
    Fisher v. Greene.
    1. Equity will interfere to restrain an adverse party from availing himself of a judgment where there are any facts which prove it to be against conscience to execute such judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by fraud or accident unmixed with any fault or negligence in himself or agents.
    2. Where the facts upon which relief is claimed existed before the trial at law, and were known to the party asking the relief, or might have been discovered by the exercise of ordinary diligence, and was as much a defense at law as in equity, no redress can ordinarily be obtained in equity.
    3. A want of diligence that would forbid a continuance of the cause, would forbid disturbing the judgment.
    
      Error to District Cowrt of Arapahoe County.
    
    Greene, the defendant in error, commenced his action in the district court, founded upon a judgment obtained in the Superior Court of Cook county, in the State of Illinois. The plaintiff in error filed his answer and cross-complaint as follows :
    For a defense and cross-complaint, the said defendant alleges and shows to the court that the said plaintiff, on or about the 19th day of May, A. D. 1877, commenced a suit in assumpsit against this defendant in the Superior Court of Cook county, in the State of Illinois, and upon the same day, while this defendant was temporarily in the city of Chicago, in said Cook county aforesaid, upon his way to the State of California, he was served with process of summons commanding him to appear and answer in said suit.
    That at the time of service of said process of summons as aforesaid, this defendant was entirely ignorant of any cause existing for said action, or upon what demand the same could be founded.
    That he immediately demanded of the attorney of said Greene, who was then present with the officer who served said process, to know upon what demand or claim said action was founded, and was then informed by said attorney that said suit was based upon four certain promissory notes, executed in the city of New York in the year A. D. 1866, in the name of this defendant, by one W. F. Heyer, claiming at the time to act as the attorney in fact of this defendant in said city of New York, and that said notes had been assigned to said plaintiff, Greene, by George D. Bayand, the payee named in said notes, copies of which said notes are hereto attached, marked exhibits “A,” “B,” “O” and “D,” and are hereby made a part of this answer and cross-complaint.
    And this defendant further alleges and shows to the court, tliat he was even then at a loss to understand the grounds of such action, because at the time said notes bore date, the said George D. Bayaud, the payee in said notes named, was in fact the debtor of this defendant to a large amount.
    That at the time, to wit, A. D. 1866, this defendant was the special partner to the amount of twenty thousand dollars of said Bayaud, and since that time had received back only a very small amount of that sum.
    That at the time it is claimed said notes were executed, this defendant was residing in England, and by reason of the fact that eleven years had elapsed since the date of the execution of said notes and the institution of said suit, he' had never received any report of the existence of said notes of reference to the same, either from the said Heyer or Bayaud, and was in fact totally ignorant of the existence of said notes, never having seen or heard of them before they were presented to him in Chicago at the service of said process upon him as aforesaid.
    And this defendant further alleges and shows, that during the time he was a special partner of the said Bayaud, and previous to his leaving New York for England, he had been accustomed from time to time, for the accommodation of the said Bayand, to execute and deliver to said Bayaud his notes for various and large amounts, to be used by said Bayaud in the prosecution of his own business, and the same were protected and paid by the said Bayaud when they became due and payable, this defendant having no interest whatever in the same and not having executed the same for any valuable consideration, but solely for the use and accommodation of said Bayaud; and this defendant avers that if said four notes had been issued by the said Heyer, then the agent of this defendant in the prosecution of his business, the said Heyer would have made report and explanation of the same to this defendant; but this defendant says in fact that said Heyer never did report or inform him of the execution or existence of said notes.
    And this defendant further alleges and shows to the court, that said notes were executed and issued, if executed and issued at all, by the said Heyer, without any authority whatever from this defendant, and beyond and outside of the power and authority conferred upon him by this defendant; and this defendant alleges and charges, upon information and belief, that the said Heyer, well knowing the intimate business relations which had existed between this defendant and the said Bayaud, and knowing also that this defendant had before that time been accustomed to issue his notes for the accommodation of said Bayaud, as before stated, upon the urgent solicitations and false and fraudulent representations’and assurances of the said Bayaud, that this defendant would not object, and that the said Bayaud would protect this defendant in the premises, the said Heyer did execute the said four notes in this defendant’s name and deliver the same to said Bayaud without value or consideration, and solely for said Bayaud’s accommodation, although both the said Heyer and Bayaud well knew at the time that no such power to execute and issue said notes for such a purpose was conferred upon said Heyer by this defendant.
