rules of a court of equity. 5 Statutes at Large, | chancery. No attorney or solicitor can with676; 2 Statutes at Large, 53. draw his name, after he has once entered it on

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On the 5th of November, 1846, the district the record, without the leave of the court. attorney presented a petition to the district And while his name continues there, the adjudge, praying an appeal, who thereupon verse party has a right to treat him as the aupassed an order, indorsed on the petition, direct-thorized attorney or solicitor, and the service ing it to be filed and the appeal granted. Fur- of notice upon him is as valid as if served on ther orders of the district judge are also in the party himself. And we presume that no dorsed on the petition-one directing the appeal court would permit an attorney who had apto be returnable to the second Monday of Janu- peared at the trial, with the sanction of the ary, 1847; another extending the time to the party, express or implied, to withdraw his third Monday in February, and another dated *name after the case was finally de- [*112 the 13th of February, 1847, in the following cided. For if that could be done, it would be words: impossible to serve the citation where the par"Upon motion of Thomas J. Durant, United ty resided in a distant country, or his place of States district attorney, that the land cause residence was unknown, and would in every No. 1, and entitled as above, appeal has case occasion unnecessary expense and diffibeen granted from the judgment rendered there- culty, unless he lived at the place where the in to the Supreme Court of the United States, court was held. And, so far from permitting at Washington, and that the said appeal has an attorney to embarrass and impede the adbeen made returnable on a subsequent day dur-ministration of justice, by withdrawing his ing the present session of the Supreme Court, name after trial and final decree, we think the 111*] and not *on the first day of said term, court should regard any attempt to do so as as the practice generally is; to the end that open to just rebuke. said case of appeal might have its chance of being tried during the present session; and as no object will be gained by issuing citation to the appellees, directing them to appear at any other time than on the first day of the said term of said court, it is therefore ordered, that the order upon the said petition of appeal in said cause be so amended as to make it returnable on or before the commencement of the next annual session of the Supreme Court.

Afterwards, on the 14th of August, 1847, a citation was issued, requiring the appellees to appear in this court on the first Monday in December then next following. The citation states the decree from which the appeal was made to have passed on May 2, 1846, and refers to the order above recited as an appeal granted on the day the order bears date. It was served, as appears by the return of the marshal, on the 8th of September following, on the attorney whose name appeared on the docket as the attorney for the petitioners, who are the present appellees. But the affidavit of the attorney has been filed here, stating that he was not at that time their attorney-that his fee had been paid, and he had been discharged from all duty as attorney or counsel for the parties, and had so informed the marshal at the time of the service.

In this state of the facts, several objections have been made to the validity of this appeal. Two of them may be disposed of in a very few words.

It is said that the record does not show that this appeal was taken by the direction of the Attorney-General, according to the provisions of the 9th setion of the Act of May 26, 1824. We think there is no force in this objection. That section is merely directory to the officers of the United States, and intended to guard more effectually the public interests. And if the appeal is taken by the district attorney, and sanctioned in this court by the AttorneyGeneral, it is sufficient, even though it should appear (which it does not in this instance) that the appeal was taken without his previous direction.

So, too, as to the service of the citation on the attorney. It is undoubtedly good and according to the established practice in courts of

The_remaining objection is a more serious one. Has this appeal been taken and prosecuted within the time limited by the acts of Congress? The District Court appears to have acted, in relation to the appeal, as it did in its previous proceedings, under the erroneous impression that it must follow the practice of the Louisiana State courts; without adverting to the acts of Congress which conferred on the court the special jurisdiction it was exercising, and which prescribe the manner in which it shall be exercised. There was no necessity for the petition to the district judge to grant the appeal. It was a matter of right given by law after final decree, which the court could not refuse. Nor had it any power to prescribe the time or manner in which the record was to be transmitted, and the case brought before this court. That, too, is regulated by acts of Congress, which the court can neither change nor modify. All the orders, therefore, upon this subject were unauthorized and void. And the validity of the appeal depends altogether upon the laws of the United States, without reference to the laws of Louisiana or orders of the District Court.

