
    Andrew Lee Jr. vs. Nathan Hooker.
    It is well settled in courts of equity, as well as law, that a party is not entitled to relief after verdict, upon testimony, which, with ordinary care and diligence he might have procured and used upon the trial at law.
    L. sued H. in an action of assumpsit for medical services, and recovered a judgment; H. some time thereafter, filed a bill in chancery, praying for an injunction, and a new trial, upon the ground of evidence discovered since the trial at law, which newly discovered evidence consisted of the opinions of physicians as to the nature of the disease under which H. was suffering, without showing any good reason why those opinions were not procured before the trial at law : Held, that an ordinary degree of diligence would have brought to light the newly discovered evidence as well before the trial as since; and that the injunction should be dissolved, and the bill dismissed.
    ErRor from the district chancery court at Carrollton ; Hon. Joseph W. Chalmers, vice-chancellor.
    On the 11th day of October, 1842, Nathan Hooker filed in the district chancery court of Carrollton, a bill against Andrew Lee junior, alleging, that having been long afflicted with an-ulcer on one of his eyes, believed by some to be a cancer, he was induced, in the fall of 1839, to go to the' defendant, who was represented as a man skilled in the use of various botanical medicines, and had discovered a specific remedy for cancer, and upon examination of the ulcer, defendant pronounced it an open cancer, and assured him unless some relief was afforded, it would soon prove fatal; that the defendant assured him if he. would strictly follow the prescriptions of the defendant he would be relieved, and the disease entirely eradicated ; that he thereupon agreed to follow strictly the prescriptions of the defendant, and if the defendant succeeded in removing the disease, he was to pay him four hundred dollars, and nothing if he failed; that he pursued uthe defendant’s prescriptions strictly, and applied his medicines for forty days, and finding the use of the medicines had aggravated instead of relieving the disease, and believing there was danger of destroying his eye by the further use of the medicines, he entirely abandoned them; that the defendant thereupon immediately instituted an action of assumpsit against him for the full amount of the four hundred dollars ; and at the October term, 1840, of the circuit court of Carroll county, recovered a judgment for that sum; that upon the trial of the case he relied upon the proof that the defendant’s prescriptions, during the time he followed them, had aggravated the disease, as a sufficient bar to a recovery; but the defendant proved he had succeeded in curing several cases which he had pronounced cancer, and also that complainant had been exposed to inclement weather, while applying his remedies, and that it was probably owing to such exposure the disease was aggravated. But from the facts and circumstances which had occurred and come to the complainant’s knowledge since the trial, it was perfectly clear that the defendant was mistaken in the character of the disease; that in the summer of 1842, he visited Lexington, Kentucky, to submit his case to the examination of Dr. Dudley, and obtain from him medical aid, and upon an examination of the ulcer, Dr. Dudley said it was not a cancer, but originated in a diseased condition of the stomach and liver; that he also submitted his case to other medical men of Lexington, and they all concurred in opinion with Dr. Dudley; that he had since tried the remedies prescribed by Dr. Dudley, intended to act on the stomach and liver, and he was rapidly recovering; he therefore confidently charged that the disease was not a cancer, and he would be able to establish the fact as well by the opinions of medical men of the highest eminence in the United States, as from the present condition of the ulcer, the same results not having occurred which would necessarily have taken place had the disease been a cancer. The bill prayed for an injunction, and for a new trial. .Upon this bill an injunction was granted by the Hon. Robert H. Buckner. The defendant answered, stating that the agreement between the complainant and himself was, that he was to cure a cancer that had formed about the point of complainant’s cheekbone, and the affection in his eye, for the sum of four hundred dollars, and if the cure was not effected upon complainant’s strictly following his direction, then he was to receive nothing for his services; that it was also a part of the agreement, that complainant was to remain at his house while the cure was being effected; he averred that complainant, on his first visit to respondent’s house, remained only six days, during which time the cancer improved so much that complainant could not be restrained from visiting his family ; he denied that he told complainant the affection in his eye was a cancer; he averred that complainant remained at his house only two and a half days after he commenced operating upon his eye; and during that time he had entirely removed the inflammation and swelling from his eye; that complainant then seemed to entertain no doubt that a speedy cure would be effected; that under this belief he again left the house of respondent, contrary to his express agreement; he denied that complainant followed his prescription for forty days, and stated that he followed it only for the time he remained at respondent’s house; he denied that his treatment aggravated the disease; and averred that his eye was improved, as before stated; that he could have cured complainant in a week from the time he left his house, and so assured him; that complainant left with the express understanding that he would return in a few days, though he failed to do so; he averred that he effected many cures of like diseases in the eyes of others with the same medicine and the same kind of treatment he used on complainant; that there was nothing in the applications which he made to complainant’s eye that could injure it. Respondent further averred, that after the verdict and judgment at law, the complainant moved the court for a new trial at law and upon a full examination of all the facts of the case, the court overruled the motion; that complainant then filed a bill, and obtained an injunction, in the circuit court of Carroll county, at the spring term, 1841. That respondent’s solicitor filed a demurrer to the bill; that the demurrer was confessed, and the bill dismissed by the court; that after the dismissal of the bill, execution issued upon the judgment at law, and was levied on the property of the complainant, and he executed .a forthcoming bond; that the bond was forfeited, and judgment entered thereon at the April term of the circuit court of Carroll county, 1842.'
    The deposition of Benjamin W. Dudley, taken by complainant, proved that complainant submitted to him the ulcer immediately under his eye; and in consequence of the character of the disease having been changed by the applications made to it, deponent could not certainly point out the cause and precise nature of the sore; sufficient was manifested, however, to forbid the conclusion that it was a cancer ; that in the treatment of the case, any exciting application would have been injurious, and the persevering use of caustics, under the idea of its being a cancer, would certainly have destroyed the eye. On cross-examination he stated that the first time he saw the complainant was in the. summer of 1842, and he did not see him again until May, 1843; that in the meantime a very great improvement in the disease had taken place; and while complainant followed faithfully the directions given him by deponent, the improvement was equal to his expectations; but by neglect of the instructions the improvement had been checked; that the disease was not cancer, but the result of a protracted derangement of the interior organs of the body. The defendant proved by T. S. Ayres that he was one of the counsel who tried the case for Lee in the circuit court, though he has had nothing to do with it since; that he regarded Joseph Williamson as the most important witness for Lee, examined on the trial in the circuit court; that Williamson proved fully the agreement made by Hooker and Lee at the time the former employed the latter to cure a case of cancer; which was, that Hooker should place himself under the treatment and care of Lee, and follow strictly his prescriptions, and if Lee succeeded in removing the disease, Hooker was to pay him four hundred dollars; and if he failed to effect a cure, Hooker was to pay him nothing; that he, Williamson, heard Lee tell Hooker at the time, if he failed or refused to follow his directions, he would demand the whole four hundred dollars; and Hooker agreed to the terms. Deponent further proved that when Williamson was examined in the circuit court, judging from his appearance, manner and voice, he was in a very languishing condition, and had since died, as deponent understood; that a judgment was rendered in the circuit court in favor of Lee, a motion made by the defendant for a new trial, and overruled by the court. Being cross-examined he stated he had heard Lee say he did not profess to be a regular bred physician ; that he never underwent a course of medical studies; that his knowledge in the healing art consisted in the external application of some substance known in this country only to his mother and himself, by which he asserted he could cure cancers, white-swellings, scrofula, and diseases of that character.
    Several other depositions were read on the part of the complainant, proving the contract between Lee and Hooker to be substantially as stated in the deposition of T. S. Ayres; and also that the applications made by Lee to the eye of Hooker were of a caustic and burning nature, and produced a good deal of inflammation; that Hooker remained at Lee’s house several weeks, and left with the understanding that he would return; that Hooker stated he intended to return, and would have done so had not Lee claimed the four hundred dollars from him, on the ground that he had forfeited his contract; that Hooker was frequently heard to complain of .the pain occasioned by the remedies of Lee; and he said he could not follow the directions given to him. Upon this state of pleading and evidence the case was submitted to the chancellor; and on the 22d day of June, 1843, he rendered a final decree, perpetuating the injunction, and awarding a new trial. To reverse which decree the defendant now prosecutes this writ of error.
    
