#### *Wm. Campbell and S. G. Barkley*vs. *B. F. Briggs and A. W. Yongue.*

Four obligors gave their joint and several single bill, and two of them, C. and B., were sued, separately, at law, by the obligee, and defended the actions on the ground of fraud and misrepresentation on the part of the obligee, but judgments were recovered against them: the four obligors then paid up the amount of the judgments, and the two who had not been sued at law, J. and D., assigned their interest in the matter' to C. and B.: C. and B. then filed their *371bill against tlie obligee, seeking relief on tbe same ground on ivbicb tbe actions at lav bad been defended, and, at tbe trial, used J. as a -witness: *Held,*tbat they were not entitled to relief, and tbeir bill was dismissed.

*Before*Wardlaw, J., *at Fairfield, July,*1851.

Wardlaw, Ch. In this bill the plaintiffs seek relief from judgments at law obtained against them separately, by the defendant, Briggs, upon a single bill, joint and several, executed by them, together with John Campbell and David McDowell, alleging tbat, in the bargain for the land, which was the consideration' of the obligation, the obligors were overreached by the false and fraudulent representations of Briggs, by words and tokens, that the land contained a valuable gold mine.

The contract in question was made March 25, 1845, by which Briggs assigned to the plaintiffs and the two other persons above named, long leases he held of the *“*Love mine, ” in York district, and received their obligation for the payment, on January 1, 1847, of $1,000, with interest from June 1, 1847. Briggs, after the day of payment, sued, separately, in the Court of Common Pleas for Fairfield, two of the obligors, the present plaintiffs; the defendants at law set up his fraud in the transaction by way of defence, but he obtained judgments against them at Fall Term, 1848. On these trials no attempt was made to use the testimony of John Campbell and William Campbell, who were the principal agents in the negotiation with Briggs. On March 31, 1849, these judgments were satisfied by payments to Yongue, the clerk of the Common Pleas, (no executions having been lodged with the sheriff,) by equal contributions from the four obligors. On the same day J. Campbell and D. McDowell assigned all their interest in the matter to the present plaintiffs, and this bill was filed. No allegation is made in the bill of any surprise or fraud in the trials, nor of any newly discovered evidence, nor of any special- insufficiency in the tribunal which determined the cases, nor of any circumstances whatsoever, producing manifest injustice to the defendants at law; and the appeal to this Court is rested *372altogether on the ground that John and William Campbell were incompetent witnesses at law.

The substantial aim of this bill is for a new trial in this forum of an issue already adjudicated by a Court of competent jurisdiction. Actual fraud as fully vitiates a contract in the Court of Law as in the Court of Equity; and this Court follows the Court of Law in questions as to the competency of witnesses, with some exceptions, irrelevant to the present case, as to parties to the suit. Apart from the answer, which increases by its demands the proof required from the plaintiffs, the plaintiffs are in no bettor condition here as to remedy, and in worse condition as to evidence, than in the Court of Law. In the case at law against Barkley, both of the Campbells, John and William, if competent in either Court, might have been used for Barkley ; and in the case at law against William Campbell, John Campbell, relied upon in the present case, was as competent as here.

Dropping the question as to William Campbell’s competency as immaterial, on what ground is it supposed that John Campbell was not a competent witness in the case at law ? None is suggested, except that he was maker with the persons sued, of the single bill sued upon; yet not occupying the relation of principal to them as sureties. He was no party to the records; he was not liable for the cost of the cases ; his testimony could not affect-his own liability upon the instrument. Under these circumstances, he would seem to be a competent witness, even without release. In *Cleveland*vs. *Covington,*3 Strob. 184, it was held, that where the principal in a single bill is liable for the costs of his surety, he is, on that ground, an incompetent witness for the surety, when sued by their common creditor; but the decision is put upon his direct interest in the event of the suit, and the old notion of his incompetency, as a party to the instrument, is repudiated. See *Knight*vs. *Paclcard,*3 McC. 71; *Harmon*vs. *Arthur,*1 Bail. 83. In *Leech*vs. *Kennedy,*3 Strob. 488, it was expressly decided that one of the makers of a single bill, not sued, nor liable, as principal, for costs, was- competent to prove the signa*373ture of another maker to the instrument; and the general doctrine is recognized, that a surety, in a joint and several note or bond, as he is not liable for the costs of his principal, is a good witness for plaintiff or defendant, in a separate suit against the principal. In all legal incidents that case is identical with the one before us. Granting that this doctrine may be doubtful where there is no release, *(Dogan*vs. Ashby, 1 Strob. 433,) rules, that where the surety in a single bill releases the principal maker from all liability, this will render the principal a competent witness for the surety. The assignment or release subsequently executed, which it is supposed makes John Campbell a competent witness here, might have been executed on the trials at law. I know of no peculiar facilities in this Court for rendering witnesses competent through releases or assignments. The rules of evidence are the same in both Courts; or rather, in this matter, equity follows the law.

