
    Mack & Davis vs. Ellis Doty.
    This court will not relieve against a judgment at law on the ground of its being contrary to equily, unless the defendant was ignorant of the fact in question, pending the suit, or the defence could not be received as a defence at law, or unless without any neglect or default on the part of the defendant, lie was prevented by fraud or acudent, or the act of tile opposite party, from availing himself of his defence. This’has been frequently so decided by this court.
    But where the defendants were prevented from making their defence at law by the acts of the plaintiff until the only witness, by which the defence could be proved, was dead, and a resort to this court, in consequence thereof, become indispensable; it was held that the complainants were entitled to relief in this court, and that it was not necessary for them to take an appeal, and then apply to this court for a discovery, in order to entitle them to that relief.
    Where it appeared by the bill that the complainants became security for a third person to the defendant on two promissory notes, and that the defendant extended the time of payment three several times for ninety days each, without the knowledge or assent of the sureties, and the maker of the notes at the time of the extension was able to pay, but at thg time to which payment had been extended, ho had become insolvent, and the defendant had commenced two several suiis before a justice of the peace to recover the amount of the notes against the sure, ties, and they appeared and defended, and after the testimony was taken, the defendant who was plaintiff in the justices court discontinued his suits, and after the decease of the only witness on the part of the defence, new suits were commenced, upon which judgments were recovered, the suits being undefended; upon demurrer, it was held, that the case made by the blil was such as entitled the complainants to relief in equity, and that it was competent for this court to afford that relief in any stage of the proceedings as well after as before judgments at law.
    Demurrer to a bill for discovery and relief against judgments at law. The opinion of the court contains a sufficient statement of the case.
    A. D. Fraser in support of the demurrer.
    Bill seeks to enjoin two judgments recovered before a Justice of the Peace by default.
    The fact alledged, might constitute a good defence at law if pleaded. No reason is assigned for not making a defence at law, nor does it appear why a discovery was not sought while the action was pending at law, and before judgment rendered.
    It is conceded that the court would coerce a discovery in aid of inferior courts, and that the amount in controversy alone constitutes the test of jurisdiction. At all events it was the duty of the complainants to have appealed to the Circuit Court, and then come to this court for a discovery. 1 Eq. Abr. 131; Jer. Eg. Jur. 268,-9; 1 Madd. Ch. 195 ; 1 Chit. Dig. 591, &c.; 1 Paige 287.
    This court will not afford relief against a judgment at law, on the ground of ignorance of facts, mismanagement of Attorney, not even when perjury has been committed. “ There must be a clear case, of accident, surprise, or fraud before equity will interfere.” 2 Vern. 696; 6 J. C. R. 87; 10 Pet. R. 505; Fonb. 26, 27, 656,-7; 2 Paige 321; 1 J. Cas. 492, 502; 3 J. C. R. 352; J. C. R. 51, 395, 465, 320.; 4 Id. 566, 510; 7 Id. 135, 337; 1 Johns’ Dig. 1006.
    
    The parties should have put themselves in a situation to try the case by filing a plea. 6 ff. C. R. 480-1.
    As to matter beneath the jurisdiction of the court. 4 ff C. R. 186.
    Goodwin & Hand,, contra.
    If an obligee does an act to the injury of the surety, or varies the terms of his obligations, or enlarges the time of performance without his consent, the surety will be discharged. 1 Law. Lib. 68, 70, 73 75, 76, 77; 2 Bro. C. C. 579; 6 Dow. 540; 2 Ves., 540, 10 J. R. 587; 3 Kent 111: 12 Wheat. 554; Chit. on Bills, (8th ed.) 442, and cases cited ; 2 Swanst. 532; 2 Hov. on Fraud 71 and cases cited ; 4 Barn. & Cres. 506.
    The rules as to the relief of a surety are the same in a Court of Equity as in a court of law, when the facts are the same. 2 J. C. R. 554; 17 J. R. 384.
    When the sureties on the face of the instrument appear as sureties the defence may he set up at law; when they do not so. appear, it is doubtful as to whether the defence he available at law; in such case the jurisdiction of a Court of Equity is undoubted, and in the other case this court would seem to have a concurrent jurisdiction especiajly when a discovery is necessary. In this case the character of the complainants as securities does not appear on the notes. 1 Law Lib. 68 ; 4 Barn. & Cres. 506 ; 2 Swanst. 539.
    In equity persons appearing to be principals are permitted to prove themselves sureties. 1 Law Library 69.
   The Chancellor.