The acts of Congress concerning appeals in cases of this description were fully considered by the court in the case of Villabolos v. United States, decided in the early part of the present term, and the previous decisions of this court referred to and examined. And the court in that case held that the appellant must prosecute his appeal to the next succeed ng term of this court, and the adverse party be cited to appear at that time, whenever the appeal is taken by entering it in the clerk's office. In the case before us, the appeal was filed in the clerk's office November 5, 1846. The next succeeding term of this court commenced on the 7th of December in the same year. But there was no citation to the adverse party to appear at that time, and consequently the case was not removed to this court upon that appeal. The citation which issued on the 27th of August, 1847, would not bring up an appeal returnable to December Term, 1846.

It is true, that, although this appeal was not prosecuted, yet the district attorney might have taken another appeal at any *time with- [*113

THOMAS DAVIS, Plaintiff in Error,



Bill to enjoin judgment, showing complainant's ignorance of defense at law, and combination to defeat his right of offset, not demurrable.

Where a bill of equity sought to enjoin a judgment, and charged that the complainant had a good defense which he did not know of at the time when judgment at law was rendered against him, and charged also, that he was entitled to pay the debt in the depreciated notes of a particular bank, of which advantage it was attempted to deprive him by fraud and collusion, and this bill was demurred to, it was error in the court below to sustain the demurrer.

States for the Northern District of Mississippi. In the year 1838, Thomas Davis, the plaintiff in error, received three thousand dollars from the Aberdeen and Pontotoc Railroad and Banking Company in the notes of that institution, and gave his bond for the delivery of seventyfive bales of cotton at the town of Burlingham, on the Tallahatchie River, on or before the 1st day of the ensuing March. According to his own statement in the bill which he afterwards filed, he paid $1,685.50, and delivered eighteen bales of cotton, subject to the order of the company. The precise time of this payment and delivery was not stated.

in a year from the date of the decree, and brought it up by a citation returnable to the December Term, 1847. The right of a party to take a second appeal where the first had not been legally prosecuted was decided in the case of Yeaton v. Lenox, 8 Peters, 123. In that case, the first appeal was dismissed by the court, for the want of a proper citation. And the appellant, before the expiration of the time limited by law for appealing, entered a second appeal in the Circuit Court, and cited the adverse party to appear at the term of this court next following the second appeal; and the second appeal was held good. If, therefore, the order of February 13, 1847, could, as contended for in the argument, be regarded as a second appeal, the case would be regularly before the court, upon the citation issued in the Augusts cashe District Court of the United HIS was brought up by writ of error following. But, after very carefully considering that order, the court think that no just construction of its language will authorize us to regard it as a second appeal. It was evidently nothing more than a motion to extend the time for returning the appeal previously taken; and the court directs that its former order be so amended as to make the citation returnable to the next term of this court. The citation which afterwards issued, in August, 1847, calls this order an appeal, and speaks of it as an appeal granted on the day it bears date. But this description in the citation cannot change the meaning of the language used in the order. It appears, like the preceding ones, to have been made under the impression that the District Court had the power to regulate the time and manner of bringing up the appeal. It has been said that this objection is a mere technicality, and may be regarded rather as a matter of form than of substance. But this court does not feel itself authorized to treat the directions of an act of Congress as it might treat a technical difficulty growing out of ancient rules of the common law. The power to hear and determine a case like this is conferred upon the court by acts of Congress, and the same authority which gives the jurisdiction has pointed out the manner in which the case shall be brought before us; and we have no power to dispense with any of these provisions, nor to change or modify them. And if the mode prescribed for removing cases by writ of error or appeal be too strict and technical, and likely to produce inconvenience or injustice, it is for Congress to provide a remedy by altering the existing laws; not for the court. And as this appeal has not been prosecuted in the manner directed, within the time limited by the acts of Congress, it must be dismissed for want of jurisdiction.

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This cause came on to be heard on the transcript of the record from the District Court of the United States for the District of Louisiana, and was argued by counsel; on consideration whereof, and it appearing to the court that this appeal has not been prosecuted in the manner directed and within the time limited by the acts of Congress, it is therefore now here ordered and decreed by this court, that this appeal be, and the same is hereby dismissed.

