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

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,

V.

WILLIAM M. TILESTON & COMPANY.

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.

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.

*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..

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

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

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- |

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.