
    Daniel Thomas, et al. vs. Benjamin E. Phillips.
    A court of equity will not interfere, to give reljef against a judgment at law, where the remedy at law was fully adequate and unembarrassed.
    After judgment at law the defendant therein has no right to come into equity, unless for some reason which prevented his defence at law, without negligence upon his own part; even though the contract upon which the judgment was founded were against public policy, contrary to express statute, and in violation of the constitution of the state.
    T. filed his bill in the superior court of chancery, averring that L. sold him certain negroes, in the year 1835, which L. had that year introduced into this state, for sale and as merchandise ; that L.’s assignee sued T. at law, and obtained judgment against him and his sureties, upon a note given for part of the purchase money of said negroes, and prayed for an injunction against an execution upon the judgment at law; Held, that T. and his sureties were not entitled to relief against the judgment.
    On appeal, from the decision of the superior court of chancery.
    Daniel Thomas filed his bill in chancery, alleging that John H. Siebe bought of Tedence Lane a number of negroes, in the month of November, 1835, &c., since the adoption of the new constitution, which negroes Lane had imported into this state for sale, and as merchandise, after that instrument became the fundamental law. That notes were executed, to secure the payment of the purchase money, amounting to about fourteen thousand dollars, he (Thomas) and one Robinson becoming securities. That his principal and co-security becoming insolvent, he, complainant, has paid the whole, except about five thousand dollars. That plaintiffs sued at law and obtained a judgment, which he prays may be enjoined. An injunction was granted by.his honor Judge Turner, of the court of appeals, which, on motion, the Chancellor dissolved, and Thomas appealed.
    
      Mayes and Clifton, for appellant.
    It is now conclusively established that contracts, such as that set forth in the bill are void, as against the policy of the state, and the only question now for discussion is, can chancery relieve after a judgment at law 1
    
    It has been decided by this court, in the cases of Green v. Robinson, 5 How. 80, and Glidwell v. Hite, et al, 5 How. 110, that the Chancellor cannot relieve. In each of these cases, the chief justice dissented, and therefore the question is considered as yet fairly open for argument.
    The opinion of the majority of the court, as delivered by Judge Trotter, will be respectfully examined.
    We will commence by stating, and desiring that it may be borne in mind through the whole discussion,
    1st. That the subject-matter of this bill was not before the court of law, and has never been adjudicated or set up, in any manner or form, until in the present case.
    2d. That the contract is void, at law and in equity.
    3d. That contracts of this class are not held void, either at law or in equity, because of any merit in the defence, as between the immediate parties, but solely for the protection of the public against violations of its policy.
    4th. That the parties to this controversy cannot be said to be in pari delicto, Thomas being only a security, and no party to the illegal transaction.
    Having premised this much, we will proceed to examine the reasoning and authorities of Mr. Justice Trotter. He commences by an assertion, that “it is a general principle that the judgment or decree of a court of competent jurisdiction, shall be final as to the subject-matter decided, and not as to that merely, but as to every other which might have been decided.” we object to this proposition, and its influence on the case :
    1st. That if it be a general principle, as stated, that general principle has never been held to embrace cases where the exclusive ground of relief is to protect the public, by supporting the fundamental policy of the government, and where the justice of the whole case, as between the parties, forms no ingredient in the principles upon which the courts proceed. The whole of the argument, on this branch of the subject, proceeds merely upon a view of the case as it relates to the individual parties, and excludes the consideration of public policy. This is most manifest; for he proceeds, “ some period must be prescribed to controversies of this sort, and what period can be more proper, than that which affords a full and fair opportunity to examine and decide all the claims of both litigants. This imposes no hardship, since it only requires a reasonable degree of vigilance and attention,” &c. Admit this all to be sound, in cases where mere justice between man and man is involved, its application to the present case is denied. In cases turning on public policy, the claims of both,litigants are wholly disregarded. The abstract and moral justice of the case is against the party prevailing. The public are to be protected, and its- policy supported, and therefore only the courts interpose. The public is, then, the real litigant, the actual party relieved, and an opportunity was not afforded to the community to have its claims investigated; by no kind of vigilance or attention could the public have brought its case before-the court. It did not fail to have its claims investigated, in consequence of its want of vigilance or attention, but because one of the parties to the violation of its fundamental law, did not choose to bring forward its case. The idea enforced in the opinion is, that' the relief to the public is lost by negligence, yet it is a universal rule, that no laches, or neglect, shall be attributed to the public; and even those limitations of time which, in private matters, constitute a bar, are not held to extend to the public. The maxim of the common law is, Nullum lempus occurrit regi. We see, then, that where the public is concerned, these rules (whether they relate to laches or to time,) which are designed to give repose to society, or, to use the language of the opinion, to “ prescribe some period to controversies,” do not apply, but give way to a higher consideration — the promotion of the welfare of the community — by supporting and carrying out the public policy. ■ That is the paramount principle, pervading the whole spirit of the law, and essential to the well-being of civil society, and therefore has found a place in the code of every state and nation of Christendom, with which we are acquainted. And it would be against right reason and sound policy to declare, that this paramount rule' should give way to one subordinate, because by its application in the present instance, an individual (as one of the consequences of its application) might be heard, and incidentally, as-a means of upholding and enforcing the constitution, escape the payment of a sum which, apart from considerations of public policy, he might be required to pay.
    That the public is regarded as the real party is not to be controverted. In 1 Story’s Equity, § 298, we read: “ But in cases where the agreements, or other transactions, are repudiated, on account of their being against public policy, the circumstance, that the relief is asked by a party who is particeps criminis, is not in equity material. The reason is, that the public interest requires that relief should be given, and it is given to thq public- through the party.”
    And here we find another confirmation of my position, that the maintenance of the public policy is of paramount importance, and throws out of the way of the courts all the rules and maxims which obtain in cases of mere private right. In the section, the conclusion of which I have just quoted, it' is said, “ And, here, it may be well to take notice of a distinction, often, but not universally acted on in courts of equity, as to the nature and extent of the relief, which will be granted to persons, who are parties to agreements, or other transactions against public policy, and therefore are to be deemed participes criminis. In general, (for it is not universally true) where parties are concerned in illegal agreements, or other transactions, whether they are mala prohibita, or mala in se, courts of equity, following the rule of law, as to participators in a common crime, will not at present interpose to grant any relief, acting upon the known maxim, In pari delicto, portior est conditio defendentis, et possidentis. But,” &c., proceeding with the words first quoted. We now perceive that not only can you impute no laches to the public, or compute time against the public, but that the fixed maxims and cardinal rules of law and equity bend before the all-controlling weight of the great consideration of public policy. It were vain to multiply instances ; they pervade the whole system of jurisprudence ; and their necessity lies at the very foundation of civil society.
    2d. I object to the application of the rule laid down in the opinion, and before quoted, that if it be true as a general rule, that proves nothing in the present class of cases, they constituting exceptions to general rules. To entitle it to influence it must not be a general rule only, it is necessary that it be a universal rule ; and such, in the concluding part of the opinion, it is considered; for the opinion asserts that, in the opinion of the writer, the doctrine demands universal application. Thus giving a universal effect to what it sets out with as but a general rule.
    3d. I object to the rule laid down in the opinion, so far as it asserts that a judgment is final, not only as to the matter decided, “ but as to every other that might have been decided,” if by this is meant other matters, not involved in the trial, b.ut yrhich might have been set up as a defence, but was not. If it is not to be so understood then it has no application or influence in the case, as the matter of the bill, namely, the illegality of the contract, was not set up, and so not involved in the trial. If it.is so to be understood, it is not correct either in law or in equity. A and B are mutually indebted. A sues B, who might plead a set-off, but does not. Now the case is one -in which the matter of set-off might have been decided, if relied on ; and according to the opinion, because it could have been relied on and was not, B would be concluded as- to his cross-demand by the judgment of A against him Yet what is more common than that an action at law by B, on his cross-demand, or what is more common than to go into equity, and there obtain the set-off which might have been insisted on at law ? So far from the position being true to the extent stated in the opinion, the rule at law is that a judgment is merely evidence where it is directly upon the point in question, and is not evidence of any matter which comes collaterally in question, nor of any matter incidentally cognizable, nor of matter of inference. 1 Salín 290.; 2 Saund.on -Plead...and.Ev. ¿L20j,n, The case of ¡Sintzenick v. Lucas, Esp. N. P. Cas, 44, was an action for unskilfully varnishing certain prints, the property of the plaintiff, whereby they were spoiled. It appeared that an action had been brought by the present defendant against the present plaintiff, for work and labor in varnishing those prints, in which the present defendant had a verdict ; and it was contended that as the present plaintiff might have defended himself in that action by showing that the prints had been spoiled, the verdict in that action must be held to be conclusive evidence in bar of this; but it was held by Lord Kenyon that to make a verdict evidence to conclude any matter it should appear that that matter was in issue, which should appear from the record itself; nor should evidence be admitted that under such record any particular matter came in question, for that would be to try the cause over again. 2 Esp. N. P. 423, New York ed. 1811. In Buller’s N. P. 232, it is laid down, that when it is said that a verdict may be given in evidence between the same parties, it is to be understood with this restriction, that it is of a matter which was in issue in the former cause, for otherwise it will not be allowed, &c. It is unnecessary to multiply citations, for there is no contrariety of authorities. So far then from its being true that a judgment is conclusive, as to all matters which might have been put in issue and tried, we find that a verdict and judgment is not even evidence, except in cases where it appears from the record that the precise matter was in issue and tried.
    Having ascertained that the position assumed in the opinion is incorrect at law, it might be sufficient to dismiss this branch of the investigation with the single remark, that chancery will in no instance give to a legal judgment a greater effect than would the court of law, whose judgment it is, and bring within its influence and conclusive control matter which the court of law would say was excluded. If in any case chancery would do this (and that I deny) it surely would not do so to exclude its powers in a case of concurrent jurisdiction, and to enable a violator of the constitution to triumph over the policy of the state.
    But inasmuch as the opinion refers to certain authorities, as giving countenance to its doctrines as to the effect of a judgment at law, it is considered expedient to give to these authorities a somewhat extended examination, and it is confidently believed that when carefully examined and properly understood, they in no degree whatever support the opinion under examination, and that it is only upon a reading very superficial that they can so mislead the judgment, and seem to give countenance to a doctrine so new, so startling and so dangerous to society as that asserted in th'e opinion.
    The first reference is to 2 Story’s Equity, 179.
    In the first place it is to be remembered that Story is only treating of the ordinary rules applicable to injunctions where private rights merely are at stake. He has no reference to cases where the public interest is concerned, and where justice, as between man and man, is against the complainant, and relief given to the public through the party. In the next place, he is only treating of cases where the very matter of the bill had been set up and relied on at law, and has no reference to cases of concurrent jurisdiction, where the defence has not been set up at law. I do not say that he is so explicit as to defy the possibility of mistaking him, but he is sufficiently so to be readily understood by one who will study the work and the subject. He commences by a statement that “ courts of equity will not relieve against a judgment at law, where the case in equity proceeds upon a ground equally available at law; but the plaintiff ought to establish some special ground of relief.” That by the expression “ equally available at law,” he means no more than that the matter of the bill had been actually set up and relied on at law, and was then equally available, is manifest from several considerations.
    1st. The only authority by him referred to on this subject is Harrison v. Netíleship, 2 Mylne & Keene, 423; in which case the only question was, (as is stated in and appears from the case itself,) “whether a plaintiff in equity, who had pleaded a set-off in an action at law, and failed, could sustain a bill without a special equitable ground, for an account relating to the same transactions in respect to which he had pleaded a set-off.”
    
      2d. It is further manifest from the fact that he immediately proceeds to say, in the very next sentence, “ The doctrine goes yet farther, and it may be asserted to be a general rule, that a defence cannot be set up as the ground of a bill in equity for an injunction, which has been fully and fairly tried at law, although it may be the opinion of a court of equity, that the defence ought to have been sustained at law.” Now the last passage quoted, instead of carrying the doctrine yet farther, would fall infinitely short of the first instead of carrying it farther, if the first is to be considered as including cases of concurrent jurisdiction where the matter of the bill has not been relied on or set up as a defence at law. But each being understood to be predicated of cases in which the defence has been relied on at law, the second does carry the doctrine yet farther, and make it embrace cases in which, in the opinion of a court of equity, the defence ought to have been sustained at law. The only authority referred to by Story for this last position, is Marine Insurance Co. v. Hodgson, 7 Cranch, 336; in which case the defence had been set up at law; and Chief Justice Marshall, in delivering the opinion, says, and Story but repeats his language, “ It may with equal safety be laid down, as a general rule, that a defence cannot be set up in equity, which has fully and fairly been tried at law, although it may be the opinion of that court that the defence ought to have been sustained at law; ” and when it is remembered that, in that case, the matter was not only set up at law, that it was clearly, if a defence at all, a legal defence, and not a case of concurrent jurisdiction, and that even there Chief Justice Marshall says, “ It will not be said that a court of chancery cannot interfere in any such case. Being capable of imposing its own terms on the party to whom it grants relief, there may be cases in which relief ought to be extended to a person who might have defended, but omitted to defend himself at law.” We see that Judge Story cannot be understood to mean, and that his cases do not mean, that this general rule, even in cases where the defence was actually made at law, should be, in the language of Judge Trotter, of universal application ; and we also discover that they were not thinking of or writing respecting cases, in which the jurisdiction was concurrent and the defence was not attempted at law. That they had no idea of the rule, as laid down in the opinion, is yet more manifest when we proceed with Story’s worky and find that he, Lord Redesdale, has stated the doctrine with great clearness and force, and that Story gives the very words of Lord Redesdale, who says, “ It is not sufficient to show that injustice has been done; but that it has been done under circumstances which authorize the court to interfere.” And why? Lord Redesdale gives the answer: “ Because if a matter has been already investigated,” (not if a suit has been pending at law, in which it could have been investigated,) “ in a court of justice, according to the common and ordinary rules of investigation, a court of equity cannot take on itself to enter into it again.” And after some general remarks, Lord Redesdale proceeds to put the full scope and extent of his opinion beyond doubt by saying, “ I do not know that equity ever does interfere to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed there, and over which a court of law had full jurisdiction.” The draftsman of the opinion would seem to have understood .the passage as if the disjunctive conjunction or had been used instead of the conjunctive, in the latter member of the sentence. For, although he adopts the language of Lord Redesdale, as quoted by Story, and uses the conjunctive.and, where he says, “ Equity will never interfere to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed then, (there,) and one of which a court of law has full jurisdiction.” His conclusion is, that if the matter might have been relied on in a court of law, and was not, equity will not interpose, even in a case of concurrent jurisdiction. Thus much it has been thought necessary to say respecting that part of the opinion which is therein said to relate to the power to grant a new trial at law, because that forms the basis of the opinion on what is said to be the second question — the power of chancery to relieve on the ground of concurrent jurisdiction, in cases of contracts against public policy.
    
