
    *Daniel Green v. John Dodge and Eli Cogswell.
    Chancery will not relieve against a judgment at law, and grant a new trial, where the matter complained of arose in any way from the negligence of the complainant, or because the parties relied upon the promise of the judges to see the proper entry made.
    "When a security receives from the principal debtor demands, for the purpose of discharging the debt by their transfer to the creditor, or by payment of the money collected, he holds the claims, or their proceeds, as trustee of the creditor.
    In chancery from Washington. The bill of the complainant makes this case : That in February, 1821, one Sydney Dodge was indebted to Kim in the sum of sixteen hundred dollars, and an arrangement was entered into between the complainant, the said' Sydney, and the defendants, John Dodge and Eli Cogswell, that if the complainant would forbear the payment of said debt, one-half for fifteen months and the residue for two years, that Sydney Dodge should give his notes payable at those times, and the defendants should indorse the notes and guaranty the payment, which was accordingly done. The notes were given payable to-the complainant alone, and were indorsed by the defendants in blank, as guarantors of the payment. No part of said notes has-been paid except five hundred and seventy-seven dollars and sixty-eight cents, received on July 15, 1823, from John Dodge, one of the defendants, which is credited on the note that last became due. A judgment was recovered against the said Sydney, and he became insolvent, leaving complainant no other reliance for his money than the guaranty of the defendants, who had full notice-of the non-payment. That to indemnify the defendants from their liability, John Dodge, one of them, received from the said Sydney notes, accounts, and judgments sufficient to pay the notes. The-complainant, with a view to collect the money due by Sydney Dodge, placed the notes in the hands of counsel for prosecution,, who filled up the blank indorsement as follows: “We, the undersigned, bind ourselves as security for Sidney Dodge, for the payment of the within note, according to the tenor thereof, to Daniel Green, the obligee in said notebut in affixing the date to the indorsement on the note payable in fifteen months, he by mistake-wrote it February 21,1823, instead of 1821, which was the true date. Suit was brought on the notes, and in the declaration the indorsement last aforesaid was denied, as of the erroneous date. The-cause was brought to trial before the Supreme Court in bank, in 1826, upon an agreed state of facts as above, and also “ that no consideration passed from Green to Dodge and Cogswell, on account of said notes;” whereupon, the court found for *the defend- [81 ants, and rendered a judgment accordingly. That said judgment was, through mistake of the court or their clerk, entered so as to become a bar to any subsequent suit, whereas, the grounds of the judgment were the want of an averment in the declaration of any consideration for the undertaking of the defendants, or of a demand of them, or of notice to them of the non-payment, or any valid excuse for omitting such demand and notice, or evidence of a waiver of the demand and notice, or other legal liability; although, in fact, the consideration was the forbearing the debt to the said Sydney; and in fact, also, a demand was made of the defendants, and they were notified of the non-payment. That the complainant’s counsel, who drew the declaration, was of opinion no averment of the consideration, or of non-payment, or demand and notice, was in law required in the declaration.
    The defendants did not demur to the declaration, hut plead the general issue, and for the purpose of a trial entered into the agreement as to the facts as stated. The pleadings, on that account, did not contain a true state of the facts in the case, but only the artificial case drawn by the attorney; that at the court in bank, before the decision, the plaintiff’s counsel was informed by the court that the declaration would be held insufficient; and he immediately requested of the court leave to amend, which the court refused, observing that the plaintiff would be put to a new action, and the judgment would be so drawn as to be no bar to another suit. The counsel was called from court by sickness in his family, and did not return till after jts adjournment, nor discover until then that, in the hurry of business, the judgment had been •entered so as to be a bar. At a subsequent term of the court in bank, counsel moved the court to amend the judgment, which was refused, because of the want of power in the court to amend. He has since sued the defendant, John Dodge, on said guaranty, but he pleaded the said judgment in bar, and the plea was adjudged good. And so, while in the prosecution of a fair and honest •claim, without laches of himself or his counsel, he has been deprived of his rights by accident and misfortune. Upon this case he prays for a new trial and general relief. See 2 Ohio, 439, and 3 Ohio, 486.
    The defendants demur to all this bill, except the allegation of the receipt of the fund for indemnity. As to that, J. Dodge and Cogswell answered, denying all fraud and the receipt of any fund as indemnity, but admitting that in July, 1823, Sydney .82] *Dodge placed in John Dodge’s hands sundry demands, to be handed over to the complainant, in payment of the notes, which he offered to the complainant, who selected two demands, .amounting to five hundred and fifty-three dollars and eighty-oce .cents, and rejected the residue; and that the defendant, John Dodge, has since collected two hundred and twelve dollars and two cents, and no more, which has never been demanded of him.
    Nye and Goddard, for defendants,
    cited 4 Ohio, 469; 2 Ohio, 7, 311; 1 Ohio, 429; 4 Ohio, 327, 239, 241; 3 Johns. Ch. 351; 6 Johns. Ch. 87, 194, 479; 2 Johns. Ch. 557; 1 Johns. Ch. 97; 14 Johns. 63; 3 Pet. 520.
    H. H. Hunter and H. Stanbery, contra,
    cited Mit. Pl. 206, 208, 195, 200, 102, 106; 2 Vern. 146, 190, 232, 378, 419, 437; 1 Eq. Cas. Ab. 240, 377, 378; 2 P. Wms. 424; 2 Tent. 351; 4 Ohio, 175; & Johns. Ch. 479; 7 Cranch, 69; 1 Serg. & R. 241.
   Wright, J.,