On the 12th of December, 1839, William M. Tileston and Charles N. Spofford, residing in New York, and carrying on business under the & Co., obtained name of William M. Tileston a judgment in the District Court of the United States for the Northern District of Mississippi against the Aberdeen and Pontotoc Railroad and Banking Company, for a sum of money,

the amount whereof is nowhere stated in the record.

Upon this judgment, a writ, called a writ of garnishment, was issued by way of execution, This writ was reand served upon Davis. turned, duly executed, to June Term, 1840. At December Term, 1840, judgment was rendered against Davis and his securities, as debtors to the Aberdeen and Pontotoc Railroad Banking Company for $1,861 and costs.

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*A fieri facias was issued upon this [*115 judgment in favor of Tileston & Co., returnable to June Term, 1841.

On the 10th of June, 1841, Davis paid, on account of the judgment, $242.77, which was duly credited.

At December Term, 1841, a return was made of property levied upon, with its valuation, but no further proceedings appear then to have taken place.

In July, 1843, Davis filed a bill on the equity side of the court against Tileston & Co., to enjoin the judgment obtained against him at December Term, 1840. The bill recited the above facts, and then proceeded thus:

"Your orator further states unto your Honor,.

NOTE. When a judgment at law will be enjoined in equity.

Though the jurisdiction of courts of equity to enjoin judgments at law is of ancient origin and with extreme jealousy and the grounds upon which well established, a bill for this purpose is watched

it will be sustained are narrow and restricted..

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that, before the rendition of the said judgment | lawful defense and credits, on the trial of said upon the said garnishment in favor of William garnishment, by the false assurances of the M. Tileston & Co. against your orator, he paid bank and its agents, so made to your orator as upon the said cotton bond $1,685.50, or about | aforesaid, and, as your orator fully believes, inthat sum, and delivered at the town of Burling- tended for and made to lull him to sleep, and ham, according to his contract, eighteen bales impose upon his general credulity and confidence of good cotton, averaging in weight about five in his fellow-men where the least show of honhundred pounds, and subject to the order of esty is to be discovered. Your orator further the said Aberdeen and Pontotoc Railroad and states unto your Honor, that he was not apBanking Company, and which cotton was prised of, but wholly ignorant of the fact that shipped on board of steamer Big Black, Steill- the said twelve bales of cotton were shipped by ing, master, without the orders of or being sub- the agents of the said bank from Vicksburg ject to the control of your orator; and said to New Orleans, as above stated, until by a cotton was left by said steamer at the house of critical examination, about a year or thereand in the care of Young & Richards, Vicks- abouts since, through his agent, the facts were burg, Miss., and by them twelve of said bales ascertained to be as before stated." were shipped to George Buckanan, of New Orleans, for the benefit of and on account of the said Aberdeen and Pontotoc Railroad and Banking Company. The remaining six biles were shipped and sold in New Orleans, from the said house of Young & Richards in Vicksburg, for the benefit of and in the name of one Dickens, for between fourteen and fifteen cents per pound; and the said Dickens was found by your orator on the western bank of the Mississippi River, in the State of Arkansas, about forty miles above Memphis, Tennessee; and the proceeds of the sale of the said six bales of cotton were collected from him by your orator, amounting to about four hundred dollars, but not one cent has ever been collected for the twelve bales shipped to Buckanan, for and on account of the said bank, or applied by said bank to the credit of your orator's bond.

