
    Green, Appellant, v. Robinson.
    That provision of the Constitution of Mississippi, which declares that “ the introduction of slaves into this state, as merchandize, or sale, shall be prohibited from and after the first day of May, 1833,” is not merely a mandate to the legislature, but an inhibition per se,- and all contracts for slaves so introduced into the state after the first day of May, 1833, are void by virtue of the foregoing prohibition.
    'It is a well established rule, that equity never will grant a new trial of a matter which has been determined in a court of law, it being a matter over which a court of law has full jurisdiction.
    Equity will not grant a new trial on the ground that the contract was against public policy, where the defendant through negligence, failed to make his defence at law.
    In all cases of concurrent jurisdiction the court which first exercises it, must decide finally. And, it will be no exception to the rule, that, the party neglected to make the defence at law.
    APPEAL from chancery.
    Robinson sued Green at law and obtained a judgment, which this bill sought to enjoin. The original bill, charged in substance, that the note sued on was executed by Glidewell, one of the firm of Green, Glidewell & Co., in the name of the firm as surety for Broadnax, the principal in the note. That the articles of co-partnership of Green, Glidewell & Co. stipulated, that neither partner should have power to bind the other as surety; and, that Glidewell signed this note in the name of the firm, without the knowledge or assent of complainant. That the complainant knew nothing about it, until he was sued at law; that he employed an attorney to defend the case, but that his attorney did not inform him it was necessary to make affidavit to the plea, in order to let in this defence; in consequence of which, judgment was rendered against him. That he moved for a new trial, but it was refused, and he appealed to the High Court, where the judgment was affirmed.
    An amended bill stated that the consideration of the note sued on, was slaves imported into the state, since 1st May, 1833; for the purpose of sale, and without the requisites required by the act of 1822. That the complainant did not know this fact at the trial, nor when he filed his original bilí, or; it would have been inserted in it. ■
    The answer to the original bill, admitted that Green, Glidewell & Go. were merely sureties on the note, which fact the defendant knew,; that he did not know whether ■Glidewell signed it or not; that he supposed both were, bound; that' the defence could have'been made at law, if any where, and plead the recovery at law in bar. That he did not know whether there was a stipulation in the articles of co-partnership,.that neither party should become surety; did not believe there was, and required proof.
    The answer to the amended bill, admitted that the negroes were brought into Mississippi for sale, since 1st May, 1833, and without the certificates required by the act of 1822, and that the sale of the said slaves constituted the consideration of the note. That defendant believed that complainant did know at the time of the trial, that the consideration of the note was the slaves sold as aforesaid. ’ ,
    The chancellor dissolved the injunction, from which an appeal was taken to this court. ■ ,
    G. .S. Yerger for appellant.
    1st. It is insisted that the note is void, because the consideration of it is, illegal, being for slaves sold contrary to the act of 1822, the constitution of the state and its settled policy. For the reasoning and authorities on this point, vide brief furnished by W. Yerger, Esq.
    2d. If the' note is void, there being no adjudication at law, and the jurisdiction being concurrent, equity will relieve. Vide brief above named. . ,
    1. Supposing the contract or sale void in this case, the jurisdiction of chancery-can be sustained upon the following grounds, independent of the question of concurrent jurisdiction,' which, however, is clear of itself:
    Green was merely a surety. He did not know at the time of the trial of the fact that the' notes were given for slaves .imported into the state contrary to law. This he expressly charges in his amended bill. ■ The books lay it down as a rule, that chancery will relieve against a judgment, when the defence was .purely legal, if it was unknown at the time of the trial. 1 John Ch. Rep. 50, 51. See Green v. Governor, 1 John. Cases, 494. 1 Equity Rep. 450. . ■ ■ '' '
    
      2. The answer as to this allegation is merely as to. information and belief — it is hot positive — ahd such'an answer is "not sufficient to dissolve an injunction — it only throws the onus on the complainant. 1 Paige’s Ch, Rep. 100, 426. 2 John Ch. Rep. 202. An injunction can-Only be dissolved-upon facts averred to be within the knowledge of the defendant,.
    3. But admitting that the contract and sale is not void — still we are entitled to relief. I take It for granted, that it has been satisfactorily proven, to the court, that where the jurisdiction is concurrent, in both law and equity, that a failure to make a defence at law, or any attempt to make it, which has failed, provided it is not res adjudicata,, or actually passed upon by the jury, will not exclude the jurisdiction of equity ; or, in other words, the party suing the defendant at law, shall notj merely because he bógáii first," prevent the other party from.resorting to a court of equity, if such was his right or privilege before, suit brought.
    In this cáse, Greeii’s partner, without his consent or knowledge, signed the name, of the firm, as surety to this note — the complain ant knowing, the fact, that the . name of the firm was merely signed as surety. .' This is not binding on Green. Foot v. Labin, 19 John Rep. 154. 1 Wendal’s Rep. Laverby v. Burr. Bank of Rochester v. Bowen, 7 Wendal, 158. m
    Green did not make this defence- at law; he intended doing so, but his attorney did not, as he alleges, inform him it was necessary to make affidavit to the plea. Can he now make it in equity? 14 John Rep. 17 John Rep. shew, where the defence is attempted, but is not made, it may, in cases of concurrent jurisdiction, be relieved in this court, and vide cases .cited in the argument of W. Yerger."
    4. This is a case where the jurisdiction is concurrent. The act of Green’s partner did. not bind him — it is void as to him,-and, equity in such case has jurisdiction to cancel the endorsement or declare the instrument not binding on Green. Hodgson v. Murray, 2 Simms, 515. Chitty on Bills, (New Edition,) ! 19. Hamilton v. Cummings, 1 John Ch. Rep. 524.
    Again — where one partner signs the partnership as surety, without the consent of the other, it is a fraud, on the other partner, as all the cases show. Vide 19 John, 1 Wendal, and 7 Wendal, above cited: Fráud is an original head of equity jurisdiction — hence it is concurrent with courts of law;.
    
