
    Hugh R. Davis vs. Peter A. Presler.
    Where in an action apon an open account, the plaintiff, after service of process on the defendant, and plea of general issue, obtained leave to amend his declaration, and, under the amended declaration, filed a new account, differing in the items, in their dates, and in the sum total, from that filed with the original declaration, upon which new account judgment was obtained against the defendant, who filed his bill for a new trial, on the ground of fraud in the plaintiff, in filing the changed account; held, that fraud could not be committed by filing a new account and declaration, where there was leave granted, and a previous service of process.
    It is no ground for a new trial, that a witness did not disclose, at the first trial, all the information he possessed, relative to the facts in issue, his attention not being particularly directed to them.
    If a defendant, after service of process and plea by him, see proper to absent himself from the state, during the pendency of the action, and thus place it out of his power to be informed of the progress of the case, he does so at his peril, and can claim no exemption from the consequences.
    In error from the circuit court of Wilkinson county; the Hon. 0. 0. Cage, judge.
    Hugh R. Davis, on the 16th of March, 1842, filed his bill in the circuit court of Wilkinson county, on the chancery side thereof, alleging, that at the April term, 1840, of that court, Peter A. Presler, surviving partner of James Varnell, late in trade, under the style of Presler, Varnell & Co., sued him on an open account fpr merchandise, amounting to §712 84, due the first of January) A. D. 1840; that at that term he appeared and plead the general issue by counsel, when the cause was continued to the October term, at which term Presler obtained leave to amend, and the case was continued at Presler’s costs, and on his application, to April, 184L; at which term Presler filed an amended declaration and an amended account, and had the cause continued to October, 1841, when the case was tried, and judgment rendered against the complainant for the sum of $476 26, by the fraudulent management and contrivance, as would be apparent by the transcript of the record of the case, filed with and made part of the bill.
    That the account filed with the new declaration was, in many respects, totally different from that filed with the old; the account filed with the former was for the years 1837 and 1838, and also the year 1839; that for the two former years, for the sum of $501 33; and for the year 1839, for the sum of $139 34 : that the account for the years 1837 and 1838 were not filed at all with the original declaration, and formed no part of the original cause of action. That in the fall of 1838, he had paid Presler, Yarnell & Co. $100, and in February, 1839, the sum of $300; for which, relying upon the integrity of the firm, he had taken no receipts. That these sums overpaid, as William O. Rodney, the clerk of Presler, Yarnell & Co., informed him, his indebtedness to the firm, for the years 1837 and 1S38; and in answer to the clerk, what should be done with the overplus, he instructed him to credit it on the account of his father-in-law, William Stamps.
    That, prior to April, 1841, business compelled him to go to' Kentucky, and he was absent at that court from the state"; and also absent upon business during the October term, 1841, of the court, when the verdict was rendered, and so he could not give the claim his personal attendance; and he was not aware of the change in the account. That the account filed with the original declaration was the account of his father-in-law, for which they were attempting to hold him liable, and his own account for the year 1839; that he gave his attorneys full instructions how to defend this suit for this account, but left none as to the defence of the new account, of which he knew nothing. That Presler knew the last account had been fully paid, and took advantage of the confidence reposed in his integrity and honesty, and availed himself of the complainant’s absence from the state to obtain an unjust judgment against him. The bill admitted $139 of the account of 1839 to be due, and that Presler was entitled to judgment for that sum; that Rodney, the clerk of Presler, Yarnell & Go., was examined at the trial, and was asked if the complainant had paid any part of the sum sued for, and answered that he had not; but very soon after, and' before the trial was over, he remembered the payments that had been made to him, and applied to Pres-ler’s attorney to state them to the jury, and was informed there was no mistake, those payments applied to a different account; and the correction was therefore not made to the jury, and Rodney was anxious to rectify it.
    The bill concluded with a prayer for a new trial.
    The defendant answered, admitting the institution of the suit, and the filing of the amended declaration and account, but states that no plea was filed to the amended declaration, until the October term, 1841; that the complainant was frequently in the clerk’s office of the circuit court of Wilkinson county, and the law office of his attorney, between the time of filing the amended declaration and account and the time of trial, and that the respondent believed that complainant had personal knowledge of the filing of the amended account; he denies that the verdict and judgment were obtained by fraudulent management and contrivance; admits that the account filed with the amended declaration was different from the account filed with the original declaration ; and states that the object of obtaining leave to amend the declaration and account was, to submit a more full and specific account of complainant’s indebtedness; that it was understood, between complainant, Stamps, and himself, that the accounts of both complainant and Stamps were to be paid out of the proceeds of the plantation on which the hands of complainant and Stamps were working; that complainant ordered his father-in-law’s account (Stamps) to be charged to complainant. He admits that complainant paid to defendant, in the early‘part of 1839, $400, but denies that complainant directed how it should be credited; and states that, before this money was credited, Stamps’ account was charged to complainant. He denies that complainant ever paid his accounts of 1837 and 1838.
    The proof was as follows : W. O. Rodney stated that he was clerk for Presler, Yarnell & Co., from March, 1838, until April, 1839; that complainant had dealings with the firm in 1838, to his knowledge, and that he found him charged on the books for 1837; that he does not know by whom the account of Pres-ler, Yarnell & Co., upon which suit was brought in April, 1840, was drawn off; that he does not know by whom the account of 1837, 1838, and 1839, upon which judgment was had,was drawn off; that complainant, in Feb. 1S39, paid ¡$100, and in March, 1839, he paid ¡$300 to Presler; that those amounts were credited on the amount that complainant owed Presler, Yarnell & Co., and they more than paid the account charged to complainant up to that time; that these payments were made to him for Presler, Yarnell & Co.; when they were made, there were no other accounts standing on the books of Presler, Yar-nell & Co. against complainant; that complainant instructed him to credit the pverplus of the $400, after paying his accounts for ,1837 and 183S, to William Stamps’s account. Some time after the trial in October, 1841, he had a conversation with complainant, in which he told him that the question was not asked him, at the trial, if any money had been paid on the accounts of 1837, 1838, and 1839; that if the question had been asked, he should have stated that $400 had been paid; he also stated, that he thought he made a mistake in his testimony, but afterwards discovered he had not.
    Upon cross interrogatory he stated, that, at the end of - the year 1838, the amount of William Stamps’s account with Pres-ler, Yarnell & Co. was $642 46 ; that complainant produced a great many articles charged in William Stamps’s account; that when complainant would get goods, on being asked who they were to be charged to, would state that it was immaterial, they could be charged to himself or to William Stamps; that the goods sold to William Stamps, in 1838, were sold on the credit of complainant; that he charged Stamps’s account to complainant, who did not object to it; that, to the best of his recollection, when he charged William Stamps’s accounts to complainant, he receipted them to complainant; that,, either at the time he gave Stamps’s accounts to complainant, or afterwards, complainant told him he had sixty bales of cotton, with which, when sold, he would pay the accounts; that Stamps was not looked to for his accounts after they were charged to complainant ; that the money paid by Davis was posted to his individual account.
    William Parish stated, that he was counsel for complainant in the suit at law; that the suit at law was originally founded on an account against complainant for about the sum of $700, of which amount, about $139 was against complainant for the year 1839, with Presler, Varnell & Co., the balance of it was the account of William Stamps, charged to complainant; that the only instruction given him by complainant, relative to the suit at law, was to defend it as to Stamps’s account, which he never assumed to pay, and that the account against complainant, for the year 1839, was correct; that complainant was not in the state in April, 1841, and that he himself had no conversation with the complainant,- relative to the suit, between the April term, 1841, and the October term, 1841, at which time judgment was had; that the only conversation complainant had with him, about the amended account, was subsequent to the judgment, at the October term, 1841; that neither before, or at the trial, did he observe the difference between the original and the amended account, his attention being directed to the charge of Stamps’s account to complainant; that he believed complainant was in the county subsequent to the filing the amended account.
    Johnson Dorsey, for defendant,
    stated, that he -was clerk for Presler, Varnell & Co., from May, 1839, to January, 1840; that he examined the books of Presler, Varnell & Co., and found the complainant charged, in 1838, with merchandise to the amount of $260 27, and with William Stamps’s account for $642 76, and credited, in February, 1839, by $100, and in March, 1837, by $300.
    William Stamps, for complainant,
    stated, that complainant left this state about the first of March, 1841; that he returned in May, and remained a short time, when he again left for Kentucky, and did not return until about the first of November, 1841; that the original account sued out by Presler was an account against complainant for the year 1839, and an account against witness; that, on the original account of Presler, complainant was not charged for the years 1837 and 1838, but in the amended account he was; that, in the spring of 1839, he had a conversation with Presler, who informed him that the money tiie complainant paid him did not pay but about $200 on his (witness’s) account, after paying his own (Davis’s) account; that Presler applied to him several times for payment of his (deponent’s) account; that these applications were made in 1839 and 1840 ; that the last conversation deponent had with Presler, Presler offered to give him twelve months longer, if he would give Hugh R. Davis, the complainant, his security; he never had a conversation with Presler and complainant, as to the mode in which his account was to be paid ; complainant had no control over the lands or planting affairs on deponent’s plantation, in the years 1837 and 1838; that his account with Presler was charged to witness, and that no portion of his account was contracted by complainant with Presler, Upon cross-examination, witness stated, that complainant worked no hands with his until 1839.
    This was all of the testimony in the case. The court below, upon final hearing, dismissed the bill, and the complainant therein brought this writ of error.
    