"Your orator further states, that, relying upon the statements of the agents of the said bank, solemnly made and often reiterated, that they knew nothing about the twelve bales of cotton or any other part of the eighteen bales shipped as before stated, he did not know of the shipment of said twelve bales of cotton from Young & Richards, Vicksburg, to Buckanan, of New Orleans, for and on account of the said Aberdeen and Pontotoc Railroad and Banking Company, until long after the 116*] *rendition of said judgment in December, 1840, against your orator, a debtor to said bank, in favor of the said William M. Tileston & Co., and was kept from his legal and

Slack v. Wood, 9 Grat. 40; Bateman v. Willoe, 1 Sch. & Lef. 204: Roebuck v. Haskins, 38 Ga. 174. In case of a judgment it must be shown to be against equity and good conscience to allow it to be extended. In addition to this, the aggrieved party must show either that he could not have availed himself of the facts which make it unjust in a court of law. or that he was prevented from so doing by fraud, accident, surprise, or mistake, without negligence on the part of himself or his agents. 2 Story Eq. Jur. s. 887; Willard Eq. Jur. 347; Wingate v. Haywood, 40 N. H. 437; Wiench v. DeZoya, 2 Gilm. 385; Wright v. Eaton, 7 Wis. 595; Ableman v. Roth, 12 Wis. 81; Little v. Price, 1 Md. Ch. 182; Slack v. Wood. 9 Grat. 40; Marine, etc. v. Hodgson, 7 Cranch, 332; Dugan v. Cureton, 1 Ark. 31; Andrew v. Fenter, 1 Ark. 186; Watson v. Palmer, 5 Ark. 501; Conway v. Ellison, 14 Ark. 360 Bently v. Dillard, 6 Ark. 79; Hempstead v. Watkins, 6 Ark. 317; Menifee's Adm'rs v. Ball, 7 Ark. 520.

The jurisdiction of a court of equity to interfere to prevent a multiplicity of suits or to draw to one action cognate interests sought to be litigated in many actions is well established, and for that purpose to enjoin the parties to suits in coordinate courts from proceeding therein. N. Y. & N. H. R. R. Co. v. Schuyler, 17 N. Y. 592.

One court of equity may overhaul the decree of

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The bill then proceeded to charge a fraudulent combination between the bank and Tileston & Co., by setting up a fictitious claim against the bank for the purpose of depriving Davis of the benefit of paying the bank in its own depreciated notes, and finally averred that the only part of the debt still due was $809.47, which he tendered in the notes of the bank. An injunction was issued according to the prayer of the bill.

In June, 1844, the defendants filed a demurrer, and assigned the following causes:

1st. The bill shows that the complainant had a full and complete remedy at law, which he has neglected.

2d. That the bill shows that complainant knew, at the time he answered the garnishment against him, that no credit had been given for said cotton, and having at that time acquiesced in the conduct of the bank, and acknowledged himself indebted to the amount of defendant's judgment, he cannot now re-open the judgment in this court to be heard, to deny what he might and ought to have denied in his said answer to said garnishment.

3d. That it appears, by complainant's own showing, that judgment was rendered against him on his answer at December Term. 1840; that he made a payment and satisfaction of said judgment by the execution and forfeiture of a forthcoming bond in May, 1841; that as late as between June and December, 1841, he took the benefit of the valuation law on said execution, and postponed further action by the another court of equity for fraud, contrivance or covin in obtaining it. Bandon v. Beecher, 3 Clark, & Fin. 479; Manaton v. Molesworth, 1 Eden, 25. It may entertain an action in which its decree, if favorable to the moving party, will have the effect to forever restrain the execution of the decree, the validity of which is brought in question, and it may pending the suit restrain by injunction the execution and enforcement of that decree. It may thus restrain the proceedings in another court of equity to enforce the decree of that court. and may restrain the proceedings in that court to obtain the decree. Jackson v. Leaf, 1 Jac. & W. | 229: Clarke v. Oramonde, Jacobs. 546; Earl of Newberry v. Wren, 1 Vern. 220; Vendall v. Harvey, Nelson, 19; James v. Whitney, Carey, 181; Booth v. Leyaster, 3 Myl. & Cr. 459; Beckford v. Kemble. 1 Sim. & Stu. 7; Crawford v. Fisher, 10 Sim. 479; Schuyler v. Pellissier, 3 Edw. Ch. 191. 192: Beauchamp v. Huntley, Jacob. 546.

