#### Marsh, Appelant, *vs.*Edgerton et al., Appellees.

(IN CHANCERY.)

Courts of equity reluctantly *interfere to*restrain proceedings had in Courts of law; and especially after judgment obtained. The liber-» ality of Courts of law in admitting equitable defences, in a great measure supersedes the necessity of a resort to a Court of equity* unless a Court of law has rejected a defence, upon the ground that it could not be admitted1 by the rules of the eommon- law. If it is admissible, equity will' not interfere to stay or intercept the judgment.

Ih the ease at bar there is no- good reason shown why the- law Court should not -have entertained the defence-, which is here set up as the basis of the bill for relief, if it had been offered. And if that Court had overruled the introduction of such proof as is alleged! in the bill, the equity side of tho Court would have set it right.

A party defendant, in a suit at law may probe the conscience of the plaintiff, as regards evidence, known ohty to the prosecuting party-, and get a discovery of latent facts. '

Where no attempt is made to obtain proof in the defence of a suit *at'*law, equity will not lend its aid, unless the proof was inadmissihLs there; but would be potent in equity for affording relief. , .

*199Appeal froth'the'decree of the late District Court Tor '-Dane County.

The complainant in this suit obtained a judgment against Marsh, in the'county’ of Dane, in the year 1836, in the ■U. S. District Court, on two promissory notes. Execution was issued on the judgment; and before it was executed, Mar§h filed his bill, alleging fraud in the matter, ■Tor which the notes, -on which *"the*judgment was *obtain*■ed, were given. He also alleged partial failure of the '•consideration for which the notes were obtained. The 'bill prayed for an injunction, perpetually staying the execution issued on the judgment at law. - A general demurrer was put into the whole bill of Edgerton; and *on*the hearing the demurrer was sustained and the bill dis■missed. From such dismissal, Marsh appealed to this Court.

*Crawford,*for Appellant.

*Collins,*for Appellees.

*By the Court.*

Hubbell, J.

This case carbe here by ■appeal, from the District Court -of Dane County. Ed-gerton obtained a judgment in that Court against Marsh, on two promissory notes given in 1836. After execution issued, Marsh filed a bill on the equity side of -the Court, alleging fraud in the original sale, and a part failure of the consideration of the notes, and. praying a perpetual injunction against the judgment. The bill was dismissed ■on general demurrer.

Of late years, Courts of equity have interfered with great reluctance, to exercise the power, rightly vested in 'them, of restraining proceedings at law, particularly after judgment. Formerly such interference was more frequent. *See 2d. Story's Eq. Jur., section*887.

*200Applications of this sort, after-verdict, are in the natupe of motions for new trials; and the equitable indulgence, now granted by Courts of law, in all cases where injustice would be likely to be done by the *judgment, takes*away the necessity for bills in Chancery. *Jeremy on Equity, p.*65; 6 *John, C. R.,*477.

For this reason, unless it appears that the- Court of law ’has ruled out a defence, or that the case is one in which such Court could grant no adequate remedy, relief in éqtíity is denied.

I see no reason why the complainant could not have shown the fraud alleged in his bill, on the trial below; nor why the alleged partial failure of the consideration of his notes, might not have been recouped, and the plaintiff’s damages reduced to that extent, since the sale of the lands and giving of the notes for part of the purchase money, was all one transaction. *(See Van Epps vs. Harrison, Hill,*63.) The prayer for discovery, rests on the same ground with that for relief.

It was the defendant’s right to have the plaintiff sworn as a witness on the trial, and if he refused, then to be sworn himself,

lie had thus a full and very simple means, of presenting in evidence, the very facts now set up in his bill. (Stat. *of Wisconsin, p.*247;) or if he feared to bring his adversary forward as a witness, at that time, when he might; not be prepared to meet and rebut any misstatement he might make, the defendant could have filed his bill, praying for a discovery in aid of his defence at law, and could have had all the proceedings stayed until he had thus searched the plaintiff’s conscience, as. fully as it can be dofte by the present proceeding. *(See Drury on Injunctions, p.*65, *Law Lib., No*34, *p.*61.)

*201It is not alleged that the complainant’s defence was offered and overruled in the Court below, nor that he failed to present it, by reason of mistake, ignorance, fraud, or surprise; nor that the evidence relied on is newly discovered. His failure to make out a defence at bar, if he had one, must be imputed solely to his want of diligence, or to his negligence, and equity affords no relief to such parties, especially after trial and judgment. The celebrated case of *Bateman vs. Willoe,*(1 *Scholes*& *Lefroy,*201) which has long been a leading authority, both in England and America, went no further. In that case the plaintiff filed his bill to restrain a solicitor, whom he had employed from proceeding on a verdict for.the amount of a bill of costs. It presented strong claims for relief, inasmuch as it was the case of a client, who may have been presumed ignorant of his legal rights, praying for the consideration in equity, of a defence, which he might have offered, but failed to present, on the trial at law.

Lord Redesdale refused the injunction, saying “The inattention of parties in a Court of law, can scarcely be made a subject for the interference of a Court of equity.” This must be regarded as the settled and sound doctrine on the ■subject, and applying it to the present case, we must say to the complainant, “ admitting your bill to be true — allowing your defence to the notes such as you have represented — still, you have slept on your rights, and your relief is barred. There must be a time when litigation, ceases, and rights of property are at rest. Judgments at law when legally and fairly obtained, should not be disturbed, unless for stringent reasons, and in pursuance of settled rules.”

This much I have said, on the assumption that the com*202'plainant’s bill makes out a good case. But looking at all '•the facts set forth in it, I am constrained to think it fails •to show a good defence, either in law or equity. He was ■undoubtedly imposed upon, as thousands of others wer%, by the glowing prospect of growing rich, with the rapid ■growth of the 'country. He believed cities and villages would spring up in reality, as they had done on plates and ■maps, lithographed by speculators, to foreshadow their -advantages. But, very probably, the plaintiff below may have been as credulous as the defendant, because delusion was a disease of the times. It infected tellers as well as buyers, and pervaded every class of the community, and •almost every section of the' country. The towns of Brooklyn ” and “Albion ” were not the only cities in ■embryo, wherein honest but misguided.'speculators buried •in a day the substantial earnings of years. But they vanished with a change of times, which nobody could prevent or foresee, and with them passed the visions and delusions of their owners. It is too late now to inquire who was the deceived and who the deceiver — who, rising above the mania o'f the time's, was the cold and calculating swindler, and who, forgetting 'the wholesome adage, *caveat emptor,*became the willing victim.

d think the Court below was right in dismissing the bill on every ground.

The decree is affirmed with costs and --- per cent, ■damages.

*Whiton, J,*having been counsel in the 'Suit at law, did not sit in this case*