    And this defendant further alleges and shows to the court, that at the time of the service of said process of summons upon him, as before stated, he was further unable to comprehend the causes which led to the bringing of said suit in said county of Cook, State of Illinois, and the object to be attained by the parties, because none of the parties in any way interested in said suit, or any of the witnesses, were residents of said county or State of Illinois; that this defendant was then temporarily in said county and State, and the said plaintiff, Greene, resided in tbe city of Providence and State of Khode Island, and the said Bayaud and all the witnesses to this transaction in the State of New York; that this defendant had been in the United States several times since the execution and maturity of said notes, and that, too, with the knowledge of the said Bayaud, payee of said notes, and had many times during the year A. D. 1868, seen and conversed with said Bayaud in relation to his interest as such special partner, and said Bayaud had assured this defendant that there would be further payments coming to him by reason of said partnership; that although the said Bayaud Dow claims that during all that time the said four notes were in his possession, and were then unpaid, and that he had paid the money upon them at their maturity, and although this defendant was then able to pay said notes if valid, which fact was so known to the said Baj'aud, nevertheless this defendant avers and charges the fact to be true,-that said Bayaud never, in or at any of their interviews in the years A. D. 1868 and 1869, or at any other time, ever informed this defendant' of the existence of said notes or that he was possessed of the same, nor ever demanded payment thereof of this defendant.
    And this defendant further avers, that although said Bayaud now claims that said four notes passed into the hands of his assignee in bankruptcy some time in the year 1870, nevertheless this defendant avers that he never received from said assignee any notice that he held said notes against this defendant, nor was he ever called upon by said assignee or said plaintiff to pay said notes, although the residence of this defendant was well known to said Bayaud and said Greene, and, as this defendant believes, was also well known to said assignee in bankruptcy; that the residence and address of this defendant at the time aforesaid was in London, England, and that such fact was at all times well known to the said Bayaud at the time he so possessed said notes, and was also well known to the said Greene, who now claims that he purchased said four notes from the said assignee in bankruptcy of said Bayaud at the sale of said bankrupt’s effects some time in the years A. D. 1873 or 1874; that the said Bayaud and the said Greene, at any of the times aforesaid, could and should have taken some legal measures to have collected the said notes, and could and should have commenced such legal proceedings either in London or New York for the collection of said notes; but this defendant avers that neither the said Bayaud or the said Greene ever informed this defendant of the existence of said notes, nor ever wrote to this defendant concerning them or their payment, or took any steps whatever to collect said notes by suit or otherwise, although this defendant’s address and residence and movements to and fro from England to the United States, were always well known to them, but negligently and fraudulently, for the purpose of injuring, cheating and defrauding this defendant, concealed the existence of said notes from this defendant in the manner aforesaid from their date and maturity for the space of about eleven years, and then brought suit in said Superior Court of Cook county, in the State of Illinois, a long way distant from the said residence of this defendant and from the residence of the said Bayaud and Greene, and from all the witnesses, and evidence in the cause was readily and easily procured with less expense ; and while this defendant was temporarily in said city of Chicago, county of Cook and State of Illinois, on his way to the State of California, with the fraudulent intent and purpose, as this defendant believes and so charges the fact to be, to injure, harrass and annoy this defendant, and in order to take advantage of this defendant’s ignorance of the existence of said notes and the circumstances under which said notes were executed and put into circulation, and to compel him to, compromise and settle what the said Bayaud and Greene knew to be an unjust claim, already barred by lapse of time and the statutes of limitations in said State of New York, well knowing that the said Heyer, who had executed said notes as the agent of this defendant, and who had acted theretofore as the agent of this defendant, as before stated, and who knew all the facts and circumstances connected with the execution and delivery of said notes, had long since, to wit, sometime in the year A. D. 1868, died, and well knowing that this defendant was at the time without the knowledge of evidence wherewith to successfully defend against said action, and that all evidence regarding said notes, their nature, use and existence, and the facts connected therewith, was peculiarly within the sknowledge of the said Bayaud, the said Greene, and the said assignee of said Bayaud.
    And this defendant further alleges and shows to the court, that at the time of the service of said process upon him, he immediately employed an attorney to appear for him and defend said suit in said Superior Court'of Cook county, but not knowing at the time the evidence that could or would be produced by said plaintiff in said suit to substantiate his said claim, and being ignorant of the facts and circumstances connected with the execution and possession of said notes by the plaintiff and said Bayaud, he was unable to give his said attorney but scant information with reference to the same; that in fact and in truth he was not at the time apprised of the facts surrounding said transaction to enable him to give his said attorney the facts, so as to make such defense to said suit as in justice and right he could have done had not said facts been. purposely and fraudulently concealed from him by the said Bayaud and the said Greene, and that all his said attorney could do' at the time, from the information then in the possession of this defendant was to file a plea of general issue, with certain pleas’denying the execution of said four notes; that thereupon, issue being joined on said pleas, certain depositions were taken on behalf of said plaintiff, including the testimony of said Bayaud and said plaintiff, and certain other proceedings were had in said cause, resulting in a judgment against this defendant for the sum of $10,079.14 and costs of suit, which is the same identical judgment sued upon in this suit, and to which reference will be made more particularly hereafter.