This ground of equitable jurisdiction, viz., that to restrain proceedings in a court of law is not removed when the same court is clothed with powers both at law and in equity. A court upon its equity side may enjoin its own suitors proceeding on the law side. This is the case where relief is needed as well against a co-defendant in the original action as the plaintiff therein, 1 Beav. 171, and relief cannot be had against the co-defendant

said defendants for twelve months thereafter, without ever settling up the matter contained in his bill, or claiming any deduction or offset from the said judgment in favor of defendants. 4th. That the pretended charge of fraud is of fraud is not specifically stated, but is vague, uncertain, and indefinite in general.

117*] *5th. That the said bill seeks to off set the judgment of defendants against said complainant on his answer, and to pay and discharge the same with the bills and liabilities of the Aberdeen and Pontotoc Railroad and Banking Company, obtained by him after he has acknowledged himself indebted in his answer, and after judgment has been rendered against him in favor of defendants, and after he has executed a forthcoming bond, and the same has been forfeited and become a new judgment against him in favor of defendants, and after he has availed himself of the valuation law on said judgment.

6th. That the said bill shows no equity on its face.

There being a joinder in demurrer, the case was, on the 11th of June, 1844, set down for hearing on the bill and demurrer at the next term of the court.

On the 2d of December, 1844, a rule for decree pro confesso was entered, and on the 3d of December, the defendants, Tileston & Co. filed their answer, which it is not necessary to recite.

On the 6th of December, 1844, the final decision of the District Court was signed and ordered to be enrolled as follows:

"This cause came on to be heard at this term, and was argued by counsel; and thereupon, upon consideration thereof, it was ordered, adjudged and decreed as follows, viz.: that the demurrer of the defendants to the said bill of complaint of the complainants be sustained, and the said bill dismissed.

"It is further ordered, adjudged and decreed, that the defendants go hence and recover of the complainants the costs in and about this cause expended, for which execution may issue."

The complainant appealed from this decree to this court.

The cause was argued by Mr. R. Davis for the appellant, and Mr. S. Adams for the appellees.

on the new matter in the answer, inasmuch as he cannot take issue upon them and contest them. Willard's Eq. Jur. 351; Dicker v. Judson, 16 N. Y. 439; Jones v. Grant, 10 Paige, 348.

United States courts have accordingly entertained a bill on the equity side and awarded an injunction to restrain proceedings on the law side thereof, and it is held that this may be done before the commencement of the suit at law, pending such suit or after its decision by the highest law tribunal. Parker v. Judges, etc., 12 Wheat. 561; Dunlap v. Sisson, 4 Mason, 349; Humphrey v. Leggett, 9 How. U. S. 297; Nixdorf v. Smith, 16 Pet. 132.

Jurisdiction exists, and in a case demanding it, an injunction may issue in one action to affect the proceedings in an action already pending in the same court. Crawford v. Fisher, 10 Sim. 479; Schuyler v. Pellissier, 3 Edw. Ch. 191; Sieveking v. Behrens, 2 Mylne & C. 581; Prudential, etc., v. Thomas, Law. Rep. 3; Ch. App. 74; Richards v. Satter, 6 Johns. Ch. 445; Morgan v. Marsack, 2 Mer. 107; Cheeseborough v. Millard, 1 Johns. Ch.


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In the absence of any suggestion of fraud, accident or surprise, and when no good reason is shown why the defense was not made at law, the injunction will not be allowed where it is not obvi- |

Mr. Justice Woodbury delivered the opinion of the court:

The judgment in this case below was founded entirely on the bill in chancery and the general demurrer to it.

There is in the record an answer filed a few days previous to the judgment. But the cause having before been set down for a hearing on the bill and demurrer, the answer does not appear to have been at all considered-for that or some other reason-and is not referred to in the decision.

The only question for consideration by us, then, is, whether the judgment dismissing the bill on the demurrer was correct.

Upon a careful examination of the facts and principles involved, *we feel constrained [*118 to come to the conclusion that it was not correct. We are reluctant to form this conclusion, because, on examining the contents of the bill, it does not in some aspects of it appear free from what is exceptionable, and the answer, if open to consideration now, would show a denial of most of its material allegations.

