
    THADEUS DEWEES, vs. DAVID RICHARDSON,
    
      On an appeal from a decree of the Brackenridge circuit court.
    
   The Chief Justice

. delivered the opinion of the court.

This was a bill with injunction to stay proceedings upon a judgment at law, obtained upon the record of a judgment from the state of New-York. The judgment in N. York was obtained in an action of assumpsit, for the price of certain property sold by the defendant to the complainant.

vv^c¡f an¿ ong-ht^to have been Atlaw, e grounds of equitable in-v^^antT Keith and Humphries,

C. Wicklijfe for appellant.

The complainant admits the purchase of the property, but asserts that he paid for it at the time of the purchase, in notes upon others in the state of N. York, and alledges as an excuse for not having made a defence to the suit brought in that state, that he had no recollection of the ivrit having been served on him, and that he did not know of the pendency of the suit.

The matter alledged by the complainant in opposition to the defendant’s right of recovery, is of a purely legal character, and such as he might and ought to have availed himself of in a defence to the action at law in the state of N. York. Without, therefore, shewing a sufficient excuse for failing to do so, he cannot be permitted to resort to a court of equity for relief. But the excuse offered by the com-plainantis wholly insufficient for this purpose. The writ appears, in fact, to have been served upon the complainant, and most unquestionably the mere allegation that he bad no recollection of the service of the writ, and did not know of the pendency of the suit, can never be received as a foundation for making a defence in equity, which ought to have been made at law.

The court below, therefore, correctly dismissed the bill and dissolved the injunction.

Decree affirmed with cost and damages upon the damages.  