The Hawaiian gazette. [volume] (Honolulu [Oahu, Hawaii]) 1865-1918, 1885-02-11
GEORGE \. WILCOX VS.. ALBERT G. ELLIS

Inc QefenQant QemuTs.
The question raised is whether party, hav-
ing defence Of fraud, based upon facts known
TO him at the time of the trial at law, and OF
which he did not avail himself, he having
made a defense Of no sale, is precluded from
attacking in equity the judgment on the ground
Of fraud
Saws Freeman on Judgments Sec. ass,
"In respect to the general grounds upon which
the interposition of courts of equity may be
successfully invoked to obtain relief from judg-
ment or DEGREES, there seems to be perfect
unanimity of opinion. The actual adjudication
Of any question is in fact final, under all cir
cumstances, unless corrected by some appellate
tribunal, and is never subject to re-examina-
ton in any other than an appellate Court, upon
any issue Of law, or of fact, nor upon the sole
ground that the former decision is contrary to
equity or good conscience. 1t is always
condition precedent to the proper action of
court Of equity, in interfering with judgment
or decree not before it upon appeal, that the
matter now in the form of an adjudication, is,
in truth, without any fault Of the party seek
ing TO avoid its effect, determination in which
be could not present his cause of action, or his
grounds of defense, as the case may be, to the
consideration of the court."
"The rule allowing parties to appeal to
Chancery against judgment in any court is
Of great strictness and inhexibility; and it is
necessary that it should be so, as otherwise
the jurisdiction Of that court would soon sup
l,lant all other tribunals. A court of equity,
therefore will not lend its aid unless the party
claiming its assistance can impesch the judg-
ment by facts, or on grounds Of ,ohich he could
not hare arailed himself at law, or was pre-
vented from doing it by fraud, accident, or the
opposite party unmiIed with negligence or
fault on his own part"
The general rule is that relief will not be
granted against judgment at law, on the
ground Of lis being contrary TO equity, unless
defendant was ignorant of the fact in question
pending the suit, or it could not have been re-
ceived as defense, or unless he was prevented
from availing himself of il by fraud or acci-
dent OF laches Of the party"
In Sec. 1873 of Story (written by Judge
Redield) the text is "But where the fact ex-
listed before the trial at law, upon which the
relief in equity is claimed, and was also known
10 the party sueiDg in equity, or might have
been discovered by the exercise of diligence.
and was as much defense at law as in
equity; no redress can ordinarily be obtained in
equity" In note 3 reference is made to Penn
VS. Reynolds % Graft. SIS, where il is held,
that ''if a defendant elects his remedy in a
hull dBdlusl ulUl, Will UOI TcleNe Dlm
from the effect Of his choice"
In Miller VS.. Morse % Mich. 3G9 Judge
Cooley says Equity will never interfere
where party under no disability neglected
TO make his defence at law"
In Morris VS.. Hadley Mich. 2s3, the Court
per Manning ]. say And in applying for a
new trial, defendant who has not been fraud
ulently misled by his adversary in making his
defense (of which there is no pretense in the
present case) will not be permitted to change
that defense. In other words, having set up
one defense and failed in it, new trial will
not be awarded TO enable him to make who'll
ly different defense, and one which might have
been, but was not, made at the trial"
This leads me to the discussion of the point
urged by plaintiffs counsel that a defense of
fraud could not safely be made at the same
time with the defense of no sale, for the rea-
son that the defense that the plaintiff was in
duced by fraud of the defendant to made the
offer TO buy the stock would be a confession
that the contract of sale had been ACCOMPLISH
ed. Would the defendant be allowed to make
these Inconsistent defenses? l think that he
would be-
Our Statute, Sec llO7 of the Code, allows
under plea of general denial, the defendant
to give in syideBce as defense TO any civil
Ant4 any matter of law OF fSes' whichever. .i--
But it is clear to my mind that it would
prejudice the plaintiffs case for him to say
in one breath TO the jury that he had not ac-
cepted and received the stock and also that
be was induced by the deceit and fraud of the
defendant to make an offer to buy the stock.
The Jury would be likely to believe neither
defense and it would be decidedly against his
interest to hazard both defenses
But whether he is obliged 10 make the
defense of fraud if known, is another ques-
tion.
Bigelow on Torts p. III says Recovery
Of judgment upon a contract, If fraud be not
pleaded, is no bar TO an action for the deceit
practised to induce the plaintiff to make il. !"
The case in support is Wanzer VS.. De Baum
E. D. Smith 26l. And on p. 429-'But the
criterion of the right to call upon the Court of
Equity for relief does not, it seems depend in
all cases upon the complaining party's know
ledge or legal notice of the fraud before iudg-
ment. We have elsewhere seen that there
may exist frauds in connection with claims
prosecuted against party which, not being
| necessarily connected with the validity of the
claim, he may prefer to avail himself of in a
proceeding instituted by himself instead of by
| his adversary; and, in cases of this kind, we
lave seen that the law allows the party his own
election in the matter, and does not impute
| to him laches for not doing that which might
not have been for his interest" ''In such cases
the injured party has right of cross action
| against the wrong-doer, notwithstanding the
| Judgment which he has obtained; and we ap-
| prehend that if the facts were of such nature
as to require the aid of equity, the cross action
could be brought in Court of Chancery.
Thus if suit were brought upon contract
obtained by the defendant through fraud, he
would be permitted to treat the contract as
binding, allow it TO pass ntojudgment accord
ingly, and then bring a cross-action for the
fraud by which it was obtained" citing
Wanzer VS.. De Baum supra.
In Freeman on Judgments Sec. sol We
fnd-'If q party sued ailaw, has defense
Of AN equitable characst=, but of which j
Court of law can take cognizance, he need
not in general, present his equitable defense,
but may allow judgment by default to be taken
against him, and may afterwards assert his
equitable defense for the purpose of obtain
ing relief against the Judgment. Clay VS.. Fry
6, Am. Dec. 654.
The English cases go to the same extent.
quote from Kerr on I1junctions p. 26, as the
cases cited are not accessible. GA party to
an action at law, who may have an equitable
defence, is not bound to plead it at law, but
may come into equity for relief. He is moi
precluded from coming to the Court, unless
he has already set up his equitable defence al
law. If lis has not plead his equitable defense
at law, he may after judgment come into equity
for relief. But if he has exercised his option
and has attempted the equitable defence in q
court of law, and there is no reason why the
court of law should not deal with the eluit-
4 able plea as well as corrt of equity and give
the same relief as court of equity, he cannot