on successively by way of experiment, from one concurrent tribunal to another, and thus to introduce conflicting decisions, that prevents the second inquiry; and it ought to be observed, as an answer to much of what was said against the incompetency of the courts of common pleas over such questions, that if this mode of review was to prevail, it would apply as well to the case of an unsuccessful application to the supreme court, as to any of the courts below it."(1)

So, in Kemp v. Mackrell, (2) it was held that parties, resting their defence in an issue at law, upon instruments ascertained at the trial to be forged, will not be allowed to enter into any other evidence, or to say the forged instruments were immaterial. On exceptions to the master's report for allowing several notes to be brought into the account by the plaintiffs, assignees of Cardwell a bankrupt, several issues were directed to try the validity of those notes, which were all found to have been forged, and the application was now for relief, on the ground that the notes were not material. Lord Chancellor" Whether this is the case of assignees under a commission, or of a person suing in his own right, I must go by the same rule. When issues are directed, either on hearing of the cause, or on exceptions upon facts of this kind, it is afterwards taken to be decisive, as to the fact directed to be tried, and as to the consequence of that fact, unless it is a distinct consideration, as where there was a double consideration, whether the deed was forged or not, and the consideration of equitable circumstances. It is now said, that whether these exhibits are true or false, there is other evidence which makes them immaterial. If the court should now go into

(1) Vide Bromlay v. Rep. Temp. Finch, 472. (2) 2 Ves. sen. 579.

Holland, 5 Ves. 610. Vaulx v. Shelley,
Williams v. Lee, 3 Atk. 223.

that other evidence, there would never be an end of things; therefore, for the sake of precedent, I will not do what is now desired by the plaintiffs. The parties must abide by the defence they set up; and if they set up a forged defence, they must rest upon it, and cannot afterwards say that piece of evidence is nothing to the purpose."(1)

Nor will courts of equity interpose, for the relief of parties against verdicts and judgments at law, when the court has had competent jurisdiction, although they may be dissatisfied with the result. Thus, in Bateman v. Willoe,(2) cited above, where it was held, that a verdict obtained against a defendant, who neglects to apply for a new trial within the time appointed by the rules of the court at law, a court of equity would not entertain a bill for an injunction, on the ground that the plaintiff's demand was unconscientious, or that it was fit subject-matter for an account, provided it was competent to the party to lay those grounds before the jury on the trial, or before the court of law, on motion for a new trial. And in that case the bill was dismissed.(3)

So, if the defendant below neglect to bring his bill for discovery, in aid of his defence at law, as in Williams v. Lee.(4) A bill was filed, in order to set aside a verdict and judgment at law, as obtained against conscience. The defendant in equity pleaded the verdict, and judgment at law in bar. And, per Lord Hardwicke.-"As to relieving against verdicts, for being contrary to equity, those cases are, where the plaintiff knew the fact, of his own knowledge, to be otherwise than what the jury find by their ver

(1) Et vide Overton v. Ross, 2 Hen. & Munf. 408.

(2) 1 Sch. & Lefroy, 201. Supra, p. 188.

(3) Vide Parsons v. Lanoe, 1 Ves. sen. 192. Colgrave v. Juson, 3 Atk. 197. (4) 3 Atk. 223.

dict, and the defendant was ignorant of it at the trial; as where the plaintiff's action might be for debt, and the defendant, after the verdict, discovers a receipt for the very demand in the action; here the court would relieve. But, even in these cases, they will not always relieve against a verdict, where the defendant submits to try it at law first, when he might, by a bill of discovery, have come at this fact by the plaintiff's answer upon oath, before any trial at law was had."(1)

So, also, in The Marine Insurance Company v. Hodgson.(2) This suit was brought in the circuit court, sitting in chancery, to obtain a perpetual injunction to a judgment rendered at law, in favour of the defendant in equity, and, as the complainants alleged, most unjustly. Marshall, Ch. J." 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 safely be said, that any fact which clearly proves it to be 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 chancery. 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 that court, that the defence ought to have been sustained at law. It will not

(1) As to equity's not interfering when the merits have been disposed of at law, vide Pym v. Blackburn, 3 Ves. jr. 34. Holtzapffel v. Baker, 18 Ves. 115. Hare v. Groves, 3 Anst. 687. Bullock v. Dommitt, 2 Chitty's Rep. 608. Pollard v. Shaaffer, 1 Dal, 210, Phillips v. Stevens, 16 Mass. Rep. 238.

(2) 7 Cranch, 332.

be said, that a court of chancery cannot interpose in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which its relief ought to be extended to a person who might have defended, but has omitted to defend himself at law."(1)

2. But when the plaintiff in equity makes a clear case of fraud and surprise, or subsequent discovery of evidence, or of any cause affecting the merits of which it was not possible he could have availed himself at the trial below, the court has granted a new trial.

As in Hennell v. Kelland.(2) An action was brought against an administrator, who pleaded plene administravit, and the trial was brought down by proviso; and at the trial, the defendant being put to prove a sum of £50, paid before the plaintiff's original writ, which, not being provided to do, a verdict was against him. Yet, after finding the note, whereby his witness was enabled to swear that matter, on a bill brought in chancery, a new trial was granted.

So, in Coddrington v. Webb.(3) Bill for a new trial, suggesting the plaintiff's mark to the bond was forged by one Webb; and by surprise, defendant had recovered against him at law, all the pretended witnesses to the bond being dead. New trial ordered. Tewke's case, and Swinfield's case, cited.

And in Tilly v. Wharton.(4) Wharton, on a plea of non est factum, had obtained a verdict on a bond of £3000 penalty for payment of £1500, and, there not being sufficient personal assets, Wharton brought a bill to have a

(1) Ante Meredith v. Johns, 1 Hen. & Munf. 585. Maupin v.

Whiting, 1 Call. 224.

(2) 1 Eq. Ab. 377.

Terrell v. Dick, 546.

4

(3) 2 Vern. 240.

(4) 2 Vern. 378,

trust of lands executed, in aid of the personal estate. The defendant insisted the bond was forged, and had made a strong proof of it; but that being the point tried at law, the court would not enter into the proof thereof, or permit the depositions to be read; but admitted, if the witnesses had been convicted of perjury, or the party of forgery, that might have been a just ground for relief in equity, especially since the prosecuting of attaints was become, in a manner, impracticable. But upon an appeal to the house of peers, a new trial was directed, and the bond found to be forged.

And, in some instances, equity will relieve after a verdict at law, and when the plaintiff in equity might properly have defended himself.

As in The Countess of Gainsborough v. Gifford.(1) The defendant had brought his action on a contract to deliver stock, and recovered a verdict. The plaintiff brought her bill to be relieved against the contract which her broker had made for the purchase, without her authority, and obtained an injunction, after she had brought a writ of error on the judgment at law. Master of the Rolls. "I do agree the court ought to be very tender how they help any defendant after a trial at law, in a matter where such defendant had an opportunity to defend himself. But still such cases there are, in which equity will relieve after a verdict, in a matter where the defendant at law might properly have defended himself. As if the plaintiff at law recovers a debt against the defendant, and the defendant afterwards finds a receipt, under the plaintiff's own hand, for the very money in question. Here the plaintiff recovered a verdict against conscience; and though the receipt were in the defendant's own custody, yet he, not being then apprized of it, seems

(1) 2 P. Wms. 424.