    Holt, for Appellees.
    In Graham v. Stagg, 2 Paige C. R. 231, it is settled that no relief will be given in chancery, against a mistake of the attorney in pleading a plea at law, which does not cover the defence. See 3 Littell, Jones v. Henry, where this principle is fully settled. This disposes of the complainant’s claim to relief, so'far as it is rested upon the mistake, ignorance or negligence of his counsel. 2 Story’s Equ. 183, is full on this point. The new matter - set up in the bill and supplemental bill, consists in the allegations that defendant Robinson knew at the time of receiving the note, on which judgment was rendered, that Glidewell had no authority from complainant.to sign the partnership name of «Glidewell, Green & Co.” as surety; and that knowing this, he, with Broad-nax, fraudulently persuaded and prevailed on Glidewell to sign the note. That the consideration of the note Avas slaves introduced by defendant into this state as merchandise,- since May, 1333, in violation of the constitution and of the statute of 1822. Which matters, complainant, states, he has discovered since the trial and judgment at law. Upon the charge of fraud, it is understood, the injunction was granted. The answer denies in the most explicit terms, the allegation that defendant knew Glidewell had no authority from complainant to sign the note. It denies that defendant used any means, fraudulent or otherwise, to procure such signature; it denies that complainant has discovered any evidence by which these statements of the bill can be sus-tamed. It admits the introduction of the slaves into this state as merchandise, since 1833 ;■ insists that the contract of sale was not thereby vitiated, and avers that the consideration of the note ‘ was known’to complainant before the trial at. law.. The judgment of the circuit court of Warren county, and of the High Court of Errors and Appeals, affirming, the same, are plead and relied upon, as a conclusive bar to the relief sought. The informal demurrer, contained in the answer to the original and amended bill, is made under a rule of practice in' the chancery court j which allows a defendant to insist, without any formal demurrer in his answer, upon all matters Which might have been prevented by a formal demurrer.'
    So far as the équity óf the bill is based upon the fraud charged on defendant Robinson, it is entirely swept away by the answer, which is emphatic and strictly responsive in its denials, not only to the general allegations, but to all the circumstances connected therewith. ‘ There being no disposition or affidavit in'support of the b,ill in this particular, ‘the injunction must be dissolved; of course, so far as this feature of thé case is concerned. The statement that Robinson sold and conveyed a large number of slaves, (constituting almost his entire fortune,) upon the faith of a signature which he knew to have been fraudulently obtained^ and could not be binding upon complainant', is in itself so’preposterous, as scarcely to have required an answer. But éven if this statement were true, it would only show.that the note on which the recovery was- had, was not the note' of complainant. It would not establish any thing beyond that; and was, therefore, but evidence in suppqrt of the proper plea, in bar of the common law action. According to ’complainant's bill, his defence-at law was complete, without this statement; because whether the note was, or was not the note of complainant, in no manner depended upon Robinson’s knowledge or ignorance of Glidéwell’s authority to use the partnership signature for such a purpose. It depended upon .the question whether Glidewell had such authority in fact, as a bill could not be. entertained to .enable the complainant to prove that, the note on.which judgment had been'rendered, had not been signed-by him, 4 Littell, 163-4, (such matter constituting a strictly legal defence,) so, a fortiori, it could not be entertained merely for the purpose of letting in cumulative testimony, in support of such defence. 2 Story’s Eq. ÍS3. Complainant now stands, as though, upon the trial at law, he had plead that the note was not signed by him, and there had been a finding of the jury against him on such issue; and he is now asking from the chancellor a new trial, in order that he may have an opportunity of offering this cumulative proof, under his plea at law. If he be allowed to occupy more favorable ground than this before the chancellor, then he will be a gainer in this court by a negligence which forfeited his rights before the common law tribunals, and to the ancient heads of equitable jurisdiction and sources of equitable relief, fraud, accident, trust and mistake, will be added another, gross negligence. The principle insisted on is recognized, without qualification, in Hare v. Sproul, 2 Howard, 773, where the court say “ even the testimony allowed to have been discovered, is at most but cumulative proof of the facts attempted to be proved in the court at law, and therefore, according to the well established law upon this subject, is insufficient to sustain an order for a new trial.” 2 Story’s Eq. 183, sec. 897.
    The bill sets forth the newly discovered evidence in these words: “Your orator would further represent that since the trial of said action at law, and the adjournment of said term of said court, he has discovered testimony of which he was then wholly ignorant, and which would have been beyond all question an ample defence to said action, either at law or in a court of equity, — your orator has been since the trial at law aforesaid, informed, and believes it to be true, that the said Winslow Robinson at the time the- said Glidewell signed said note with the said partnership name, knew that the said Glidewell had no right, power or authority to sign the said partnership name as sureties, and Glidewell was not authorized by your orator to do so; and fraudulently persuaded and induced both by himself and the said Broadnax, the said Glidewell to sign the said partnership name, although he the said Robinson well knew that said Glidewell at first objected so to do, and well knew that said Glidewell had no right so to do.” This clumsy statement falls short of the requirements of the law in every particular. It does not show that complainant has discovered any new ground of defence, but only new testimony in support of a ground of defence then well known to him. It does not show that complainant upon a second trial, could prove these newly discovered facts; it merely sets forth that “he has been informed and believes” such facts exist. It does not show whether the new discovered evidence rests in writing or in parol: if in writing, the instrument is not exhibited or referred to; if in parol, the affidavit of the witness is not produced, nor is its absence accounted for, even his name is withheld from the court and opposite party. It is not shown that this pretended testimony could not have been discovered before the trial at law, by the exercise of reasonable diligence, nor is any reason suggested why a bill of discovery was not filed before the trial at law, for the purpose of extracting from the defendant the fraudulent knowledge and conduct now charged upon him. Every rule which regulates applications of this nature, seems to have been studiously disregarded and violated, in filing this bill. The case cited from 2 Howard, 772, was much stronger for the complainant, than the one at bar; yet the bill was dismissed for want of equity upon its face, and that dismissal was affirmed in the High Court of Errors and Appeals.
    This exposure of the utter vagueness and insufficiency of the averments of the bill upon this subject, is unnecessary, however, in support of the motion to dissolve, because the answer denied in the strongest and most distinct terms, that complainant has discovered any of the testimony or facts since the trial at law, which he pretends to have discovered, and the existence of such testimony is fully negatived.
    The chancellor ought not to order a new trial, where the failure of the applicant to defend at law, or make application there, is not satisfactorily accounted for. 4 Bibb, 168, 348, 414. Here the High Court of Errors and,Appeals have decided, that complainant’s failure to defend at law, was not satisfactorily accounted for, and that his application for a new trial there, was properly overruled. In 1 Marshall’s Rep. 480-1, it is settled that the chancellor will never interpose to grant a new trial where application was made and refused by the common law court. The remedy in such cases, is by bill of exceptions and writ of error. 2 Leigh, 334. 4H.&Munf. 180. 4 Call, 274,430,279. 5lb.279, That remedy, the complainant has availed himself of to the uttermost. 1 am at a loss to conceive how a new trial could be awarded in a case, where the judgment had been affirmed in the High Court of Errors and Appeals; or rather, where a new judgment had been rendered by such High Court against other parties, (the sureties in the bond.) Could a new trial of the case in the High Court be directed by the chancellor? If not, their judgment, which is the one enjoined, would stand — although the judgment of the circuit court of Warren county, should be opened. Does not the statute, which requires a release of errors at law, before an injunction can be granted, intimate most clearly that after the party has availed himself of such errors by prosecuting an appeal or writ of error, he cannot have an injunction?
    