      In discussing the question, whether equity can in this class of cases relieve, where the illegality of the contract was not set up at law, the first authority referred to by Judge Trotter, in support of his opinion, is Smith v. Mclver, 9 Wheat. 532; 5 Cond. Rep. Sup. Court U. S. 662. In the first place, that was not a case of a contract against public policy, and therefore proves nothing in the case in hand. In the next place, the identical matter set up in the bill had been relied on at law and fully tried, and therefore has no relation to the proposition it is invoked to support. This appears from the whole case; and in delivering the opinion of the court, Chief Justice Marshall says, “ The questions in these cases have all been decided, and the party can have no right to bring them on again before a court of chancery.” The reason then plainly is, as far as this case goes, that these questions had been decided at law.
    The next case referred to in the opinion is Baker v. Elkin, 1 Johns. Ch. Rep. 465. This case, like the preceding, proves nothing against us, for two reasons : .
    1st. It was not a case where public policy was concerned.
    2d. It was not a case of concurrent jurisdiction. Tt is a case where a judgment at law having been obtained, the defendant at law, instead of pleading his set-off or payment, which consisted in a strict legal demand, filed his bill in equity to have a set-off, and he was refused relief because he should have defended at law. It is true that in cases of equitable cognizance, as when a complainant files his bill to foreclose a mortgage, the defendant may set up cross demands ; and the doctrines of set-off are the same in equity as at law, but equity never did take original jurisdiction to set off one legal demand against another. The party complainant there could not have gone originally and before suit at law into equity, to set up the matter of his bill, and set it off against the demand against him. In the case at bar we might have gone into equity, independent of and before a suit at law. Ours, then, is a case of original equity jurisdiction, and the case in 1 Johns, is not. It only proves that where a judgment at law has been obtained, that circumstance does fJAtelWWfefl idpoeqatiw ¡% jq^di&tiqn, ,tp, dqqrqe; i ^,. $¡eb¡$ff, should have been plead at law, and not that a judgment at law deprives equity of a jurisdiction, which, before the judgment, it had. Yet it must prove the latter proposition before it can weigh anything in the present case. He refers to the case of Dodge v. Strong, 21 Ch. Rep., which I have not been able to lay my hands on. It is said in the opinion to be the same in principle with Barker v. Elkin. If this be so, it is already disposed of.
    The case of Lansing v. Eddy, 1 Johns. Ch. R. 49: That casé is answered precisely as the last. It does not present a case, in which courts have relieved on the ground of public policy, nor of which equity has ever taken original jurisdiction. The case, as before said, only shows that the judgment at law did not confer jurisdiction on equity, and not that it took jurisdiction from it. The case of Smith (y Mead v. Lowry, 1 Johns. Ch. R. is next referred to, and its bearing upon -the present is not. at all perceived. A verdict had been procured against the complainant, and the damages were excessive; he moved for a new trial and failed; he filed his bill next to impeach the evidence of a witness, who, as he alleged, had been suborned to give false testimony; and the case was decided against his right to the aid of the Chancellor, Kent, saying, “ This question resolves itself into a mere question of excess of damages, arising from the want, as the bill expresses it, ‘ of due preparation ’ when the plaintiff went to trial.” And yet it is in the opinion made to resolve itself into and settle the question. Can equity, in a case turning exclusively upon public policy, for the relief of the public through the party, exercise' a branch of its unquestionable original jurisdiction, after a. judgment at law, in a case in which the matter which constitutes the ground of this original jurisdiction was not at all presented, or at all attempted to be presented, and is made to decide that the jurisdiction of chancery ceases, and the public are estopped by the judgment ?
    The case of Le Gueñ v. Governeur ¡y Kembatt, 1 Johns. Cases, 436, is next cited. It will be seen, from reference to the opinion of Ratcliff, in that case, that in most of the striking features of the opinion of the court in Green v. Robinson, they are literally copied from Ratcliff, and particularly that part of it which I have before examined, and as I believe refuted, and therefore it is unnecessary to repeat what has already been said. It is proper, however, to add, that the case of Le Guen v. Governeur, &c., was decided forty-three years ago, by three judges against two; that until this day its doctrines have remained unadopted; that I have shown that, all the later cases in that state relied on by Judge Trotter, fall short of it. That in his late work Judge Story has laid down the rule in equity quite differently, confining it to cases where the matter has been investigated at law. That the case itself is not supported by any of the authorities referred to by the judges or reporter, as is most clearly shown by William Yerger, Esq. in his fine argument in Hite v. Glidewell, that it is not a case founded on the principle of public policy, nor is it a casein which chancery had original jurisdiction to set aside a contract for fraud, but the suit at law was an action ex delicto, in which the fraud constituted necessarily and unavoidably a part of the precise matter under consideration, but the party, with a knowledge of that fraud chose to go to trial on other grounds, although the fraud was immediately involved, and was relied on at law in other cases, growing out of the same transaction. For all these reasons, even if that case was properly decided, it has no bearing upon the present. And when to all this is added, that the chancellor’s opinion was against that of the majority of the court, it comes to be but a case in which there were three judge? for and three against the opinion, the chancellor being one of the latter.
    
      Graham v. Stagg, 2 Paige’s Ch. R. 322, is next referred to, and only decides, (I give the words of the chancellor,) “ This court ought not to take cognizance of a cause, merely because a party has by mistake put in a plea which does not cover his defence in a court of law; when by the ordinary practice of that court he would be permitted to amend.” The ground of defence was exclusively legal.
    Having thus disposed of the authorities relied on in support of the opinion, I will proceed to notice that part of the reasoning of the judge which attempts to.show that there is no distinction as to the power of a court of equity in cases where public policy is involved. His commentary upon the cases of Hanington v. Du Chalel, 1 Brown’s Ch. R. 124, and Gray v. Matthias, 5 Yesey, 295, is curious and interesting. Of the former he says, “ That was a case of a bill filed after a sui,t at law had been commenced on a bond, praying that the bond might be delivered up and cancelled, on the ground that it was given on a consideration which was against public policy. The consideration was a recommendation to a public office, and the chancellor decreed it to be cancelled. That case cqme before the chancellor in a different form from the one at bar. There the defendant did not lie still, and suffer a judgment to go against him. He appealed at once to the exclusive jurisdiction of a court of chancery to cancel a void deed.” It is true that it came before the court in a different form, but did it come as far as any principle is concerned, nay, as far as the principle of his own argument is involved, in a different substance ?” Let us see; at page 106, he says, “ the court which first gets jurisdiction, must decide finally;” and he says that as applicable to cases of public policy, or it means nothing, as'the only case was a case of public policy. Well, at what lime does a court of law get jurisdiction of a cause? Is it only when it has given judgment? And it must be maintained that it only has jurisdiction where it has already rendered judgment, before the distinction between Hanington and Du Cha.tel, and the case of Green v. Robinson, can be maintained.' But it is said “he appealed at once to the exclusive jurisdiction of a court of chancery to cancel a void -deed,” namely, at once, after the suit was pending, and in fuII prosecution, on that deed in a court of law. Under these circumstances it seems to me that a plea in' bar, verdict and judgment for thfe defendant, would have been a pretty effectual cancellation of the bond. This part of the argument, when fairly reduced to the form of a syllogism, runs thus:
    “ The court which first gets jurisdiction must decide finally.”
    
      But in Hanington v. Du Chatel, the court of law first got jurisdiction.
    Therefore chancery can wrest from that court the case and decide finally, if applied to before judgment.
    Or thus : “The court which*first gets jurisdiction must decide finally.”
    But a court of law only gets jurisdiction by rendering judgment.
    Therefore chancery may interfere at any time before judgment.
    I confess I cannot form better syllogisms from the materials furnished in the reasoning.
    The other case, .Gray v. Matthias, is thus disposed of: “ The action at law was upon two bonds, one for past, and the other for future illicit cohabitation. Upon a bill for an injunction it was objected to the relief that the party should have plead at law, and the court remarked, that as the objectionable matter appeared on the face of the bond, the defendant should have demurred, and that though in such cases equity may have concurrent jurisdiction, it was not fit that it should entertain it in that particular case. This was-surely a much stronger case, so far as public policy and the preservation of good morals can add sanction to the jurisdiction of a court of chancery, than the one at bar.” And this, it is said, shows that “the decisions in England on this subject are not uniform.” Now in what does this want of uniformity consist. I cannot perceive it. In every case, and without the slightest doubt or hesitation, whether the question has arisen in law or equity, it has been decided that contracts against public policy were void. In every case in England, and the States of this Union, whether the instrument had not been sued on, or having been sued on, judgment had not been pronounced, and not only so, but after judgment, chancery has relieved if the contract was against public policy. But in one case it appeared on the face of the instrument that it was wholly void at law, and then the chancellor refused to interfere. And on what ground? solely and exclusively on the ground that the instrument, on its face, was, in point of law and equity, blit as a piece of blank paper ; a court of law never could pronounce judgment for the plaintiff at law. Although the defendant had omitted to demur, and ought'to have done so as the most speedy manner of bringing the case at law to an end, yet if a verdict had been obtained the court of law could not have rendered judgment, but must have arrested it. It was not a case in which there was a legal possibility that the plaintiff at law could recover, and the application to the chancellor was wholly idle. There was nothing for him to do. The instrument on its face being a mere nullity, he could not, by his decree, render it more null than a nullity, and therefore it was not a proper case for equity.
    A stronger authority in favor of the jurisdiction of chancery, in a case like the present, I cannot conceive of than that of Gray v. Matthias. In that case it is said, by the very learned counsel who opposed the granting of the prayer of the bill, “ if a defendant fails at law against a corrupt instrument, he may afterwards come into a court of equity. It is the common practice to relieve after a verdict at law, and to enjoin execution.” But they insist that it was not an illegal bond, and say, “ if this is an illegal bond, why should the plaintiff come here, if it is void at law?” The learned counsel, in reply, do not question the first position, but say, “As to the question of jurisdiction, upon the objection arising on the face of the instrument, it is ' equally within the determination of a court of equity.” Chief Baron McDonald, in pronouncing his opinion, says, “Without entering at all into the question of jurisdiction, it turns upon a plain point. The plaintiff comes upon a bond, declaring upon the face of it that' it is an invalid bond. The defendant should have demurred to the action upon that bond. Instead of that he comes here, professing that it is a piece of waste paper; he goes through the whole length of equitable litigation, bill, answer, commission, &c., at an expense, possibly, of two or three hundred pounds. In such a case, though equity may have a concurrent jurisdiction, it is not fitting, in the particular case, that equity should entertain the suit.” And why? The answer immediately follows: “ For it would be a monstrous hardship, if a man should come here, saying, another person has an instrument, good for nothing upon the face of it, that there is nothing of discovery wanting, but stating, that if the instrument is ever produced, it is good for nothing, and a piece of waste paper; yet seeking, by a long litigation in this court, to have that instrument delivered up. Thai is a case not to be encouraged,” &c. What can be more clear than that the ground on which the case goes, is only that there can be no danger of a recovery at law, that the instrument is but waste paper, and should not form the basis of a long and expensive suit in chancery. The doctrine that chancery will relieve, even after judgment, and that it is the common practice, is broadly asserted, and not denied or questioned. The court recognizes the general doctrine to the fullest extent, and expressly place the case on the ground before stated. And even this decision, which, I confess is to me very satisfactory, has been seriously doubted. See Fonblanque’s Equity, 229, of 2d American, and 5th London edition, in note.
    Having concluded the notice which I have deemed it necessary to take of the reasoning of the opinion in Green v. Robinson, I would beg leave to add a few remarks to the argument of the counsel on the part of Green, in that case.
    1st. The rule, that equity will not relieve a party who might and should have defended at law, is as well settled in England as in the United States. The whole of the adjudged cases relied on by the various courts, where decisions are referred to in support of this position, are based upon English decisions. Indeed there is no other source from which the doctrine can be derived, that being the source of all our ideas in relation to equity jurisprudence, as recognized in our laws. Yet there is neither case or dictum in the English books to the effect, that the rule, that where a party might defend- at law and does not, equity will not interpose, applies to cases where the courts of equity take cognizance of the cause, not for the sake of the party, but of the public. On the contrary, in every case, without exception, where a judgment at law had been obtained, and an injunction applied for, on the ground that the contract was void, on account of its being opposed to public polic5r, the relief has been decreed. In addition to the cases referred to in Green v. Robinson, and Glidewell v. Hite, et al., I would respectfully ask the attention of the court to Whittingham v. Burgoine, [3 Anst. 900, cited 2 Chit. Eq. Dig. 1185, in which, after judgment at law, and the money actually collected and in the sheriff’s hands, the court interposed, and decreed relief. In Cook v. Richards, 10 Yes. 429, injunction after judgment at law. In Evans v.* Richardson, as cited by Kent, in Griswold v. Waddington, 16 Johns. 486, the Lord Chancellor declared, that if the party has not set up the objection, the court will set it up. And this is in exact conformity with the doctrine, as laid down in 1 Story’s Eq. 300, that public policy should be supported by the court itself, however reprehensible the party. See als'o authorities referred to by Story, in support of the last stated position. See Gravier’s Curator v. Caryby's Executor, 17 La. R. 118. Same case, 132, where it is held, that if a contract is void, as against public policy, the court of appeals is bound to notice it, although not pleaded in the court below. See also Mulholland v. Voorhies, 3 Martin, N. S. 46.
    In every state in this union, in which they have a separate court of equity, the rule distinctly is avowed, that where the party has a legal defence, and omits to make it, chancery cannot relieve him without peculiar circumstances; yet no case is to be found, at least none has been found, in which it is said that this rule extends to and embraces cases of public policy. Without one exception equity has interposed in every case, in which the attempt has been made after judgment at law, without having on any occasion seeming to have spent one thought on the subject of its being a defence, of which the party might have availed himself at law. I have most diligently thumbed the indexes, and read the cases to be found in our libraries. I will not say that no case can be found. I may have overlooked some ; but upon the most careful examination, I have found no case adjudged, no doctrine to the effect, no argument of counsel reckless enough to contend, that the rule extended to a case such as this ; and it was reserved for the case of Green v. Robinson first to exhibit to the world a proposition, as antagonistic to the great conservative principles that have in all times governed courts of equity, as it is detrimental to the interests of society at large.
    The language of Chancellor Kent, in Griswold v. Wadding-ton, 16 Johns. 486, is as applicable to a court of equity as of law, and to a case after as before judgment. He says: “ The plaintiff must recover upon 1ns own merits, and if he has none, or if he discloses a case founded upon illegal dealing, and founded on an intercourse prohibited by law, he ought not to be heard, whatever the demerits of the defendant may be.” “There is, to my mind,” he continues, “something monstrous in the proposition, that a court of law ought to carry into effect a contract, founded upon a breach of law. It is encouraging disobedience, and giving to disloyalty its unhallowed fruits. There is no such mischievous doctrine to be deduced from the books,” &c.
    If it is here said that equity cannot interpose, because there was no defence at law, does it not come to this, that one of the parties to an illegal transaction can, by failing to make a defence at law, wrest from one of the public tribunals created to uphold the public interests, and not only clothed with power but charged with the duty of maintaining the public policy and solemnly sworn to support the constitution, the ability to maintain that policy and support that constitution? Is it not a declaration that the state has ordained two tribunals to carry out her policy, a court of law and a court óf equity, having concurrent jurisdiction in this respect, and that a violator of her constitution, by omitting to put it in the power of one tribunal to enforce the constitution, may paralyze the arm of the other tribunal, and so enervate and cripple it, that it must sit inactive when the case is fully made out, and see the fundamental law trampled in the dust? In the language of Chancellor Kent, “ there is, to my mind, something monstrous in the idea.” Again, to have recourse to the form of a syllogism, it stands thus:
    
      The state has, to support the public policy, created two tribunals, each charged with that duty.
    But a violator of the constitution has omitted to inform the one that he had violated it.
    Therefore the other, being informed, has no power to act.
    This is not more at war with right reasoning, than the conclusion is with sound jurisprudence. The fact is, that a defendant, in failing to make the defence, is guilty of a fraud upon the public; upon the trial at law, both plaintiff and defendant suppress the facts of the case, and thus deceive the court at law, and induce a judgment which the public interest forbids, and which the court, for the sake of the public, not of the party, would never have pronounced, had the truth been divulged. Then can the parties to the suit at law, by withholding the truth, and thus committing a fraud on the public and the court of law, deprive a court of equity of the power which, but for that fraud, it confessedly had, of protecting the public and supporting the fundamental law of the state! Let it not be forgotten that, in cases of this kiud, it is the public that is relieved, through or by means of the party, and that all benefit to him is merely the collateral consequence of the protection given by the court to the body of society.
    Again ; contracts against public policy are incapable of confirmation. This is a doctrine of equity. 1 Story’s Eq. 303, § 307.
    If equity can no longer relieve, this contract has some way been confirmed. The parties cannot confirm it, as we have just seen. How, then, has it been confirmed ! Did the court of law confirm it! Shall it be said that that court, whose duty it was to declare it void, and which we must indulge the supposition would have promptly discharged that duty, but that the facts were withheld from its knowledge, has, by having been deceived into a judgment which it ought not to have given, has so confirmed a contract in violation of the constitution, that a court of equity cannot discharge its duty, and enjoin the party from proceeding to enforce a judgment obtained by fraud upon the court ! If it is said that the court of law did not confirm it, and it surely did not, for it knew nothing of the facts of the case, .and never sanctioned them, I cannot conceive how it is confirmed; for surely a party defendant can no more confirm a contract by silence, than he can by acting. And if void in the beginning, and the parties could not and the court would not and did not confirm it, by what process is it that it has attained that high degree of validity, that solemn sanction, which will enable the negro merchant to ride over the constitution of the state, and crush an innocent security, who had no participation in his unhallowed dealings?
    If the rule acted on- in the case of Green v. Robinson is to prevail, then are the laws and the constitution a dead letter, or they are indebted to the negro trader for their vitality, and not to the court. So far as the courts are concerned, they are so easily evaded, that they must be but a jest and a scoff in the mouths of the evilly disposed. The negro trader has only to import his slaves, tempt the purchaser to buy on credit, sue out his writ, and take to a confederate a power of attorney to confess a judgment; or, to take a shorter and more simple course, instead of a promissory note, payable at six or twelve months, take a confession „ of judgment with stay of execution, for six or twelve months, and the constitution is killed stone dead. Your chancellors and' judges are worse than mere men of straw.
    