      Farish, for plaintiff in error.
    As the courts of equity will prevent the unfair, use of an advantage in proceeding in a court of ordinary jurisdiction gained by fraud or accident, they will also, if the consequences of that advantage have been actually obtained, restore the injured party to his rights. Mit. Oh. PI. 131. When the party or counsel are absent through misapprehension or necessity, and the cause goes to the jury undefended, and there are merits, the court will relieve by setting aside the verdict. Graham-on New Tr. 162. When a party or his counsel are taken by surprise, whether by fraud or accident, or a material point or circumstance, which could not necessarily have been anticipated, and when want of skill, care, or attention cannot be justly imputed, and injustice has been done, a new trial will be granted. 2 Show. 154. When a material .witness had been regularly subpoenaed by the defendant, and attended at the court, and shortly before the cause was carried up, absented himself without the knowledge or consent of the party or his attorney, and his absence was not discovered until after the jury were sworn, by which means a verdict passed against the defendant, a new trial was granted. Buggies v. Hare, 14 Johns. R. 112. When, in the progress of the trial, the cause suffers injustice from the honest mistake of the party or his counsel, relief will be extended by granting a new trial. Graham, 108. A new trial was granted when the defendant was sick abroad and one of the witnesses also abroad, although the court below refused a new trial. Slierrard v. Oldham et al. 1 Halst. 344. When a judgment has been obtained at law by fraud, for a sum larger than is justly due to the party, upon a mutual understanding that certain set-offs should be deducted, a court of chancery will enjoin the judgment to the extent of the set-off. 2 Story Eq. 169. Chancery will relieve by granting a new trial, when the judgment has been obtained by surprise or inadvertence. Foucher v. Lea, 4 Call's R. 279 ; 5 Ibid. 279. It is laid down as a general principle, that any fact that 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, will authorize the exercise of the power of the court of chancery. 2 Story Eq. 174; 1 Cranch, 336. When, during the defendant’s absence from the state, he was sued on a bill of exchange, upon which he had made part payment, and judgment was rendered for the whole amount, without allowing the payment, although the sheriff had made a return of service, by leaving a copy of the writ at complainant’s residence; it was held that chancery would interfere, and grant a new trial. 5 How. 43.
    