    The equity set up in the amended and supplemental bill, grows out of the introduction of the slaves, (which were the consideration of the note,) by Robinson, into this state, in alleged violation of the statute of 1822, and of the new constitution.
    The answer to this, as to the original bill, contains a demurrer; the defendant Robinson, insisting, as under the rules of the court he may well do, that the allegations of the bill taken as true, show no jurisdiction in this court, or right to relief on the part of the complainant. This demurrer is insisted on, and the amended and supplemental bill, will now be considered in reference to it. The allegations regarded as true, are believed to be insufficient to authorise the interference of this court, for several reasons.
    First. It is not shown that complainant could not have discovered the new matter set up, by ordinary diligence, before the trial at law. This is indispensible. 2 Bibb, 241. 3 J. J. Marshall, 487. 2 Robinson’s Practice, 216. 4 H. &. Munf. 369. DeLenia v. G-lassell’s Adm’r. 6 Randolph, 133. Faulkner’s Adm’r. v. Har-wood, 1 Cali, 546, 542. H. & M. 139. Ib. 408. 2 Story, 180-1-2. “ If a fact material to the merits should be discovered after a trial which could not by ordinary diligence have been ascertained before, relief will be granted.” 2 Story, 179. The consideration of the note must have been known to Glidewell, (complainant’s partner,) and to Broadnax, his neighbor and townsman. The slightest enquiry would have informed him of the facts which he pretends to have since discovered. His attention as to the consideration of the note, and the circumstances under which it was drawn, was necessarily aroused. He did investigate the transaction, and ascertained before the trial at law, that the note had not been signed by Glidewell in the usual course of their mercantile business. Is it not probable, almost certain, that in the prosecution of this investigation, he did learn the real consideration of the note? With all the clew and witnesses which surrounded complainant, must he not have been grossly negligent, not to have-made this discovery?
    Second. The names of the witnesses by whom this newly discovered matter can be established are not given, nor are their affidavits furnished. This is, according to the authorities, a fatal objection, and it properly arises under the demurrer, which does not merely put in issue the sufficiency of the matter set forth, but like a resistance to a motion for a new trial, it calls in question and denies the legality of the mode in which that matter is presented to the court, 3 J. J. Marshall, 522, where it is held that to entitle the party to a new trial for the discovery of new testimony, the following facts should be shown: 1st. The names of the witnesses who have been discovered. 2nd. That the applicant had been vigilant in preparing his case for trial. 3rd. That the new facts had been discovered after the trial, and would be important. This application is analogous to a bill of review for newly discovered matter, Mitford, 131-2, in reference to which it has been determined, that the evidence must not be sucli as might have been discovered with ordinary diligence before the decree. 3 J. C. R. 124. 6 Madd. Ch. R. 127. 5 Call, 98. If a party were allowed to go on to a decree, withput looking for evidence which might be obtained upon a proper search, and afterwards upon finding the evidence to file a bill of review, there would be no end to such bills. 3 Paige, 206.
    Third. It is not even averred that this newly discovered matter, can be established by any witness.
    Fourth. The newly discovered matter, if true, is no defence in law or equity to the claim of Robinson. The introduction of the slaves into Mississippi as merchandize, did not vitiate the after contract of sale. The court upon this point, is referred to my brief in the case of Glidewill et al v. Hite & Fitzpatrick, which accompanies this.
    The discussion of this case, as upon demurrer, need not have been gone into, because the answer of Robinson denies that complainant has discovered the consideration of the note since the trial at law, but asserts that the consideration was well known to him at that time; and there is nothing in the case impeaching the answer in this or any other particular. In view of the answer then, and admitting for the argument, that the new matter set up would have vitiated the contract, was not complainant bound to have urged it as a defence to the common law action, and having failed to do so, can the chancellor interpose and relieve him from the consequences of his laches? All the authorities respond in the negative. The language of the court in 1 Howard, 113-14, is emphatic, that “ where a party has been impleaded before any judicial tribunal, he must use due diligence to avail himself of every legal defence proper to his cause, and admissible in the forum before which he stands charged, before he can be relieved in equity.!’ This authority should, it seems, be decisive of the controversy, for certainly, it must be conceded that the defence now set up, if available at all, was “ admissible in the forum,” where the judgment enjoined, was rendered, and the High Court of Errors has determined that complainant, instead of using due diligence, was guilty of gross negligence in the conduct of his de-fence in that common law court.
    The case of Faulkner’s Adm’x. v. Harwood, 6 Randolph, 125, fully sustains this position. See also, 2 Story’s Equity, 179-80-1-2. “ The inattention of parties in a court of law, can scarcely be made a subject for the interference of a court of equity.” 1 Sch. & Lefr. 205-6. 1 J. C. R. 322-3. 3 Atkyns, 223. 6 J. J. Marshall, 262, and 440. 3 Russell, 94. 1 Edwards, v. c. R. 164. 1 Breese, 60. Ib. 126. 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. 6 J. C. R. 235. 7 Cranch, 332. 1 Howard, 113. 8 Cond. E. C. R. 65. 6 Paige, 623-4-5. 9 Wheaton, 532. 3 Yer. 170. 6 John C. R. 87. 1 J. C. R. 49.
    
