Briesch v. McCauley

Martin, J., delivered the opinion of this court. There are to be found in the bill filed in this case, three allegations, which, if true, would have entitled the complainant to the protection of a court of equity. They are— 1. That the single bill of the 27th of July 1827, was executed by the complainant in favor of the wife of William Kreps, and that upon her death it devolved upon her husband. 2. That the complainant was the holder of the single bill of the 13th of May 1833, drawn in his favor by the said William Kreps, and which he had, therefore, the right to set off against the first mentioned note. And — ■ 3. That the institution of the action in the name of the daughter of William Kreps, and the judgment consequent thereon, was the result of a fraudulent contrivance concocted between Thomas McCauley, to whom the single bill of the [195] 27th of July, had been assigned, and Kreps, for the purpose of preventing the complainant from using one note as a defence against the other. These facts, collectively considered, certainly presented a strong case for the application of the conservative powers of a chancery court, and they were, no doubt, the allegations by which the learned judge was influenced in granting the injunction. But the aspect of the case is entirely changed by the answers, which are exhibited in this record. It will be seen that the defendants positively and distinctly deny the allegation of combination and fraud. There is an entire absence of any evidence, calculated to overcome these responsible averments in the answers with respect to the charge of fraud; and it is manifest, that the injunction must have been dissolved upon this negation, of the imputed fraud. But there is another objection to the relief sought by the ■complainant, that cannot be overcome. An examination of the bill will show, that the claim of the complainant to the interposition of the court, stands upon the allegation, that he was the holder and proprietor of a single bill of the 13tli of May 1833, executed in his favor by William, Kreps, which, in law, he was authorized to set off against the mote upon which the suit in controversy was instituted. This fact lies at the foundation of his case; and the counsel for the appellee has contended, that this allegation has not been proved, and that the cause is to be treated, as if this single bill had no existence. Has this averment been proved? We think not. The existence of this single bill is not admitted by the answers of Thomas Me Gauley, or of Anne Maria Palmer. McCauley in his answer says: — “ He has no personal knowledge of the execution of the other single bill mentioned in the complainant’s bill of complaint, and alleged to have been executed by the said William Kreps, to the said complainant, for the sum of $285.08.” The answer of Ann Maria Kreps is to the same effect. [196] In this case the injunction was dissolved, and the bill dismissed on final hearing; the bill, answers and evidence being before the court. In this condition of the cause, it was incumbent on the complainant to sustain, by proof, the material allegations of his bill. He could not rely upon the silence of the defendants. This is the doctrine of Warfield vs. Gambrill, 1 G. & J., 503. In Young vs. Grundy, 6 Cranch, 51, it was held: “That, if the answer neither admits nor denies the allegations of the bill, they must be proved upon the final hearing; upon a question of dissolution of an injunction, they are to be taken as true.” How then is the existence of the single bill in question attempted to be established ? Only by the answer of William Kreps, who admits the execution of the note, as stated in the bill. But it is an established principle of evidence, that the answer of one defendant cannot be received in evidence against his co-defendant. If the complainant desires to prove a fact, by the evidence of a co-defendant, he may examine him as a witness on interrogatories, and thus afford his adversary air opportunity to cross-examine him. Stewart vs. Stone, 3 G. & J., 510. Upon this ground, therefore, the court below could not do otherwise than dismiss the bill. The appellant has failed, in other respects, to present a proper case for the interposition of a court of equity. The question, as to whom the single bill of the 27th July 1827, was given, was tried at law, upon a plea in abatement interposed by the complainant. The jury found the plea to be false, and a final judgment was rendered for the plaintiff, as the legal consequence of the verdict. We have seen that the allegation, that this judgment was obtained by fraud, was negatived by the answers, and has not been established by testimony. It is neither alleged nor proved, that the appellant was defeated in the trial at law, by accident or surprise, of which he was not aware, and against which he could not, by skill and diligence, have protected himself. A large mass of testimony is exhibited in the record, on the point [197] that was involved in the controversy at law, but it is cumulative in its character, and it is not even averred, that it had reached the knowledge of the complainant since the trial. Under such circumstances, a court of law would have refused to grant a new trial. There certainly is no ground for claiming the interposition of the chancery tribunal. In the case of the Marine Insurance Company vs. Hodgson, 7 Cranch, 336, the Supreme Court declared: “ Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may be safely said, that any fact which clearly proves it to he against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself, or his agents, will justify an application to a court of equity. On the other hand it may with equal safety be laid down as a general rule, that a defence cannot be set up in equity, which has been fully and fairly tried at law, although it may be the opinion of the court, that the defence ought to have been sustained at law.” The same principle is recognised and announced in Barker vs. Elkins, 1 Johns. Ch. Rep., 466; Gott vs. Carr, 6 G. & J., 309; and Dilly vs. Barnard, 8 G. & J., 170. For these reasons, we think, the decree of the county court must be affirmed, but express no opinion on the question of fact raised by the record. decree affirmed.