      Cothran and Howard, for plaintiff in error.
    1. This controversy has been before adjudicated in a court of equity, and that is insisted upon as a defence to this suit.
    2. But if Hooker ever could have gone into equity for relief against this judgment, he has waived it by his negligence and by his acts since its rendition. His former bill shows that at the date of it, to wit, in January, 1841, he was acquainted with the facts upon which he now relies for relief. With this knowledge, on the 3d of February, 1842, he executed a forthcoming bond to replevy property levied on to satisfy the judgment. This bond was forfeited, and Lee had judgment upon it, before the filing of this bill. This was a clear waiver of all equities against the original judgment. There is no better settled doctrine, than that “ where a party, having knowledge that a fraud has been practised upon him, does acts in confirmation of his contract, by entering into new engagements concerning it, will be held to have waived the fraud, and to have renounced the relief which he otherwise might have obtained. Pintará v. Martin, 1 S. & M. Ch. R. 126; Ayers v. Mitchell, 3 S. & M. 693, 694; Fletcher v. Wilson, 1 S. & M. Ch. R. 134, 340, 389; Sadler v. Robertson, 2 Stewart’s Al. R. 520 ; Roach v. Rutherford, 4 Dessaus. 261; Green v. Robertson, 5 Plow. 104, 105. In order to have entitled him to relief against this judgment, the bill should have alleged and shown, that at the time when he made his motion for anew trial at law, at the time when he filed his first bill, and at the time when he executed the forthcoming bond, he was ignorant of the facts upon which he now relies for relief. If he were acquainted with the facts, or with due diligence might have been, at the time of either of these acts, he cannot norv have relief. See the authorities before cited, and 3 J. J. Marshall, 522; 4 Bibb, 168, 348, 414. The bill contains no such allegations; but by referring to the first bill filed, it will be seen that at the time he gave the forthcoming bond, he did know all the facts upon which he now rests his equity against this judgment. He has slumbered upon his rights, and has not shown the diligence which equity requires as an indispensable prerequisite to relief.
    