    And this defendant further alleges and shows to the court, that shortly after said process was served upon him in said suit, he continued his journey to California to attend to important business matters, according to arrangements and plans made before said suit was commenced, and which required his immediate and personal attention, expecting and intending as soon thereafter as possible to return to England by way of New York for the purpose of collecting such evidence as he could find with reference to said four notes, and to examine his books, papers and letters, all of which were in London, England, with reference to‘his said business transactions with said Bayaud, and the letters and reports made to this defendant by said Heyer, who, it was claimed, executed said four notes in the name of this defendant, to enable this defendant to give his testimony in said cause; that after reaching California this defendant was taken sick, and was detained in California by reason of severe illness for along time, and was thereby prevented and unable to return to England before late in the fall of the.year A. I). 1878; that it was absolutely necessary for this defendant to examine his said books, letters and reports with reference to said business transactions with the said Bayaud, all of which were in London, England, in order to give his testimony intelligently in defense of said suit; that this defendant, upon leaving for England in the fall of A. D. 1878, as before stated, telegraphed to his said attorney in said suit to take such steps as were necessary to take his deposition in London, England, to be used on the trial in said suit; that his said attorney immediately thereafter, and on the 16th day of November, A. D. 1878, sued out of the office of the clerk of said Superior Court of Cook county aforesaid a dedimus potestatum,, or commission in said suit, directed to Joshua C. Munn, Esq., then Vice Consul of the United States at London, England, to take the deposition of this defendant to be used in said cause, but by reason of the notice required by the statutes to the plaintiff, said deposition could not be taken before the 15th day of January, A. D. 1879; that the taking of said deposition was begun on that day, but by reason of the engagements of said commissioner the taking of the same was not concluded, but was continued on the motion of said commissioner, and against the wishes of this defendant, until the ISth day of February, A. I)'. 1879, without the knowledge of this defendant’s attorney in said suit at Chicago; that on said 18th day of February, A. D. 1879, said deposition was completed and returned to the clerk of said court, where it was duly received and filed in said court, on the 4th day of March, A. D. 1879, but after said cause had been tried and judgment therein entered' against this defendant, as hereinbefore stated, and the term of said court expired; that the delay in the taking of said deposition -was not occasioned by reason of any fault or négligence on the part of this defendant, but solely by reason of the fact that other business arrangements prevented said commissioner from taking the same at an earlier day, and caused him to absolutely decline to take said deposition before said 18th day of February, A. D. 1879, as before stated.
    And this defendant further alleges and shows to the court, that his said attorney, on the 3d day of February, A. D. 1879, pfter due notice to the attorneys of the said plaintiff, applied to said court in which said action was pending for leave to file in said cause further additional pleas setting up the statute of limitations, and that said action could not be brought in said State of Illinois and had not been brought in said State of New York within the time limited by the laws of said State of New York, but that said court refused to allow said pleas to be filed, to which ruling exception was taken, copies of which said pleas are hereto attached, marked exhibit “ E,” and made a part of this complaint.
    And this defendant further alleges and shows to the court, that said suit was liable to be reached for trial on or about the 25 th day of January, A. D. 1879, and before the said deposition of this defendant could be returned into said court; that thereupon the attorney of this defendant applied to the attorney of said Greene to continue said cause until said deposition should be returned into said court, but he refused so to do unless it was agreed that said suit should be tried before the court without a jury; that the attorney of this defendant was compelled to so agree in order to have the benefit of said deposition; that said cause was thereupon continued for a certain space 'of time, and until the 19th day of February, A. D. 1879, for the purpose of awaiting the return of said deposition; that at the time of such continuance being made, the attorney of this defendant was entirely ignorant of the fact that the commissioner authorized to take said deposition in London had already adjourned the taking of said deposition until a later day than the one named in said commission, and that it would be utterly impossible for said deposition to be taken and returned in time to be used at said trial; that upon the calling up of said cause for trial on the 19th day of February, A. D. 1879, application was made for a continuance to the court, based upon an affidavit of the attorney of this defendant as required by law, setting out the facts hereinbefore set forth, and asking that said cause be continued so as to enable said deposition to be returned and used in said trial, which application was refused by said court, and an exception taken to the ruling of the court thereon; that said suit was thereupon, on said 19th day of February, A. D. 1879, tried by said court, without the said deposition of this defendant being so returned in said suit, contrary to the objection of this defendant; that by reason of the absence of this testimony of this defendant, and without his fault or negligence, he was unable to present his defense to the court in said cause, and judgment was, on said day, rendered against him as aforesaid; that thereupon a motion for a new trial was made by this defendant in said cause, and overruled by said court; that proper exceptions to the rulings of said court as aforesaid, as well as to the rulings of said court during said trial, were taken; that the same were duly incorporated in a bill of exceptions, signed and sealed by the judge of said court, and said cause was thereupon removed by writ of error, to the appellate court of said State of Illinois; that subsequently, and during the month of October or November, A. D. 1879, said cause was heard in said appellate court, and the said judgment affirmed; that thereupon said cause was regularly and duly removed, by writ of error, as this'defendant has been informed by his said attorney, into the Supreme Court of said State of Illinois, where the same is now pending and undetermined.
