The news-democrat. (Providence, R.I.) 1906-1909, 1907-07-26
JUDGE BAKER
SUSTAINED
DEMURRER

| Judge Baker In the superior court has
sustained the defendants demurrer In
the case OF Patrick T. Tyrell VS.. Robert
Wood. administrator on the estate OF
Ellen Wood. This was an application for
a permanent injunction against the taking
out of ar execution in the superior court
by the respondent against the complain
ant In an action of debt on judgment
In LOO Tyrell bought from Ellen Wood
the furniture In a hotel on Broadway,
Pawtucket. and bought lease OF same
from Robert Wood. and later Tyreil sold
his Interest to one James McCann. The
latter kept the hotel until he died In 1892
After his death a trover suit was brought
by the Woods against Tyrell, because IL
was claimed he had destroyed certain
appurtenances OF said hotel. There was
an execution against the body OF Tyrell,
taken out i'm this case and the natter
was by him supposed to have been COM
promised so that he was discharged from
liability. The release given was destroyed
by accident.
Two bills were alleged In the bill for
granting an injunction. first, a release
given by the respondent and his wife to
the complainant before the bringing Of
the first action, and, second, satisfac-
tion OF the Judgment obtained In the first
action upon which the last Judgment was
rendered
Judge Baker In the course OF a rescript
says: "As stated in the bill, Ii does not
appear that the release would have been
! any defence i'm an action of trover. At all
events, IL no attempt was made to set IL
| up In the first case. and the present COM
| plainant made no effort to set aside that
! Judgment and TO obtain n new trial. as
| provided by law, he could not set up the
| release as a defence in the action after
wards brought, as above stated, upon the
! judgment.
las to the second ground satisfaction
of the judgment, the bill alleges that In
1898 the complainant was arrested on an
| execution issued upon the first Judgment.
that the execution was settled by COM
| promise therein entered into, and that by
| the respondents counsel the present COM
plainant was discharged from arrest and
from all liability on account OF the exc.
| cution. and that the said obert Ward and
! his wife 'acquiesced in said settlement
! and satisfied the same. That would have
| been a defence in the action Of debt ~
| Judgment. the further prosecution or
which by the issuing OF a writ OF execu-
| tion is now sought to be entoined. There
! is no allegation and there Is no presump-
| ton that the complainant did not have
| opportunity to defend the case. III the
| judgment is final and defence OF satisfac-
ton OF judgment was In issue. then that
| matter has become res adJudicata, ana
relief. but IL the defence OF satisfaction
was not set up in the action at law, and
no excuse is given for failure TO make
the defence. relief by injunction will not
| be granted.
when a party has once had an OPP
| portunity OF being heard and neglects to
! do so, he must abide the consequences OF
| his own neglect. A court of equity can
! not relieve him. though the judgment is
| manfestly wrong Even when fraud Is
| charged, and the fraud might have been
used as defence to the action at law.
| but il does not appear whether IL was SO
| used or whether the defendant neglected
| to avail himself OF il, the Judgment VIII
| not be restrained