I may remark, without intending to imply' that this would have the effect of destroying his competency as a witness, that John Campbell should have been made a party to this suit. The assignor of a debt, or right, not transferable at law, must be a party to any suit in equity respecting it by the assignee. *Oathcart*vs. *Lewis,*1 Yes. jun. 463; *Walburn*vs. *Ingilhy,*1 M. and K. 61. The device of procuring an assignment from a party in interest, with the view of dropping him as a party to the record, and of using him as a witness, savors too strongly of maintenance to deserve encouragement. Strob. Eq. § 1048; *Sopldns*vs. *Hoplcins*MS.

It is superfluous to argue that the fraud, which is the ground of this bill, if sustained by proof, would have been available as a de-fence to the suits at law.

If the defendants there considered their evidence insufficient without the aid of discovery from Briggs, they ought, in the exercise of proper diligence and attention to their interests, to have made a more timely application to this Court. If a defendant has omitted to file a bill for discovery of facts known to him and material to his defence, and has suffered the ease to go to trial *374without adequate proof of such facts, he cannot afterwards claim an injunction or a new trial from a Court of Equity ; for it was his own folly neither to hare prepared himself with such proof, nor to have filed a bill for discovery and to have procured a stay of the trial until discovery. Story Eq. § 895; *Winthrop et al.*vs. *Lane et al.*8 Des. 324.

In the just and satisfactory administration of law, every party should have the opportunity of fairly presenting his claim or de-fence for adjudication before a tribunal of competent authority; but when he has once had such opportunity, the peace of society, the claims of other litigants to the attention of the Courts, and other elements of policy, require that he should forbear from further clamor. From the inattention of parties, the oversights of counsel, the infirmity of Judges, and other casualties, exact justice is rarely done in contested cases ; but general justice to the community demands that an end should be put to litigation. Courts of Equity will not interfere, after a verdict at law, where the case in equity proceeds upon a defence equally available at law, unless some special ground of relief be established, such as fraud, or surprise, or manifest injustice in the trial at law. Story’s Eq. § 894, ’5, ’6; *Maxwell*vs. Connor, 1 Hill Ch. 22; *Grist*vs. *Davis,*2 Hill Ch. 346 ; *McDowall*vs. *McDowall,*Bail. Eq. 330. The negligence or mistakes of the party or his counsel, or even supposed error in the Court of Law, do not constitute such special ground of relief here. *Ware*vs. *Horwood,*14 Yes. 30; *O’Keefe*vs. *Rice,*Bail. Eq. 180 ; *Maxwell*vs. *Connor.*

I am of opinion that the plaintiffs have not made a case entitling them to be twice heard; and that, on this ground, the bill must be dismissed.

Having attained this conclusion, I deem it unnecessary to state at length the other facts and pleadings in the cause. A single witness, John Campbell, testifies to a case of fraud, on the part of Briggs, in the bargain for the land. The answer positively denies the fraud; and upon the general rule, the answer must stand as proved, unless contradicted by two witnesses, or one *375witness with such circumstances of corroboration as have the force of another witness. In my judgment, the other evidence in the case rather impairs than corroborates John Campbell’s testimony. The only circumstance of corroboration relied upon, is that stated by Dr. John W. Campbell, that from the dilapidation of the mill and the appearances about it, Briggs could hardly have collected through the mill a small bar of gold, which, in the course of the negotiation, hé exhibited as recently obtained from the Love mine. This, at most, raises suspicion where the proof should be clear. Briggs did not say he obtained the bar by grinding, and possibly may have obtained it by panning. J. Campbell is contradicted, in various particulars, by other witnesses, although he seemed to be a respectable and intelligent person. One fact, however, is, of itself, conclusive, where the opposing testimony is so feeble. The plaintiffs purchased, after a full opportunity of examining the mine, and after testing its qualities to their own satisfaction, and with much deliberation. This is partly admitted by Campbell, and is more distinctly proved by Black and Whitesides. Unless the evidence of deceit was much more decisive, it must be held that the plaintiffs purchased on their own judgment.

It is ordered and decreed that the bill be dismissed.