    And this defendant further alleges and shows to the court, that on the 18th day of February, A. D. 1879,. and in London, England, one day before the trial of said cause in said Superior Court of said Cook county, as aforesaid, he casually met one William H. Reynolds, with whom he had transacted business in the United States at various. times before the year A. D. 1866, in which it is claimed said four notes were executed, and, knowing that said Reynolds was acquainted with both the said Bayaud and the said Greene, he informed the said Reynolds of the said suit then pending against him in said Superior Court of said Cook county, as aforesaid, and of the claim therein set forth upon said four notes, and the facts in so far as he knew them; and thereupon, to the surprise of this defendant, the said Reynolds informed him that during the year A. I). 1866, by reason of certain business transactions by which this defendant was indebted to said Reynolds, he, the said Reynolds knowing of the special partnership existing between this defendant and the said Bayaud, and that said Bayaud was indebted to this defendant, he, the said Reynolds had, during the absence of this defendant in England, attached his interest as such special partner of said Bayaud, and that thereupon the said Bayaud had made a full statement of all the affairs of this defendant with said Bayaud, and after fully debiting this defendant with everything chargeable to him, had paid to said Reynolds, on the 25th day of January, A. D. 1867, the sum of five thousand dollars, this amount being all that was due this defendant after allowing the said Bayaud all the claims or effects which he had against this defendant, and which were due and unpaid from him to said Bayaud; and said sum was so paid by said Bayaud only after full satisfaction and discharge of all debts and sums of money then owing him from this defendant; and this defendant avers and states the fact to be that the said facts so communicated to this defendant by said Reynolds, with reference to said settlement, payment and discharge of said four notes, are true, as this defendant believes, and that he can prove the same by said Reynolds.
    And this defendant further alleges and shows to the court that in and by the testimony of the said Bayaud, as it was given and appeared in said suit at law in said Superior Court of Cook county aforesaid, at the time such settlement of the affairs of this defendant was had by and between the said Reynolds and said Bayaud as aforesaid, to wit, on the 25th day of January, A. D. 1867, the aforesaid four notes were then due and payable and in the possession of the said Bayaud, and under his sole control, and whatever money was due thereon was due and payable to said Bayaud; that the said Bayaud in his testimony in said cause, claims that he so held, owned and possessed said four notes, until they were delivered to his assignee in bankruptcy, some time in the year A. D. 1870, and that said notes passed into the hands of said Greene, who sued upon them as aforesaid, by a sale by said assignee, some time ih the year A. D. 1873 or 1874. This defendant avers and charges the fact to be, that said four notes were included in said settlement above mentioned between said Reynolds and said Bayaud, and that by reason of said settlement, so made as aforesaid, said four notes were fully paid, satisfied and discharged, and this defendant thereby fully released and discharged from any and all liability or obligation existing or arising thereunder.
    And this defendant further avers upon information and belief, and so charges the truth to be, that the said Greene, at the time he so purchased said four notes from said assignee, and before the bringing of said suit upon them, knew that said notes were long past due, and w’as fully informed of said set- ■ tlement, payment and discharge of said notes, and that by rea'son of such payment and discharge the said Greene ought not to have recovered judgment thereon in said suit against this • defendant.
    And this defendant further alleges and shows to the court, that by reason of the fact that such settlement was had by another person than said Iieyer, who, it was claimed, executed said notes, and while this defendant was away from New York and in England, he had no cause or reason to believe that any one besides the said Heyer and Bayaud knew anything about said notes, or that any transactions were had with Bayaud which included these notes, and that he was not acquainted with the facts above set forth in regard to said settlement until informed thereof by said Reynolds on or about the 18th day of February, A. D. 1879, as aforesaid.
    And this defendant further alleges and shows to the court, that during the pendency of said suit he made every effort in his power to discover the truth regarding said four notes, and to obtain evidence therefor on the trial, by making inquiries wherever he had any reason to believe that he could obtain even the slightest information on the subject; that he caused diligent search to be made in New York for the books and papers of the said Heyer, deceased, in the year A. D. 1868, which related to his agency and the time said notes bore date,but was unable to discover any books and papers, or to gain any information relative thereto, from any of the surviving members of the family of said Heyer, or from anyone else; that this defendant was compelled to examine the said plaintiff Greene, in order to try and discover the truth with respect thereto; that his attorney cross-examined the plaintiff’s witnesses exhaustively for that purpose, but without success, for the reason that such payment and settlement was then- unknown to this defendant or to his attorney.
    
