
    Jesse Meek et al. vs. Titus Howard.
    Where a judgment at law has been obtained against a person, he cannot obtain relief in equity against the same, on the mere allegation that the grounds of his defence were not known to him at the time of the trial at law, admitting that defence to have been a good one; he must also show that he used at least ordinary diligence to discover them, or that they could not have been procured by such use.
    A surety on a bill single, against whom a judgment at law had been rendered by default, filed his bill for relief against the judgment, on the ground that previous to the judgment the holder of the bill had given time to the principal debtor, the bill alleging further, that the complainant was not ■advised, at the time, of any legal defence at law, that he could plead in bar of the suit; but the pleadings did not aver, nor did the proof show, that he sought information of the principal as to the delay in bringing the suit, or used any diligence or precaution to ascertain whether any defence existed at law; Held, that a court of equity could give no relief against the judgment; and that, in fact; the true construction of the language of the bill as to the reason for not making the defence at law, was not that the complainant was ignorant of the facts, but of their legal effect.
    
    In error from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    On the 24th day of November, 1842, Titus Howard filed his bill, in which he states, that on the 28th February, 1837, R. M. Spicer, as principal, with B. D. Smith and complainant, as securities, executed to one Thomas Drake a joint sealed note for the sum of $2,300, payable on the 25th of December, 1837, which note was executed in consideration of a negro man sold by Drake to Spicer; that the negro was the property of Meek, and the note immediately passed into his hands by indorsement from Drake, and that Meek became the holder and owner; suit was instituted on the note in the circuit court of Carroll county, and judgment obtained against Spicer, Smith and the complainant, by default, at the October term, 1839, for $2,300 debt, and $329 damages and costs.
    The complainant further charges, “ that not having been advised, at the time, of any legal defence at law, that he could plead in favor of the said suit, he, therefore, suffered judgment to go against him by default, as aforesaid; ” that afterwards he delivered collateral security to Meek, for whose use and benefit suits were brought. It consisted of a note on G. W. Hufham and John Wright, for about $1800 or $1900, including interest, which he charges has been paid to Meek, except about $200 or $300, which he charges to be in a judgment in the circuit court of Carroll county, against John Wright; and also some other means which need not he noticed. He charges further, that long before the institution of suit against Spicer, Smith and complainant in the year 1838, complainant requested Meek to bring suit, &e. on this note; that he did not wish to remain security for Spicer any longer, as he considered Spicer a reckless man; that he has been informed, and believes, that after this request made by complainant to proceed to collect the money on this note, Meek agreed to and did give further and larger indulgence to Spicer, in consideration that Spicer would pay to Meek a certain sum of money about the sum of $100 in addition to the sum named in the note, which agreement was made and entered into and carried out without the knowledge or consent of complainant. At the time the request to sue was made, Spicer was in possession of a large amount of property, and if suit had been instituted at the time, the money might have been made out of Spicer’s property, without harassing complainant; that Meek made a new contract with Spicer, and did, for a valuable consideration, give Spicer longer time in which to pay the note without the knowledge or consent, and against the expressed wish of complainant. The hill charges fraud and combination, &c.
    It is not deemed necessary to notice the allegations ,of the answer; nor to set out the proof, as this court decided the case on the face of the bill.
    The chancellor perpetually enjoined the judgment against Howard and Smith; and Meek prosecuted this writ of error.
    
      Cothran and Howard, for plaintiff in error.
    1. The defence set up in the hill was a good one at law, and was not there made; and the reason given in the bill, for not having made the defence at law, was not sufficient to entitle him to relief inequity. He shows no diligence; no conversation with his principal; the delay in bringing the suit was sufficient to put him on the inquiry; he has not shown that he could not have discovered the facts of his defence by due diligence. Perry v. Martin, 4 Johns. Ch. R. 566; Hare v. Sprowl, 2 How. (Mi.) R. 772; Green v. Robinson, 5 lb. 80; 4 Bibb, 168; lb. 348; lb. 414; 2 Eq. Dig. 324, $§ 4, 9, 10, 12, 16, 17; 3 Johns. Ch. R. 356; 1 S. & M. Ch. R. 474; 2 Sto. Eq. 179, § 895; Land v, Elliott, 1 S. & M. 611; 1 S. & M. Ch. R. 524,
    2. The complainant was guilty of gross negligence; no excuse whatever is shown why the defence at law was not known or sought for. In such case a new trial will not be granted. Perry v. Martin, 4 Johns. Ch. R. 566; 1 How. (Mi.) R. 113, 114; Nash v. Harrington, Aiken’s R. 39.
    3. The money paid for the delay was usurious interest; if suit had been brought for it, usury might have been plead and payment of the note avoided; the consideration, therefore, for the stay was void, and there was, therefore, no valid contract for the stay. Wilson v. Langford, 5 Humph. 320.
    4. If a party does not pursue his remedy with diligence, he will be held to have waived it. After the judgment, the complainant gave the collateral paper to Meek, and thus waived his right, if he had any, to relief. 1 S. & M. Oh. R. 134, 390; 3 S. & M. 693; 1 Johns. Ch. R. 42; Sto. Bill of Ex. § 320, n. 1, p. 363; n. 1, p. 364; 1 S. & M. Ch. R. 126; Sadler v. Robertson, 2 Stew. Ala. R. 520; 2 Cow. 139.
    