      Gordon, for defendant in error.
    Davis totally fails to establish that there was any fraud, unfairness, or impropriety, upon the part of Presler, or any one else, in obtaining said verdict and judgment; but, on'the contrary, proves, by most.of his own witnesses, that the same was fairly and properly obtained, and is strictly correct. We contend that there are no sufficient grounds presented and established by the pleadings and proof in this cause, to authorize a court of chancery to grant a new trial at law.
    It is true the bill charges fraud in obtaining the verdict and judgment, but it is explicitly denied by the answer, and clearly shown by the proof adduced by complainant, that there was no fraud or unfairness in obtaining said judgment. An answer to a bill charging fraud, responsive to the bill denying the charge of fraud, and uncontradicted by evidence, rebuts the idea of fraud. Maury v. Blatchford, 1 Wend. R. 583; Cunningham v. Freeborne, 3 Paige Ch. R. 557.; 3 Am. Eq. Dig. 318. The idea of fraud, then, being put out of the question, the case rests alone upon the point, whether complainant can have the relief he seeks, on account of his failure to make his defence at law properly.- A judgment cannot be impeached, except for fraud or accident, unmixed with any fault or negligence in the- complainant or his agent, nor can its consideration be inquired into. 7 Johns. Gh. R. 182; 7 Cranch, 332; 6 Johns. Oh. R. 236; 1 Ibid. 49. It is shown that, in the action at law, complainant was duly served with process, that he appeared by his counsel at the return term of the writ, and filed his plea to the suit, that the cause was continued in the court several terms, and at the time it was tried he filed his plea of non assumpsit to the amended declaration. That learned counsel appeared in his- defence at the trial of the cause; he does not state or show that he applied at the' trial term for a continuance of the suit, nor that he ever summoned any witnesses to prove his defence at law; nor does he show that he applied for a new trial before the court of law in which the verdict was rendered. I think therefore, that, instead of presenting a case of surprise and hardship, the case at bar presents a Case of extraordinary inattention and negligence upon the part of complainant, in making his defence to the suit at law.. Inattention .of parties in a court of law can scarcely be made the subject of the interference of a court of equity. 1 Schoal. & Lefroy R. 205 ; 1 Johns. Ch. R. 232 '; 6 J. J. Marsh. R. 262, 440. The question, as to how far a court of equity will interfere in granting new trials at law, was fully considered by this court, in the case of Green v. Robinson, 5 How. R. 80, 99, et seq. The subject is there fully examined by the court, and all the authorities collected and reviewed. We think the principle decided in that case will be considered as decisive of this, and that there is no error in the decision of the court below.
   Mr. Justice Thacker