      And this defendant further alleges and shows to the court, that upon receiving such .information from said Reynolds he at once applied to said commissioner, named to take the deposition of this defendant, to also take the .deposition of the said W. H. Reynolds at the same time, to be used in said suit, but the said commissioner refused so to do because the name of said Reynolds did not appear as a witness in the commission so sent to him; that this defendant then procured from said Reynolds a copy of the account as it existed in 1867 between this defendant and said Reynolds, and showing the receipt of five thousand dollars from said Bayaud on the 25th day of Januaiy, 1867, and attached the same to his said deposition taken in said cause; that this defendant also immediately wrote to his said attorney, stating to him this newly discovered evidence, and requesting that the testimony of said Reynolds be taken in London, England, as soon as possible; that he then believed that such deposition might betaken in time to be used on the trial of said cause, and not then knowing that said1 cause was to be tried upon said 19th day of February, 1879
    And this defendant further alleges and shows to the court, upon information and belief, and so charges the fact to be true, that his said attorney in said cause did not receive notice of such newly discovered evidence until about the 10th of March, A. D. 1879, and not until said suit had been tried and judgment entered in said canse, and the term of said court at which judgment was rendered had passed and ended ; that said evidence was unknown to this defendant until the day before said cause was in fact tried, and it was first made known to this defendant by said Reynolds in London, England, as before stated, at a point over three thousand miles distant from the place of said trial, and therefore that such evidence could not possibly be made use of on said trial, and could not be stated as a ground for a motion for a new trial because unknown at the time, and that it could not lega'lv be brought to the attention of said court so as to enable the court to take action thereon, or to grant a new trial thereon, by reason of the practice of said court and the strict rules of common law, which do not allow the granting of new trials after the term of court at which said trial was had and j udgment rendered has ended.
    And this defendant further alleges and shows to the court, that he exhausted all reasonable means and efforts to discover some evidence of payment, settleme it or discharge of said notes before the trial of said suit aforesaid; that such evidence of the payment and discharge of the said four notes as aforesaid would, if it could have been presented upon the trial of said suit, have produced a different result, and no judgment would have been rendered against this defendant. And the said de fendant avers that said judgment now existing in said suit is manifestly wrong and unjust, and if permitted to stand and remain in full force and effect, will compel this defendant to pay a claim which he does not owe, and which, if it ever existed, has already been once paid, satisfied and fully discharged.
    And this defendant further alleges and shows to the court, that he could not have established the fact of such settlement, payment and discharge of said notes by evidence in due season to present it upon the trial of said cause at law, because he was ignorant of such a defense to the action and the proof . thereof pending the said suit, without any fault or negligence upon his part, and that such 'ignorance could not have been avoided or controlled by diligence upon his part; that he was prompt and diligent in all matters relative to his defense to said suit, and made every endeavor to obtain evidence therefor, and was not guilty of laches, and in no way attempted or asked for delay in the proceedings in said cause, except his own application for a continuance long enough in which to return the said deposition of this defendant as aforesaid from London; that if said continuance had been granted by the court, this newly discovered evidence hereinbefore set out could have been secured and used upon the trial of said cause, and could have been fully heard and determined, and would have caused the said court to find the issues in that cause for this defendant; that said, testimony of the payment, settlement and discharge of the said four notes, as hereinbefore set out, if presented to the court, would present an entirely different case for this defendant from that which was before the court when judgment was rendered against him; that it is not what was tried before in’ said suit, but it is new matter then unknown to this defendant, and that such evidence is not cumulative in its nature, "but goes directly to the merits of said suit and substantial defense on the merits to the whole of the said plaintiff’s claim.
    And this defendant further alleges upon information and belief, and so charges the fact to be true, that in the purchase of said four notes from the said assignee in bankruptcy, as before stated, the said Bayaud acted as the agent of the said Greene; that the said Bayaud is and has been in some way interested in the prosecution of the said suit in which said judgment was rendered against this defendant on said four notes, and that said Greene and Bayaud have been acting throughout in collusion with each other in the commencement and prosecution of said suit for the purpose of cheating and defrauding this defendant and collecting from him what they both knew, and have all the time known, to be an unjust debt, and to have been paid, satisfied and discharged; that the said William H. Greene and the said George D. Bayaud, although well knowing that the said four notes were paid and discharged, wickedly and fraudulently conspired together to transfer the said four notes to said Greene without the knowledge of this defendant, who, as heretofore stated, was ignorant of their existence until the commencement of said suit, and thereafter fraudulently concealed from him the payment, settlement and discharge of the said four notes and all the evidence thereof, and cunningly, deceitfully and fraudulently withheld from this defendant and his attorney such information, when in their power so to give it, and deceitfully and craftily omitted all mention or reference of such payment in their testimon}' given in said suit; that the said Bayaud, in his testimony given in said suit, declared evasively that he had received no money on said notes from this defendant or his agent, Heyer, and declared that they were unpaid when they became due, and thus misled the attorney of this defendant on the cross-examination of said Bayaud, and to whom said payment to said Reynolds was then unknown, while he, the said Bayaud, well knew at the time he was so testifying that said notes were fully satisfied in the said settlement with said Reynolds, as hereinbefore stated.
