#### ROBERT F. STOCKTON *against*BENJAMIN F. BRIGGS.

A court of equity will not interfere to enjoin tlie collection of a judgment, upon an allegation of error in the court of law rendering it.

Where, therefore, in an action at law for the breach of a contract, the breach assigned was, the removal of certain machinery, which, by the terms of tire contract, the defendant was bound to leave on the premises, the defendant offered to prove that the contract was rescinded by mutual consent, and the plaintiff agreed to allow the defendant to remove the machinery, and the Court hold the evidence inadmissible, whereby a verdict and judgment passed against the defendant, it was *Held*that he had no relief against this error in a court of equity.

Except to stay waste or prevent irreparable injury, an injunction can only-issue as ancillary to some primary equity.

Appeal from an interlocutory order of the Court of Equity of Gaston county, continuing an injunction, Manly, J., presiding.

The bill sets out that the defendant visited the plaintiff in the city of Philadelphia, and proposed to sell him a tract of land, lying in the county of Gaston, North Carolina, known as the King’s mountain gold-mine tract, which mine, the defendant represented to be of extraordinary richness ; that the plaintiff know nothing of the mine, but that he, believing his statements to be true, made a conditional purchase of the property for the sum of fifty thousand dollars, stipulating with the defendant that he, plaintiff, should have possession of the pro*310perty from and after the time of the contract; that the plaintiff might open and explore the mine and apply such tests as he might think proper, to ascertain its value, until the first of July following, when the plaintiff might decide whether he would take the property and make the purchase absolute ; that it was further stipulated, that the plaintiff should have all the ores and sands which were lying out on the surface of the mine, and it was further stipulated, that in the event the plaintiff should determine not to take the property at the stipulated sum, that, in that event, the defendant should be entitled to the machinery erected for the purpose of testing the mine. The bill further states, that in pursuance of this agreement, plaintiff ordered for the mine such machinery as he thought sufficient for testing it; that afterwards he visited the mine himself, and finding that more extensive and powerful machinery would be necessary, than he at first supposed, he informed the defendant of this fact, and proposed to him to erect the more costly machinery, if he, defendant, would rescind the stipulation in the contract, by which he became entitled to it, in case plaintiff should decide not to take the property ; that the defendant suggested, that if the plaintiff would relinquish his right to the ores and sands on the surface, he would agree to the proposal; that this agreement was then entered into verbally, but was never reduced to writing. It is further stated in the bill, that the plaintiff, acting upon the verbal agreement, proceeded to erect two steam engines and other machinery at the mines, and to order a large amount of costly machinery; that afterwards, being on his way to the mine, plaintiff met defendant at the village of Chester, in the State of South Carolina; that defend ant stated that important discoveries of ore had been made at the mine ; that he had in his possession some rich specimens, and thought the mine worth more than what he agreed to take for it, and that he desired to rescind the contract of purchase altogether, and to take back the property, and therefore, and thereupon, it was agreed that plaintiff should surrender the mine to the defendant and remove the machinery *311as soon as possible, which he proceeded to do immediately. It states further, that the defendant afterwards, seeking to enforce this rescinded contract, issued a writ in the Superior Court for the county of Gaston, claiming damages for the removal of the machinery; that this action at law, coming on to be tried at Spring Term, 1858, of Gaston Superior Court, it was decided that none of the matters set forth in this bill, were proper legal defences to the said action, and Briggs, the defendant in the present suit, recovered a judgment against the present plaintiff, for the sum of five thousand dollars, and has issued execution to enforce its collection.

The bill prays for a perpetual injunction to restrain the defendant, Briggs, from enforcing this judgment.

The answer of the defendant admits the terms of the original contract, as set forth in the bill, but positively denies that there was any rescission of the contract at the mine, on the occasion alluded to in the bill, and as therein charged. With reference to the alleged rescission of the contract at Chester Courthouse, in South Carolina, the answer sets out the following facts: that whilst the plaintiff was absent from the mine, defendant discovered some very rich specimens among the ores raised from the mine by plaintiff’s employees, and a few days thereafter, met the plaintiff at the village of Chester, in South Carolina; that the defendant exhibited these specimens of ore to the plaintiff, and remarked, that he should not be surprised if the King’s mountain mine turned out to be worth half a million; to this, plaintiff replied, sneeringly, “If yon think so, I ought not to think of taking it for the paltry sum of fifty thousand dollars; that defendant being provoked by his manner, sharply replied, that he was not bound to do so, and “ could exercise his own pleasure in the matter.” To this plaintiff replied, if you will permit me to take away my machinery, I will quit the mine and give you up the possession ;” that defendant peevishly closed the altercation by saying, that he “ might do so as soon 'as he pleased.” The answer further states, that on the next day, and before the plaintiff had done any thing towards removing the machinery, the *312defendant having recovered from bis excitement, wrote to. the plaintiff, notifying him that he should hold him (plaintiff) to his original contract.

The other material facts, alleged in the bill,, are substantially admitted by the answer.

Upon the coming in of the answer, the defendant moved to dissolve the injunction. Motion disallowed. Injunction continued to- the hearing. Defendant appealed to- this Court.

*Boyden*and Badger, for plaintiff.

Guión, *Bowie*and Thompson, for defendant.

PbaesoN, C. J.

The allegation of the plaintiff that in November, 1854, a few months after the original contract was entered into, it was so modified as to allow him to remove the machinery which he was to erect for the purpose of testing the mine, being distinctly and positively denied by the answer, is to be put out of the case at this stage of the proceedings.