      Between complainant and defendant, there can be no hesitation in determining that the latter has the stronger equity. If they are both innocent, and one must suffer, the loss should fall upon complainant, who enabled Glidewell to commit the fraud that, is alledged. This is a familiar principle; and as complainant has procrastinated the collection of this debt by every shift and device which the ingenuity of counsel could suggest, or his own vigorous and ready oath sustain, his injunction should be dissolved with damages.
    The complainant seeks to enjoin this judgment perpetually, without returning or offering to return the slaves sold. This is against conscience ; and in such cases the chancellor will not interpose, although complainant may have the strict law on his side. 1 Bibb, 368. As complainant does not offer to do'equity, by returning the slaves, the chancellor will allow defendant to enjoy the legal advantage, which the supineness and negligence of his adversary have given him.
    Anderson, on the same side.
    The first question which demands our attention, is whether the sale and purchase of the slaves, after they were brought into the state of Mississippi, was a violation of the prohibition of the constitution. The constitution does not prohibit the sale of slaves within the state, nor does it prohibit the introduction of slaves into the state. The owner may remove here with slaves, or he who is a citizen may go out of the state and purchase and bring slaves here for his own use. Slavery is one of the favorite institutions of the country; an institution on which rests or depends the wealth, the increasing resources, and the future prospects of the country. Yet I can imagine a man who would hold slaves, who would think it perfectly right to own such property, and cultivate his cotton field by their labor, and yet scorn to make a business of buying and selling human beings for speculation; nay, who would abhor and detest both the speculator and the dealer, and would shun his society. ■ And 1 can imagine a community of such men. And when I read this clause in the constitution, I see that Mississippi was a community of such. I do not attempt argument before this court to prove the wide differences between a slave holder and a slave trader; such an attempt before this court, who are slave holders, I would consider insulting to their feelings. Mississippi, for some time immediately preceding the formation of the late constitution, had been peculiarly the theatre of the exhibitions of the unfeeling cruelties of the latter class of men, until all good men no doubt had become disgusted and possessed of a strong wish to exclude from the country this class of speculators, at least the spectacles which had oifended their feelings, so often arising from this species of commerce. I can well •believe that all which is said in the constitution may have been occasioned by these considerations; yet I do not pretend to a settled opinion of the policy of this article, as I was not at that day a citizen of the state. I can imagine but one other motive for the prohibition, and that is to prevent the increase of the ratio between white and black population in the state, which does not seem to me very probable, for then the means would have been to prevent the introduction of slaves entirely. The sale of the slaves, considered as one act, was not prohibited; if it was, then the purchase was prohibited, as there could not be a sale without a purchase, the purchaser, of course, is a partaker in the violation of the law. Although a law prohibiting an act, prescribe no penalty, yet it is punishable by prosecution, by the rules of the common law. It would be hard, I think, to sustain a prosecution, against the purchaser, for a violation of the constitution; and yet it could be 'no harder than to sustain one against the seller, for they are equal actors in the transaction.
    This case is distinguishable from the cases relied on by the complainant, which seem to be most analogous. The cases cited from 2 Campbell, and 11 East, show that the whole object of the statute was to prevent frauds, in the sale of brick of inferior size. The sale of the brick was the principal object of legislation. Not so in this case. The same remark applies to several others of the English cases cited. It will be seen by examining the case cited from 12 Eng. Com. Law Rep., that it was not a revenue law that was violated, it was a law prohibiting the introduction of Trench silks into England; the object of which was to prevent the use of them in England, I suppose, for the purpose of encouraging the manufacturing of silk in England. Therefore, the sale of silk in England, whether by an importer or another, was a violation of the law. If the sale of slaves was not the prohibited act, the argument closes there, for it is too well settled for argument, that if the consideration of the promise be different or distinct from the unlawful act, that the promise is obligatory. See 11 Wheat. Rep. 258, and the cases there referred to, as well as the cases in the opinion of the chancellor.
    But if it be the opinion of the court that the sale of the slaves was prohibited, then what is the rule for the government of the court?
    The note is impeached by the maker in the hands of the payee, on account of the illegality of the transaction between them which is its consideration. Now among parties who are involved in a violation of the law, I understand the common rule to be that the court will leave them in the condition it finds them., and will entertain the complaints of neither party. Whosoever has to come a suitor into court, has to go out without any consolation. This rule is not peculiar to a court of equity, but is equally the guide of a court of law.
    The following cases am full to the support of this proposition. 4 Peters Rep. 184, Bartle v. Nutt, &c.
    This was a bill to make a partner account for his share of the loss sustained in a contract in which a fraud had been practiced on the United States, by the partners in making the contract, the court said, “The law leaves the parties to such a contract as it found them.” 1 East Rep. 94, Vandyck v. Hewit.
    This was an attempt to recover back a premium which had been paid on a policy, which was against law, on the ground that the policy never attached and the risk never commenced. 7 East 456, Lubback v. Patts.
    Lord Kenyon said the rule had been settled in all times, that where the parties are in pari delicto potior est conditio possidentis. The case in 7 D. and E. 535, is not approved. This case in 7 term is overruled or at least disregarded in 8 term, 575, Howser v. Hancock. 11 Mass. Rep. 368, Worcester v. Catón.
    A conveyance of land made in consideration of a composition of felony cannot be avoided by the grantor.
    In this case the fact is admitted by C. J. Parker, that many of the English cases seem to support the principle that wherever a party has paid money upon an illegal consideration, he may recover it back. But he makes this distinction, where laws are made for the protection of the weak, or such contracting party, who from circumstances is under some inequality of condition, they- may recover back, but where parties are on mutual grounds of equality, and are in equal fault in. violating the law, the court will not interfere between them. 2 Wils. 347.
    A bond given for compounding felony will be avoided by plea. This is perfectly consistent with the principles laid down by Parker, whosoever has to come into court for aid, whether law or equity, will be sent out as he came, without aid.
    Where money had been paid for smuggling transactions avoiding the revenue law. or obligations given, in the first case, the money cannot be recovered back, and in the other the bond can be avoided by plea, thus showing the court will act for neither party — or where money is paid on illegal policies, the same rule. 3 Bos. and Pull. 35, Morch v. Abel. 4 Term Rep, 466, Cluges v. Penaluna. 5 Term Rep. 599, Way well v. Read. Douglass Rep. 468 to 470, Lowry v. Bourdieu.
    Neither could one recover money paid for a given consideration independent of statutes, on the principle that he was particeps criminis. 8 Term Rep. 575. 8 John. Rep. 147, M,Callum v. Gourley.
    Money paid or bond given for female seduction, cannot be set aside or recovered back. 10 Yes. 366 Rider v. Kidder. 1 John. Ch. Rep. 337. 2 P. W. Rep. 432, Marchioness of Annandale v. Harris.
    These cases show us the obligations given for, or money paid on contracts — 1st. for gaming — 2d. upon smuggling — 3d. illegal policies — 4th. for seduction, or illicit connection — 5th. for compounding felonies. ' Where the parties are particeps criminis, the court will not sustain their suit either to recover back the money, or enforce an obligation or set aside a conveyance or obligation.
    We find cases again where the court will set aside obligations, refund money, &c. in favor of a particeps criminis.
    