The complainants appealed, on the following grounds:

1. That the trial at law was no let or bar to the recovery and relief sought by the complainants in a Court of Equity.

2. That the testimony showed a knowledge, in defendant Briggs, that the Love mine was worthless, and that he falsely represented the same, in divers ways to complainants, to be a good and valuable mine, before he sold.

*Buchanan,*for appellants.

*Thompson,*contra.

The opinion of the Court was delivered by

DüNKIN, Ch.

The argument of this appeal has been placed mainly upon the ground, that John Campbell was an incompetent witness in the trial at law, but that he has become competent in *376this case in consequence of having paid his proportion of the judgment recovered against the complainants, and of having “ assigned his interest in the matter” to the complainants. The instrument of assignment is not before us ; but it is not easy to perceive what right of action *Tie*could have against the defendant, Briggs, who had never impleaded him. This Court deem it, however, unnecessary to express any opinion, as to the competency of John Campbell, in the trial at law. If he were competent, it was the duty of the complainants to have proposed him as a witness, and it must be presumed that his testimony would have been received. But, assuming for the purposes of the argument, that, as one of the principal obligors in a joint and several bill, John Campbell was incompetent to testify in behalf of his co-obligor, why might not the same process have been resorted to for restoring his competency, which has been since adopted, or why was he not rendered competent by a release from his co-obligor ? It is said, and truly said, he was not bound to release him. But, if a witness is called to the stand, and successfully objected to, on the ground of interest, which he declines to release, is it any ground for a bill in equity on the part of the unsuccessful litigant, in behalf of whom he was called, that he has since paid the witness his debt, and thus extinguished his interest, and desires the benefit of another hearing with this additional evidence ? *Or,*would it make any 'difference that the witness, rejected as incompetent at the trial, had, after the trial, voluntarily released his interest, and thereby rendered himself competent to testify on another hearing of the cause ? If the principle were recognized, it is easy to conceive, that a party would rarely want the advantage of a trial in chancery, not in consequence of newly discovered, but newly created, testimony.

' Nor is this, perhaps, the strength of the objection to the complainants’ proceeding. Substantially they seek to recover back not only what they have themselves paid, but, as assignees, what has been paid by John Campbell and the other co-obligor. John Campbell was not only a principal in the obligation, but the chief *377actor in the transaction. He so regarded himself, and either voluntarily or involuntarily paid his proportion of the judgment, and then assigned, what he calls his interest in the matter, to the defendants in the suit, his co-obligors, who are the complainants in this bill. Why might not the defendants in the judgment, with'equal propriety, after judgment rendered and payment by them, assign their interest to a stranger, without consideration, and thus enable him to maintain a bill to be sustained by the evidence of his assignors ? So far as the complainants seek to recover the sums paid by John Campbell and D. McDowell, the principle is directly analogous. The argument is, that they had an interest to recover back the money paid in consequence of an erroneous verdict. They voluntarily assign that interest, and thereby qualify themselves to testify in behalf of their assignee, and the Court is asked to entertain the bill, because, in the suit at law, being parties to the record and directly interested, the assignors of the complainants were incompetent to testify. The Chief Baron of the Exchequer, in the recent case of *Welch*vs. *Faucett,*(25th Feb. 1852,) adverts to some of the inconveniences of the late Act of Parliament authorizing the admission of parties as witnesses, and says, that “ the change will necessarily lead to increased litigation;” and that “cases will now be brought into Court which would never have been thought of,” and recommends that the operation of the statute of frauds and perjuries should be extended. But to sanction a bill of this character, would not only increase and protract litigation, but would stimulate an angry and unsuccessful suitor at law, by assigning his interest, to set on foot, a new proceeding, in which he could tell his own tale and his adversary be unheard. It seems enough that the diligent researches of the complainants’ counsel have furnished no precedent for these proceedings.

But, in the trial at law, the complainants resisted the recovery, on the ground of fraud and misrepresention on the part of the defendant, Briggs. On the evidence submitted, the jury rendered a verdict for the plaintiff in the suit. In this Court the com*378plainants have bad tbe advantage of tbe defendant’s answer, and also of tbe evidence of John Campbell, and, upon tbe question of fraud and misrepresentation, tbe Chancellor bas arrived at tbe same conclusion with the jury. Under these circumstances, it would require an extraordinary case of misapprehension to warrant tbe interference of this Court; but, upon a review of tbe evidence, we are well satisfied with tbe conclusions of tbe Chancellor and of tbe jury.

Tbe decree is affirmed, and tbe appeal dismissed.

Johnston, I)ARCAN and Wardlaw, CC., concurred.

*Appeal dismissed.*