delivered the opinion ot the court:

Two points are made on this demurrer:

I. That the matters set forth in the bill are of exclusive legal cognizance, and have been tried and determined at law.

2. That no fraud or accident within the jurisdiction of the court is shown in the bill; but, on the contrary, it is shown that if the complainant ever had a meritorious case against the defendants, he-has lost it by his own negligence or that of his agents.

This court has determined, in Leiby v. Parks et al., 4 Ohio, 492, that it is not proper for a court of equity to inquire whether a court of law, in a matter within its jurisdiction, erred in opinion, nor whether a fair and impartial trial has been had at law, unless the complainant clearly shows that he had a good defense, and was prevented by fraud or pure accident, without any fault or negligence of himself or his agents, from availing himself of it. The present chief judge, in giving the opinion of the court in that case (page 493) uses the following language: “Should this court enjoin this judgment, and order a new trial at law, because a fair trial had not been had, it must order a new trial in every case, where the defendant may, in general terms, allege fraud in the-plaintiff in obtaining the verdict against him, and that there existed evidence which would probably change the verdict. Prom, their feelings, defendants would do this with a pure conscience in most cases where verdicts *are against them. Hence, courts [88 of chancery, before they order a cause to be reheard at law, require that the complainant shall show that he used due diligence in preparing and conducting his defense at law, and that he was-prevented from making them by circumstances beyond his control.”

The same doctrine is recognized by the Supreme Court of the United States, in Marine Insurance Co. v. Hodgson, 7 Cranch, 336. Chancellor Kent, in Duncan v. Lyon, 3 Johns. Ch. 356, lays it down as “ a settled principle, and one by which he intends to continue to be governed, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report, on facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence on his part." In Curtis & Williams v. Cissna, 1 Ohio, 435, this court determined it not to be a subject of inquiry in chancery, whether the decision of a court of law, upon a subject within its jurisdiction, was or was not correct. In that case, it is said that “ a court of chancery does not act as a court of errors to examine or reverse the judgments of a court of law.” And again, “ where courts of law and of •chancery have concurrent jurisdiction, and a party electing to pursue his remedy in one fails, he shall not be permitted, as a general rule, to re sort to the other.” This court also, in Buell v. Cross 4 Ohio, 330, determined that where a party has remedy at law, in the prosecution of which he has been defeated by an erroneous decision, he can not be aided in equity. “If he properly failed,” say the court, “his rights are at an end; if improperly, his remedy was by error.” With these decisions upon the point, one would suppose the profession would consider the question settled; at any rate this court is satisfied with the decisions, and is not disposed to alter them.