    1. Where the contract was a marriage brokage transaction.
    2. In restraint of marriage.
    
      3. When made to procure a will. .
    
      4. Where it is ah office brokage contract, &e. ■ '
    Whether these various cases are reconciliable or not, or form a consistent system, I am at a loss to say. In the latter cases the court is said to interfere in violation of the maxims that the parties being in pari delicto, &c. &c. and particeps criminis, &c. &c. upon the ground of preserving public policy; yet it would seem, to me public’policy was as much concerned in protecting the revenue' laws, the- non-intercourse with a national enemy, and the punishment of felonies,1 and especially the purity of elections, from the influence of gambling thereon. However this may be, I can make one. distinction between our case and those above enumerated. . ’ "
    .In the above enumerated cases, where it is said' the court will interfere, the whole consideration of the obligation, conveyance, or money paid (as the case may be) is an illegal, immoral, and injurious act. A man obtains money, or bond, or conveyance, for using his influence to procure á marriage from improper and immoral considerations, — or to do something in restraint of marriage, — or to procure a will by urging improper considerations or influence, — or to procure office without a view to the public good, the only thing for which he receives the recompense is an immoral and vicious actioni.
    Now in our case the consideration of the promise, we take the fulfilment of, was the valúe of the property; our client was made so much poorer by'parting, with his property and the purchaser, so much richer, neither having any view to the violation of any known and established law of the land, and the act not being in itself immoral; surely a chancellor’s conscience must be differently affected with the two cases: See 11 Wheat. Rep. 258. ’
    There is another class of cases where the parties are actors in the forbidden act, where one will be relieved; but although they are actors, they are not considered particeps criminis. These are cases of usury, .and where bankrupts give secret obligations in money to procure from some creditor his -signature to his cer-ficate, &c. Doug. 696, Smith v. Bromby. ■,
    It would seem to be. a just and consistent rule for a court of chancery never to interfere but on the principle of requiring justice of the complainant,- as in usury: although the contract is void at law, yet the sufferer cannot in equity get relief but by paying the amount borrowed with legal interest.
    When the court interferes for the protection of the policy of the law, it. is either on the ground that it has the power to prevent the mischief deprecated, or it acts on the principle of inflicting a penalty, by way of terrorem or admonition. The court says, I will prevent the mischief, or I will strip you of your ill-gotten gains, that others may learn to refrain from like crimes. Now, if in .any given case the mischief cannot be prevented, in that case, it would seem to me, that while the court are holding out terrors to one of the parties who are particeps criminis, it should not hold out baits to the- cupidity of the other, and that at the expense of sacrificing justice. Whiie the court says to the seller you shall lose the price for violating public policy, it says.to the buyer, you shall be rewarded for the same violation, and for your dishonesty. Now as there cannot be a seller without a buyer, or buyer without a seller, I think there would be as much lost as gained, and the only great thing the court would accomplish, would be to enable one man, to swindle another out of his property in a case where both were equally criminal. Now this recovery cannot apply to the cases enumerated above, where the courts do interfere. There is no violation of justice in telling a man he shall have no reward for his marriage, or office ■ brokage undertakings.
    A given lot of negroes is of the same value to seller or buyer, whether the sale of them,be lawful or unlawful; their-value, in the sale in question, was the only consideration of the promise made to pay the price; the violation of the law formed no portion of the consideration of .the note on which judgment is rendered, nor no part of the inducement to the giving of the note. Not one dollar-of the note is the price or reward to Robinson for bringing the slaves to Mississippi, the unlawful act, if it be so. Can this be said in a case where a man claims the money as a reward for his immoral, unlawful, mercenary, and despicable exercise of his influence to procure a marriage, or an office for another, or to procure a will from a dying man in favor of his employer, or for the prevention of marriages, &c. No. In these cases the crime, the unlawful, the forbidden thing, is the only thing for which the price is given or promised. And this fact is the very reason and there is no other given, why a court of equity will defeat the consummation of such bargains by an active interference, because it is sustaining the morality and policy of the country against a direct invasion thereof. But in our case, if it were against law and policy for Robinson to bring the negroes here to sell, this act did not enter into consideration of the contract, it was a thing wholly unconnected with the bargain, and formed no part of the consideration of the note, the price given was not to the amount-of one cent intended as a reward for the unlawful act. Therefore the sole and entire reason for the interference of a court of chancery, in those cases where they do interfere, is wholly wanting in this case.
    If this is a case for a court of equity to preserve the policy of the law, the best way would be to say to the complainant, bring back the negroes and give them to the original owner; let him stay with his negroes in Mississippi or take them away, and thus get clear of paying the price. This would be effectuating the policy of the constitution, but if this is not done, the negroes remain here and are an accession of slaves to the former slave population, without the accession of an owner to the white population; the policy of the prohibition will be-defeated, and the only good the court will accomplish by giving the relief sought, will be to ruin an unsuspecting man, and enrich the speculator upon his ruin.
    The defendants further urge that the defence which is sought to be made here should have been made at law, and the complainant in this court having failed to make it at law, cannot be heard here.
    We state the rule to be that when the courts of law and equity have concurrent jurisdiction “ the court which first has possession of the subject must decide it.” There are exceptions to this rule:
    1. Where the controversy is a matter of complicated account.
    2. Where the relief at law is doubtful.
    ,3. Where the judgment at law is procured by the fraud of the successful party, and surprise of the other party.
    4. Where the judgment at law is on a cause of action which is positively declared void by statute.
    
      5. Where the judgment at law is upon a cause of action which both law and equity declare void, in support of public morals and policy.
    6. Where the party unsuccessful at law discovers material facts after judgment which should change the result, and is free from negligence.
    7. Where a party has possessed himself improperly of something, by means of which he has an unconscientious advantage at law.
    8. Where the matter is of original equity jurisdiction, and the party does not submit it to a trial at law.
    These exceptions do not disprove the rule. I would not say there were not others, but where a case turns upon any of these exceptions the rule is recognized and receives confirmation and strength by the case.
    With a reservation of the exceptions there is no difference in the force and effect of a decision at law when urged against an investigation in equity; and of a decision at law when plead in bar to a second suit, for the same cause of action and vice versa, and it would be just as competent and as availing in the latter case for a party to reply to such a plea in bar, that he had not availed himself of all the pleas or all the evidence which he might have done upon the first suit, as for him to say to a court of chancery that he had not done his best at law, because chancery had concurrent jurisdiction, and he intended to come there in the last resort.
    The policy of the law is, to give every litigant a fair opportunity to investigate his rights before a competent court, and then to end litigation; and there is no difference between courts of law and equity in inclination to effect this policy. The court of chancery as inflexibly resist a second litigation as courts of law, unless there he some such equitable reason for a second, as is presented in one of the above exceptions to the general rule; they open the door of litigation to a party who has been in a court of law for such reasons only as would induce them to review their own decrees.,
    The rule here stated, with the exceptions, comprehends all that is to be found in all the cases which have been brought to the notice of the court, either by the opinion of the chancellor, or the very able and ingenious arguments they have heard from the complainant’s counsel. The rule is established by a full recognition in the following cases: 1 John. Cases, 491, LeGuen v. Gouver-neur & Kemble. 1 J ohn. Ch. Rep. 50, Lansing v. Eddy. 1 Sch. & Leff. 201, Bateman v. Willac. 3 Atk. Rep. 224, Williams v. Lee. 2 Burr. Rep. 1009, Moses v. McFarland. 7 Term, 265. 8 Com. Eng. Ch. Rep. 66. 9 Wheat. Rep. 535. 5 Peter’s Con’d. Rep. 662, Smith v. Mclver.
    Some or all the above exceptions are recognized in these cases, which however bore down the general rule in strong terms. The cases which have been cited and commented upon by the counsel for complainant as opposed to the rule we are insisting on, are but cases under one or other of the above exceptions, for instance:
    2 Story’s Equity, 179. If defendant find receipts after judgment, and is guilty of no fault.
    2 P. Williams, 424, relief was granted because it was impossible 'for the complainant' to know the fact upon which such relief was claimed, when the case was tried at law, and the plaintiff at law did kno w it.
    1 Atk. 126, Bisson v. Hyde & Mitchell. 1 Yes. 327, same case. The verdict was not conclusive because it was matter of account.
    2 Atk. Rep. 603, is cited: Child v. Gibson. I see nothing more in this case than that a plea of a former decree in bar of a present suit should set out so much of the pleadings as to show they were for the same subject matter.
    1 Bro. 0. 0. 124, Harrington v. DuChatel. 2 Swanston, 167, (Note.) Are cases to show that equity will entertain a bill to set aside bonds or judgments, which are void on account of their illegal consideration, this to support the morality and policy of the law.
    7 Yes. 6, and 5 Yes. 286, which have been cited, rather seem to be at variance with the above cases.
    10 Johnson, 593; 17 John. Rep. 384, are cases where the matter was of original equity jurisdiction and the party come to chancery before a trial at law.
    The Virginia and Kentucky cases, to wit: 2 Hen. & Munf. 88; 2 Randolph, 214; 1 Randolph, 101, 178; 3 Bibb, 248, are cases to show that courts of chancery will enjoin a judgment obtained on a contract or note which is declared to be void by statute.
    
