The Pacific commercial advertiser. [volume] (Honolulu, Hawaiian Islands) 1885-1921, 1894-11-07

This is the second Bill in Equity by
the defendant in a suit at law, to va
cate the judgment against him and to
enjoin its collection.
The bill alleges in substance that in
the suit at law the defense of the stat
ute Of limitations which was pleaded
was inadvertently omitted to be passed
upon by the Justice who heard the
case, the jury being waived, and that
the cause of action was barred by the
statute of limitations of six years and
that the omission and failure of the
Justice to rule upon and decide the
said issue so made was due TO no fault
or negligence of the plaintiff or his
attorney that no appeal at law lay
from the said omission or failure of the
said Justice to rule upon or decide the
issue on the legal effect of the statute
of limitations, inasmuch as no ruling
had been made and so no exception
could have been taken.
The bill prays that the judgment be
vacated because barred by the statute
of limitations, and that the collection
of the judgment be eDjoined.
The defendant demurred to the bill
az disclosing no equity.
The ground claimed for equitable
relief, is, concisely stated, the omis-
sion of the Justice who heard the case
TO pass upon and decide whether the
action at law was barred by the stat
ute of limitations. The affidavits
show that the Justice did not pass
upon nor decide the issue raised by this
plea, and that counsel of plaintiff (the
defendant at law did not present nor
argue the question, nor ask of the
Court for finding upon it.
The precise question before us is,
whether a defense OF legal nature,
omitted to be passed upon and decided
the notice of the Court, and upon
which no finding was requested, is
good ground for equitable relief.
Pomeroy says it is not. We quote
from Pom. Eq. Jur., Sec. 1861: |
Equity will not restrain a legal ac
ton or judgment, where the contro- |
versy would be decided by the court |
of equity upon a ground equally avail |
able at law, unless the party invoking |
special equitable feature or ground |
of relief; and in the case assumed this |
special feature or ground must neces-
sarily be something connected with |
the mode OF trying and deciding the
legal action, and not with the cause of |
action or the defense themselves. 1t |
is not such q special equitable ground
of interference that the party has, by
his own act or omission, failed to eff
fectually avail himself of valid de-
Tense at law, nor that the court OF law
has decided q question of law or Of
fact enormously. the principle is
well established and is universal in its
application, that when a cause belongs
TO the jurisdiction of the law courts,
equity will never interfere to restrain
the prosecution of the action, nor to
stay proceeding on the judgment or
upon any mere legal
grounds, although il may be demon
strated that the complainant in equity
generally the defendant at law had
a valid legal defense, which was not
made available, either through the err
ror OF the court in determining the
law or the facts, or the omissions of
himself or his counsel in presenting il
or in obtaining the evidence by which
it could have been supported"
Note / on page 395. ''It is imma-
terial whether the question or matters
relied upon by the complainant in
equity was considered by the law
court or not. Omission to present or
make out defense at law IS not a
ground for equitable relief"
In Day V. Cummings, 10 VT. 500, the
Court, per Redfield, j., say: sit has
always been held, that any defense,
,Chich n1iqht be iHterpOSed at IdIO to
defeat the recovery, or a portion of ii,
must be so interposed, or it Is con-
GUIDED by the judgment"
In Simpson V. Lord Howden, II
Eng. Chan. Repts., los, it was held by
Lord Chancellor Cottenham: "That
party has not effectually availed him.
self of defense, or that Court of law
mas enormously decided a point of
pure law is no ground for equitable
In 1907 Lord Eldon said in Ware V.
Norwood, IA Yes, 81, "Giblett has :
lad an opportunity of defending him
self at law; and in fact a judgment
vas recovered against him; and, 1
agree, generally speaking, that jur-
sdiction does not arise here from the (
mere circumstance that a party has
omitted TO make proper defense at I
aw."
In Hungerford V. Siegerson, % How,
81, the Supreme Court of the United
states say: "WEere a party has failed :
o make proper defense at law
Trough negligence, equity will not
id him."
The defense of the statute of limita-
ions is legal defense. 1t was not
'assed upon by the trial Court, be-
ause il was not argued and the Court t
vas not asked to decide il. IL is not 4
necessary to charge counsel with neg
Igence in not bringing the matter to :
he attention of the Court, for counsel
Or defendant may not have consid- Q