The allegation, that in April, 1855-, at Chester Courthouse', the parties by mutual consent, agreed to rescind the eon tract altogether, “and, therefore, and *thereupon\*it was agreed by the plaintiff and defendant, that the plaintiff should surrender to the defendant the mine, and *remove the machinery■*as soon as possible,” is denied in a qualified manner, that is, the defendant admits, that having become excited, he did propose to rescind the contract altogether, and the plaintiff immediately agreed to do so, but the defendant avers that as soon, as his excitement passed off', to wit, on the next day, before any action had been taken by either party, he notified the plaintiff in writing, that, upon consideration, he withdrew the proposition to rescind the contract, and should hold the plaintiff liable according to their original contract; and he insists that as he acted under moral duress, or rather under surprise, he had a right, as soon as he recovered from it, to withdraw his proposition.

This presents an interesting question. Is this qualified de*313nial responsive to the allegation of the bill, and of such a nature as according to the course of the Court at this stage of proceeding, to leave the plaintiff' in the condition of not having his allegation admitted; or is it to be taken as confessing the allegtition, and offering new matter in avoidance; so as to put on the defendant the burden of proving it, and allow the the plaintiff to consider his allegation as admitted, for the purpose of resisting the motion to dissolve the injunction? We will not enter into it, because there are objections on the face of the bill, which show that the injunction was improvidently granted, and consequently there is error in the decretal order refusing to dissolve the injunction, and continuing it over to the hearing.

The scope of the bill is to obtain a perpetual injunction, restraining the defendant from enforcing his judgment at law. There is no primary equity which the bill seeks to set up, and in aid of which, the injunction is asked for, but the sole object is to have a perpetual injunction, and there the matter is to stop. Except to stay waste or prevent irreparable injury, an injunction can only issue in aid of, and as ancillary to some primary equity, which the bill seeks to enforce. This is well settled, and we presume the defect, in not setting out some primary equity, is attributable to the fact, that there is no equitable ingredient involved in the case.

As the ground for coming into this court for relief, the plaintiff alleges that notwithstanding the contract was rescinded, and by mutual consent it was agreed that he should remove the machinery, which he did in pursuance of the agreement, the defendant brought an action at law against him for breach of the original contract by removing the machinery, which action coming on to be tried in the Superior Court of law, it was decided and held, that “ none of the matters set forth in this bill were proper and legal defences (o the said action, and the defendant recovered a judgment,” and the plaintiff now insists that it is against conscience for the defendant to enforc» the judgment.

Assuming the matter set forth in the bill to be trae, tin» *314plaintiff had a clear *legal right*to remove the machinery, and consequently had a good defence to the action at law. But the failure to establish it, does not give him an *equitable*right, unless the error of a court of law can create an equity Í! No authority was cited for this position, and there is no principle upon which it can be supported. It would be a new head of equity jurisdiction. If a party obtains a judgment at law, by fraud, as by subornation of perjury, or the like foul means, equity will give relief, not by taking possession of the case, going into the trial of legal rights and granting a perpetual injunction, but by acting in aid of the common law court, and decreeing that the party shall consent to set the judgmeut and verdict aside, and have a new trial at law, and in the meantime, as ancillary to this relief, an injunction will be granted; *Pegram*v. *King,*2 Hawk’s, 297; *Wilson*v. *Leigh,*4 Ire. Eq. 97; *Powel*v. *Watson,*6 Ire. Eq., 98; *Houston*v. *Smith,*Ibid 264; *Dean*v. Erwin, 7 Ire. Eq. 250.

These, and many other cases, support the position that equity will give relief against a judgment obtained by *the fraud*of the *party,*but there is none to support the position that it will give relief against a judgment because of *error*in the court. On the contrary, it is settled, where there is a legal right and a regular trial, before a competent court, the matter is concluded, both in equity and at law, so long as the judgment is unreversed; *Wilson*v. *Leigh,*supra; *Martin*v. *Harding,*3 Ire. Eq. 603. In *Dean*v. *Erwin,*supra, this doctrine is assumed, and the court say “ This court cannot review the decision of a court, of law upon a question addressed to its dis-. cretion, from which there is no appeal, for the same reason that *it cannot review*a *question of law*from *whieh there is cm*appeal/” and in *Fentress*v. *Robbins,*N. C. T. R. 177, the court say, “ In this respect the bill is for relief against the errors of the judgment at law. If these facts laid any foundation for a suit in equity, there would soon be an end to all proceedings at law upon one or other of these points, either to hear *errors*of the court, or *refry*the facts falsely found by the *315jury, all causes would end in chancery, and, the courts of common law be abolished.”

Suppose an action of assumpsit for a money demand — plea, non assumpsit. The defendant offers to prove *payment,*the court holds the evidence inadmissible, for the want of a special plea — judgment for plaintiff. ' Can the defendant obtain a perpetual injunction, on the ground that it is against conscience for the plaintiff to take advantage of the error of the court, and make him pay the debt a second time ?

Or, suppose, which is our case, an action for the breach of a contract; breach assigned: the removal of machinery, which, by the terms of the contract, the defendant was bound to leave on the premises ; the defendant offers to prove that the contract was rescinded by mutual consent, and the plaintiff agreed to allow the defendant to remove the machinery ; the court hold the evidence inadmissible, either because the parties could not, by parol, rescind a written contract, or because the agreement to rescind was *nudum pactum,*or some other erroneous ground, and there is judgment for the plaintiff ; can the defendant obtain a perpetual injunction, on the ground that it is against conscience for the plaintiff to take advantage of the error of the court, and make him pay damages for doing an act which he had expressly agreed that he might do ? If equity has this jurisdiction “ all causes will hereafter end in chancery, and the courts of common law be abolished.” Other points were mooted in the interesting argument with which the court was favored, to which it is unnecessary to advert.

There is error in the decretal order. It should be reversed and the motion to dissolve the injunction allowed.

Per CueiaM, Decretal order reversed.