      2 Washington, 275, shows that a defendant at law who offered a set-off and it was not allowed, and there was some surprise on his part and some impropriety on the part of the court and plaintiff that state he should be heard in equity.
    4 Paige, 653, is nothing more than the court of chancery will not refuse to exercise an original equity jurisdiction of setting off one judgment against another, because courts of law had got to doing the same thing, yet they think the parly should have asked the court of law, as it was the cheapest way; therefore they were to give him no costs.
    Now, in all these cases which have been cited, the rule we lay down has not been impeached or its force impaired, and it is for the complainant to bring himself within some of the exceptions, in which, if he fails, he is forever barred of the relief he seeks here.
    It is urged on the part of the defendant that the statement in the bill, of want of knowledge of the facts at the time of the trial at law, on which he now seeks relief, is imperfectly made and sufficiently answered; and moreover, if there was any want of the knowledge or information of the fact, that ignorance was not without fault, but the result of the most culpable and unparalleled inattention to his defence at law.
    
      
       The argument of W. Yerger in this case, to which and the authorities there cited, the counsel for the appellees refer, is given in the case of Glidewell v. Hite et al. This question was re-argued in that case, and it is believed its importance warrants the publication of the arguments at length.
    
   Mr. Justice Tiiotteb.

delivered the opinion of the court.

The appellant filed his bill in the court below for an injunction, to restrain the collection of a judgment which the appellee had recovered against him and others, in the circuit court of Warren county. The bill alledges that the name of the complainant was signed to the note on which the judgment was obtained, without his consent or knowledge, by his partner Glidewell, and in direct violation of an express stipulation in the articles of copartnership; and that the defendant Robinson fraudulently procured the same to be done. That he employed counsel to defend the suit on this ground, who by a mistake in pleading, was unable to bring forward the ground of defence relied on, and that a verdict and judgment were had against him. He thereupon moved for a new trial, which was refused. He appealed to the High Court of Errors and Appeals, who affirmed the judgment. The supplemental bill states that the consideration of the note was a number of slaves brought into this state by Robinson, as merchandize, and for sale since the 1st day of May, 1833; and that this fact was not known to complainant until a time since the trial at law, and since the filing of the original bill. , The answer of Robinson denies that he had any knowledge of the stipulation in the articles of copartnership stated in the bill, or that he procured in any way the name of the partnership as security; that he knew nothing of the manner in which it was procured; that the note was delivered to him by Broadnax, with the name of the complainant’s firm on it. The answer also denies that complainant was ignorant of the consideration of the note, either at the trial or at the time of filing the original bill, and insists on the verdict and judgment at law as a bar to the relief asked by the complainant.

Two questions present themselves for the consideration of this court. 1st. Whether the consideration of the note for which the ' judgment was given is illegal, and renders it void. 2d. Whether a court of chancery can give relief.

The constitution of 1832 provides that the introduction of slaves into this state as merchandize, or for sale, shall be prohibited from and after the 1st day of May, 1833.” This, it is insisted, is an express prohibition; and therefore the introduction and sale of the slaves by Robinson, to the Messrs. Broadnax, was illegal. That it is competent for the people in convention to establish a rifle of conduct for themselves, and to prohibit certain acts deemed inimical to their welfare, is a proposition which cannot be controverted. And such rule, and such prohibition, will be as obligatory as if the same had been adopted by legislative enactment. In the former case it is endowed with greater claims upon the approbation and respect of the country, by being solemnly and deliberately incorporated with the fundamental rules of the paramount law, and thus placed beyond the contingency of legislation. It is difficult to conceive in what better or more appropriate language the convention could have designated its will, or declared the principle of public policy intended to be enforced. It has been argued that this provision in the constitution is merely directory to the legislature. This interpretation is opposed, as I conceive, to the plain language of the provision itself, as well as to the obvious meaning of the convention... It cannot surely be maintained that this provision is less a prohibition against the introduction of slaves as merchandize, because it is not clothed with the sanction of pains and penalties expressed in the body of it. That belonged appropriately to the legislature. Their neglect or refusal to do so might lessen the motives to obedience, but could not impair the force of the prohibition. It cannot be doubted, that if the legislature, instead of remaining inactive, had passed a law to authorize the introduction of slaves for sale, that such an act would have been void. But I conceive it to be immaterial in this enquiry, whether the constitution be considered as merely directory, or as containing within itself an absolute prohibition. In either case it fixes the policy of the state on this subject, and renders illegal the practice designed to be suppressed. Considered in this view, it was beyond the power of the legislature to defeat this policy by any counteracting regulation, or by mere supineness. The provision required no aid from that body, save the sanction of proper terrors to transgressors, The addition of adequate penalties might secure it from violation, but could not aggravate the transgression, or render it more illegal. The supreme court of Tennessee have taken this view of a similar provision of the constitution of that state. In the new constitution, it is provided that the legislature of Tennessee shall pass laws to prohibit the drawing of lotteries. In the case of Bass v. The Mayor of Nashville, Meigs’ Rep. 421, the court held that this provision in the constitution was itself a prohibition. If this be so, then it follows that the act prohibited is illegal, and that any contract founded on such illegal consideration is void. 1 Leigh’s Nisi Prius, 6.

