
    *Mosby v. Haskins et al.
    Spring Vacation.
    1809.
    Injunctions — When Granted at Cost of Complainant.-— Rules in granting injunctions. Under what circumstances relief will he granted, but at the costs of the complainant.
    The bill in this case was brought to be relieved against a judgment at law, obtained under these circumstances: that the plaintiff had no knowledge of the existence of the suit at law, until after the judgment was obtained; and he presumed that when the writ was served upon him, it was understood to be a process in a suit in Chancery, which had been brought, as he supposed, to subject his wards, but which he found had been dismissed. The prayer of the bill was for an injunction and general relief. To this bill John Haskins filed an answer, and stated, among other things, that if the inattention relied on in the present case be deemed a sufficient ground for the interposition of a Court of Equity, it would always be in the power of a party to make his defence in a Court of Equity, instead of a Court of Law. And a motion was now made to dissolve the injunction which had been awarded.
    
      
      «Equitable Relief — Fraud—Surprise.—In Holland v. Trotter, 22 Gratt. 141, itis said: “Tile cases in which courts of equity have refused relief, have been cases where the failure to make defence in a court of law has resulted from the laches or negligence of the party setting up his demands in a court of equity. They have always granted relief, however, when it is shown that the reason why the defence was not made, was founded in fraud, accident, surprise, or some adventitious circumstance beyond the control of the party. Mason v. Nelson, 11 heigh 227; Mosbv v. Haskins, 4 lien. <h Munf. 427; (De-graffenreid v. Donald), 2 Hen. &M. 10.”
      The principal case is also cited in note to same case; also, in Knapp v. Snyder, 15 W. Va. 441.
    
   By the Chancellor.

The general rule is, that where relief can be afforded at law, it shall not be asked for in this Court, but under such circumstances as the plaintiff could not control, and which must be true. By these plain and simple principles then, let the present question as to jurisdiction be tested. A suit in Chancery had been brought, which might have embraced this very subject, and the defendant, the present plaintiff, was served, as he supposed, with process in that suit, and therefore he may have been so far mistaken, as to aver with great truth, that he had no remedy at law, since he suffered a judgment to go against him, when in fact he did not know that he was sued. Could there have been a more complete surprise, than in the first instance to "have met with an execution instead of a capias? There certainly could not to my mind; and hence a good ground for relief in equity. But it is said, that this will always admit a party to make his defence in equitj, instead of at law. To this argument two sufficient answers may be given; 1. Tljat if, upon the coming in of the answer, the circumstances relied upon in the bill appear not to be true, the Court will always dissolve the injunction ; as in this case, if the defendant could shew that before the judgment at law the plaintiff really' knew of the suit, he should not be any longer entertained in this Court, but should abide the consequences • of his own neglect; and, 2. Though the circumstances may be true, and relief afforded, yet, in general, it must be at the costs of the plaintiff.

Attention to these rules will afford, as it is believed, a sufficient corrective to those who might otherwise be disposed to sport with the sacred obligation of an oath.

Motion to dissolve denied, and the accounts referred to a Commissioner.  