      Sheppard, on same side.
    1. The character of Howard, as surety, did not appear on the face of the bond; the defence must, therefore, have been made at law, and could not be made in equity; the party is estopped from making it there. Willis Sp Conley v. Ires, 1 S. & M. 319. He should have produced the bond, or alleged that he was surety on its face. Bank of Steubenville v. CarroWs Administrators, 5 Ham. 207.
    
      2. The statements in the bill, may be true in fact, and yet Howard have known the facts which constituted his defence at law, and yet not have known the law which made it a defence.
    3. He should have looked to his principal for his defence. Leggett v. Morris, 6 S. & M. 729.
    4. From the great lapse of time, more than three years from the judgment to the filing of the bill, he is precluded from making his defence in equity.
    
      Waul, for defendant.
    1. The decree was correct, Howard alleges, and it is not denied, that he had no knowledge of the defence at law when sued there. This is sufficient.
    2. The note was under seal, and he* was estopped from denying his liability at law.
    3. The contract for delay is fully established; the decree, therefore, should be affirmed.
   Mr. Justice ThacheR

delivered the opinion of the court.

The complainant, Howard, with one Smith, was a surety of Robert M. Spicer in a bill single, executed to Drake, rvho assigned it by indorsement to Jesse Meek. He claims to be discharged upon the ground, that after the bill single became due, the assignee, Meek, made an agreement with Spicer, without the knowledge or consent of complainant, for further delay, upon the consideration of about one hundred dollars, for which amount Spicer gave Meek his promissory note.

The bill of complainant shows that on the 28th day of February, 1837, Spicer, as principal, and Smith and Howard, as sureties, executed to Drake a bill single, jointly, which was afterwards indorsed by Drake to Meek. Suit was instituted upon the bill, and a judgment by default recovered thereon. The bill of complainant further sets forth, that the complainant “ not having been advised at the time of any legal defence at law that he could plead in bar of said suit, therefore suffered judgment to go against him by default,” and, that, after the rendition of the judgment, he gave to Meek certain' collateral securities in payment of said judgment, a portion whereof the hill charges to have been collected by Meek.

The answer of Meek denies that any agreement for further delay of payment of the bill was made by him with Spicer, but admits that he applied to Spicer for a payment in full, or in part of the bill, after its maturity, and that he induced him to give his separate promissory note for interest accrued upon the bill, being in amount about ninety dollars.

The answer of Spicer admits that an agreement for further delay of payment of the bill single was made between himself and Meek, without the knowledge or consent of Howard, the complainant, and that the consideration of the agreement was his promissory note, for the sum of ninety dollars, which was given “ as interest in addition to the legal interest, or to accrue on” the bill single, and that the further time extended from the 13th September, 1838, until the following January, or thereafter.

The language of the bill of complaint makes it clear to every reasonable certainty, that the bill single bore evidence upon its face that Spicer executed it as principal, and Smith and the complainant, as sureties. It affirms that “Spicer, principal, and Smith and complainant, as sureties, executed” the instrument. It also charges that the complainant was not advised at the time of suit of any legal defence.” This language shows that after the judgment at law he did become advised that such defence existed at the time of suit, had the facts upon which it rested been known to him at that time. But in order to have placed himself in a position to claim the relief sought in equity, it was the duty of the complainant to have established beyond doubt all that is necessary to give the court jurisdiction.

Moreover, after a judgment at law, a court of equity should be slow to give relief in a state of case like that presented in this bill of complaint. The defence now set up in equity would have availed effectually at law, had it been then pleaded or relied upon. The mere allegation that the grounds of his defence were not known to a party at the time of the trial at law, admitting them to have been a good defence, is not alone a sufficient reason for relief in equity. A party must also show that he used at least ordinary diligence to procure a knowledge of them, or that they could not have been procured by the use of ordinary diligence. Taylor v. Manley, 6 S. & M., 305; Nevitt v. The Bank of Port Gibson, 6 S. & M. 513. It is obvious, in this instance, that an application to the principal in the bill single for information of the cause of the delay in instituting the suit at law, even after the suit was instituted, would have put the surety in the way of ascertaining the facts concerning it, and of shaping his defence at law. At least, it would have been a step in establishing the material circumstance of the exercise of diligence and precaution in the premises. Nothing of this kind is shown to have been done or attempted. It may also be observed that a fair construction of the language of the complainant, where, in his bill, he speaks upon the point now being considered, does not show that he was ignorant, at the time of the institution of the suit at law, of the fact of delay having been given to the principal by the assignee of the bill single, but that he was not advised at the time that he possessed any legal defence to the suit. It is more a confession of ignorance of the law than of. the fact. The bill of the complainant is therefore radically defective in failing to allege, and the proceedings in failing to show, this essential groundwork and preliminary to the nature of the relief claimed.

The foregoing view of the case makes it unnecessary to review and consider the validity or sufficiency of the consideration upon which the agreement for delay is alleged to have been contracted.

The decree must be reversed, and a decree entered in this court by consent of appellant, given subsequently to the reversal.  