#### Lamb, Appellee, *vs.*Anderson, Appellant.

(IN CHANCERY.)

A Court of equity lias jurisdiction’, to entertain a bill to sot aside or annul a judgment obtained at law, -valiere a proper state of facts is shown, and where, at law, the defence was inadmissible.

A party attending the examination of witnesses, in a suit in equity, is bound to take exceptions before the officer taking it, and to make his objections, if bo takes them, on the hearing of the cause. It is too late to raise such objections on appeal, which have not been raised before.

The bill in this cause was filed by the appellee. It, in brief, alleged that one Carrington, made a draft on the appellee, E. Lamb, J. Woods and J. E. Colye, in favor of the appellant, for the sum of one hundred dollars, on demand; which was accepted by the appellee. That at the time the draft was made, the appellee, Woods and Coyle were trustees of a school district, known as *“ Big*Spring School District,” in Iowa county, and that at the time* the drawer was the employed teacher of the school. That, at the time of the making of the draft,- Carrington, was the debtor of the appellant, and the appellee accepted, upon the supposition and expectation that the other trustees would also have accepted the same, as it was understood and agreed they should do, and as a condition upon which it was drawn, they would ;and that the draft should stand as security for the indebtedness of Cdrrington *to*the appellant; and that the money thereon would be paid when the trustees should obtain the school money from the County Treasurer thereafter, and that the draft was *225accepted by tike appellee upon this agreement and understanding, and that Woods and Coyle would also accept the same with the appellee. That in the year following the appellee was a School Commissioner, but not a trustee; and drew from the County Treasurer, the school money belonging to the school district, in bills upon the Mineral Point Bank, which at that' time were current at par; and on the same day the appel-lee and the appellant met, when the appellee informed him of the fa'6t, and stated that he was ready to pay the draft out of those moneys, and informed him what kind of money it was, but that he had it not then with him. That the appellant seemed to be, and expressed himself satisfied. That appellee then paid appellant five dollars out of his own private funds, at the request of appellant, but not upon the draft. That shortly afterwards appel-lee paid to James Woods, named in the bill, and who at the time was one of the trustees of the same school district aforesaid, the money drawn as aforesaid, and a portion thereof was called for by the appellant, who was told by Woods that it would be paid to him when he presented the said draft.

That afterwards the appellant commenced a suit at law against the appellee upon the draft accepted by him, and recovered a judgment against him for the amount thereof, owing to the fact that, by the strict rules of the common law the Court could not receive his evidence of an equitable defence. That an execution had been issued upon such judgment, which was sought to be enforced.

There was a prayer for an injunction to stay all further proceedings upon the execution, and that at the hearing of the cause it might be decreed to be stayed perpetual-* *226]y; and there was-a prayer- for general .relief. ( Ani injunction was granted-, to stay furthpi;. proceedings upon, the execution.

The answer of.the appellant sot up, *the*indebtedness of Carrington to him of about f 1G0 00,. and securities, tajeen from him to pay the debt; and also, the draft drawn by the appellee as having been accepted by him, for the use oí Carrington. That upon the delivery of the draft he gave up to Carrington the securities which hp held for the ejebt due him, and agreed to release Carrington fropi the payment of his debt; alleges that at the time of accepting the,draft, it was agreed between appellant and Carrington that- it should bo-paid in “lawful money of the- States.” That on presenting the draft to the appellee for acceptance, he wrote on it We accept the within order,” apd subscribed his name thereto; denies that Coyle was at the time of the date of draft, a. trustee, &c., and not a resi-. dent of the district; and that the appellee was the principal' acting trustee and did the principal part of the official business; denies that it was., understood at the time the draft was drawn by Carrington,. h„e was indebted to appellant as charged in the bill; and also denies that at the time it was drawn it was understood, that it was not to be paid until the school money should, be drawn; that when he received the draft, he understood *from the wording of it,*that it was to be drawn on demgnd;, denies that he understood the undertaking of the appeljpe was as trustee of said district; admits that on the first of April, 1841, he had a conversation with appellee as stated.in tlje bill and received from him five dollars; but denies; that appellant then informed him that he. as school commissioner had drawn the money to be paid to the trustees as_ *227school money; denies that the appellee offe.red to loan the five dollars paid appellant, when he .so paid it, and that he has never since demanded re-payment of the same; denies that he ever called on Woods, for the payment of the draft; but admits that he, was at the house of Woods . and was informed by him that he had money left in his hands to pay it. Appellant inquired what sort of money it was. Woods replied that it was upon the Bank of Mineral Point. Appellant replied that he would not take it, and that Woods neither then nor afterwards tendered him the money, but simply said he had it for him; appellant admits the commencement of the suit at law and the recovery of the judgment.

Proofs were taken, aud on the hearing, the District Judge sustained the bill and decreed a perpetual stay of execution on the Judgment at law.

From this decree the defendant below appealed to this Court.

*Crawford,*for the Appellant.

*Cot/iren,*for Appellee.

On the part of the appellant.?! was objected that in taking the testimony in the case,.the Justice before whom it was taken, did not certify that the witnesses were legally sworn, and that, therefore, such testimony ought to have been rejected in the decision of the cause.

That a party, filing a bill of discovery, to relieve himself from a judgment, upon the ground.of an equitable de-fence, which could not be interposed in the suit at law, and therein, alleging matters, the nature of which was to confer jurisdiction in equity to review, and annul the judgment, was bound and concluded by the answer of the de-i *228fendant, and was not authorized in such a case to disprove the answer: *2d Story,*499.

On the part of the appellee it was insisted that a Court of equity would and did possess jurisdiction, to relieve a party against a judgment at law, where he had an equitable defence, which could not be available at law; that though the party filing his bill, defended the suit at law, he was not barred from a resort to this Court, in such a case; that a party defendant, though he had no adequate defence at law, was bound to defend the suit, in order to confer jtírisdiction upon a Court of equity, to entertain his bill; and the better to enable the Court of equity to see that he offered evidence in the suit at law, which could not there be admitted, but which was admissible in equity, and to the point cited *2d Story,*217.

Stow, *Chief Justice,*

made a memorandum of the opinion of the Court, to the effect that, upon the matters alleged in the bill, a Court of equity had jurisdiction over the subject matter of the suit at law, and in this case had very properly exercised it; — that the bill contained the statement of a case, conferring upon a Court of equity jurisdiction to act, and showing that the complainant was entitled to be relieved from the judgment obtained at law against him; that the answer of the defendant was evasive, and did not meet and refute the allegations of the bill; that where parties appeared on the examination of witnesses (as was the case in this cause in the Court below), before the officer taking their depositions, the parties were bound *there*to take exceptions to any informality which may- have occurred on such examination; and if that was not done, the party wkose duty it was to have made ob*229jection, was concluded in this Court, and could not, on appeal, make such objection, for the first time, to defeat the ends of justice.

The order of the Court below was affirmed.