      W. TTerger, on the same side.
    The sole question presented by the record in this case is, whether or not equity will enjoin a judgment at law, which judgment was rendered upon a note, the consideration of which was a sale of slaves, illegally introduced into this state, and sold therein, since the 1st day of May, 1833.
    This court, in the case of Green v. Robinson, 5 How. 80, and Glidewell v. Hite Sp Fitzpatrick, 5 How. 110, have decided, that equity will not relieve in this case. The Chief Justice dissented from these opinions, which have never met the approbation of the bar. It is understood that the Chancellor, whose decrees they affirmed, has since changed his opinion, aud now coincides with the Chief Justice. The judge -of the district court also has decided in accordance with, the opinion of the Chief Justice. This is, therefore, deemed one of those cases in which the precedents are not deemed conclusive upon the court. Especially is this so deemed, because a great question of public policy is involved, and because a change of the rule of decisions will not operate injuriously upon any rights acquired since the decisions heretofore made and superinduced by those decisions. Greenleaf’s 5000 overruled Cases show most clearly, which common sense would have taught, that a precedent or decision of a former court is not conclusive, when founded upon a mistake of the law, or manifestly erroneous. See also Ram on Judg. 122.
    I shall, therefore, treat the case at bar, as one not definitively settled by precedent, and proper for examination upon its merits.
    In examining this case, we are struck by the seeming inconsistency in the adjudged cases, and the contrariety of decision which has prevailed, in this country and in England'; but after a careful review of all the cases to which I have had access, I have come to the following conclusions, in which I think sound reason and authority both sustain me.
    1. Where a party has a defence purely legal, and neglects to make it at law, or attempts to make it and fails therein, equity will not relieve him, unless he can show some fraud, accident, or mistake, by which he was prevented from making his defence at law.
    2. Where a party has a defence, of which courts of law and equity had concurrent jurisdiction, and he attempts to make, but fails to sustain it at law, equity will not grant him relief.
    3. If a party have a defence, of which courts of law and equity have concurrent jurisdiction, and he do not make, or attempt to make it at law, he may, after judgment, set it up in equity, and obtain relief.
    4. A court of equity will grant relief, after judgment at law, whenever the judgment is founded upon an agreement, which is prohibited by statute, or declared void on account of public policy, although the party may have failed to make his defence at law, and show no reason for failing.
    The first and second of the above propositions will command the ready assent of opposing counsel and of the court, and as they do not bear upon the merits of the case at bar, I shall proceed to the examination of the third and fourth, either of which being established, will decide this question in favor of the appellant.
    In order to sustain the first position, I shall cite for the consideration of the court the following adjudged cases, in England and the United States, comments upon which I shall reserve for argument at the bar. 1 Atk. 127. S. C. 1 Ves. 327. 2 P. Wms. 424. 2 East, 627. 13 Ves. 180. 3 Bro. Ch. R. 208. 7 Ves. 6. 2 Atk. 603. 1 Bro. Ch. R. 124. 2 Swans. 167, note (a). 3 Bro. Ch. R. 56. 5 Ves. 293. 10 Johns. 595. 14 lb. 65. 17 Johns. 389. '4 Paige, 653. 2 Washington, 36, 255. 1 Rand. 76. 3 lb. 135-214. 2 Hen. & Munf. 80. 2 Yerg. 476. 10 lb. 363. 4 Monroe, 299. 2 Bibb, 200. 3 1b. 249. 2 J.'J. Marsh. 139.
    _ Upon the fourth proposition I refer the court to 2 Swans. 165. 7 Ves. 6. 1 Rand. 76. 2 Hen. & Munf. 80. 3 Rand. 135-214. 3 Bibb, 249. 11 Ves. 535.
    There is a manifest distinction between the case at bar and those in which contracts are declared void, in order to protect the parties to them, as usury contracts, for example. There the relief is to the party ; here it is to the public, through the party.
    Another reason why relief should be given in this case is this, the contract on which this judgment was founded, was made^in violation of the constitution ; and consequently, whenever that fact is brought to the attention of any court, it is the duty of that court, sworn to support the constitution, to enforce its validity, and to give effect to its mandates. Upon this branch of the question, I refer to the opinion of the Chief Justice, in the case of Glidewell v. Hite, et al., 5 How. 110. I would likewise respectfully solicit the attention of the court to the brief made out by me in that case, in which I sought, after- a labored analysis, to sustain the positions here taken by me.
    
      E. W. F. Sloan, for appellee.
    Is the appellant entitled to relief in chancery upon the allegations of his bill? This I admit is the only question to be discussed in this cause; for if the negative of this question is sustained, there is no error in the decree of the Chancellor dissolving the injunction.
    It is not' denied that contracts made in contravention of a positive law, or of public policy, are void. Nor is it denied 'that such a contract as that described in the bill would be embraced in the former denomination of contracts, because such has been the solemn adjudication of this court. But it is denied that the appellant is entitled to the relief sought, upon the matters apparent in the face of his bill. If the decisions of this court in the cases of Green v. Robinson, and Glidewell v. Hite, are to be regarded as authority in this or any inferior court, this question may be considered t#s settled. This seems to be admitted by the counsel for the appellant, and the correctness' of those decisions is called in question, and the opinions of the court reviewed at considerable length. It is said the opinion of this court, in the case of Green, corresponds, in its main features, with that of the supreme court of New York, in the case of Le Guen v. Governevr, 1 Johns. Cas. 492. “The general principle, that the judgment or decree of a court of competent jurisdiction shall be final.as to the subject-matter thereby determined,” was in that case “ conceded on both sides.” “ It is not only final,” says Radcliff, J., “ as to-the matter actually determined, but as to every other matter which the parties might litigate in the cause, and which they might have decided.”'
    Kent, J. concurs fully, and declares that it is a sound and salutary principle of law, that every person is bound to take care of his own rights and vindicate them in' due season. “ Accordingly, if a defendant, having the means of defence in his power, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded.” He admits an exception to this rule, only in those cases where the matter of defence does not affect the validity of the plaintiff’s demand, but constitutes a separate, independent claim in the hands of the defendant, a counter claim which might be the subject of a cross action ; as in case of set-off, or in ejectment, where the defendant neglects to bring forward his own title. The reason of this exception is obvious. The counter claim and the title in the defendant’s hands do not constitute, necessarily, matters of defence. Lansing, Ch. J., acknowledges the general principle, “ that a point determined by a court of competent jurisdiction, shall be conclusive against all parties who were in a situation to controvert it,” to be so well established as to leave no doubt in his .mind.
    It is insisted, on the part of the appellant, that this rule is only applicable to cases in which the matters of defence are purely legal; that where the grounds of defence are within the concurrent jurisdiction of courts of equity, the rule does not hold. This principle, I insist, is not confined to cases of that kind only, but extends to all cases where there has been a full and fair trial at law. There are some cases to be found, which will be noticed hereafter, where it is said, that if the defendant is alike relievable in law and equity, he may elect in which to defend; that he may allow judgment by default to go against him at law, and yet be relieved iniquity. But if he pleads at law, and judgment is rendered against him, he is precluded from seeking relief in equity. These cases, however, are peculiar to one state, and are opposed to the general current of authorities.
    • The counsel for the appellant express a belief that “if the defence were of a purely legal nature, and a case in which, equity had not concurrent jurisdiction, the party would be compelled to defend at law, without some special reason shown for not doing so.” . This is a safe proposition beyond doubt,‘for it would be vain for the party to_seek relief in equity, in such case, either before or after trial at law. This proposition is often repeated by courts, in cases where relief has been sought in equity, after trial at law, and where the defence was purely legal. And why ? Because there are many cases, in which relief has been givemin equity, after a,judgment at law against the defendant, and where the defence was strictly legal. But these are cases in which some undue advantage has been taken by the plaintiff at law, unmixed with any negligence on the part of the defendant; where thére has been fraud in the very act of recovering the judgment. In such cases the jurisdiction of the court of equity grows out of some circumstance attending the trial at law, and it is in reference to this particular inquiry, that the proposition is mentioned. Has such circumstance occurred? For if not, it would be sufficient, in objecting to the jurisdiction of equity, to say to the defendant, your defence is purely legal, without reference to the trial at law. Why tautologize by saying, “ The court of law has exclusive jurisdiction of the subject-matter of your defence; therefore, after a fair trial at law, you are not entitled to relief in equity ” ? The inference is but a statement of the same proposition in different words.- And though some of the cases cited in the opinion of the court, in the case of Le Guen, may have been cases in which the defence was exclusively legal, yet the principle is pronounced as a general one, applying alike to both classes of cases; and its application to cases in which the defence was either at law or in equity, is fully sustained by preceding authorities, and has been sanctioned by numerous subsequent cases.
    I would respectfully call the attention of the court to the case, 1st, of Barbone v. Brent, 1 Yern. 176. The bill was for an account, alleging that the complainant had bought sundry goods of the defendant, and paid him several sums of money in part satisfaction; but having lost the receipts, &c., the defendant had recovered the whole value of the goods. Demurrer, because by the plaintiff’s own showing, the defendant had recovered judgment at law. Lord Keeper — “ After a verdict at Mw, you come too late, and I see no reason why the defendant should be put to answer. Allow the demurrer.”
    Courts of equity have concurrent jurisdiction in matters of account. And if the defence in this case was considered purely legal, why say to the complainant, after trial at law you come too late, when, in such a case, a court of equity could only gain jurisdiction from some circumstance attending the trial at law"? 2d. The case of Lee and Wife v. Boles, 2 Cas. in Ch. 95, was one of fraud in suppressing the fact of an incumbrance on real estate. “ The Lord Chancellor, after long debate, dismissed the bill, principally because the plaintiff did not come into the court till after verdict and judgment.”
    3d. Curtiss v. iSmalridge, 1 Cas. in Ch. 43. The defendant’s wife pawned her husband’s plate for £110. The defendant in trover.recovered £115 damages and judgment for it. Bill for relief, charging that the defendant was privy to the pawning, and had received the £110. It was proved that the defendant had confessed as much. The court refused, because of his neglect, to grant a new trial. “And it was insisted on as a rule, that nothing shall be a ground for a new trial to avoid a judgment at law, that would not be ground for a bill of review to reverse a decree.” “ Nor is the want of any evidence or matter which might have been used in the first cause, and of which the party then had knowledge, any ground for a bill of review.” This was also a case of concurrent jurisdiction; for if the debt was due, the pawnee was at liberty to file his bill in chancery, and have a sale under decree of foreclosure. This has been frequently done in the case of stock, bonds, plate, and other articles pledged for the payment of the debt. 2 Kent’s Com. 582.
    Lord Redesdale, in his treatise on Equity Pleading, (Mitford, p. 131,) says: “In general, it has been considered that the ground for a bill to obtain a new trial after judgment, in an action at law, must be such as would be ground for a bill of review, of a decree in a court of equity, upon discovery of new matter.” We find Radcliffe, J., in the case of Le Guen, using the same language, declaring that courts of chancery will not exercise a different control over the judgments of other courts, than over its own decrees.
    At a later period in England, we discover the same rule adhered to, as in the case of Protheroe v. Farman, 1 Swanst. 230. Lord Eldon remarks : “ This is a case of great importance to the court. It is stated that there is an accidental and unfortunate judgment by default; but that judgment was suffered by default, is shown in such a way that I cannot take notice of it.” “If a defendant has a good legal defence, but the matter has not been tried at law, it becomes a very serious question, whether a party, who, being competent, does not choose to defend himself at law, can come into equity, and change the jurisdiction. Consider the effect of that: he might have succeeded in his defence at law, but by coming into equity he secures so much additional time.” “ Lord Thurlow” (in the case of Manning v. Mestaes) “ was very tenacious of the doctrine, that a party who had an opportunity of trial at law, and would not avail himself of it, could not come here.” (Injunction dissolved.) Again, Lord Redesdale, in the case of Willoe v. Bateman, 1 Sch. & Lef. 201, refused injunction, although it is evident that the facts on which the defendant relied were not brought before the jury in evidence. He declares that he cannot “ ñnd any ground whatever for a court of equity to interfere, because a party has not brought forward evidence which was in his power” at the trial; that the matter of defence was one capable of being laid before the jury. “ The inattention of parties,” he holds, “ in a court of law, can scarcely be made a subject for the interference of a court of equity. There may be cases cognizable at 'law, and also in equity, and of which cognizance cannot be effectually taken at law, and therefore equity does sometimes interfere; as in cases of complicated accounts, where the party has not made defence, because it was impossible for him to do it effectually at law.” “ So where a verdict has been obtained by fraud, or where a party has possessed himself improperly of something, by means of which he has an unconscientious advantage at law, which equity will either put out of his way, or restrain him from using.” Now it is perfectly evident that the rule here acted on was not restricted to a case in which the ground of relief was actually set up and relied on at law. It is referred to by Lord Redesdale, as a matter which might have been discussed, not as a matter which was actually discussed at law.
    
      Again, Chancellor Kent, in the case of Lansing v. Eddy, 1 Johns. Ch. R. 49, refers to the cases of Lee Sp Wife v. Boles, 2 Ch. Cas. 95; Williams v. Lee, 3 Atk. 223; and of Le Guen v. Governeur, and adopting those authorities fully. The usury he declares would have been a good defence to the action. “ The general rule is, that this court will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant below was ignorant of the fact in question, pending the suit, or it could not have been received as a defence. If a party will suffer a judgment to pass against him by neglect, he cannot have relief here for a matter which he might have availed himself of at law.” By the statutes of New York a contract is void for usury; and the party might have had relief in equity before trial at law.
    It will be seen, by reference to the case of Simpson v. Hart, 1 Johns. Ch. R. 91, that Chancellor Kent adheres to the same opinion. And though his decree was reversed by the court for the trial of impeachments, 14 Johns. R. 63, yet Spencer, J., who delivered the opinion of the court, referring to the cases of Le Guen v. Governeur, and Bateman v. Willoe, expressly declares, that they meet his most decided approbation; but that the case then before the court in his opinion did not come within the rule. Spencer, J., with whom a majority of the members of that court concurred, did not differ with the chancellor in his principles, but considered them as inapplicable to a decision upon a summary application. The proceedings in the mayor’s court were not susceptible of assuming the form of a record, so as to become the subject of review in the court of appeals; it was not considered a res judicata. Besides, judgments are set off at law ex gratia, but claimed to be a matter of right in equity. For these reasons was the decree of the chancellor reversed.
    In the case of Rathbone v. Warren, 10 Johns. R. 587, application had been made, in the supreme court, by the bail, for leave to surrender the principal. By the practice of that court the bail were so fixed that a surrender could not be made. The chancellor enjoined on the ground, that relief in the court of law was impracticable.
    The decree of the chancellor was affirmed; and Spencer, who delivered the opinion of the court, places relief on the same ground. He declares, that though he could not say that there was no defence at law, yet that the remedy was doubtful. “ Besides, the respondent had a right to call the appellants into a court of equity, to account for the money received by them of the principal; and it is a settled rule, that where the court of chancery has gained jurisdiction of a cause for one purpose, it may retain it generally.” I am unable to see how this case conflicts in the slightest degree with that of Le Guen.
    