It has been insisted, however, that the prohibition in the constitution extends only to the introduction, and not to the sale of slaves; and that the words, “ as merchandize, or for sale,” were added by the constitution to describe the motive or intent of the act of introduction into the state, and to distinguish it from the act of introduction by a citizen of the state for his own use, which is not prohibited. The two cases are entirely different, it is true; and if we could separate the act of selling in the case, when that is the sole motive for the introduction, from the act of introduction itself, and thus regard the end of the introduction as entirely separate and distinct from the means employed to effect it, the argument would1 be unanswerable. But I apprehend that this interpretation would entirely subvert the great object which the convention had in view, which was to suppress the slave trade in this state, as it was carried on anterior to the time of the adoption of the new constitution. The convention deemed that the time had arrived, when the traffic in this species of property, as “ merchandize,” should cease. They had seen and deplored the evils connected with it. The barbarities, the frauds, the scenes so shocking in many instances to our feelings of humanity and the sensibilities of our nature, which generally grew out of it, they, therefore, determined to prohibit in future, Another alarming evil grew out of it, which was highly dangerous to the moral and orderly condition of our own slaves, and that was the introduction of slaves from abroad of depraved character, which were imposed upon our unsuspecting citizens by the artful and too often unscrupulous negro trader. This was intended to be suppressed. Perhaps another object was, to prevent a too rapid increase of slave population in our state. The cardinal policy of the state was then to suppress this trade; and this is what is prohibited. In what then, it may be asked, does it consist ? The constitution has defined it. The offence consists in the introduction of slaves into this state for sale, as merchandize.” The sale then is the consummation of the prohibited act. It is that which indicates, nay, which demonstrates the illegality of the introduction. The act of introduction may, in some cases, be lawful ; it will always be illegal, however, if the intent is to sell. The sale consequent upon the introduction, evidences the intent, and fulfils the illegal purpose. I cannot then comprehend the argument which treats the sale in this case as unconnected with the illegal act of introduction. It regards the latter, that is the introduction, as a proper subject of animadversion, when the motive is a sale of the property, and yet legalizes the sale itself, the accomplishment of the motive for which the former act is made illegal. If the object of an act be the reason for prohibiting such act, it is difficult to conceive how the act can be illegal, and the object legal after it has been attained. It seems to me impossible to consider the sale as an act separate and distinct from the introduction. It would be to condemn the means, and yet sanctify the end. • . ' ;

This case is very distinguishable- from those relied on by the counsel for the appellee. They were cases yrhere fraud’s had been practiced upon the. revenue laws, by smuggling goods into the country without paying the duties. A sale of goods thus smuggled in, when unconnected with the• illegal transaction, is good and binding. This doctrine does not militate against the policy of the revenue laws, which are only concerned with the collection of the lawful imposts. The subsequent sale is not the act prohibited. It,was the .importation without payment of the duties. Hence, whilst a contract founded on the consideration of importing without a compliance with the law, would be void, a subsequent agreement of purchase, which had rid dependence on, or connection with the illegal act of importation would be obligatory. These distinctions, I take it, are maintainable on reason and principle, independent of adjudged cases. But there a,re many decisions which directly sustain them — -thus, ,in the case of Law v. Hodgson, 2 Comp. Rep. 147, which was decided under a statute of England, which prohibited the making of bricks under the size mentioned in the act of Parliament. It was held that a contract for bricks of a less size than that specified could not be enforced. The act under which this decision was made, did not declare the sale void, but only inflicted a penalty; yet the court held, that to permit a recovery for the sale would be to make the violation of the law a source of profit to the transgressor. That would be to defeat 'the policy of the statute. Here the sale was -as distinct from the act of making, in the sense under which it has been urged upon the court in this case, as the sale of the negroes from that of the introduction., The sale was the object of the manufacture in that case, precisely as if was of the introdufction, in the case at bar. ■ But it is said that slaves are a species of property,'and recognized as such by our const-itutipn and laws, and. are therefore the legitimate subject of traffic. To this it may be, answered, that they are, in the mode and under the restrictions prescribed by law. I only maintain that they are not the legitimate subject of traffic by means of importation from abroad. They cannot be introduced from abroad and be thus legally sold. Bricks in England are a legal subject of transfer and sale, yet they cease to be so when niade under the statutory size. The cases of Billard and others, v. Hayden, 12th Eng. C. L. Rep. 222, and Forrester v. Taylor, 5 B. & Ald. 887, are to'the. same effect and fully sustain the reasoning I have adopted: I am hence clearly of the opinion that the consideration of the note in this case is' illegal.

I will, therefore, proceed to examine the second question in this cause, and that is,- whether the court of chancery possesses the power to relieve the complainant against the verdict and judgment at law. , 'The bill alledges two grounds for relief: 1st. That the name of complainant was signed to the note on which judgment was had without his consent or authority, and that he employed counsel..to defend the action on tliat ground., and that by the mistake or inattention of his counsel, he was not permitted to avail himself of this defence. That he has since been informed that Robinson' well knew that his complainant’s partner was prohibited by the terms of the partnership from pledging the name of the firm for the payment of debts as surety, and that he fraudulently procured complainant’s name to be used as it was by his partner. This ‘allegation is, however, positively denied by the answer. The second ground of relief is stated in the supplemental bill, which" is that he was ignorant of the consideration of the noté at the time of the trial at law, and also when he filed his original. bill. 1 will consider-these two grounds, under one view.

It is a general principle that the judgment or decree of a court of competent jurisdiction shall be final as io the subject matter decided, and not as to that merely, but as to" every other which might have been decided. The law abhors multiplicity of suits, and it is a-clierished object with courts of justice to put an end to litigation. Some period must be prescribed to controversies of this sort, and what period Can be more proper than that which affords a Ml and fair opportunity to examine and decide all the claims of both litigants. This imposes no hardship, since it. only requires a reasonable degree of vigilance, and attention". But a contrary course might be highly oppressive, and. endanger the stability of titles and the security of all our rights. . Hence it has become an established rule, that equity never will interfere to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed then, and one of which a court of law has full jurisdiction. 2 Story’s Eq. 179.- It is not sufficient to show that injustice has been done, but that it has been done under circumstances which authorize the court to interfere. Equity then, as a general rule, will not interfere |when the party could have availed himself of the defence on which he seeks a new trial or injunction, and neglected to make it on the trial. Neither will he be relieved if he was prevented from doing so, by the mistake of his counsel in filing a plea which does not cover his defence. 2 Story, ISO. Hence 1 think it clear that Green is not entitled to relief on the first ground relied on. The matter of defence arising out of his' partner’s unauthorized and fraudulent use of his name, was fully triable at law, and the reasons offered for not bringing it forward are wholly insufficient. It was so held by the circuit court in which the cause was tried on a motion of a new trial, and afterwards by this court on a writ of error. In Bateman v. Willac, 1 Schoal and Lefroy, 201, Lord Redesdale observed that a bill for a new trial was watched with extreme jealousy. The court must not only be satisfied that injustice has been done, but that it was not owing to the mere inattention of the party. In Williams v. Lee, 3 Atkins 224, Lord Hardwick lays down the same rule, and remarks that relief will only be granted after verdict in cases where the plaintiff knew the fact to be otherwise than what the jury have found, and the defendant was ignorant of it at the trial. In Waggoner’s trustees v. McKenny, 1 Marshall, 480, the ground of relief was fraud in the sale of personal property. After verdict an application was made for a new trial at law and refused — and the defendant went to chancery for relief. The court said the rule was inveterate, that when the remedy at law was ample equity could not interfere.