But as the answer in the present decision must be put out of the question, and as the demurrer admits all facts duly alleged in the bill, the plaintiff seems entitled to judgment on these admissions, though, to prevent injustice by oversight or mistake, we shall take care to render such opinion that the respondents can be enabled in the court below to avoid suffering, if they possess a real and sufficient defense to the bill. The grounds of our judgment are as follows:

The demurrer, by admitting the truth of the allegations in the bill, admits these facts:

1st. That the complainant had a good defense to a large part of the original judgment recovered against him, as garnishee of the bank, and which he did not know at that time.

2d. That he was entitled to pay to the original creditor, the bank, its own notes in discharge of any balance due to it, and which were under par, and that, through fraud between the bank and the respondents, the demand against him was assigned to them, and he sued as garnishee of the bank, in order to exclude the payment in its notes.

The former judgment having been in the District Court of the United States, these

ously against conscience to enforce the judgment. 7 Cranch, 332: Emerson v. Udall, 13 Vt. 477; Pettes v. B'k of Whitehall, 17 Vt. 435; Clute v. Pottee, 37 Barb. 199; Windwart v. Allen, 13 Md. 1956; Sm. & M. Ch. 110; Lafon v. Desessart, 1 Mart. N. S. 71: Meredith v. Benning, 1 Hen. & Mun. 585; Turpin v. Thomas, 2 Hen. & Mun. 139; Stannard v. Rogers, 4 Hen. & Mun. 438; Benton v. Roberts, 3 Rob. La. 224; Ponder v. Cox, 26 Ga. 485; Abrams v. Camp. 3 Scam. 290; Lucas v. › Spencer, 27 Ill. 15; Albro v. Dayton, 28 Ill. 325; Shricker v. Field, 9 Iowa, 366; Wilsey v. Maynard, 21 Iowa, 107.

Equity will relieve against the judgment where through fraud upon the part of the plaintiff or his representatives the defendant was prevented from making his defense at law. Carrington v. Holabrid, 17 Conn. 530; Pearce v. Olney, 20 Conn. 544; Kent v. Ricards, 3 Md. Ch. 392; Greene v. Haskell, 5 R. I. 447; Wiertch v. DeZoya, 2 Gilm. 385; Webster v. Skipwith, 26 Miss. 341.

The mistake must be one of fact-equity will not interfere to restrain against a judgment where the mistake is merely one of law. Hubbard v. Markin, 8 Serg. 498; Richmond v. Shippen, 2 P. & H. Va. 327; Risher v. Roush, 2 Mo. 77; Meem v. Rucker, 10 Grat. 506; Shricker v. Field, 9 Iowa. 366.

grounds for an injunction against the further | original cause of action, and supposes that the enforcement of it till the mistake as to the de- creditor, in making up judgment, will deduct all fense is corrected, and the balance allowed to payments and all promised allowance, and does be satisfied in notes of the bank then held, or not discover the neglect to do it till after exean equivalent to their value at the time of the [cution has issued. judgment, seem equitable on these allegations, thus admitted.

The respondents can, ex æquo et bono, claim to stand in no better condition than the bank. If there was a further good defense against the bank, there was against them. And if in any material respect they and the bank fraudulently combined, by or in that suit, to deprive the debtor of any legal advantage, the least which can be done in equity is to restore him to it.

What is the answer to this view? Not that the demurrer does not in law admit the goodness of a further defense, and one not known at the judgment, and likewise the existence of fraud by those parties, but that the statement of the defense is not entitled to full credit, is contradictory, and develops culpable neglect to enforce the defense, and that the fraud is not set out with sufficient detail.

But so far as regards the credibility to be 119*] given to the statement *of the further defense in the bill, that statement cannot be impugned on a demurrer. The truth of it can be doubted only where a denial of it is made in an answer, or proof is offered against it, neither | of which is now before us. The next objection, founded on some supposed contradictions in the bill, as if not knowing the existence of the defense when he delivered the cotton on which it is founded, can be reconciled on various hypotheses, which need not here be detailed. For, however this may be, we think the allegations sufficiently distinct on a general demurrer.