    Again, Spencer, Ch. L says, in the case of King v. Baldwin, 17 Johns. R., that “he cannot view the appellant’s bill as founded on matter which is res judicata.” The court of law had refused to hear the evidence upon which the surety relied for relief. He declares that there is no express decision as to this being a defence at law. That if it had been a clear case of defence at law, the objection to the jurisdiction of the chancery court would have force. And he declares that he entirely subscribes to the opinion of Lord Redesdale, in the case of Bateman v. Willoe. There is nothing here conflicting with the opinion of the court in the case of Le Guen.
    
    I submit whether it is not a very unsafe rule, that of considering authority as doubtful because all the judges do not concur, or that a question is to be viewed as unsettled because decided by a majority of the judges of a court only. But if the views'advanced by the adverse counsel are sound in that particular, it might be well to notice the fact, that in the case last cited, the members of the court being equally divided, the question was decided by the casting opinion of the lieutenant-governor.
    The case of Gridley v. Garrison coincides with that of Simpson v. Hart. See 4 Paige, 652. It is impossible to extract anything from this case, overruling the opinions of Radcliff and Kent in the case of Le Guen.
    
    The opinion of the court in the case of Lacy v. Garard, 
      2 Ham. 7, (4 Cond. O. R. 231,) is to the same effect. This was a case in which fraud was alleged in obtaining the bond, &c. “If the facts,” say the court, “set out in the bill were admitted to be true, they could not entitle the complainant to the relief he asks for, as he might have taken advantage of them in the action at law. Had his signature been procured in the manner charged, the obligation would be voidable at law.” The facts might have been pleaded, or given in evidence under the general issue, and the defendant at law not having been prevented from doing so, by the fraud or procurement of the plaintiff at law, the court refused relief.
    Chief Justice Marshall recognizes the case of Smith v. Mclver, 9 Wheat. 531, as one in which the matters of defence were all examinable either in law-or equity, and declares that, “in such a case, the existence of some fact which disables the party, having the law in his favor, from bringing his case fairly and fully before a court of law, has been generally supposed to be indispensable to the jurisdiction of a court of equity; some defect of testimony, some disability, which a court of law cannot remove, is usually alleged as a motive for coming into a court of equity.” “ But in the case at bar the bill alleges nothing which can prevent a court of law from exercising its full judgment.” “In all cases,” adds the chief justice, “of concurrent jurisdiction, the court which first has possession of the subject must decide it.”
    The rule laid down by Redesdale, in his treatise, as to a judgment at law, and a decree of a court of equity, being placed on the same footing, is expressly sanctioned by the supreme court of the United States, in the case of Hopkins v. Lee, 6 Wheat. 109. “ That rule,” says Livingston, J., “ has found its way into every system of jurisprudence, not only from its obvious fitness and propriety, but because without it an end could never be put to litigation.”
    The same rule is recognized by the elementary writers. See 2 .Story’s Equity, 179. “ Courts of equity will not relieve against a judgment at law, where the case , in equity proceeds upon a ground equally available at law ; but the plaintiff ought to establish some special ground for relief.” It is insisted by the appellant in argument, that the term available is meant a ground of defence actually set up and relied on at law. In attaching to the word that meaning, the force of the succeeding sentence is destroyed, as well as the obvious sense of the entire passage. “ The doctrine,” says Story, “ goes yet farther, and it may be asserted, to be a general rule, that a defence cannot be set up, as the ground of a bill in equity for an injunction which has been fully and fairly relied on at law, although it may be the opinion of the court of equity, that the defence ought to have been sustained at law.” Story is enumerating cases in which courts of equity will not relieve against a judgment at law. He first lays down that rule, which is of the' most extensive application; ,to wit: Where the defendant at law has a defence, which if used would prevail, but he negligently fails to use it.
    And though courts of equity would be more inclined to favor a vigilant party who attempted a defence at law, though unsuccessfully ; yet even in such a case, the rule is that the defence thus sought to be used, cannot be set up. as a ground of defence in equity. Thus it is that the doctrine of the non-interference of courts of equity after judgment at law “ goes farther,” and is made to extend to cases of perhaps apparent hardship.
    If the distinction between the two classes of cases,- as is contended for by the adverse counsel, consists in this ,■ — ■ that in the former a particular ground of defence is set up and relied on, but cannot be sustained; whilst in the latter a ground of defence is brought forward which ought to prevail, — then an available defence is defined to be, a defence actually set up and relied on, but which cannot be allowed. It seems to me, this would be a defence exceedingly unavailable. It is impossible that Story could have used the term available, in that sense.
    Most of the cases cited in support of the rule, are readily disposed of on the part of the appellant, by alleging that they did not involve questions of publib policy. It is said, with apparent gravity, that the rule in reference to the jurisdiction of courts of equity, after trial' at law, is different, where public policy is involved in the matter. If this were true, it may be considered somewhat remarkable, that it has escaped the attention of the elementary writers, as forming an exception to the general rule. Those writers enumerate a number of circumstances, which furnish a ground of equity jurisdiction after judgment at law. But I have been unable to find this, anywhere mentioned, as one of them.
    In support of this doctrine, however, it is said that the public, the state, is the real party litigant. That the object of courts of equity is to relieve “ the public, and relief is given to the public through the party.” See 1 Story’s Eq. 297. “ In cases where the agreements or other transactions are repudiated on account of their being against public policy, the circumstance that relief is asked by a party who is particeps criminis is not in equity material. The reason is, that the public interest requires that relief should be given, and it is given to the public through the party.”
    If the instrument on which the appellee recovered judgment had been void as against public policy, and before suit at law, the appellant had applied in chancery to have it delivered up on that ground; and the appellee had interposed the objection, that the complainant was particeps criminis, and therefore not entitled to relief; then the case might have come within the rule. Because in such a case, the party would still be heard in equity, though he alleged his own turpitude. But the doctrine contended for seems to be extracted .from the reason of the rule ,as given by Story, and it is insisted that in this case the claims of the community have not been investigated ; that it is entitled to a hearing notwithstanding the trial at law ; that by no kind of vigilance or attention could the public have brought forward its cause “ before the court; that it did not fail to have its claims investigated in consequence of its want of vigilance, but because one of the parties to a violation of its fundamental law, did not choose to bring forward its case,” &c.; that it is a universal rule that no laches can be attributed to the public. Even the common law maxim “ nullum tempus occurrit regi” is quoted, as applicable to the present case.'
    
      If the public or the state is the real party litigant, as argued, then the complainant loses all personal interest in the matter in controversy, and becomes at once a public functionary, charged with the responsible duty of seeing “ that the commonwealth suifers no detriment.”
    When did this agency commence? If it began with the filing of the bill in equity, because the complainant thereby furnished information, without reference to any connection he may formerly have had with the contract in controversy, then might any one, to whom the recovery of a judgment upon a contract against public policy is known, exhibit those facts to the chancellor in the form of a bill, and become at once a public agent. This, however, would supersede the necessity of the rule, for such a complainant would appear in equity with clean hands, though with less zeal, probably, than the defendant at law.
    'On the other hand, if the agency can attach only to the defendant at law, and it existed during the trial, then (he being but a nominal party on behalf of the public,) is the public es-topped by the judgment at law, for the negligence of its agents and attorneys is its own negligence.
    This seems to me to be but a fair inference from the proposition, that the public is the real party litigant.
    It is again stated in argument, that without exception, where the contract was against public policy, “ Equity has interposed, after judgment at law, without even seeming to have spent a thought on the subject of its being a defence of which , the party might have availed himself at law.” Where equity has interfered, after judgment at law, in cases of the kind, where there was no impediment in the way, nothing to prevent the use of a defence available there, it is reasonable to suppose that no thought had been bestowed on the subject, except where the objection to the jurisdiction of equity was not made until too late to be heard; as in the cases of Woodson v. Barrett Co., 2 Hen. & Munf. SO; Snyder v. Daily, Í Rand. 76, and Skipwith v. Strother, 3 Rand. 214
    In the first of these cases, a judgment had been recovered by the assignee of a bond, executed for a gaming consideration ; the defendant at law sought relief by bill in equity. No objection was made to the jurisdiction of the court, until the cause was heard by consent of parties on bill, answer, exhibits, and affidavits. In the supreme court of appeals we find it suggested, for the first time, in argument of counsel, that Woodson had a complete remedy at law. Judge Tucker, in his opinion, discusses but one question, viz., whether a contract for gaming can be valid against the maker in the hands of an assignee, without notice. In reference to that question he says : “ Now, where any instrument is absolutely void in its creátion, it cannot, I conceive* be made valid, by any subsequent transaction immediately arising out of it.” The subsequent transaction here alluded to was, most obviously, the assignment of the bond to one who had no notice of the character of the instrument, and not to the judgment rendered upon it.
    The case of Snyder v. Daily was, in marly respects, like that of Woodson. Here the respondent submitted to the jurisdiction. He filed his answer, not insisting on a want of jurisdiction ; depositions were taken, and exhibits filed; before motion to dissolve. There was but one point which the court of appeals could notice; that is, whether the complainant, being particeps criminis, was entitled to relief; and it was decided that, in this case, the objection would not hold. And here, for the first time, we find the commonwealth called the real party.
    
    In the case of Skipwith the bill for injunction was answered, without objection to the jurisdiction of the court, and so was the amended bill. Both judges, Carr and Green, rely upon the case of Woodson v. Barrett, as authority in that case.
    Neither of those cases furnish any authority to sustain the jurisdiction of the chancery court, after judgment at law, (allowing the injunction to have been rightfully retained in those cases,) where objection is made before answer. Nor have they been so recognized in Virginia. See the case of Vanlew v. Bohannan, 4 Rand. 540, where it is declared, “ that a court of chancery will not entertain a bill for the purpose of allowing a man to make a defence, which he might have made in a court of law; unless he shows some good reason why he did not avail himself of that defence in the court of law.”
    This rule was founded on the principle, that there ought to be an end to litigation; and that, consequently, where a matter has been once fairly investigated and decided, in one forum, it shall not again become the subject of controversy in another. It was intended as a shield for the party who had prevailed at law. But if he does not choose to avail himself of its benefit, if he voluntarily goes into the merits of the case, and in his answer admits facts which, if they had appeared to the court of law, would have there produced a different-result, neither the rule nor the principle of the rule is violated, by pronouncing a decree, justified by his own admissions.” As to the necessity of objecting to the jurisdiction of equity, after trial at law, see the cases of Grandin v. Le Roy, 2 Paige, 509, and Bank of Utica v. The City of Utica, 4 Paige, 400, where it is decided, that after a defendant has answered a bill in chancery, and submitted himself to the jurisdiction of the court without objection, it is too late to insist that the complainant has a perfect remedy at law, unless the court of chancery is wholly incompetent to grant the relief sought by the bill.
    The case of Garden v. Haden, 7 Leigh, 157, shows what the relief is in Virginia, when the objection is timely made. A judgment by default had been recovered on a bond, fraudulently given. Carr, J. : “ Upon the facts relied oh by Garden, in his bill, he had a perfect legal defence against the bond executed by him to Haden.” After stating that the plea of non est factum might have been supported, he says : “ No excuse has been stated .for the failure to make the defence at law. If it be said that courts of law and equity have concurrent jurisdiction in such matters of fraud, that is true. But it is equally true that, in all such cases, the court which first gets possession of the cause will make an end of it; and any defence which a party, according to the rules of that tribunal can make, must be made there. This is a settled rule.” •
    Cabell, J.: “I am of opinion that the decree (enjoining the judgment) ought to be reversed, on the ground that the plaintiff in equity migjit have defended himself at law, and has assigned no reason for his failure to do so.” “ Brooke, J. concurred.” President Tucker uses this language : “ As little tenacious as I may seem to be on the subject of jurisdiction, yet I am decidedly of opinion, that where a party has a full, perfect, and unembarrassed defence at law, of which he fails to avail himself, without even the pretence of an apology, he cannot be relieved in equity.” “ Nor does the consideration, that equity has concurrent jurisdiction make any difference.” The decree enjoining the judgment was reversed.
    In this, as in a number of the preceding cases cited, all distinction is expressly denied, as existing between cases in which the defence is exclusively at law, and those in which it is within the concurrent jurisdiction of the two courts, after judgment has been recovered. Nor is a judgment by default less conclusive than a. judgment on verdict.
    I think I have shown that the opinion of this court, in the cases of Green and Glidewell, are fully sustained by repeated decisions, both in England and America. And as well in -the supreme courts of many of the States, as in that of the United States. And though it is denied, that the general principles advanced by the court, (in delivering its opinion in those cases,) are to be applied to cases where the illegality of the contract, or its opposition to public policy, constitutes the defence. Yet no case is cited which sustains the position ; no elementary treatise pointed to, containing such a proposition. The apparent confidence with which this proposition is asserted and reasserted, by adverse counsel, should be justified by the production of at least one respectable authority. But none has been produced, and here I might rest this case. There are, however, decisions directly to the contrary.
    ■In Kentucky the doctrine seems to-prevail, that where the grounds of defence are not within the exclusive jurisdiction of courts of law, the party might elect to defend in either; but if he pleads at law, however unsuccessfully, he is forever precluded from seeking relief in equity. And this rule is applied to cases in which the .contract is void, as against public policy, or positive law. See the case of Moffitt v. White, 1 Litt. 324. Moffitt filed his bill in chancery, for injunction against a judgment recovered at law, by White, on a gaming contract. An unavailing attempt had been made to defend at law. It was alleged, that owing to the intoxication of the complainant at the time the gaming took place, he could not remember by whom the facts might be proved, and a discovery was prayed for, as a means of establishing the ground of defence. The court below dissolved the injunction, and dismissed the bill; and on appeal, the decree of the court was affirmed, because as the defence of the party was admissible in both courts, and he had elected to defend at law, he was bound to submit to the judgment of that court. The decision of a court of competent jurisdiction is there declared to be conclusive, notwithstanding the alleged character of the contract.
    A similar decision was made in the case of Davidson, et al. v. Givins, 2 Bibb, 200. The appellants, at gaming, won of the appellee $600, for which they executed three bonds of $200 each. On one of those, action had been prosecuted at law, to judgment. A bill was filed for relief against the judgment, and to have the other two bonds delivered up. The inferior court granted a decree perpetuating the injunction, and ordering the two bonds to be cancelled. On appeal the decree, as to the injunction of the judgment, was reversed. Clark, J. : “ The practice of gambling is expressly prohibited by law, and if this case is to be considered without relation to precedent, there can be no substantial reason why a court of chancery should not give relief, when the party seeking it brings himself within the general rules, that give jurisdiction in ordinary cases. That course of decision which will most effectually discourage gambling, whether it be in chancery or at law, ought to be adppted, if in doing so no cardinal rule of the power of the court be violated.” “ But it is believed a number of cases may be found, in which chancery has relieved from the judgment of bonds, executed for money lost at play, &c. Yet we conceive a court of chancery will only interfere in those cases where a court of law is inadequate to afford redress.” “ And if by the rules of chancery it would be improper for the court to retain 'jurisdiction, in ordinary cases similarly situated, it would be improper where the consideration of the bond is illegal.”
    If the enactment of a law may be considered, in any case, an expression of public opinion as to its true policy, the statute against gaming is, beyond controversy, that case. Here, then, are two express adjudications (not dicta) declaring, in the most emphatic language, that the distinction contended for does not exist.
    In Clay v. jFry, 3 Bibb, relief was given by injunction, after judgment by default at law, and on the ground that no defence whatever had been made at law.
    This doctrine of electing to be relieved in equity, by failing to defend at law is, it is believed, peculiar to the courts of Kentucky. It is not believed that the authorities cited sustain that rule. Kawden v. Shadwell, Amb. 269. Néwl. on Cont. 492. Woodson df Royster v. Barrett, 2 Hen. & Mumf.- 80; axiá.Davidson v. Givins, 2 Bibb, 200. In the last cited case there is a dictum, which favors the rule, but that point did not necessarily arise in the case.
    The bill here does not state, in express terms, that the judgment recovered by Phillips was on verdict, or by default. It contains no allegation that this particular ground of defence, now sought to be made, was not made at the trial at law. It alleges no newly discovered testimony, no defect of evidence in the trial, no necessity for discovery. An exemplification of the record is not produced as an exhibit.
    All this has been studiously avoided in drafting the bill. If reliance is to be placed on the position, that the judgment was by default, why not allege that it was so rendered ? If any confidence is reposed in the position, “ that the matter of this bill was not before the court of law, and has never been adjudicated on,” why was that not alleged as a fact in the bill, so as to warrant the position 1 Inference and supposition are not to supply the place of alleged facts.
    
