#### *Benjamin F. Hunt*vs. *Elijah P. Coachman and J. R. Easterling.*

Judgmonts were obtained against B. II. at Ball Term, 1846, of the Common Pleas, upon anawarddated January 16, 1845. By billfiled March 11,1847, he sought to onjoin the judgments, charging that the arbitrators received hearsay evidence and committed other irregularities. The bill was dismissed on the cirouit; and, on appeal, *held,*that it was properly dismissed.

In a bill for a new trial the plaintiff must show, not only that injustice was done to him in the former trial before a tribunal of competent jurisdiction as to the subject of dispute, but that he was prevented by fraud, accident, or some other matter of peculiar equity cognizance, without any fault or negligence on the part of himself or his agents, from availing himself of his defence at law; and that his application to equity for relief has been prompt and timely.

*Before*Wardlaw, Ch., *at Charleston, June,*1853.

Wardlaw, Ch. By this bill, which was filed March, 11, 1847, the plaintiff seeks to enjoin judgments at law against him obtained separately by the defendants, at Fall Term, 1846, for, Georgetown, upon an award signed and sealed by George C. Munro, James G. Henning, and Benjamin King, bearing date January 16, 1845.

Coachman and Easterling shipped rough rice to Hunt’s mill in New-York, to be pounded, and sold, and complained of loss from negligence of Hunt’s agents in preparing and selling the rice in due time; and the parties covenanted to submit the matter to the final arbitrament of Munro and Henning, with leave to the arbitrators, in the event of disagreement between them, to call in as a third arbitrator Benj. King or E. Waterman, with authority to the arbitrators “to examine all testimony furnished by either party, in such manner and at such time, as to them may seem fit and proper.” Munro and Henning at first disagreed, but finally they and King awarded to Coachman $145 94, and to Easterling $133 92, to be paid by Hunt, and upon this award the judgments at law were rendered.

In this bill, the plaintiff, without charging corruption or partiality in the arbitrators, alleges that they received hearsay evi*287dence of a letter to his agent in New-York, instructing prompt sale of the rice, and committed other irregularities in the trial. I am not satisfied upon the proof, that the arbitrators committed any gross error, but I shall not undertake to re-try the case upon its merits, or to discuss the testimony. In a bill like the present, substantially a bill for a new trial of a case heard and determined by the Court of Law, the plaintiff must show, not only that injustice was done to him in the former trial before a tribunal of competent jurisdiction as to the subject of dispute, but that he was prevented by fraud, accident, or some other matter of peculiar cognizance here, without any fault or negligence on the part of himself or his agents, from availing himself of his defence at law, and that he has made prompt and timely application to this Court for relief. Courts of Equity, equally with Courts of Law, exact diligence from suitors, and enforce the policy of suppressing multiplicity of suits, by giving effect to a former judgment on the same subject, between the same parties, by any Court having competent jurisdiction. Lord Redesdale justly says, in *Bateman*vs. *Willoe,*1 Sch. & Lef. *20o,*it is more important that an end should be put to litigation, than that justice should be done in every case; and the truth is, that owing to the inattention of parties, and several other causes, exact justice can very seldom be done; therefore the inattention of parties in a Court of Law, the mistake of his counse or himself, or even supposed error in the Court, do not justify a Court of Equity in re-trying a ease once heard by the Court of Law, as to any matter of claim or defence equally available in both Courts. *Res judicata,*as a plea in such case, applies not only to the matters actually heard and discussed, but to all questions of law or fact which might have been discussed and adjudicated in the former trial. *Maxwell*vs. *Connor,*1 Hill Ch. 22; *O'Keefe*vs. *Rice,*Bail. Eq. 180.

All the grounds of objection to the award made by the bill in this case, were as good by way of defence in the Court of Law, as of relief in this Court. Indeed the defendant attempted to avail himself of them by special plea in the Court of Law, *288but by mispleading, or insufficiency of proof, he failed. In general, there is no substantial distinction between the Courts of Law and Equity, as to the grounds on which awards may be set aside in either. *Lingood*vs. *Made 2*Atk. 501; *R.*vs. *Wheeler,*3 Bur. 1257; Buss. Arb. 672; *Askew*vs. *Kennedy,*1 Bail. 46 ; *Shinnie*vs. *Coil,*1 Me. Ch. 478. The plaintiff here alleges no ground such as fraud, or surprise, at the trial, which authorizes this Court to review the former judgment.

Besides, the application of the plaintiff to this Court was not made within the time required by the Act of 1791, nor within reasonable time. 7 Stat. 278; Story, Eq. § 895.

It is ordered and decreed that the bill be dismissed.

The defendant appealed on the grounds :

1. That' it was clearly shewn by the affidavits of Munro and King that the award was made upon evidence admitted contrary to the agreement, and in violation of the legal rules of evidence.

2. Because the arbitrators, George C. Munro and Benjamin King, admit that their consent to the award was founded upon a misapprehension of the evidence, without which they would not have signed the award.

3. Because the defendant had no notice of the *meeting*of the arbiters, and no opportunity of cross-examination of witnesses, and producing evidence in reply, or to rebut the testimony upon which the award against him was given.

*W. Whaley,*for appellant.

*Simonton,*contra,

*Per Curiam.*

This Court concurs in the decree of the Chancellor, and it is ordered that his judgment be affirmed, and the appeal dismissed.

Johnston, DuNKiNand Wardlaw, CC., concurring.

Da'rgan, Oh., absent.

*Appeal dismissed.*