The validity of the defense as alleged is resisted as the last objection, and rests on the ground, that he had an opportunity to make it at law and omitted to improve it. This principle is conceded to be correct, if the defense was then known. But the bill avers he was ignorant of the existence of the defense when the judgment was recovered. This excuse in some instances might not avail him at law. It has been settled, that in an action at law, if the party omits to make a defense which existed to a part or all of the cause of action, he can afterwards have no redress in a separate legal proceeding. Tilton v. Gordon, 1 N. Hamp. 83; 7 D. & E. 269; 1 Ld. Raym. 742; 9 Johns. 232; 2 N. Hamp. 101; 12 Mass. 263. In such case, he can sometimes obtain relief by a petition for a new trial, but seldom in any other


In certain instances, if the defense arose out of something subsequent to the original cause of action, such as a part payment of money, or a delivery of property to be applied in part payment, and the creditor neglected to make the application, it has been held that this may be treated even at law as a distinct transaction, the creditor having thus rescinded or failed to fulfill his promise to apply the money, and a separate action be then maintained to recover it back. Snow v. Prescott, 12 N. Hamp. 535; 7 N. Hamp. 535.

However this should be at law, there is strong equity and substantial justice in it, and much more in cases where, as is usual, the debtor is defaulted, having no defense to the

The present application being in equity and not at law, a party in the former is clearly entitled to an injunction, if there was accident, or mistake, or fraud, in obtaining the judgment.

So ignorance of a defense goes far, sometimes, to repel negligence, though standing alone it may not be a sufficient ground for such *relief. See 1 Bibb, 173; Cook, 175; 4 [*120 Hayw. 7; 4 Mumford, 130; 6 Hammond, 82; Brown v. Swann, 10 Peters, 498, 502; ż Swanston, 227; Thompson v. Berry, 3 Johns. Ch. 395. On this point, however, we give no decisive opinion, because all of us are not satisfied that a clear remedy can be given at law on these facts by a separate action, and as we have jurisdiction of this cause on the other ground of fraud, we advert to this merely as being one of the plausible reasons in favor of an injunction, till the whole matters between the parties can be further investigated. See reasons for this course in United States v. Myers, 2 Brock. 516; 1 Wheat. 179; 2 Caines' Cas. in Err. 1; 10 Johns. 587; 1 Paige, Ch. 90.

The existence of fraud in obtaining the original judgment, which is the other ground assigned for relief, is next to be considered. It is not only alleged generally, but in the details, so far as already specified, in this opinion. A general allegation of it in the bill would have been sufficient, if so certain as to render the subject matter of it clear. Nesmith et al. V. Calvert, 1 Wood. & M. 44; Smith v. Burnham, 2 Sumner, 612; and Jenkins v. Eldridge, 3 Story's R. 181. The demurrer admits the fraud thus set out, and the law is undoubted, that our jurisdiction in equity extends over frauds generally, and in a special manner one like this, to which it is doubtful whether any remedy existed by law when defending the original action. 2 Caines' Cas. in Err. 1; 10 Johns. 587; 1 Paige's Ch. 90; 2 Stuart, 420.

The character of this fraud, as admitted by the demurrer to exist, is one of great injustice to the community, it being equitable, no less than legal, in Mississippi, by an express statute, for debtors of a bank to make payment to it in its own bills. Laws at Miss. A. D. 1842, p. 140.

It seems generally allowable, even on common law principles, as a set-off. See the express declaration to that effect by this court in The United States v. Robertson, 5 Peters, 659; see, also, Planters' Bank v. Sharp et al. at this term.

Looking probably to a transaction much like the present, the court, in 5 Peters, say: "So far as these notes were in possession of the debtor at the time he was summoned as a garnishee, they form a counter-claim, which diminishes the debt to the bank to the extent of that counter-claim." But how the balance is to be paid in respect to notes, the court forbore to give any opinion. P. 684.

Any assignment or other proceeding got up with the fraudulent intent of preventing the exercise of that right, as is here alleged and admitted, cannot receive the countenance of this court. *But we do not decide on the [*121

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