      Should all inferences, however, be allowed in favor of the complainant; it’ has'never been held-in this state, that a judgment' bji default is less conclusive thah that on verdict.
    I have shown, in the case of Garden v. Haden, 7 Leigh,-157, and others already cited, that a party served with process, and having- a defence at law, is bo"und there to make it, or be precluded.
    I agree, that a verdict and judgment are not evidence of any matter which comes collaterally in question, in the trial of a cause : rtor of any matter incidentally cognizable, nor’of matter' of inference, as explained and applied in the cases cited by the ad verse- counsel. ' Blackham’s Case, 1 Salk. 290; Esp. N. P. Cases; 44'.
    Because a certain man administered on the estate of a deceased woman, and who was not her husband, it does not necessarily,follow, that therefore’ she left no surviving husband.He might have'disclaimed his'right to administer'; or he might have been ignorant of the application of that one, to whom ad-’ ministration was granted.
    In the case of Gentriniclc v. Lucas, in the common pleas, the record was general, applying alike to évery case of work and labor. It was' impossible to discover, from the record itself, that the recovery there had was for varnishing’those identical prints; and as that fact did not appear from the record itself, Lord Kenyon said, that evidence should not be admitted to prove that under’the record any particular matter came hi question; for that would be to try the cause over again.
    It is, however, an undeniable proposition, that a judgment is conclusive evidence of the existence and legality of the plaintiff’s demand, and that it has not been satisfied. This is emphatically declared to be - true in the case' of Marriott v. Hampton, 7 Term R. 265, where Kenyon, Ashhurst, Gross, and Lawrence, all concurred. The defendant in this case had recovered judgment against the plaintiff, and enforced payment by legal process. The plaintiff afterwards found a receipt, and brought this action for money had and received. The case of Live-say v. Rider, was cited, of which Lawrence' remarks, “ If it be law, it goes the length of establishing this, that every species of evidence which was omitted by accident tobe brought forward at the trial, may still avail in a new action to overhaul the former judgment; which is too preposterous to be stated.” See also Moses v. McFarlan, 2 Burr. 1009.
    Chief J ustice Parker, in Timelier v. Gammon, 12 Mass. 268, declares that a judgment, although suffered by default, precludes the party against whom it is rendered from impeaching it for any cause, of which he might have availed himself upon, a trial. “ It was supposed, however,” says the chief justice, “in the argument, that, although this general principle is true, it is not applicable to a defence of usury, which goes to,nullify and destroy all securities taken, which are affected by it. But no distinction is found in- the books between'this and any other defence. The judgment is in all cases considered conclusive evidence of the existence and justice of the demand; and unless voidable for error, it cannot be impeached, except for matter going in discharge of it ex post facto ; and even in that case the proceedings by plea or by audita querela, do not disaffirm the judgment, but merely show that it has been virtually executed.” After noticing1 the distinction between judgments confessed upon warrants of attorney, and those rendered in the ordinary course of law, in adversary suits, he says : “In case óf a judgment 'lipón an adversary suit, where the party is duly summoned, but chooses to make no defence, we see no reason for his having a future opportunity, any more than if he had gone to' trial, and had neglected to produce his evidence, which could never authorize him to impeach the judgment.”
    The note described in the case at bar, (if the allegations of the bill are true,) stands on the same footing with gaming contracts and.usurious notes, where usury makes void the entire security,.as in New York and Massachusetts. If there is any difference, it must consist in the fact, that the constitution only prohibits the act, without declaring the contract void, leaving that result to the force of the common law.
    The introduction of slaves into this state as merchandise was expressly allowed by law, under certain restrictions, before the adoption of the new constitution. See the Statute of 1822, H. & H; Dig. 155. Agreeably to the decisions of this court, the 2d section of the 7th article of the constitution is not to be considered as directory or mandatory, but as containing within, itself an absolute prohibition. This clause of the constitution virtually repealed the act of 1822, except as to the actual settler.
    It prescribed at once a rule of action^ not for the legislature, but for individuals; and the act thereby prohibited becomes an illegal act in the strictest sense. This provision of the constitution cannot be repealed by an act of the legislature merely; as a law it is more permanent in its character; but in no other respect can it differ from an ordinary act of the legislature, which comes within the constitutional power of that body. It is true, this provision is embodied with what is called “ the fundamental rules of the -paramount law.” But it is equally true, I conceive, that as the people in convention have vested the legislative power of the state in a certain body, every law passed by that body, acting within its defined limits, must be of equal force, and to all intents as obligatory as if passed by themselves in convention. It cannot be less the imperious duty of the subject to observe the one than the other. Nor will courts of justice, in seeking to enforce observance of the one, depart from those rules by which they are governed in enjoining obedience to the other. The judicial powers nof the state have been confided to certain courts by the constitution itself, and the outlines of their jurisdiction have- been defined by the same instrument. And it is- for these courts, each within its appropriate sphere, to expound as well the constitution as the laws ; and to enforce or annul contracts according to the facts of each particular case.
    When a party seeks to avoid a contract in a trial at law, on the ground that it is illegal, he must do so by the introduction of proof according to the established rules of evidence.
    Suppose a similar contract is alleged to be void, as against some provision of the constitution; a plaintiff at law seeks to enforce it, and the defendant to avoid it. How is he to do so? The court cannot pronounce the contract void, unless the alleged facts ave made to appear, and the truth of the allegation is to be tested by evidence. It will not be insisted, I suppose, that in the introduction of such evidence, greater latitude is to be allowed than the established rules warrant. In reference to these rules, it must be admissible and relevant, &c.
    If the defendant fails to sustain his allegation, it is to be considered false, and the plaintiff recovers judgment. This judgment unreversed, is conclusive as to the existence and legality of the contract.
    I do not insist that the judgment would render a contract, which was void, by the constitution, valid; but I do insist that it would be conclusive evidence, that the contract was not made in violation of the constitution, and therefore valid. Thus at least, I humbly conceive, a contract which is declared to be void, not by the constitution, but by one of its parties, may be declared valid, by a court of justice. The constitution prescribes rules of action in general terms ; it declares no particular existing contract either void or valid. It pronounces no particular individual guilty or not guilty of violating one of its provisions. But it has ordained courts of justice, and clothed them with that power.
    It simply declares what shall render a contract void by establishing certain rules of action; but has left it to those courts to ascertain whether that predicament of facts exists, which would bring the contract Within those rules, and authorized them to adjudge, or decree accordingly, without providing that such adjudication shall not be conclusive. It has ordained no peculiar mode of establishing the void or valid character of agreements alleged to be made in opposition to one of its provisions : nor has it conferred any peculiar jurisdiction upon courts of equity in that particular.
    The statute declares a contract as a security for a gaming debt, void. This has been held not to apply to judgments on adversary suits, but if the statute includes ordinary judgments by default also, the chancellor would relieve. But the complainant would be bound to show that the judgment sought to 'be enjoined, was one or the other, and thus bring himself within the rule of the statute.
    
      The broad ground however is taken by the appellant that the judgment here is certainly void. And why? Because the contract on which it was rendered is now alleged to be against public policy. What would this doctrine lead to? Suppose an action is brought on a promissory note, which the defendant seeks to avoid. He pleads that the consideration was illegal, or against public policy, but fails to prove the truth of his plea. Whatever may be the existing facts of the case, the court must pronounce judgment for the plaintiff; for the plea, as far as it can have any bearing on the decision of the court, is untrue. If the position contended for by adverse counsel be well founded, the judgment must be void, because the plea may be true in fact. How can it be declared so ? there being no fraud in the recovery of the judgment, and nothing in the record to cause a reversal, on appeal. What tribunal can pronounce the judgment void ?
    Equity, it is said, will interpose for the sake of public policy, and enjoin the judgment. On what ground ? Because it is void? The court of equity cannot presume it to be so. How is it to be shown ? The defendant at law appears by bill, and alleges that the contract on which it was rendered was against public policy in some particular, and therefore the judgment is void; and upon these charges the chancellor must enjoin. Suppose the plaintiff at law responds, denying the truth of the bill, and the cause is submitted for final hearing without proof to sustain it? The injunction would undoubtedly be dissolved, and the bill dismissed. Would these proceedings in chancery render the judgment valid and binding, if it were void before? It must, therefore, yet be void, and ought not to be enforced.
    But process of execution will issue, and the judgment be satisfied by levy and sale; for the sheriff cannot pronounce the judgment void, and disobey the process of the court.
    Public policy will be violated unless this void judgment be enjoined or set aside. The defendant at law therefore again files his bill for relief, alleging the existence of facts, going to show that the contract was made against some other rule of policy, or some prohibition of the constitution. It still being the inference, that the judgment must be void. The respondent insists that the complainant cannot be again heard. He replies, “the public is concerned in this matter, and-1 have not yet brought evidence before the court for the relief of the public. Shall the community not have a hearing, notwithstanding my negligence?” Now, agreeably to'the doctrine contended for, the chancellor must again interpose. And thus may suits be multiplied on suits without limit.
    "Vexatious litigation is specially discountenanced by courts of equity. To prevent a multiplicity of suits is one of their cherished objects, and often forms the ground of their jurisdiction. It is a sound principle of enlightened public policy, and has been' so recognized for ages, It lies at the very foundation of the social system. The existence, the peace of society, the protection of persons and property, depend on the stability that should attach to the solemn adjudications of courts.
    How can equity promote the public welfare, by actually destroying it? *
    That must be a defective system, indeed, whose rules do not harmonize. Yet ours would be obnoxious to the charge, if the doctrine advanced by the appellant were true. It is represented as causing those rules which are designed to give repose to society, those fixed maxims and cardinal rules of law and equity, to bend before what is termed “ the all-controlling weight of the great consideration of public policy.”
    The correctness of these new doctrines is at least very questionable ; but, as expressed, they exhibit but too faithful a picture of the consequences that would necessarily follow their adoption.
    According to the rule laid down in the case of Green v. Robinson, there would be no jarring, no conflict in the system. The party would have a full opportunity, by a fair trial, of making a complete defence, evén to vindicate and protect the policy of the public, if he chooses. If he fails or declines to vindicate this policy, courts of equity will do so, by discountenancing all further litigation.
    Even bills of this kind, before trial at law, are generally allowed, on the principle of quia timet. Newl. on Cont. 493. And if it appears to the court that no. discovery is wanting to establish the ground of defence, and that there can be no danger from the departure or death of witnesses, or from the loss or suppression of any instrument of evidence producing an inability to defend at law, it will not relieve, but leave the party to his remedy at law. Much less will a court of equity interpose after trial, when it is not pretended that there was anything unfair. The judgment is unimpeached, and he is forever estopped by it. On these points, see the brief of Messrs. Van Winkle and Potter, submitted in this cause; and the authorities there cited.
    To enjoin the judgment in this case would operate as a penalty on the appellee, who was an innocent assignee of the note. Neither courts of law nor equity will disregard fixed maxims and rules to bring about private injustice. In criminal prosecutions every legal advantage is afforded the party accused. Why should a different rule prevail in civil proceedings, where a penalty would thereby be inflicted 1 The mind of the chancellor would submit to such a rule with extreme reluctance. The judgment of the appellee is not impeached for fraud in recovering it. It is only pretended that it is void because the contract is alleged to be so. But the party is estopped from inquiring into the nature of the contract whilst the judgment stands, and he cannot remove that obstacle, and go back to the contract, except by impeaching the judgment for fraud or other cause. This is not done, and whilst it remains it is conclusive, as has been shown, as to the legality of the contract on which it was rendered.
    
      fan Winkle and Potter, on the same side.
    The record shows a valid legal judgment, rendered by a court of competent jurisdiction, against the maker of a promissory note — a bill, by the defendant in judgment, for an injunction, on the ground that the note sued on was given for slaves, imported into this state and sold, in violation of the constitution; but shows no excuse why this defence was not made to the suit at law.
    This alleged violation of the constitution, is the equity of the bill.
    
      Has a court of chancery jurisdiction of the case !
    We deny the jurisdiction, and rely on the judgment at law as a conclusive bar to relief.
    I. Although the note sued on may have been void for matter in pais, the judgment is evidence by estoppel, in law and equity, that it was not void. What is the testimony of this judgment! It proves that the demand of the plaintiff was legally jus.t — that the note sued on was given for a. bona fide legal consideration— that the defendant had no legal defence to the action, and disproves his pretence that the note was void. The purpose of the suit was to try the demand of the plaintiff on the note; the complainant had his day in court to defend; after judgment he comes too late to set up this pretence of a legal defence, and impeach the “ absolute verity of the record,” which affirms that demand to have been a just legal debt. “As the law cannot be known until the facts are ascertained, so neither can the truth of them be found out but by evidence; and therefore it is reasonable that some evidence should be allowed to be of so high and conclusive a nature as to admit of no contradictory proof.” Co. Lit. 352, a. n. 1. The complainant is within the rule of estoppel— “the stopping a man’s mouth from speaking the truth.” The note is functus officio — the judgment is evidence, of itself, independent of the note. “ So long as a judgment remains in force, it is, in itself, evidence of the right of the plaintiff to the thing adjudged — a judgment rendered by a court of competent jurisdiction, and irreversible by a superior court, cannot be declared a nullity by any authority of law. Every matter , adjudicated becomes a part of the record, which thenceforth proves itself, without referring to the evidence on which it has been adjudged.” Voorhees v. Bank United States, 10 Pet. R. 472.
    A judgment is evidence “ of the existence and justice of the demand,” although the contract was usurious and declared void by statute. Thacher v. Gammon, (by default) 12 Mass. 270; Marriott v. Hampton, 7 Term R. 269; Rock' v. Leighton, 1 Salk. 310; Lindsey v. Lindsey, 1 Salk. 291; Ramsden v. Jackson, 1 Atk. 292.
    
