
    Charles A. Stockley v. Rowley, Ashburner & Co.
    CnAsrCERY Jurisdiction. Waiver. Act of 1852, eh. 865, $ 9. Prior to the passage of the act of 1852, it .was the settled rule that if a party neglected to make his defence at law, whether the defence were purely •legal, or, from its nature, both legal and equitable, and no obstacle in the way oí such defence existed in the legal forum, he could not afterwards avail himself of it in a Court of Equity. Rut this rule is so far changed by the act of 1852, that, at least, in all cases not unfit for the investigation of a Court of Equity, if the defendant neglect to avail himself of the objection to the jurisdiction, by demurrer, and answers to the merits of the bill, the objection is waived and cannot afterwards be insisted on.
    EROM MEMPHIS.
    The bill was dismissed by his Honor, Judge Carutii-krs, at the May Term, 1858. The complainant appealed.
    E- M. Terser, for the complainant.
    Eraud being originally and properly cognizable in equity, is a ground for coming into a Court of Equity for relief against a judgment, although the complainant attempted, unsuccessfully, to avail himself of it in the trial at law. Thus, a party sued on a bill single for hire of a slave., represented to be sound, but really unsound, and known to be so by the obligor, will not be repelled from a Court .of Equity when asking for relief against the judgment, though he attempted to bar the suit at law by relying on the fraud. Cooke, 242, 245; 1 Meigs’ Dig., p. 248, sec. 8, of title 404.
    Fraud, to say the least, is of both legal and equitable cognizance, and the defendants having answered to the merits, a Court of Chancery will take jurisdiction.
    There is another objection to the defence of former judgment. The defendants rely upon it in their answer. This cannot be done. It can only be available by plea. 1 Meigs’ Dig., p. 244.
    T. S. & S. W. AyRES, for the defendants.
    Where a Court of Law having jurisdiction of the parties and subject matter, has heard and determined the facts and rendered judgment, a Court of Chancery will not afford, any relief.
    A Court of Chancery can give no relief against a judgment at law, on the ground of a defence which the party could have made at law, unless he was prevented from so doing by accident, fraud, or some act of the opposite party. Grwinn v. Newton, 8 Hum., 710 y Bice v. B. B. Bank, 7 Hum., 39.
    In this case, the matters set up in the bill of complainant shows a defence purely legal, which was made at law, and heard and determined by the Court of Law, and a Court of Chancery will not afford relief. White v. Oahal, 2 Swan, 550; Bumpass v. Beams, 1 Sneed, 595.
   McKinney, J.,

delivered the opinion of the Court.

This hill was filed to enjoin a judgment recovered by the defendants against the complainant, on a promissory note for $413.17, made by the latter to the former on the 14th day of April, 1854, payable six months-from date.

The consideration of the note was a quantity of oil sold by the agent of defendants to complainant, in the city of Memphis. The bill alleges that the agent of defendants, at the time of the sale, represented the oil to be what is called “machine oil,” and to be of goods quality, and suitable for that purpose. But that it was found, on examination, to be entirely unfit for the use for which it was purchased, and of little or no value.

The answer denies that the oil was unfit for the use for which it was purchased; and it is also denied, that the defendants’ agent made any representation to the complainant whatever, in respect to the kind or quality of the oil.

The proof of two witnesses establishes very fully the representations of the agent as to the description and quality of the oil as charged in the bill. The witness, Guthrie, proves that he purchased some of the oil from the complainant, and sent a barrel of it to the Memphis and Charleston Railroad; but it was returned to him as of no value, and the superintendent stated that it “nearly ruined his engines.”

The Chancellor dismissed the bill .on the ground, it is said, of want of jurisdiction to interpose after a, trial and judgment at law.

The decree ignores the effect of the act of 1851-2, ch. 365, sec. 9. Before the passage of that act, it was the settled rule, that if a party neglected to make his defence at law, whether the defence were purely legal, or, from its nature, both legal and equitable, and no obstacle in the way of such defence existed in the legal forum, he could not afterwards avail himself of it in a Court of Equity. But this rule is so far changed by the act above referred to, that, at least, in all cases not unfit for the investigation of a Court of Equity, if the defendant neglect to avail himself of the objection to the jurisdiction, by demurrer, and answers to the merits of the bill, the objection is waived, and cannot afterwards be insisted on.

Such is the present case, the defendants having answered without exception to the jurisdiction, and they are now precluded from doing.so.

The case must be remanded for an account. From the allegations of the bill, the oil was not entirely worthless; and, therefore, the failure of consideration was only partial; consequently, the complainant must account for its reasonable value, with interest thereon.

Decree reversed.  