
    Prewitt v. Perry.
    Any fact that •would be good cause for enjoining a judgment would, if it existed before judgment. have been a good defense to the action; and if such defense was known to the defendant it might have been discovered by ordinary diligence on his pan, and ho failed to avail himself of it, ho cannot afterwards make it tlie foundation of an application to enjoin the judgment. (Note 4.Í.)
    ^Tha ease of Cartwright v. Roif (1 Tex. R., 78) cited and approved.
    Error from Bowie. Suit was commenced by the plaintiff in error against the defendant on a promissory note. The defendant appeared and pleaded, 1st, that the matters set forth in plaintiff’s petition were not sufficient to entitle him. to a judgment; 2d, that lie was not indebted to the plaintiff; and 3d, that the consideration on which the note sued on was given had wholly failed. Tlie cause was continued several terms, and the defendant at last withdrew all defense and lot judgment be entered up by nil dicit for the amount of the note sued on, wit.li interest and costs. The defendant then applied to the judge of the district for an injunction. In his petition lie alleged that the note sued on had been procured by the fraudulent representations of the plaintiff. I-Ic further alleged that the parties had referred the matter in dispute in relation to ihe note sued on, and that there liad been an arbitration and an award pursuant to the submission; that the arbitrators had awarded to the plaintiff in full satisfaction an amount much less than called for by the note, and had awarded to (he plainliffhis costs of the court in the suit.
    The judge directed that an "injunction should issue on the petitioner depositing with tiie clerk of the court the amount of the award, to be subject to the order of the plaintiff in the original suit. The plaintiff in error, who was the defendant in the injunction, demurred to the petition ; the demurrer was overruled. lie then answered the bill, denying all fraud or misrepresentation, but admitting the agreement to arbitrate and the award of the arbitrators, and alleging that the award was unjust, and that he was much intoxicated at the time the arbitrators met, and unprepared with his evidence. On the bill and answer the court perpetuated the injunction for the excess of the judgment over the award of the arbitrators.
    
      J. II. Rogers, for plaintiff in error.
    The defendant in error should have pleaded the facts which he now seeks to make the basis of an injunction as a defense to the former action. Having suffered judgment in that action to go against him by nil licit, he waived all defenses that were known to him or that might have become known to him by the exercise of ordinary diligence on his part. [Cartwright v. Hoff, 1 Tex. It., 78.)
    
      M. D. Rogers, for defendant in error.
    That the grounds on which the defendant. in error obtained the injunction might have been pleaded in the first suit will not be denied; but that a failure to do so does take from a court of equity its jurisdiction by bill we do deny. (6 Eng. Ch. R,, 3G2, and cases there cited.) The plaintiff in error reposes upon the decision in the case of Cartwright v. Roff, (1 Tex. R., 78.) We think there is no analogy in the two cases, tlie facts being very different. In that case appellant was wholly in error. In this case defendant in error has in good faith always been ready to and as far as he could performed his part of the agreement.
   Lipscomb, J.

The only grounds of relief-presented by the petitioner are the fraudulent representations of the plaintiff in the original suit in procuring the note sued on and the award of the arbitrators. Both of these could have been made available in the first suit, as they both existed and were known to the defendant before he withdrew his pleas and suffered a judgmeut by nil elicit. It was a strange misconception.of our system of jurisprudence to suppose that, by permitting the judgment to go against him after abandoning his defense, a more ample defense would be opened to him by resorting to the same court, only changing its denomination to a court of equity, as distinct from the one in which he had abandoned his defense. This distinction is repugnant to the principle enjoined by our Constitution, that all suits shall be tried without regard to any distinction between law and equity.” There was no ground of defense shown in the petition that could not have been set up in the original suit, and his waiver of his defense was, according to the case of Cartwright v. Roff, (1 Tex. R., 78,) tantamount to a confession of judgment, and was clearly an abandonment of every defense known to him or that ordinary diligence could have made known at the time.

If, however, a distinction between law and equity jurisdiction composed a part of our judicial system, the chancery jurisdiction could not have given him any relief. For it is au established rule of that court to grant no relief when the defense could have been full and complete in the trial at law. It has been before stated that both of the grounds relied on by the petitioner for relief might have been set up under our system in the original suit. And they could both have been set up even if the law and chancery jurisdiction had been separate. The courts of common law have concurrent jurisdiction in questions of fraud and misrepresentation, and the submission and award could have been pleaded puis darien continuance, and as such would have been a bar to the aetiou.

The case of Jones «..Fresh, decided by this court during its recent session at Galveston, was an attempt to go behind an award and open transactions embraced in it. We held that an award was equivalent in every respect lo a judgment between the same parties, and that in the language of Lord Chief Justice' De Grey, in the Dutchess of Kingston’s case, (11 State Trials, 201,) “Tt is as' a plea, a bar, or as evidence conclusive between the same parties upon the same matter directly in question in another court..”

Note 45.—York v. Gregg, 9 T., 85; Gibson v. Moore, 22 T., 611.

But if a party fails both to set up an award by plea or to give it in evidence, he only furnishes another instance to the many thousands of a party sustaining loss by his negligence.

We are of opinion that the court below erred in granting the injunction and erred in the final decree., It is therefore reversed, and the petition ordered to be dismissed.

Reversed and dismissed.  