delivered the opinion of the court.

Writ of error to Wilkinson county circuit court.

At the April term, 1842, of this circuit court, plaintiff in error filed his bill in equity, praying a new trial in an action at law, wherein judgment had been rendered against him in that court, at its October term, 1841. The claim for a new trial is based upon alleged fraud on the part of the defendant in error, in prosecuting his action at law, and upon accident, whereby the plaintiff in error had been prevented from presenting the substantial grounds of his defence in that action.

At the April term, 1840, Peter A. Presler, the survivor of the copartnership of Presler, Varnell & Co., instituted his action of assumpsit upon an open account against Hugh R. Davis, who, at that term, filed his plea of non assumpsit. The case was then continued until the October term, 1840, when the plaintiff obtained leave to amend his pleadings. At the April term, 1841, plaintiff filed an amended declaration, at which term the cause was continued. At the.October term, 1841, the defendant filed his plea of non assumpsit to the amended declaration; whereupon a jury Came, and a verdict and judgment were rendered for the plaintiff in the sum of $476 26.. It-appears that the open account filed .with the amended declaration, differs in the items, and their dates, and in the sum total, from that filed with the original declaration.

The. allegations of fraud are denied in respondent’s answer to the bill. The evidence adduced upon the bill and answer tend to show that the respondent, in making the change in the amended declaration of the items of the account filed with the original declaration, based it upon the supposed nature of his dealings with the complainant, as in his individual capacity,, and as guarantor for another. Whatever question might arise ds to respondent’s right to view the complainant as the guarantor of another, and to sue him in that capacity, the question was one of law, and certainly could not create the presumption of fraud in the respondent. In point of fact, fraud cannot be committed in the filing an amended declaration and new account, under circumstances like these, because, by virtue of such an order and leave granted, a plaintiff may amend to any extent that does not change the form of the action. The record does not show any evidence of fraud exercised by the respondent, during the trial at law. The circumstance, that a witness did not disclose upon the trial all the information which he possessed, relating to certain facts, because his attention was not particularly directed to them, is not, of itself, sufficient ground whereon to insist upon a new trial. Houston v. Smith, 2 S. & M. 597.

The complainant had notice that leave had been granted to respondent to amend his pleadings. He was already in court, both by service of writ upon him and by appearance, and it do'es not appear that his absence from the state took place, until after the term at which the order of amendment was obtained. If he saw fit to absent himself, or voluntarily to put himself in a position whereby he could not become informed what specific character an action was about to assume, of the general nature of which he had been sufficiently advised, at a period, when he might' reasonably expect, by the plaintiff’s course of proceeding, some material change in the aspect of the case, he did it at his Own risk, and can claim no exemption from the consequences.

The ground of fraud is by no means established, while the laches of complainant seem manifest. Land v. Elliot, Adm. 1 S. & M. 608.

Judgment affirmed.  