to the jurisdiction was taken in the court below. Green v. Massie, 21 Gratt. 356, 363, citing with approval the principal case. See further on this *subject foot-note*to Green v. Massie, 21 Gratt. 356.

*P ARKER, J.

The first question for *173consideration in this case is, whether the plaintiff in the injunction has shewn sufficient equity on the face of his bill, to entitle himself to relief. If he has not, the injunction ought to have been dissolved on motion by any person interested, though no answer was filed. Minturn v. Seymour, 4 Johns. Ch. Rep. 173; New York Printing and Dyeing Establishment v. Fitch, 1 Paige 97. It can, indeed, scarcely require authority to satisfy us, that an injunction, which ought not to have been granted, should not be continued.

[Here the judge recited the allegations of the bill, as they are above set forth ; and then proceeded as follows :]

These are the facts stated in the bill, upon which the complainant applied for and obtained an injunction. Was the court justified in granting it ? I think it was not. The rule is now well settled, that after a trial at law, if there appear to have been no fraud or surprise upon the part of the plaintiff, equity cannot relieve the defendant from the consequences of mere negligence, notwithstanding it may be manifest that great injustice has been done him at law. If it appears that by the use of proper diligence he could have defended himself successfully, however hard his case, equity must not interfere ; and this upon sound principles of general policy, which no court is at liberty to disregard. Eor this may be cited the cases of The Auditor v. Nicholas, 2 Munf. 31 ; Faulkner’s adm’x v. Harwood, 6 Rand. 125 ; Arthur v. Chavis, Id. 142, and several more recent cases.

The bill on its face shews, that the defendant at law took no steps to defend himself before that forum. He chose to rely on the plaintiff’s witnesses, without ascertaining the fact whether they could or could not prove M’Korkel’s handwriting, and without enquiring for other testimony. He depended on the declaration of one of them, that he thought he should know it, without giving himself the trouble to shew him the receipts and orders, *and place the matter beyond a doubt. It does not even appear from his bill, that he attempted to prove the receipts and orders on the trial, or that he produced them at all before the jury ; for in two places it is alleged that he withheld and failed to produce them, without pretending that he endeavoured to obtain other witnesses, and failed. Nor is this all. He charges that there was a person present at the trial who was well acquainted with M’Korkel’s handwriting, and with all the matter of his defence ; and yet he made no attempt before the court to have his evidence received. And what reason does he assign for this gross omission ? No other, than that this person was surety for the costs of suit, if the plaintiff should be cast in the action. He had nothing to do but to release Tapp (if indeed his being the plaintiff’s surety for costs formed any objection to his testimony for the defendant) and, according to his own shewing, to prove by him his whole case; and yet he was so ignorant or negligent as to omit this obvious duty. This is too palpable a departure from the legal diligence required of every suitor, to entitle the complaint to relief. And then as to his complaint that upon the plaintiff’s own evidence the jury gave an improper verdict, in assessing damages to a greater amount than *£Z7.*15. as proved by Stewart, and that the court refused to grant a new trial, it is only necessary to say, that he has shewn no reason for not filing a bill of exceptions, and carrying the case to an appellate court. That this was his proper remedy, and that equity will not interfere on such aground, is settled by Syme &c. v. Montague, 4 Hen. & Munf. 180, and the other decisions referred to in 2 Rob. Pract. 213.

It is to be observed, that the plaintiff in the injunction does not allege that he has discovered new evidence since the trial, which he knew not of. or by reasonable ^diligence could hot have obtained, before ; nor that any material adventitious circumstances had arisen, which were not foreseen, and could not have been guarded against. It appears from his own bill, that he had every reason to believe it was at least doubtful whether he could prove the receipts and orders, unless Tapp was admitted as a witness, it would therefore have been the most common act of prudence, to take the necessary steps to obtain the benefit of his testimony ; or, if he chose not to rely on that, to file his bill for a discovery in aid of his defence at law. After seeing the necessity of proving his offsets, he ought not to have waited to take his chance before a jury, but ought to have applied sooner for the assistance of equity. In every point of view, his conduct was marked by gross neglect, or by that ignorance of the law which “excuseth no man.”

If this be so, the case is at an end. No plea or demurrer is necessary to raise an objection to the jurisdiction, where no equity appears on the face of the bill. Pollard v. Patterson’s adm’r, 3 Hen. *&*Munf. 67.

This opinion renders it unnecessary for me to say any thing of the proofs in the cause, although I have carefully looked into them. They are of a nature to induce me to fear that injustice may have been done to the appellee, by a verdict and judgment for the full amount of the plaintiff’s claim, and to wish that he could have had the advantage of another trial. But this he cannot have, consistently with sound and well established principles ; and if he could, there is much reason to doubt whether equal injustice might not now be done to the appellant.

The decree directing a new trial must, in my opinion, be reversed, and the bill dismissed with costs.

CABEEE and BROCKENBROUGH, J., concurred.

*TUCKER, P.

I cannot concur in the decree of reversal pronounced by my brethren ; but I have so often and so unsuccessfully presented my views upon this cmestion of jurisdiction, that I deem it neither necessary nor proper to repeat them here. The decree must be reversed and the bill dismissed, according to the opinions of a majority of the court.

Decree reversed and bill dismissed.