The hill alleges that the complainants became sureties for one McKinney, to Doty, upon two promissory notes, for fifty dollars each. Doty at three several times extended the payment for ninety days each, without the knowledge or assent of the complainants. That at the time said extension was' granted, McKinney was able to pay, but after the time t'o which payment had been extended by Doty had elapsed, was insolvent. That at two several times Doty commenced suits upon said notes before Robert Abbott, Magistrate. That the complainants appeared and set up their defence to wit: that they were sureties, and the extension-of the time of payment by Doty. That the only witness to support their defence, (the agreement to extend the time of payment) was one Sidney S. Hawkins, (since deceased,) who acted as the agent of McKinney, in that behalf and was on one occasion sworn, and gave his testimony ; and after the witness was examined, Doty discontinued his suit: That the parties appeared on both occasions and were ready to make their defence, &c., and the suits were discontinued. That after the decease of said Hawkins, the only witness, new suits were commenced, on which judgments were recovered, the said suits being undefended. To this bill there is a general demurrer. The ground of the defence is that this court will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant in the judgment, was ignorant of the fact in question, pending the suit, or it could not be received as a defence at law, or unless without any neglect or default on his part, he was prevented by fraud, or accident, or the act of the opposite party, from availing himself of the defence. This is undoubtedly the true rule, it has been frequently so held by this court. See Barrows vs. Doty, ante page 1; Wright vs. King, ante page 12 and note on pages 17, 18.

It is insisted, however, that this case does not come within it.— That the defendants below have been prevented from making their defence by repeated discontinuances, when the parties appeared to make their defence, until the death of the only witness. That from the constitution of Justices’ Courts, a continuance cannot be had fora sufficient time to obtain a discovery. That Courts of Chancery interfere with reluctance with inferior jurisdictions, and that this being a casé of original Chancery jurisdiction, this court should now entertain this bill and grant relief. In support of these grounds, the cases of Rathbone vs. Warren, 10 J. R. 396; Boyce’s Executors vs. Grundy 3 Pet. R. 214; 2 Swanst. 539, are cited. It is clear from the case made'by the bill, that the complainants were discharged from their liability. It is also undoubtedly true that Courts of Chancery have always sustained their jurisdiction in this class of cases. A Court of Chancery was formerly the only tribunal which could afford adequate relief. But recently courts of law have also given effect to defences of this kind. The Court of Chancery having originally exclusive jurisdiction, still retains it. But if the party has a good defence at law, and it is in his power to make it there, without a resort to this court; and he permits a judgment to pass against him, a Court of Chancery would not relieve him. It is apparent from the case as made, that the defendants by the act of Doty, after having two suits commenced, at two several times were deprived of making their defence, by the discontinuances, until the death of their only witness. That a resort to this court was indispensable, and that this necessity has resulted from the act of Doty, the plaintiff below. The only doubt in the case is, were the parties bound to apply to this court before judgment rendered in the court below. It has been urged that the defendants below could have taken appeals to the Circuit Court, and could then have applied to this court for a discovery, and would have been entitled to their remedy. I have entertained much doubt whether this case comes within the exceptions to the general rule as stated in the case in 10 J. R. 590, and 3 Pet. R 214. Was it necessary ? was it incumbent upon the parties to adopt this more expensive and circuitous proceeding to make their defence, after having on two several occasions appeared, in both suits, made their defence, and produced their witness ? lam inclined to think not.— The necessity for a resort here at all, has been caused by this extraordinary and unjust proceeding on the part of Doty, the defendant. In the case in 3 Pet., R. 214, where the court did relieve against a judgment, the judge in delivering the opinion of the court, says: “It is not enough that there is a remedy at law, it must be plain and adequate; in other words as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. ” He says, also : “ Although the defence might have been made at law, the complainant would still have been left to renew the contest upon a series of suits ; and that probably after the death of witnesses. The case in 10 J. R. was a case against bail; where the time had been extended. There had been a judgment in the Supreme Court against the bail, but relief still was granted. Here the complainants were prevented from making their defence by the act of the defendant. This was a case in which it would, have been competent for this court to afford relief in any stage of the proceedings and the resort here having been rendered indispensable by the act of Doty, it will be unjust and inequitable to permit him to take advantage of his own wrong.

Demurrer overruled.  