It is by the observance of this rule that the boundaries between the two jurisdictions can be maintained. The chancellor cannot review the opinions of the law judge, if so the latter might reciprocate revisáis, and a conflict of jurisdiction must ensue, which would be fatal to the steady and regular administration of justice. See also 1 Call. 550. 2 Hen. and Munf. 144. The ground alledged, on information since the trial at law, that Robinson fraudulently procured the signature of complainant’s name to the note, is fully denied in the answer. I will next consider the claim of complainant to relief, on the ground of the illegality of the consideration of the note. This matter of de-fence was available to complainant at law ; but it has been insisted that it is a matter over which equity has concurrent jurisdiction with a court of law, and that the complainant had a right therefore to elect in which tribunal he would have it tried. The rule upon this subject is fully stated by judge Marshall, in the case of Smith v. McIver, 9 Wheaton 552. That was a case where gross fraud was charged, and it was urged that it was triable either at law or in equity, but the chief justice remarked that equity could not on that ground alone grant relief, and that to entitle a party to the aid of a court of chancery after a judgment, some special ground must be shown, and that in all cases of concurrent jurisdiction, the court which first gets jurisdiction must decide finally. This decision is in exact accordance with the general rule laid down by judge Story in the 2d vol. of his Equity, after a full review of all the cases. In Barker v. Elkin, 1 J. Ch. Rep. 465, the ground of relief was a payment and set off.

It was not asked for on the trial at law, nor was any excuse offered for not making the defence there. The chancellor considered it to be a well settled rule that a defendant cannot go into chancery for a new trial when no special ground of fraud or surprise is suggested, and when he neglects without due excuse to defend himself in the proper place. In Dodge v. Strong, 21 Ch. Rep. 230, the same principle is recognized. In Lansing v. Eddy, 1 J. Ch. Rep. 49, it is said by the court that if a party suf fers a judgment to pass against him by neglect, he cannot have relief for a matter of which' he could have availed himself at law. The case of Smith v. Lowry, 1st J. Ch. R. 323, was where the defence was fraud, one of the favorite objects of chancery jurisdiction. And the court ruled that cases of relief against judgments at law on the ground of fraud were, where the fraud could not have been met and defeated at the trial. Whatever might have been the disposition of courts of chancery in former times to grant men trials in hard cases, applications at this time are very rare', owing to the liberal extent to which courts of law have gone in exercising the same jurisdiction. In this state, the reason upon which such applications are cautiously received and jealously watched in other , countries, is greatly strengthened by the liberal provisions of our act of assembly, which allows a review of the grounds offered for an application to the court when the trial is had, on an appeal to this court. A party must therefore be culpably negligent of his interests not to obtain a full and fair examination of his claims in the trial at law. In Le Guen v. Governeur and Kemble, 1 J. cases, 436, this subject was fully discussed and examined and the rule laid down to be as I have stated it, on the authority of the cases already cited, and I have not been able to find any case in New York, in which it has since been departed from. In Graham v. Stagg, 2 Paige’s Ch. R. 323, the court refused to entertain a bill for relief against a judgment at law, when it appeared that the defence was ample at law, and that complainant was prevented from making it by filing a plea which did not cover his defence.

It is true that there are many cases in which a different rule has been adopted, yet I apprehend that in most of them it will be found that there is some feature which exempts them from the operation of the general rule laid down by judge Story,and adopted by the supreme court of the United States and by that of New York. Thus the case of Gainesboro v. Gifford, 2 P. Williams, 424, was a case where the defence was purely legal, yet equity relieved the defendant after judgment, on the ground that a receipt for the debt under the plaintiff’s hand was afterwards found. This does not conflict with the rule as above laid down, for the defendant had no knowledge of the existence of the receipt at the trial. And it may be remarked that the. authority of this decision has been very much questioned, and in some instances expressly repudiated. But without questioning its soundness, I deem it sufficient that it shows a special ground for relief. The case of Mayhew v. Crickett, 2 Swanston, 168, is not very intelligible. The chancellor remarks that the defence was available at law, but the ground for relief being matter of concurrent jurisdiction, he entertained jurisdiction. The case in 1 Atkins, 126, was when an off-set was offered at the trial and rejected, and the chancellor relieved the party on the ground that it was matter of account. The case of Hughes v. McCoun, 3 Bibb, 254, was the case of a set-off, and decided on the same principle.

These cases and others like them go on the principle that where equity had originally exclusive jurisdiction of the subject matter, it cannot be ousted of its powers because the courts of law have taken cognizance of the same matter. I confess I am unable to perceive the just foundation for a different rule in one class of cases of concurrent jurisdiction from that which has prevailed in other classes. The policy of the general doctrine before noticed, that in cases of concurrent jurisdiction the court which first gets jurisdiction must decide finally, demands, in my opinion, universal application, and in that sense it appears to have been regarded by the supreme court of the United States. I look upon the contrary doctrine as at war with the best interests of society, by encour-agingslitigation.

It is the safest practice in all cases to refuse relief in equity after a trial at law, when the court possessed ample powers to adjudicate the subject. It cannot be tolerated that a party to a suit at law, with a full knowledge of his defence shall be suffered to sit by and offer no objection to the claim of his adversary, and then find protection in equity, for no other reason than that the subject was one of original, exclusive chancery jurisdiction. But it is said that whatever may be the rule as far as the mere private interests of the parties are concerned, yet the court of chancery will, to protect the public policy of the law, interpose. And the case of Harrington v. DuChatel, 1 Brown, ch. R. 124, is relied on as an authority for this doctrine. That was the case of a bill filed after a suit at law had been commenced on a bond, praying that the bond might be delivered up and cancelled, on the ground that it was given for a consideration which was against public policy. The consideration was a recommendation to a public office — and the chancellor decreed it to be cancelled. That case came before the chancellor under a different form from the one at bar. There the defendant at law did not lie still and suffer a judgment to go against him. He appealed at once to the exclusive jurisdiction of a court of chancery to cancel a void deed.

But the decisions in England on this subject are not uniform. Thus in Gray v. Matthias, 5 Vesey, 295, the action at law was upon two bonds, one for past and the other for future illicit cohabitation. Upon a bill for an injunction it was objected to the relief that the party should have plead at law — and the court remarked that as the objectionable matter appeared on the face of the bond, the defendant should have demurred, and that though in such cases equity may have concurrent jurisdiction, it was not fit that it should entertain it in that particular easel This was surely a much stronger case so far as public policy and the preservation of good morals can add sanction to the jurisdiction of a court of chancery, than the one at bar.

1 conclude then that upon authority as well as principles of public policy the bill in the present case cannot be sustained. This defence was available at law, and no good reason is furnished why it was not then brought forward. The complainant alledges that he was ignorant of this ground of defence, but the answer expressly denies that allegation, and the whole circumstances of the case show that if he did not know it, he might have learned it by the most ordinary diligence. The slightest enquiry would necessarily have placed it within his knowledge. I think the decree of the chancellor should be affirmed.

Sharkey, Chief Justice, concurred on the first point, as to the void character of the contract, but dissented as to the second point, the want of jurisdiction.

Noth. — This case was decided at a former term, but omitted in the reported decisions.  