      The same rule governs in equity. The chancellor “cannot examine into the intrinsic merits of a judgment at law, without the aid of new matter, showing fraud in procuring it, or that it is used or retained against conscience.” Hawley v.. Maneras, 7 Johns. Ch. R. 1S2; Haden v. Garden, 7 Leigh. 157; Talbot v. Todd, 5 Dana, 194; Story’s Eq. PI. 603. Equity always admits the legal validity of the judgment, and enjoins only because it was unfairly obtained, or is used against conscience.
    “ If the grounds were proper for the consideration of the common law court, it must be presumed that the law court did decide on those grounds,, unless complainant shows some impediment to his availing himself of those grounds upon the trial at Jaw.” Per Roane, J., Branch v. Burnley, 1 Call, 129; Eyre v. Everett, 2 Russ. 381. This doctrine is illustrated in the great variety of cases where parties, cast in trials at law, have attempted to set up, in equity, defences that might have been available against the original suits. The rule is rigidly enforced in cases over which courts of law and equity have concurrent jurisdiction. Le.Guen v. Governeur, 1 Johns. Cas. 494. Reaffirmed unanimously on this point in Simpson v. Hart, 14 Johns. 77; Smith v. Mclver, 9 Wheat. 532; Haden v. Garden,• 7 Leigh. 161; Flournay- v. Holcomb, 2 Munf. 34; Dilly v. Barnard. 8 Gill & Johns. 189; Braham v. Pope, 1 Steu. 135; Thompson v. Hill, 3 Yerg. 167; Kearney v. Smith, lb. 132; Lacy v. Garrard, 2 Ham. 7, (1 Ohio Cond. 231) ; Curtis v. Cisna, 1 Ham. 429, (1 Ohio Cond. 188); Holding v. Holding, 1 Murphy (N. C.) R. 9; Hubbard v. Hobson, 1 Breese, 148.
    These cases recognize the spirit of the rule, laid down by “ all the judges of England,” in Throckmorton v. Finch, 4 Co. Inst. 86, that, after a judgment at law, equity can in no case interfere — that is to say, where the matter might have been tried in the suit at law, equity will not relieve. Lord Redesdale explains the resolution- in Throckmorton v. Finch. “ I do not know that equity, ever does interfere to grant a trial of a matter which has already been discussed in a court of law, a matter capable of being discussed there, and over which the court of law had full jurisdiction.” Bateman v. Willoe, 1 Sch. & Lefr. ^06 ; Barton’s Eq. 9.
    The “ matter ” here spoken of was the demand sued for at law, as he explains in the next sentence. “In this case, everything might have been discussed in a court of law. I think it unconscientious and vexatious to bring into a court of equity a discussion which might have been had at law.”- Accordant — Whitemore v. Thornton, 3 Price, 241; 1 Cond. Exch. Rep. 361; 1 Madd. Ch. Prac. 127, 131, 134; Mitf. PI. 253.
    So, this rule of estoppel in equity by judgment at law is sacredly observed in cases where the judgments at law were rendered on contracts void as against “public policy” or “general laws of public policy.” Lord Thurlow, in the leading case cited for complainant, Hanington v. Du Chatel, 1 Bro. Ch. R. 124, and 2 Swanst. 167, n,, expressly recognizes this rule as applicable to judgments on such contracts — that the chancellor cannot “ apply equity to a case within the province of a court of law.” In refusing to interfere in this class of cases the chancellor is guided by the single rule which directs his judgments against all other cases resting in defences available at law. Thus sureties have been denied relief against judgments on notes void at law, as against a “general law of public policy;” the gaming statute, or as against a general law of public protective policy ; the usury statute, “ for that they knew their defence, and failed to defend at law,” and this when the contract itself was declared void by the statute. Graves v. Houlditch, 2 Price, 147; Lansing v. Eddy, 1 Johns. Ch. R. 50; McRaven v. Forbes, 6 How. 575, 576. So, on a demurrer for want of equity, to a bill filed to enjoin a judgment on a bond given for future cohabitation and prostitution, Lord Rosslyn held the case so plain as to refuse to hear argument for the demurrer. After an argument to sustain the bill, the demurrer was allowed for this reason— “ that the necessity for the interposition of a court of equity was entirely taken away; when all that matter that would avoid the bond, might be pleaded at law.” Franco v. Bolton, 3 Yes. 368.
    So, where a surety sought relief against a judgment on a bond given for shares in a bubble company prohibited by statute, the chancellor replied; “1 cannot enter into these grounds of legal objection. I must presume the judgment on this bond to be a good judgment in law; and the plaintiff in equity must show equitable grounds of relief. If the transaction as to the shares was illegal, I question whether this court would interfere to help either party. After trial and verdict, a court of equity will not relieve upon grounds which might have been investigated at the trial.” Eyre v. Everett, 2 Russ. 381.
    So, in the case cited for complainant, Hanington v. Du Chatel, 1 Bro. Ch. R. 124, and 2 Swanst. 167, n., Lord Thur-low held that a judgment on a bond void as against public policy, would be upheld in equity, if the defence might be made at law. And where the illegality (gaming) is ineffectually set up as a defence at law, equity will not relieve against the judgment. MoffUt' v. White, 1 Litt. 325; Davidson v. Givens, 2 Bibb, 200.
    The principle of these cases is sustained by the rules of equity. Thus, where a party seeks to have delivered up, instruments, void as against public policy, or for other causes, equity decrees relief for the single reason-that such instruments “ may be vexatiously used when the evidence to impeach them is lost.” 2 Story’s Eq. 6 — 11; Newl. on Cont. 493; 1 Madd. Ch. Pr. 228 ; but, where the instrument itself shows the illegality, equity does not relieve, because the demand and the defence are inseparable, and the defence is available at law. Gray v. Matthias, 5 Ves. 294; Drewry on Injunc. 10 — 12; citing Gray v. Ld. Howden, 3 Mylne & Craig, 97, and Jones v. Lane, 3 Younge & Coll. 281.
    So, the chancellor will not enjoin proceedings at law on a written contract, showing a trade with a public enemy — “a bargain in fraud of the laws of the country,” and void at law, Evans v. Richardson, 3 Meriv. R. 469, nor on a bond void as against public policy and the illegality shown by the instrument. Thrale v. Ross, 3 Bro. Ch. Rep. 57.
    These two last cited cases also conclusively prove that where the defence is available at law, equity will not avoid the judgment on grounds of public policy; for if the judgment would be enjoined, so would the proceedings to obtain it. The reason given for the delivery up of such void instruments is also strong evidence to the same point, and limits the jurisdiction of the chancellor, in such cases, to a decree for a redelivery. The reason for such redelivery being that the evidence to avoid the instrument exists in pais, and may be lost before the trial at law, the inference is that such trial and judgment at law would determine the controversy.
    Again; the jurisdiction of courts of equity for the delivery up of instruments void at law, is ousted by a judgment at law on such instruments, unless new matter, not available in the suit at law, is the ground of relief. Franco v. Bolton, 3 Ves. 368 ; Lansing v. Eddy, 1 Johns. Ch. R. 50; Graves v. Houlditch, 2 Price, 147; 1 Cond. Exch. R. 206; Davidson v. Givens, 2 Bibb, 325; Moffit v. White, 1 Litt. 325; Lacy v. Garrard, 2 Ham. 7, (1 Ohio Cond. 231) ; Smith v. McTver, 9 Wheat. 532 ; Protheroe v. Foi'man, 2 Swanst. 227; Whitemore v. Thornton, 3 Pr^pe, 241, and 1 Cond. Exch. Rep. 361; Haden v. Garden, 7 Leigh 161; Eyre v. Everett, 2 Russ. 381; McRaven v. Forbes, 6 How. 575, 576.
    These were all cases of judgments obtained on or through instruments alleged to be void for inherent vices, such as the forgery of public grants, illicit intercourse, gaming, usury, fraud, &c. In each case, a court of equity, before the judgment at law, would have ordered the instrument to be delivered up on proof of the allegations in avoidance; but in each case, relief was refused after the judgment at law; because the matters set up were available in defence to the suit at law. These authorities show the true limit of equity jurisdiction as to void instruments, and declare that unless new matter, not available in the suit at law, is shown, the judgment obtained on or through such illegal instruments is beyond the reach of the chancellor. In this case the defence was purely legal, and a court of equity had no jurisdiction whatever, except for the mere purpose of a delivery up of the note before trial at law.
    If this judgment is not conclusive against all legal defences pretended, agains.t the note described in the record, in vain will the suitor seek to enforce in a court of law demands over which equity may have concurrent jurisdiction; he may obtain the judgment of the law and the decree of equity, and be advised how it is that, if the judgment does not prove his right at law, the decree shall prove it both in law and equity, and must still ask, “is it a. final decision?” Interest reipublicce ut sit finis litium, is a maxim which indicates a policy of the law paramount to all considerations arising from particular illegal acts or cases of individual hardship.
    But, it is argued, in cases of concurrent jurisdiction, a party sued at law may elect to defend there or reserve his defence, until after judgment, for litigation in a court of equity. The existence of this alleged rule was pointedly denied in Throckmorton v. Finch, 4 Co. Inst. 86. But, admitting the rule, how shall a party declare his election ? “ Any decisive act of the party, with knowledge of his rights and of the facts, determines his election.” Sanger v. Wood, 3 Johns. Ch. R. 422. The rule in England, and in most of the United States, ’is, that the party declares his election if he permits the suit at law to proceed, although he does not defend.
    This accords with the rule in cases where a party voluntarily pays money with a knowledge, or with the means of knowing, the facts of the case. He cannot recover it back, for the demand was made as a matter of right, and he had his option, “ to litigate the matter, or submit and pay the money.” Brisbane v. Dacres, 5 Taunt. 152; Bilbie v. Lumley, 2 East, 469.
    The only question is, whether a defendant is bound to obey the'command of process, to appear and answer, render, &c. according to the plaintiff’s demand, or whether the defendant may disregard the mandate of the law, and so prevent the court from taking jurisdiction of his case. If he may do so, then he may in like manner, debar a court of equity from taking jurisdiction ; and the result would be that of two courts having concurrent jurisdiction, neither could act until the defendant should elect and choose between them. If such a rule had existed, a court of equity would long since, to prevent a useless suit at law, have allowed the creditor to .apply in the first instance, for relief in equity, in which the matter must be determined, if .the defendant shall so elect, notwithstanding judgment at law..
    The cases cited in Glidewell v. Hite, 5 How. R. 110, from the Kentucky Reports, merely show that a party does not declare his election until his plea is filed. Moffitt v. White, 1 Litt. 325; 2 J. J. Marsh. 139. The cases cited from the reports of South Carolina, Tennessee and Ohio, do not sustain the rule asserted for complainánt, and the decisions cited from the English and New York Reports, to sustain the Kentucky rule of concurrent jurisdiction, are strong authorities, so far as they are relevant, in denial of the doctrine. The many cases cited, to show that equity will relieve “ in the case of marriage, and place brocage bonds, bonds or securities given for money won at play, notes or bonds given for future cohabitation, simonical contracts,” &c. &c. were cases where the defence could not be made at law. Abundant authorities will be cited to show that at the date of these decisions, marriage and office brocage contracts were valid at law; that illegality dehors a bond, could not then be pleaded at law. On this ground the reason for relief is obvious. It is also to be borne in mind that in all the English cases cited for complainant, (except those hereafter stated) where relief was given for illegality of the instruments, there had been no proceedings at law, and the relief sought was a delivery up of the instruments simply because they were void.
    The following cases are there cited to show that a judgment at law on void instruments is no bar to relief, for that cause, in equity:
    
      Bromley v. Holland1, 7 Yes.'6. Bill to have void annuity deeds delivered up; the court of king’s bench had before overruled a motion for such delivery. The decision on the motion was not an adjudication. Arden v. Patterson, 5 Johns. Ch. R. 52; Simpson v. Hart, 14 Johns. R. 76.
    
      Hanington v. Du Chatel, 1 Bro. Ch. R. 124, and 2 Swanst. 167, n. Bill to enjoin judgment on an office brocage bond: relief, and why 1 It was a case of exclusive equity jurisdiction; for at that date, no illegality dehors a deed could be set up as a defence at law; all contracts of office brocage, as well as contracts of marriage brocage, were valid at common law. Fonbl. Eq. (original paging) 229,228, n. y ; 225, n. u ; 263, n. r; Thompson v. Harvey, 1 Show. 3 ; Potter v. Hall, 3 Lev. 411; Paxton v. Popham, 9 East, 421; Franco v. Bolton, 3 Ves. 368; Bromley v. Holland, 7 lb. 19; Laxo v. Laxo, 3 P. Wms. 394; Cocke v. Richards, 10 Ves. 441; Jackman v. Mitchell, 13 lb. 586; Fullager v. Clark, 18 Ves. 483. *
    
      Whittinghame v. Burgoyne, 3 Anst. 900; 2 Chit. Eq. Dig. 1185, was a like case of office brocage.
    
      Snyder v. Daily, 3 Rand. 77. Bill to enjoin judgment on a bond void as against the banking statute. There were two reasons why relief was given; 1st. The defendants submitted to answer and admitted the facts without pleading in bar the recovery at law. 2d. The court decided under the tfiistake that Haningtoxi v. Du Chatel, 1 Bro. Ch. R. 124, and 2 Swanst. 167, was a case in point. In Virginia, this rule is recognized ; “ Although a judgment at law is conclusive between the parties, yet if the respondent submits to answer, and admits the allegations of the bill, the court will decree against him on the admissions of-his answer.” Vanlew v. Bohannan, 4 Rand. 540.
    ' Woodson v. Barrett, 2 Hen. & Munf. 80. Bill to enjoin judgment on a gaming note; relief on the single ground, that such judgment was, by statute, “ absolutely void.” On this ground it is cited in Clay v. Fry, 3 Bibb, 249; the statute of Kentucky was copied from the Virginia statute. It has generally been held by courts, that such a statute applies only to judgments by confession, as on warrant of attorney.
    
      Skipwith v. Sttother, 3 Rand. 214. Bill to enjoin judgment on a gaming note ; relief on authority of Woodson v. Barrett.
    
    
      Claxj v. Fry, 3 Bibb, 249. Bill to enjoin judgment by default on a gaming note; relief, because complainant had not elected to defend at law; if he had defended at law, the judgment would- have been upheld. Mojjit v. White, 1 Litt. 325. The case shows that by statute, judgments on gaming notes were void. It cites Kowden v. Shadwell, Amb. 269, a case before judgment.
    
      The other cases cited from Kentucky were also to enjoin judgments by default.
    “ If, by the rules of equity, it would be improper for the court to entertain jurisdiction in ordinary cases, similarly situated, it would be improper where the consideration of the bond is illegal ” (gaming bond.) Davidson v. Givens, 2 Bibb, 200.
    