    And this defendant further alleges, and charges the fact to be true, that the claim of the said Greene founded upon said four notes, and the judgment so obtained thereon against him is fraudulent and entirely destitute of foundation, and, under the facts hereinbefore set forth, could not have been made in good faith; that the said Greene knew that his said claitn was invalid by reason of its prior discharge at and before the commencement of said suit upon said notes, and that by reason of the said conspiracy and fraud of the said Greene and the said Bayaud to conceal the truth and facts and evidence heretofore set forth, this defendant was unable to make his defense to the said suit in said court, according to the truth of the case; that said judgment was thereby fraudulently obtained, without any fault or negligence of this defendant, and is wholly unjust and contrary to equity and good conscience, and should be vacated, annulled and held for naught, and a new trial ordered by this court, in order that this defendant may have the benefit of such newly discovered evidence, and be relieved from the said frauds of the said Greene and Bayaud.
    And this defendant further alleges and shows to the court, that on or about the 22d day of March, A. I). 1879, he filed his bill in equity against the said plaintiff, Grepne, in the said Superior Court of Cook county, State of Illinois, being the same court in which said judgment was rendered as aforesaid, and on the equity side of said Superior Court, setting up the same facts alleged in this answer or cross-complaint, and pray, ing in said bill that the said Greene may answer said bill; that said judgment be set aside, vacated and held for naught, and that a new trial of said cause be ordered by said court by reason of the said facts, and that said Greene, his attorneys, solicitors, agents and servants be perpetually enjoined from in any way attempting to collect said judgment, or from assigning or transferring said judgment, and restraining him from proceeding further against this defendant in said suit at law in said Superior Court of Cook county, and that this defendant might have such other and further relief in the premises as the nature of the case might require, and that a writ of injunction and process of subpoena issue against said Greeneyrestraining said Greene, his attorneys, solicitors, agents and servants from in any way attempting to collect said judgment and from proceeding further against this defendant in said suit, and commanding said Greene to answer said bill of complaint; that said process of subpoena did so issue, and that said bill is now pending in said Superior Court of Cook county undetermined, on the equity side of said Court.
    And- this defendant further alleges and shows to the court, that said Greene was,, at the time of filing said bill,of complaint as aforesaid, and is now, a resident of Providence, in th$ State of Rhode Island, and was fully apprised of the filjbg of s^id\bill in equity in said Superior Court of said Cook comity, as aforesaid, and that said bill was pending in said cousti undetermined; nevertheless, he, the said Greene, well knowing the fartfe, and knowing that he resided'beyond the jurisdiction offfiid Superior Court of said Cook county, and where he conia not be held amenable to its writ of injunction, and in furtherance of his said conspiracy with said Bayaud to cheat and defraud this defendant and cause him to pay said four notes unjustly, and to further annoy, oppress, cheat and defraud this defendant in the premises, after the rendition of said judgment and the filing of said bill in equity, procured a transcript of said judgment on said four notes, so as aforesaid rendered against this defendant, and on or. about the 15th-day of April, A. D. 1879, commenced this action against this defendant, which said action is based and founded upon the same identical judgment, so obtained as aforesaid upon said four notes in said Superior Court of said Cook county, and procured a writ of attachment to be issued in said last mentioned suit and levied upon .property in said county of Arapahoe as the property of this defendant; that the said Greene well knew at the time he commenced said suit in this Court that the said judgment, and the record of proceedings in which the same was rendered in said Superior Court of Cook county aforesaid, had been removed, by writ of error, to the Appellate Court of said State of Illinois, and was then pending and undetermined in said Appellate Court; that said Greene also well knew at the time of the commencement of this suit that this defendant had also filed said bill in equity in said Superior Court, praying the relief as hereinbefore stated, and that said bill was then, and is now pending in said court undetermined; that said Greene also knew, and is informed of the fact, that'after said judgment was affirmed by said Appellate Court as before stated, that the said judgment and record of proceedings in said cause were thereupon removed from said Appellate1'Court to the Supreme Court of said State of Illinois for rpvjew, a»d that the same is now pending and undetermined in saic»®npreme Court.
    'Wjiereffire |he said defendant demands judgment, and that he be pgffljnitiietí in this action to show that said four notes, upoimrhich said judgment was rendered, were paid, satisfied and dwharepd lopg before said judgment was rendered, and that saia« plaintiff be enjoined by this court from collecting said judgment from this defendant, and that said plaintiff be temporarily restrained from proceeding further to prosecute this suit until the said suit now pending in said Supreme Court of Illinois is fully determined and ended, and also until said bill in equity, now pending in said Superior Court of said Cook county, is also determined and ended; and that this defendant have such further and other relief in the premises, as to the court may seem just and equitable in the premises.
    The defendant in error interposed a demurrer, and alleged as grounds therefor: ' ' .
    