      Sheppard, for defendant in error.
    Any matter which proves the execution of a judgment to be against conscience and right, of which the party was prevented by accident from availing himself at law, without laches, will warrant a court of equity to grant relief. 2 Story’s Eq. 173.
    
      Though defendant insists by his answer, that the disease was cancer, and that he effected a cure, it is fully established by the proof that the answer is false.
    It is clearly deduced from the statements of the bill, and proof, that the verdict was rendered on special contract, solely on the presumption that the disease was cancer, and that Lee could have effected a cure. In this view the developments made subsequent to the judgment, have a most important bearing and show the verdict to be oppressive and unjust.
    Dr. Dudley shows that the use of Lee’s remedies would have caused irreparable injury, by destroying the eye.
    No imputation of laches can be made against Hooker, for the discovery was made by aid of the eminent ability and scientific skill of others, in the application of certain remedies, and progress of the disease.
    Courts of equity watch with great jealousy all contracts made between parties standing in confidential relations, which afford an opportunity for the exercise of undue influence.
    Judgment obtained by an attorney against his client, will be inquired into after great lapse of time. 2 Atk. R. 295. The same enlarged andliberal principles are applied to the relation of medical adviser and his patient. 1 Story’s Eq. 318.
    The forfeiture of the forthcoming bond is no bar to relief; it is subject to all equities which attach on the original judgment. Hoyet v. Covch, 5 How. R. 194.
   Mr. Justice Clayton

delivered the opinion of the court.

This bill was filed to obtain a new trial at law, after a verdict and judgment in favor of the plaintiff at law, and after forthcoming bond given and forfeited. The bill was filed about two years after the judgment. The rule upon this subject, is thus stated by Chancellor Kent in Floyd v. Jayne, 6 Johns. Ch. Rep. 482. “ It is the settled doctrine and practice of this court, as well as of courts of law, that a party is not entitled to relief after verdict, upon testimony, which with ordinary care and diligence, he might have procured and used upon the trial at law. It would be establishing a grievous precedent, and one of great public inconvenience, to interfere in any other case than one of indispensable necessity, and wholly free from any kind of negligence.” See also Land v. Elliott, 1 S. & M. 611. There is no allegation of fraud used in obtaining the judgment.

The facts relied on to procure a new trial, it is true, have been discovered since the trial at law. But an ordinary degree of diligence would have brought them to light, before the trial, quite as well as since. They are the opinions of physicians as to the nature of the disease, under which complainant was suffering ; and no reason is shown why they were not consulted at an earlier period.

The decree of the vice-chancery court, granting a perpetual injunction to the judgment at law, and awarding a new trial, is against the principle above laid down. It is therefore reversed and the bill dismissed.

Decree reversed.  