      Cocke v. Richards, 10 Yes. 429. Bill to enjoin judgment, rendered on the penalty of an improvident bond, given without consideration, which had been held valid at law. Of the two cases cited from the Louisiana Reports, by Judge Mayes, the one shows that an executor cannot recover back property fraudulently conveyed by his testator; and the other, that a party may, in the appellate court, insist on an objection not taken in the court below.
    For a full examination of cases cited by adverse counsel, see argument of Mr. Sloan.
    II. But it is urged, as the note is declared void by the con-' stitution, and is void as against “ public policy,” so the judgment is a nullity.
    We object against this rule to impeach a judgment, because it denies the legal validity of a record ; because it permits the solemn judgment of the law to be avoided, by the very cause of action which induced the judgment; because, in permitting the testimony of a promissory note to impeach this judgment, it gives credence to parol testimony against the verity of a record ; because it assumes for the court of chancery a coordinate jurisdiction with the court of errors and appeals; because it assumes for the chancellor the power of judicial legislation to redress public grievances, not being “ matters of equity,” and for which the proper department of the government has failed to provide adequate remedies.
    If this be a legal rule, in cases within the exception, does it apply to the case at bar ? This note is not made void by the express declaration of the constitution, and can be made void only because it is not upheld lSy that common law foundation of a contract, a legal consideration. If, by law, a consideration was in no case requisite to a valid contract, there would be no authority of law to annul this contract. In vain would the complainant aver, that this note was given for slaves, illegally imported and sold ; for the illegal act could in no manner attach to a note, which was altogether independent of any consideration, as an inducement to the promise. This distinction arises from the rule, that when the contract itself is not prohibited by the written law, and the consideration only is illegal by the prohibition of a statute or a constitution, the contract is void only as against that common law, which defines a legal consideration as of the vitality of the contract. Farrar v. Barton, 5 Mass. 396. Bank of United States v. Owen, 2 Pet. 538. Fleckner v. Bank of United States, 8 Wheat. R. 355. A like distinction is declared by the rule, that unless the contract itself is prohibited by statute, a bona fide indorsee for value is not affected by any vice in the original consideration, although such consideration is expressly declared by the statute to be illegal; but if the contract itself is, by the statute, declared to be void, it must continue void in the hands of an innocent indorsee. Chit, on Bills, 92, et seq. 1 Selw. N. P. 266, et seq. 3 Kent’s Com. 79, 80. The same distinction was recognized in Craig v. Missouri, 4 Pet. R. 410, where the contract was declared valid by the statute of Missouri, and the consideration was a “ bill of credit,” emitted against the prohibition of the constitution of the United States. In that case, the statute did not avoid the necessity of a legal consideration, and the contract was avoided solely on the ground that the promise was made “ in consideration of an act forbidden by law ;” it was not pretended that the contract itself was declared void by the federal constitution. The court remark: “The very act which constitutes the consideration is, the act of emitting bills of credit, which act [not the contract] is prohibited by the constitution of the United States.” “ The consideration on which the note was given, is against the highest law of the land.” “ If,” says. Justice McLean, p. 460, “ the constitution had provided that all obligations given for bills of credit should be void,'there could have existed no doubt on the subject. But there is no such provision, and if the obligation be held void, its invalidity is a matter of inference, arising from the supposed illegality of the consideration.” See also, to same effect, remarks of Pettibone, J. in a like case. Mansker, et al. v. Missouri, 1 Misso. R. 452.
    Having shown that this note itself was not void, by the express declaration of the constitution, we submit that, as appears by the bill, this note was not void, as against “ public policy.”
    This court has declared the slave clause in the constitution to be an absoluté prohibitory law. If the allegations of the bill are true, this note was not void, “ by being against a constitutional policy,” but because it originated from an act prohibited by the constitution. The act or consideration complained of is null, as being against the positive prohibition of the law, and not as being against the public policy. The rule of public policy, as applied in courts of law and equity, is in no case extended to violation of positive written laws — to acts prohibited; but is limited to a class of acts omitted in the general declarations of the written law. Contracts void, as against public policy, are void only d's against the common law, but never as against prohibitory written laws. No case, at law or in equity, can be shown of a contract made in violation of a constitution or a statute, that has been declared void, as against public policy.
    Mr. Chitty declares all illegal contracts to be for considerations which are illegal, either as against “the revealed law of God,” “ the general policy of the common law,” or “legislative provisions.” Chit, on Bills, 93. Comyn on Cont. 53, et seq. So, unless an illegal contract is expressly declared by statute to be void, .it is void only at common law ; as being for a consideration against the law of God, against the policy of the common law, or against the provisions of the written law.
    But, it is said, there is a public policy paramount to all considerations of private right; “ that fixed maxims and cardinal rules of law and equity bend before the all-controlling might of the great consideration of public policy.” If by this “ public policy ” is meant a policy established by a constitution or a statute, it is submitted' that'civil tribunals test by the same rule all contracts made in violation of law; with this difference, that contracts against constitutions or statutes are, as between the original parties thereto, totally void; but other contracts, vicious through illegality, may be void in part and good for the residue. Chit, on Cont. 228, 229. These tribunals regard laws as rules of imperative obligation, and they observe equally as “rules of action” all laws, whether maxims or customs, statutes or constitutions. Although it is true, that a contract against public policy, or against a general law of public policy, may be absolutely void; yet a contract against the simplest maxim of the common law is equally void. The constitution is but a law, and there are no degrees of legal invalidity. All contracts' are subjected to the touchstone of the law, by suit and trial at law, and judgment follows the claim of right proved to exist under the law. The subject-matter of every suit between individuals, is a private right; a right created, defined and limited by the law, and to be vindicated by the suit! The law 'refuses to sustain a claim of right against its precepts, not that “ the .public welfare is paramount to private right,” but because the party has failed to prove a legal right.
    III. Again it is urged, this bill is filed to protect the public, and not for the relief of the nominal complainant, the state being the real party to the suit.
    We deny the existence of this anomalous equity, and the right of the complainant to file this bill in his own name, on behalf of the state. How. & Hutch. 277.
    
    1. This theory of protection to the state, by means of private litigation, is based on the judgment in Shirley v. Ferrers, as reported by Lord Eldon, in St. John v. St. John, 11 Fes. 535. “ In,Shirley v. Ferrers, in the court of exchequer, the case of a marriage brocage bond, the plaintiff was a party to the transaction, particeps criminis; but the court held, that where the relief is upon the policy of the law, that is not material the public interest requires that the relief should be given, and it is given to the public through the party.” Lord Manners, in 
      Roche v. O'Brien, 1 Ball & Beat. 164, has stated more clearly the doctrine held in Shirley v. Ferret's, and shows that the relief was to the party, and on the ground of “ undue practice, and improper advantage taken of necessity,” a very common case for relief in equity. Lord Manners cites this case as Shirley v. Martin,,but that he refers to the same decision, see Roche v. O'Brien, 1 Ball & Beat. 358, n. a. ; and Morris v. McCulloch, 2 Eden R. 192, n. a.
    
    The doctrine rests, then, on a mere dictum of Lord Eldon. “ Nothing can be more dangerous to the law, as a science, than to set up' loose extra-judicial sayings as a just ground of decision.” Per Kent. Justice Story (1 Story’s Eq. § 298,) adopts Lord Eldon’s statement of Shirley v. Ferrers, as an expression of the rule, and cites the following cases: Hatch v. Hatch, 9 Yes. 298. Bill against a guardian to set aside a conveyance obtained by undue influence from his ward; relief given to the party. To an objection that a particeps criminis would be incidentally benefited by the decree, Lord Eldon replied: “lam very sorry to give the husband [the particeps criminis]}any relief; but I know of no instance in cases of relief upon the policy of the law where the objection, that a party not deserving the relief will get it, deriving it through the other, has prevailed.” The reporter adds, “ The Lord Chancellor afterwards noticed the case of Shirley v. Ferrers, as an instance of relief given to a particeps criminis,” St. John v. St. John, 11 Yes. 535. Bill to have delivered up articles of separation between husband and wife, which, it seems, were good at law. Rex v. Mead, 1 Burr. 542. Case compromised. Roberts v. Roberts, 3 P. Wms. 74, and note. Bill to have delivered up an underhand bond, obtained in fraud of marriage ; relief refused. The Master of the Rolls said : “ Equity does abhor all underhand agreements in case of marriage ; and perhaps this may be the only instance in equity where a person, though particeps criminis, shall yet be allowed to avoid his own acts.” The note to this case, cited by Judge Story, refers to cases on the same kind of bonds.
    
      Morris v. McCulloch, 2 Eden R. 190. Bill to recover back money paid on an office brocage contract ; relief to the party.
    
      Bromley v. Smith, Doug. 697, n. Assumpsit, for money had and received ; relief to the party ; where Lord Mansfield states this rule : “'If the act is in itself immoral, or in violation of the general laws of public policy, the rule is, potior est conditio defendentis; but there are other laws which are calculated for the protection of the subject against oppression, extortion, deceit, &c. If such laws are violated, and the defendant takes advantage of the plaintiff’s condition or situation, then the plaintiff shall recover; and it is astonishing that the reports do not distinguish between violations of the one sort and the other.” When this case was read in Jones v. Berkley, Doug. 698, Lord Mansfield replied, “ I adhere, and all the rest of the court ” [W illis, Buller, and Ashhurst,] “ agree to all the doctrine there laid down.”
    
      Browning v. Morris, Cowp. 790. Assumpsit, for money had and received ; plaintiff nonsuited.; where Lord Mansfield reiterates the distinction between acts against “general laws of public policy ” and laws for the protection of the necessitous and improvident. See Clark v. Shee, Cowp. 197. Loiury v. Bordieu, Doug. 468. The rule stated in Bromley v. Smith, is positive against the complainant.
    None of the above cases in equity were on contracts void, as against any “ general law of public policy.” They all relate to contracts good at law, and void only in equity, as “ against public policy,” and are all within the special exception stated in Lord Eldon’s report of Shirley v. Ferrers, which permits relief to the public through a particeps criminis, in cases where the relief “ is upon the policy of the law.” Under this rule, two things must concur ; a guilty party, and an instrument void, not as against a statute or a constitution, but as against public policy; and if the rule depends upon the nature of the instruments under consideration in the cases cited, the instrument should be valid at law, and void in equity. The complainant must show two things ; his guilty participation in the alleged offence, and that the repudiated void contract was not void, as against a written prohibitory law.
    
      Is not that equity peculiar, which protects the public in a mode like this ? An inqocent party seeks relief for himself alone : relief is never given to the public through him. In all the cases cited, the relief specially asked and granted was to the party ; the reporters omit to mention the relief decreed to the public. There is, then, no recorded authority of law for this doctrine of protective equity for the public at large ; and, without such authority, we may well deny the existence of a rule in equity to protect the community, through the voluntary aid of one who has violated the law and his faith.
    The old rule for common informers did not exclude the aid of the just to protect the state; why, then, is this liberally permissive rule in favor of a particeps criminis, abetting the public policy, so strictly limited to the guilty, that no good citizen, nor even the state, can interpose, and protect the public against an execution on this judgment ?
    We submit if the rule derived from Shirley v. Ferrers is not simply this, — that a particeps criminis may in some cases, notwithstanding his own criminality, set up the illegality, and obtain relief against a vicious contract? And yet it is good doctrine, that “ a man cannot set up his illegal act to avoid his own deed.” Walts v. Brooks, 3 Yes. 6L3; Eastabrook v. Scott, lb. 461.
    But suppose the existence of the alleged rule. On this theory of a private suit “ to protect the public,” the complainant is pursuing this cause as agent and informer, on behalf of the state. Because no guiltless party could sustain the bill, he qualifies himself by a declaration of his own turpitude, to prosecute, as trustee of the public morals. This is his substitute for a letter of attorney, — to sue on behalf of the state, in his own name, instead of the attorney-general. A decree in his favor is not his decree; and although the respondent is defrauded of property for his benefit, yet the peculiar theory of this equity is, that this is not the reward of successful knavery, but the mere result of a laudable attempt to vindicate the public policy. In trover, to recover goods pawned in violation of the protective policy of the usury statutes, the “ imperfect equity of the common law ” forbids a recovery unless the plaintiff has tendered the principal debt with legal interest. Fitzroy v. Gwillim, 1 Term Rep. 153; but on a bill, in behalf of the public policy, this equity would decree his retainer of the money and a recovery of the goods! “All writers on our law,” says Justice Wilrnot, “agreein this — no polluted hand shall touch the pure fountains of justice.” Are we to make an exception in favor of this recreant champion of public policy?
    Such is this theory of an equity to sustain the policy of the law; but how is it to be applied in practice? How are the illegal facts, avoiding the judgment, to be brought out? The state is not, directly or indirectly,'a party to this record, and complains, if at all, only through the complainant. His allegations are the averments of the state, and to these alone does the defendant respond. If the law condemns the complainant to silence, the state must go unheard. What he .is estopped to aver, that the state cannot set up to preclude the legal rights of the respondent. The judgment must still be conclusive evidence of the right; there is no jurisdiction to avoid the legal effect of the estoppel.
    II. As between the parties to the suit at law, the judgment is conclusive evidence of absolute right in the plaintiff; it is his title to the thing adjudged; the law defines it to be his property. So, the verdict of a jury, duly confirmed, “confers a vested right.” Hawkins v. Trustees of Rochester, 1 Wend. 53. On this theory it is not pretended that the defendant in judgment can divest the right or destroy the property ; but it is claimed the chancellor may do 'this “ to protect the state.” It is not competent for the chancellor to decree a forfeiture of this judgment, nor does the state claim it through that or any other title. Under no theory of our law can the respondent be deprived of this property for the benefit of the public, unless it is “ applied to public use,” as provided by the constitution. Bill of Rights, sec. 13.
    The state cannot enjoin private litigation to protect her policy. New York v. Connecticut, 4 Dali. 1.
    