      First. That the same does not state facts sufficient to constitute a defense to this action.
    Second. Upon the ground that said answer and the matters and things therein contained do not constitute any defense to the cause of action alleged in the complaint herein.
    Third. Upon the ground that the facts alleged in said answer are not sufficient to constitute a cause of action, nor to entitle the defendant to the relief therein prayed.
    Fourth. Upon the ground that the cross-complaint in said answer does not state facts sufficient to constitute a cause of action.
    Fifth. Upon the ground,, that the facts set forth in the cross-complaint in said answer are not sufficient to entitle the defendant to any relief.
    The demurrer was sustained and judgment rendered for defendant in error.
    To reverse this judgment the plaintiff in error prosecutes tins writ.
    Messrs. Charles & Dillon, for plaintiff in error.
    Mr. ¥i. B. Mills, for defendant in error.
   Elbert, C. J.

This is an action on a judgment obtained by Greene against Fisher, in the Superior Court of Cook county, Illinois, February 10, 1879, for $10,079.14.

The only question concerns the sufficiency of the defense presented by the defendant’s cross-complaint.

The cross-complaint is in the nature of a bill to enjoin the collection of a judgment at law.

The relief asked is, that the defendant be permitted “to show that said four notes, upon which said judgment was rendered, were paid, satisfied and discharged long before said judgment was rendered,” and that said plaintiff be enjoined from collecting said judgment.

Stripped of its verbiage, the cross-complaint presents two grounds of relief against the judgment sued on. First. Fraud, in tliat the promissory notes upon which this judgment was obtained, were not the notes of the defendant; were falsely and fraudulently obtained from an agent having no authority to execute them; were made without consideration, and came to plaintiff’s hands after maturity, coupled with the inability of the defendant, without fault or negligence of his own, to present his defense in the trial at law.

Second. Payment, the evidence of which first came to the knowledge of the defendant after it was too late to produce it at the trial at law.

In regard to injunctions after a judgment at law, Mr. Story \ states the general principle to be “that any facts which prove it to be against conscience to execute such judgment,.and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law, but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will authorize a court of equity to interfere by injunction to restrain the adverse party from availing himself of such judgment.” 2j Story Eq. Jur. Sec. 887.

Again he says: “But where the facts upon which relief is claimed, existed before the trial at law, and were known to the party seeking the relief, or might have been discovered by the exercise of ordinary diligence, and were as much a defense at law as in equity, no redress can ordinarily be obtained in equity.’ 2 Story Eq. Jur. Sec. 15, 72, ct seq.

The facts stated by the cross-complaint do not bring the defendant’s case within these rules.

That the notes upon which the judgment was founded were not the notes of the defendant; that they were falsely and fraudulently obtained from an agent having no authority to execute them; that they were without any consideration, and came to the hands of the plaintiff after maturity, were all matters of defense of which the defendant should have availed himself in the action at law, and without more, is not sufficient ground for equitable relief.

This is not controverted, but the defendant claims, “ that by reason of the absence of his, the defendant’s, testimony, without fault or negligence on his part, he was unable to present his defense to the court in said cause.”

This allegation is predicated on the fact that the defendant’s depositiod, which was taken in the City of London, did not reach the court sitting in Chicago in time for the trial, and this he alleges was without fault or negligence upon his part.

The defendant tells us in his cross-complaint, that “ it was absolutely necessary for him to examine his books, letters and reports with reference to said business transactions with the said Bayaud, all of which were in London, England, in order to give his testimony intelligently in defense of said suit.”

Notwithstanding this necessity, and the considerable amount iiwolved in the litigation, the defendant did not start for London,’ until some time in the fall of 1878; and the dedimus to take his deposition, was not issued until the 16th of November, 1878. The law of notice was such that the deposition could not be taken under the dedimus before the 15th of January, 1879, and the engagements of the commissioner were such that it was not completed until the 18th of February, 1879, the day before 'that fixed for the trial of the cause in Chicago. The service of summons was on the 19th of May, 1877. Thus it appears the defendant delayed eighteen months after the service of summons before he started on this journey to London, which he says was necessary to enable him to testify intelligently concerning his defense.

