Nashville union and American. [volume] (Nashville, Tenn.) 1868-1875, 1871-03-03
SUPREME COURT DECISIONS MS
December Tern - Nashville,
zeFs - - y 1870. sgia g5iaa
Joseph B. HeiskeII, Attorney-Gen-
ersaI and Reporter.
No. go.
Rowland vs.. Jones.

8- Rowland ys. Jones.
This is an application to Court of
Equity for relief against the enforcement
of judgment at law, which is alleged to
be unjust and inequitable. There can be
no controversy, now, as to the Jurisdlc-
ton of Courts of Cbancery in such cases;
nor, is there any difficulty in ascertaining
the general rule, by which Courts of
Equity in this State are governed, in the
exercise of this jurisdiction. The real
difficulty is, in the application of the
rule, in each particular case, in which the
exercise of the jurisdiction is invoked.
The rule as laid down, in Keany VS..
Smith, Yerg., SO, may be regarded as
fully established, by numerous subsequent
recognitions of it, in this State. The
rule SO established is, that "a party will
not be aided by Court of Chancery,
after trial at law, unless he can i'm
peach the justice of the verdict, on
grounds of which he could not have
availed himself atlaw, or was prevented
from doing it by fraud, or accident or
the act of the opposite party, unmixed
with negligence or fraud on his part"
1t is manifest that the jurisdiction of
Chancery Court can never be successfully
invoked until it is made clearly to appear
that injustice has been done by the judg-
ment in the court of law. Before
Court of Chsncery will entertain an ap-
peal to its remedial powers, in a case
which has already been tried in court
of law, it must see that injustice has
been done.
In the case before us, the complainant
has shown clearly and distinctly, that the
| judgment which he seeks to enjoin was
rendered on note, on which he was new
er legally bound-that his name was af-
fixed to it without his knowledge or au-
thority, and that the act has never been
recognized or assented to by him. The
injustice of the judgment, therefore, is
fully made out
But as clearly as the injustice of the
judgment is made to appear, it is better,
that complainant should suffer the conse-
quences, than that the fixed rules, which
define the jurisdiction of courts of law,
and of equity, should be broken down.
Hence it is incumbent on complainant,
not only to show the injustice of
the judgment at law, but also that he
was prevented from making his defense
by fraud, or accident, or act of
the plaintiffs, and that he was charge
able with no negligence or fault on
his part. La the case before us it appears
that complainant made no defense what
ever. The summons was served on him
some time in the fall of 1850, yet down
to the January term, 1861, of he court,
he had taken no preparatory steps for his
defense, though he aVowed his determin-
alton to resist the suit, even at the hazard
of sending his son to the penitentiary. 1t
is obvious that if he had engaged counsel
in advance of the meeting of the court,
he could have avoided judgment at the
appearance term, though he might have
been prevented by sickness from being in
attendance. To determine whether his
failure to employ counsel in advance was
negligence or not, depends upon the facts
and circumstances in proof.
1t is shown, that he derived his first in
formation, as to the existence of the note,
from the sheriff, at the time the summons
was served. He promptly repudiated the
note, denied his liability aud declared he
never would psyit. The sheriff informed
him, that Ben Layne said it was not COM
plainant's debt, and that he must not
poster him about it-but that they (mcan-
ing the other makers of the note, includA
ing HIMSELF would pay i. The sheriff
told complainant that it was not neces-
sary for him to attend at that term, which
would only be the appearance teTm-that
the others would attend to it and put in a
plea, which would put it eff to the next
term, when he could go and attend to it.
1t is further proved by the sheriff, that
Ben Layne instructed him that he was in
partnership with Geo. Lsyne and T. B.
Rowland, the er..makers of the note,
and that it was their debt and they would
pay it.
1t is in proof by witness Reynolds, that
Ben. Layne and Jones, one of the plain
tiffs in the suit at law, were present, and
saw young Rowland sign his fathers
name TO the / OK; aud when he did so,
saying his father had authorized him,
witness looked him 10 the face, whereup-
on he turned off, when witness rema rked
to Ben. Lsyne tina. that signature was q
forgery. Notwithstanding this signif-
cant remark by one who was well &C
quainted with complsinant's habit of new
er giving his note, or going security, no
further inquiry was made, but the note
was received by Jones. As Ben. Layne
was partner in the purchase of the
mules, for which the note was given, ii
was to his interest that Jones should re-
ceive the note; and, for that reason, we
| may presume, he made no objection to
the fraud thus attempted to be perpetra-
| ted on complainant for his benefit. 1t
further appears that Jones took the note,
without requiring of young Rowland to
show his authority for using his fathers
| name.
These facts explain the motive which
Ben Layne had in sending the messages
by the Sheriff to complainant. He knew
that the note was a forgery as to COM
plainant's signature. He acknowledged
that the debt was not compliments, but
his own, and he authorized the Sheriff to
assure him that the debt would be paid
and he would not be troubled. In addi-
ton to all which, the Sheriff assured him
that he need not attend the appearance
term, but that the other parties would at
tend to putting in the necessary pleas.
Without now inquiring whether this
effort on the part of Ben Lsyne to induce
complainant to hold still, and take no
steps in the case, proceeded from desire
to relieve his mind from anxiety, or
whether it was designed to throw him off
his guard for sinister purpose, we have
no difficulty in seeing that an old and
illiterate man, naturally oppressed by the
necessity of subjecting his son to infamy,
by fixing upon him the guilt of forgery,
in making out his defense, would
readily listen to the suggestions
of Layne, and the advice of the
Sheriff, and postpone any preparation for
his defense until it became absolutely es-
sential. We are, therefore, satisfied that
complainant was chargeable with no such
negligence OF fault in failing to employ
counsel before the appearance term
of the court, as ought to repel him from
a Court of Chancery.
The question still remains, was he pre-
vented by fraud or accident, or by the act
of the opposite party, without negligence
or fault on his part in attending and
making his defense at the appearance term
of the court9
The proof is entirely satisfactory, that
Al