It is insisted by the counsel for the complainant that these matters will not avail the defendants on demurrer, but should have been set up by plea; and that they can not even be pleaded without a denial of the fraud, or other circumstances. Eeliance, for this, is had upon Mit. Pl. 206-208; whereupon it is urged that inasmuch, as in this case, there is no denial of the circumstances and mistake, they are all admitted by the demurrer, and so are to be held available. We do not apply the law as the complainant’s counsel do. The true inquiry is, are the circumstances admitted •84] by the demurrer, such as, according to *the course of proceeding in chancery, to entitle the party to relief? Apply this ■rule in the present case. No fraud is alleged, except the fraud of ■the court. This court found a verdict, acting as a jury, against the complainant, according to his own agreed state of facts submitted to it; judgment is rendered upon this finding, according to the practice of the court. It is complained of this that the case set forth in the declaration was not the true one, but fictitious, and so made by the complainant’s attorney, because he thought it more •convenient to state his facts in that manner, and that he stated all the law required ! If this be the mistake, or circumstance relied upon, it is the fault of the complainant, for which this court will not afford him relief.

Again, it'is complained that the ground of the judgment was the want of an averment of consideration in the declaration, when in truth there existed a consideration that might have been averred. The agreement of facts set forth in the bill admits “that no consideration passed from Green to Dodge and Cogswell on account of said note.” Did the complainant admit a falsehood to get his cause tried, and does he now ask to be relieved from his false admission?

It is still further objected that the court, before it gave judgment, assured the attorney that it should be so entered as not to operate as a bar, when, by mistake, the judgment was otherwise entered. It is believed this is the first application to chancery to •set aside a judgment at law, because of fraud or misrepresentation in the court rendering that judgment. But what are the alleged circumstances? The court refused leave to amend after the cause was submitted, and observed to the counsel asking leave that the judgment would be entered in a way not to operate as a bar 1 The parties voluntarily submitted their cause upon agreed facts to the court; on the facts, the court found a verdict for the defendants (see 2 Ohio, 439); upon which judgment followed, of course, and now the plaintiff asks to set aside the judgment, because the defendant did not choose to move for a nonsuit, or in arrest of judgment; because his own counsel stated a fictitious, instead of the true case; and because the court, without motion in conversation, undertook that the judgment should be entered, so as not to be a bar 1 And because, upon some unknown ground, the court overruled a motion to amend the judgment at a subsequent term. See Ohio, 486. These facts, it is claimed, are to be *taken as true, because admitted by the demurrer. A de- [85 murrer admits only what is well pleaded or set forth. A court acts upon uiatters before it; it can hold no conversation — it enters into no contracts to do business, and it can only speak by its record. The legal maxim is, that they import absolute verity, and can not be contradicted; hence, a claim to set up facts in opposition to the record, as in this case, has no legal effect, even if demurred to. The conversation, if any, in this case, must have been with a judge of the court, not the court; and if he undertook to take care of the complainant’s rights, it was as his agent, and his laches, like that of other agents, are chargeable upon the-principal.

The analogy claimed to exist between this case and that of Oliver and Baum v. Pray, 4 Ohio, 175, is not perceived by us. The judgment, in that case, was deemed unconscionable, and the mistake on which relief was given, was that of the clerk, in the discharge of his duties as an officer or agent of the law, in taking the appeal bond, when the complainants, so far as they were in pursuit of their legal rights, acted “ with perfect good faith and with all reasonable diligence.” Id. 194. That case goes as far as we are disposed to go. The demurrer is, therefore, well taken.

On the merits the case made lays no foundation whatever for a decree against Cogswell, and as to him it is dismissed with costs. John Dodge, it appears, received from Sidney Dodge, certain claims to be applied to the extinguishment of the complainant’s debt, a part of which only have been so applied. He admits the receipt of two hundred and twelve dollars and two cents, which, remains unapplied; and he holds this money and the uncollected demands in trust for the complainant. The exact state of the outstanding demands is not made known to us; nor are we advised when the two hundred and twelve dollars and two cents were received, or might have been paid over. A master will, therefore, unless the parties agree, be required to take and state an account of this fund, showing the amount received, the date of the receipt, and the timo when it might have been paid over; also, the present condition of the remaining claims, and if any, what portion of them have been lost by the negligence of John Dodge. The cause 'must be continued for further proceedings.  