Why he did not send for his books and papers is not explained, and why he did not start sooner on so important a mission, is but indifferently explained. He alleges in general terms that he went to California “on important business,” was taken sick and was detained “for a long time.” Such allegations are too indefinite for acceptance. We are unable to form any judgment, either of the importance of the business which took him to California, or of the length of the time he was detained by illness. Judgments at law would be of but little avail, if they could be opened up upon such a showing.

These same facts were submitted to the court that tried the cause in an application for a continuance, and the refusal of the continuance was assigned for error in the Supreme Court of Illinois. Craig, J., says:

“ The motion was predicated upon an affidavit of the attorney of the defendant, to procure a continuance on the ground that the deposition of the defendant, Fisher, had not been returned into court. It is quite apparent from an inspection of the affidavit that due diligence was not used to obtain the evidence, and for this reason, if for no other, the court could not do otherwise than overrule the motion.

“ It appears from the affidavit that it was necessary for Fisher to examine his books and papers, which were in the city of London, before he could properly testify in the case. That he went to London in November or December, 1878; but the pleas were filed in June, 1877, and the affidavit does not satisfactorily show why Fisher did not go to London sooner. Almost eighteen months intervened after the issues were made up before the defendant started for London. It is true the affidavit attempts to show that defendant was detained in California by business and sickness, but the nature of the business is not shown, so that the court might see that he was necessarily detained. But if the defendant had been detained in this country by business, for aught that appears, he could have sent for his books and papers, and then had his deposition taken here, or appeared on the stand in person. The rule is well settled that a case will not be continued to obtain the deposition of an absent witness, unless due diligence has been used to obtain the evidence. We are satisfied from a careful perusal of the affidavit, that if such dih’genee as a prudent man would exercise had been used, the evidence might have been obtained; and that it was the fault of the defendant that the evidence was not procured.”

A want of diligence that would forbid the continuance of a cause would surely forbid disturbing the judgment. In our view the claim of the defendant that he was unable to avail himself of his defense at law, without fault or negligence on his part, is wholly without foundation.

Upon the question of newly discovered evidence of payment, the cross-complaint is equally unsatisfactory. It consists of allegations of what one Reynolds told the defendant. It alleges that on the day before the cause was set for trial, he met to his surprise, one William H. Reynolds, an old acquaintance, with whom he had transacted business before the year 1866, and that, knowing of Reynolds’ acquaintance with both Greene and Eayaud, he informed him of the suit then pending against him; and then Reynolds informed him, that in January, 1867, he had attached all of his (Fisher’s) interest as a special partner with Eayaud, and that thereupon Bayaud made a full statement of all the affairs of the plaintiff in error with said Bayaud, and after debiting plaintiff in error with everything chargeable to him, he paid Reynolds the sum of $5,000, all of Fisher’s interest, and that this sum was paid only after full satisfaction and discharge of all debts and sums then owing from him to Bayaud.”

This information given the defendant by Reynolds is made the basis of his defense of payment.

It is open to several serious objections.

1. It is but hearsay, and can have no status in a court of justice. It is unsupported by anything in the nature of evidence, not even by the affidavit of Reynolds to the details of the settlement which is claimed operated as a payment and satisfaction of the notes in question.

2. It is to be observed that Reynolds in this conversation spoke of a transaction twelve years prior thereto; of an attachment suit against Fisher’s interest in the firm of Fisher & Bayaud, of which no record evidence is presented; of an indebtedness to Reynolds on the part of Fisher of $5,000, of which Fisher then heard for the first time; of a statement of the affairs of the firm of Fisher & Bayaud, of which it is not alleged by either Reynolds or the defendant that it included the notes in question.

That the notes were paid and satisfied by the settlement, is but an inference of the defendant, and by no means a necessary one. They were not the subject matter of the settlement, nor does Reynolds say that they were in any manner dealt with or even mentioned.

That Reynolds would testify to what he told the defendant, we are not advised, further than the defendant believes he wouldj and were he to testify to all he is alleged to know, it would, at best, raise but an inference.

That the partner, Bayaud, for the purpose of relieving the firm of an attachment, should pay $5,000 on the personal indebtedness of his partner, Fisher, when Fisher was personally indebted to Bayaud in the sum of $10,000 is not necessarily impossible. It certainly is not more unreasonable than other features of the story.

The case made by the cross-complaint, in its facts, and in their sufficiency, falls far short of the cases cited in its support, and in our judgment does not authorize us to disturb the judgment at law.

The judgment of the court below is affirmed, with costs.

Affirmed.  