      III. On this theory of protection to the public, the bill must present a case for relief to the state, or the court has no jurisdiction. The alleged illegal act was the importation and sale; the note sued on was the payment of the purchase price under the sale; the contract was executed. 2 Kent Com. 450. There-straining process of the court is not.invoked to protect the state against the commission of an illegal act; nor will the chancellor restrain the commission of acts against laws of general public policy. Attorney General v. Utica Insurance Company, 2 Johns. Ch. R. 371.
    If the state is the real party to the suit, and the equity of the bill is a violation of the constitution, it is submitted the chancellor is called upon to exercise, in some manner, a criminal jurisdiction. What relief can the state ask, if not the punishment of the offender ?
    Are, then, illegal acts “matters of equity”1 If not precluded by the judgment, the complainant would be entitled to relief, on the ground that the note was void; and he might prove the commission of an illegal act, as a fact to avoid the note, but for no other purpose.
    “ Although it is perfectly well settled that a court of chancery has no criminal jurisdiction whatever, and is, in its institutions and forms, purely civil, yet if a bill be filed in it for the purpose of setting aside a deed, or to be relieved against a will, on the ground of fraud, the instrument complained of may be shown to be a forgery; the fact of forgery may, when incidentally involved, be determined and relief given, founded upon a criminal fact, although it would be altogether improper for it to decide directly any such question upon a criminal charge.” Fornshill v. Murray, 1 Bland R. 484.
    If it be true, as argued, that the complainant seeks no relief, we submit, the question of a violation of the constitution is directly involved in the decision of this case, and the relief asked a penalty for a public wrong. “Private wrongs or civil injuries are an infringement or privation of the civil rights which belong to private individuals. Public wrongs, or crimes and misdemeanors, are a breach and violation of the public rights and duties, due to the whole community, as a community, in its social aggregate capacity.” 4 Black. Com. 5.
    IV. Admit this note to have been “void by a constitutional provision,” does it follow “ that a judgment predicated on it must also be void and may be perpetually enjoined ” ?
    1. A party may waive a constitutional right, and, by his own act, preclude a denial of the legal validity of an unconstitutional statute. Tooley v. Gridley, (decided at this term) ; Snyder v. Bank of Illinois, 1 Breese, 122; Barnett v. Barbour, 1 Litt. 397; Chitty McLain v. Glenn, 3 Monroe, 426; Walker v. Tipton, 3 Dana, 5; Lewis v. Garrett, 5 How. 455; Bank of Columbia v. Okely, 4 Wheat. 235; Craig, v. Missouri, 4 Pet. 445, (Opinion of Thompson, J.)
    If, in such cases, the courts uphold the voluntary acts of the parties, must not the same rules apply where the party waives a defence arising under the constitution ? Is not a judgment as conclusive to preclude a denial as the mere acts in pais relied on in the cases above cited? If a judgment creditor, (Barrett v. Barbour, 1 Litt. 397,) by bidding at a sale held under an unconstitutional law, is estopped to say “the proceedings were unconstitutional,” is not the complainant, after waiving his defence on the trial at law, precluded to deny the legal validity of this judgment ? If a debtor, for money borrowed of the Bank of Illinois, (Snyder v. Bank of Illinois, 1 Breese, 122,) was estopped to say “ the charter of the bank is in violation of the constitution,” and held bound by “ public policy and common honesty ” to repay the money; can the complainant set up, in this case, a violation of the constitution, and evade payment by avoiding the judgment?
    2. Although it is argued that the judgment of the court can impart no validity to a contract which is unconstitutional, still it must be admitted that- either by this judgment, or by a decree rendered in this controversy in his favor, the respondent will be entitled to recover his demand against the complainant; it will not be pretended that, after a decision against him by all the,courts of the state, the complainant may at any time suggest this constitutional fact to annul all former decisions against him, and induce renewed litigation. All questions of law, as well as questions of right, arising under the constitution, must he presented and tried at the times, in the manner, and according to the forms and modes of procedure legally prescribed to the courts created by the constitution. If the constitution has recognized and established rights, duties, and obligations, it has also designated some one particular court governed by the rule of law or equity, in which alone these rights, duties and obligations can be declared, enforced, or vindicated. As -the respondent obtained this judgment, and may obtain a decree by the laches of the complainant, the simple question is, shall the first, the second, or which decision obtained- by the laches of a party, be the final decision 1 The answer must be in favor of the first as the final decision. “ The law is a science or system, the various parts of which form one complete whole. A contract may be void by one law, and still, by other provisions of the same system, it may become valid, unless the proper mode be taken to establish its void character. One law may declare a contract void, another may declare how this shall be shown, and a third may provide that if it be not so shown at a particular time, it shall be binding. These are but parts of the same system, and in the practical use of that system, each part must be regarded. The one qualifies or limits the other. Now it is the case with many contracts void by law, that the defence must be pleaded, and if it is not, the contract will be enforced. Its void character is changed, chancery will not interfere, because the defence was at law; and thus by the remedial part of the system, that which was void may sometimes become valid.” 5 How. 150. Such is our system of administrative justice as adopted, recognized and established by and under the constitution. The constitution has given to the courts of chancery jurisdiction, in all matters of equity,, to be exercised according to the rules of equity; and to the courts of law jurisdiction, in all matters of law, to be exercised according to the rules of law. These jurisdictions are altogether separate and distinct, and are in no degree coordinate. The rules of our law do not permit, nor is it necessary or proper to allow, a party the privilege of two opportunities to try the same matter in different courts of justice. Should this case go back for trial, and be decided against the complainant by his laches, the judgment would be enforced. If the judgment is now void, would it become valid, as matter of lato, by the decree of the chancellor'? If, by the rules of equity, legal defences should be made in courts of law, and if, by the rules of law, a judgment is finally conclusive in favor of the legal validity of the cause of action, then is this judgment legally valid and finally conclusive, in equity as at law, against all legal defences known and available at the trial, whether such defences arise under the common law, the statutes, or the constitution.
    V. If the record itself showed that the cause of action was void by the express declaration of the constitution, the judgment would not be void, and only voidable by proceedings in error. The judgment of1 a court having jurisdiction of the subject-matter of the parties to the suit, is not void, although the record shows that each section of the several articles of the constitution has been violated in the proceedings of the cause and in the award of the judgment. . Such defects are errors in law, the trial of which, by the express declaration of the constitution, is beyond the jurisdiction of the chancellor. It is said to be impossible, in law, that a void contract should ever “ripen into a valid judgment.” But the reply is, .that, after judgment, the party is estopped to deny a legal consideration for the contract. Notes may be void by usur}^ gaming, &c., nullities as forgeries or discharged by payment; they may be in truth no evidences of debt, after- proof of the facts in avoidance. But who will pretend that a court cannot render judgment on the prima facie case presented by the contract itself, or by proofs, and so bind a party irrevocably by its judgment1? If this judgment is void,*a sale under it will convey no title; the sheriff would be a trespasser; any mandate founded upon it might be disregarded ; a justice of the peace or any citizen might declare it a nullity; even though it had the high .sanctions of this tribunal to sustain it. Voorhees v. Bank of United States, 10 Pet. 474.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the superior court of chancery to enjoin a judgment of the circuit court of Hindes county, because founded on a note given for the purchase of slaves brought into this state and sold as merchandise, contrary to law. Such dealing is prohibited by positive law, and the note given in consequence of it is declared void by statute. The sole question is the jurisdiction of a court of equity to give relief after the judgment at law. In determining this, it may be better, in the first place, to recqr to a few plain elementary principles upon the subject, than to become involved in a labyrinth of decided cases. Judge Story, in his treatise on Equity, page 32, says : “The most general, if not the most precise description of a court of equity, in the English and American sense, is that it has jurisdiction in cases of rights recognized and protected by the municipal jurisprudence, where a plain, adequate and complete remedy, cannot be had in the courts of law.” Again, he says, “The sole question applicable to the point of jurisdiction is, whether there is a right to be protected, or a wrong to be prevented, and whether the remedy therefor in other courts, and especially in the courts of common law, is full and adequate to redress it.” P. 60. These he lays down to be the true boundaries of the general jurisdiction of equity; which he then divides into three great heads, the concurrent, the exclusive, and the auxiliary. Of this division the concurrent embraces much the largest class of subjects, and it is under this head that this case falls. This jurisdiction has its true origin ,in one of two sources; “ either the courts of law, though they have general jurisdiction in the matter, cannot give adequate, specific and perfect relief; or, under the actual circumstances of the case, they cannot give relief at all. It extends to all cases of legal rights, where, under the circumstances, there is not a plain, adequate and complete remedy at law.” Under this head of concurrent jurisdiction the large class of constructive frauds are comprehended, and under the head of constructive frauds cases which violate public policy range themselves. 1 Story Eq. 94, 297. They thus fall within the cognizance of equity, under the head of its concurrent jurisdiction, when a character which cannot be fully relieved at law. This cause has been properly argued as one, the act in which is against public policy.

The peculiar remedies afforded by courts of equity, often constitute the principal ground for resort to that tribunal, in cases which fall under this head of its jurisdiction. 1 Story, 94; 2 Ib. 154. The point here is, whether that peculiar relief can in this case be administered after the judgment. The general rule on this subject is thus plainly laid down by the same able writer. 2 Story, 173, § 887. “In regard to injunctions after a judgment at law, it may be stated as a general principle, that any fact which proves 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.” Marine Insurance Company v. Hodgson, 7 Cranch, 332. The rule is stated in almost exactly the same terms in Gott v. Carr, 6 Gill & Johns. 312. But courts of equity will not relieve against a judgment at law, where the case in equity proceeds upon a ground equally available at law: but the complainant ought to establish some special ground for relief, as that the defence could not at the time, or under the circumstances, be made available at law, without any laches of the party. 2 Story, 179. Harrison v. Nettleship, 2 Mylne & Keen, 425; Farquharson v. Pitcher, 2 Russ. R. 81; Protheroe v. Forman, 2 Swanst. 238.

These are the general rules, extracted by an eminent jurist, from an examination of the cases, and from a view of the whole doctrine, and they seem to us to stand upon the firmest foundations. It is not to be .denied that cases may.be found which hold a different language, but we do not think that they stand upon principle. Take the cases cited from Kentucky) Morrison's Executor v. Hart, 2 Bibb, and Clay v. Fry, 3 Ib. 248, as examples. They hold that, in cases of concurrent jurisdiction, if the defendant at law prefer to do so, he may wholly neglect his defence at law, and then, as matter of right, without excuse, he may come into equity for relief against the judgment, because he has the same right to elect in which tribunal to make defence, that the plaintiff has to elect in which court he will bring suit. Now the court overlooked the fact, that when a party is put to his election, it is always before judgment or decree, and not afterwards. It is done upon the sound principle, that it is gross oppression to vex another with a double suit for the same cause. 2 Story, 175. The rule, if it be correct, must likewise apply to both courts. If a complainant file his bill to have an instrument delivered up to be cancelled, and the defendant in equity suffer a decree pro confesso, to be entered and confirmed, he will still have right to elect to proceed at law, to sue upon the instrument, and take his chance there. No court of equity would permit its decrees to be thus trifled with ; and the rule is wholly unsound in its application to a court of law. Another court cannot, in general, entertain jurisdiction, after the cause has been before a court of competent jurisdiction. 6 Term R. 471; 1 East, 537. It was settled at a very early day, that equity has no jurisdiction to examine any judgment of common law, and many bills liave been dismissed upon that ground. Cary, 3; Ib. 76; 2 Cas. in Ch. 98. Yet the doctrine asserted in the Kentucky cases, and contended for in this, involves the right to overrule, or, what is, in effect, the same thing, wholly to disregard the judgments of courts of law, in matters over which they have an unquestioned jurisdiction. So to decide would introduce inextricable confusion in a judicial system like ours, having separate courts, with jurisdiction distinct in general, but sometimes concurrent.

If the general rules above laid down, be applicable to this case, the relief asked for cannot be granted. It is not denied, in argument, that the jurisdiction of the court of law, which tried the cause, was full, complete and adequate to have admitted the defence. But it is insisted that there are exceptions to these rules under which the complainant can be protected. One of these exceptions, as contended for, was, that if there had been no trial at law, the party was entitled to a trial in equity. This position is in terms negatived by the rule, unless the complainant show that he was prevented from making a defence by fraud or accident, without negligence on his own part. See also 2 Story, § 897. The complainant here does not seek to bring himself within that exception, but claims the right to a trial, because he did not choose to submit his defence to a court of law. This has already been sufficiently answered.

It is next insisted that this contract is against public policy, is therefore exempted from the general rule, and that equity will relieve after judgment, on the mere score of policy, without any excuse for at failure to defend at law. We have given to this position the best consideration in our power. We have examined every case referred to in support of it, which we have been able to find. We shall not enter into a detailed examination of each case, but shall state some of the principles on which they are founded, and declare the conclusions we draw from them.

The cases on the subject of usury are pressed into this service. The jurisdiction of equity, in this instance, has been generally exercised in those cases in which a power of attorney to confess judgment was given, as part of the assurance for repayment. As this deprived the party of an opportunity to defend at law, it has been holden to give jurisdiction to equity. Fanning v. Durham, 5 Johns. Ch. R. Courts of law also, themselves, set aside such judgments. Roberts v. Goff, 4 Barn. & Ald. Some courts have gone farther, and have set aside judgments in cases of usury, when regularly obtained, and without any special circumstance to give jurisdiction. Brown v. Toell’s Adm. 5 Rand. 543. But other courts, of the highest standing, have refused to interfere after judgment, unless the party show he had good reason for failing to defend at law. Brown v. Swann, 10 Pet. R. 505. 6 Yerg. 398.

Another class of cases relied on for the purpose, are annuity deeds, not properly enrolled, or void for some other cause. In most instances under this class, the judgments were entered up under powers of attorney to confess judgment. The annuity acts, moreover, declare judgments, as well as contracts and assurances contrary to their provisions, to be void. 1 Bacon, 242, 243. The judgment thus interposes no difficulty, for equity may set aside a void judgment, in the same manner that it may any other void instrument. The same remark is true, in reference to gaming contracts; for the statutes against gaming declare judgments founded upon such agreements to be void. 4 Bacon, 19. Before the statute, money won at gaming might be recovered. Fleetwood v. Jansen, 2 Atk. 467, was the case of a mortgage to secure money won at gaming. The bill was filed to redeem, after a decree of foreclosure. The Lord Chancellor says : “ Consider whether it would not introduce a dangerous precedent in this court, to admit him to redeem now, after he has acquiesced under the foreclosure in the former case. Anything new, which has happened since the hearing, may be taken advantage of, not that which happened before.” This goes to show that equity, now, relieves against judgments in those cases, because they are declared void by statute.

The statutes in Virginia and Kentucky contain a similar provision, in regard to judgments growing out of gaming transactions, and there is hence no obstacle to relief in equity. 2 Hen. & Munf. 80. Skipwith v. Strother, 3 Rand. 214. Clay v. Fry, 3 Bibb, 249. In the case cited from Randolph, it was objected to the jurisdiction of the court, that the judgment might be set aside at law, but the court held that would not deprive equity of its jurisdiction.

In this whole class of constructive frauds, stock-jobbing, illegal insurance, marriage or place brocage bonds, and numerous others, equity is very-unwilling to interfere where the complainant has lain by till after a trial has taken place, and will only do so under special circumstances. Eden on Inj. 15-34. In whatever light we regard the jurisdiction, it flows from the want of adequate relief at law.

It is worthy of remark, that the jurisdiction exercised by chancery, in affording relief against contracts of the character we have just been considering, is not matter of right but of discretion, and it may prescribe the terms of its-interference. When the party comes for relief against his deed, or other instrument, he is required to pay what is justly due, and the assurance is ordered to stand as a security for that purpose. 1 Story, 300. Were this a case for interposition, according to that principle it would only be upon terms. Those terms would be, that the complainant should return the slaves to the vendor, who would also be put under requisitions to carry them from the state. The public and the parties would thus be both vindicated. That the party here is a surety, in our view makes no difference. We put the case, however, upon the broad principle, that after the judgment at law, the party has no right to come into equity, unless for some reason which prevented his defence at law, without n'egligence upon his own part.

It may be proper to noticé a few cases, which were pressed upon us in argument, which may not fall within any of the general observations already made. The case of Snyder v. Dailey, 1 Rand. 76, was a judgment upon two notes under seal, in favor of Dailey. The defendant enjoined the judgment, alleging in his bill that the notes were not given to Dailey, in his individual character, but as president of an unchartered bank; that the institution was illegal, and its acts rendered void by statute. The counsel (Tucker, afterwards president of the court of appeals,) placed the claim for equitable interposition on the ground, that the wrong-doer had obtained the advantage in "a court of law, by hiding the real character of the transaction under a trustee’s name. The injunction was made perpetual; the court cites no authority, and does not allude to the fact, that there had been a judgment at law.

The case of Cock v. Richards, 10 Ves. 437, was a case of a judgment at law, upon a bond, or instrument under seal. Besides various other objections, it was made manifest that there was no consideration for it. That defence could not have been made at law; and the Lord Chancellor says that he did not know “ that the law could make anything of it.” The injunction was retained till the hearing. It is clear that the defence at law was not plain, or complete. This remark will apply to many other cases.

Mayhew v. Crickett, 2 Swanst. 185, was a judgment entered up under a power of attorney to confess. In the short note of the case of Evans v. Richardson, cited in 16 Johns. 486, it does not appear whether it was at law or in chancery, or before or after judgment. Whittingham v. Burgoyne, 3 Anst. 900, we have not been able to procure; the note of it, 2 Chit. Eq. Dig. is too imperfect to enable us to see upon what principle it stands.

The passage from 1 Story’s Eq. 297, “ that in such cases the public interest requires that relief should be given, and it is given to the public, through the party,” is, no doubt, the law. But all that the maxim means, as demonstrated by the connection, is, that in such cases relief will not be denied, merely because the complainant is a particeps criminis. He is relieved from that disability for the public good. That it has no reference to the point of equitable jurisdiction, after judgment at law, is shown by the fact, that in every case relied on in support of it, the bill was filed for relief when there had been no judgment, except, perhaps, the last, which we have not been able to find.

It was strenuously urged in argument, that this contract was against a provision of the constitution, and against the declared. policy of the state, and that if we give it effect, we violate an instrument which we are bound to support. We have given this point our most anxious consideration.

We do not doubt that the contract might have been avoided, by plea at law, but by his failure to make such defence, the complainant has placed it beyond the reach of the courts. If this cause had been brought before us by writ of error, from the judgment at law, we could not have reversed it, because the party had not put his defence upon the record. The same result follows now, from the same cause. A contract, contrary to a provision of a statute, is as invalid as when opposed to the constitution. In neither instance will a court give judgment, if defence is made at a proper-time. But if the party suffer a court of competent jurisdiction to render a judgment, with all the forms of law upon it, another constitutional question of equal or of greater weight arises, where is the power to vacate or set aside such judgment ? A court of chancery, under the circumstances which we have endeavored to point out in the previous part of this opinion, has such power. But in the absence of those peculiar circumstances, which are necessary to give lt: jurisdiction, it has not the power. If our views, as to its jurisdiction, are correct, to give it such power by construction would be to violate the constitution, to confound the jurisdiction of the courts, and to break down the barriers between law and equity, which the constitution itself has created. We think, therefore, that we are in the strict pale of our constitutional duty, when we refuse to recognize such a jurisdiction.

This point has been twice heretofore decided by this court; we have again given it the most anxious investigation, and have reached the same conclusion. Nothing remains but to state our conclusion, that the order of the Chancellor, dissolving the injunction, be affirmed.

Chief Justice Sharkey dissented, but delivered no opinion.  