
    Supreme Court of Errors and Appeals. Nashville.
    1812.
    ROBERT C. REEVES AND ANOTHER v. HOGAN AND HENDERSON.
    >- Chancery. )
    5. C. 1 Tenn. 513.
    A bill in equity will not lie to be relieved against a judgment at law, upon a purely legal de-fence, of which the party neglected to avail himself. [Acc. Turney v. Young, 2 Tenn. 267, citing this case.]
    Thus, a bill is demurrable which seeks to have certain credits allowed on a judgment, upon the ground that defendant knew that complainant was entitled to the credits and omitted to allow them on the trial at law, and the complainant failed to attend the trial trusting that the credits would be given.
    To transfer a legal question to an equitable jurisdiction, some equitable ground must be shown, unmixed with negligence or fault on the part of the person seeking relief. [Acc. S Hay. 313, citing this case; 3 Y. 12V; 3 Hay. 210, 220; 3 Hum. 559; 6 Hum. 149,241,394; 8 Y. 59, 103; 8 Hum. 363; 3 Sn. 221. And see, now, Stockley o. Rowley, 2 Head. 496, citing 1852, 365, 7, Code, 4321.]
    This was a bill in equity brought by the complainants, to be relieved against a judgment at law obtained by Hogan, assignee of Henderson, upon a bond for two hundred dollars.
    The bill states that the complainants executed their bond to the defendant Henderson for two hundred dollars ; that Henderson left this country, whereupon divers persons sued out attachments against him, and summoned the complainants as garnishees ; that in these cases they were compelled to pay as garnishees for the said Henderson seventy-six dollars, in consequence 'of which they procured a credit therefor to be indorsed on the bond; that the bond had been assigned by the defendant Henderson to the defendant Hogan in trust for the benefit of Henderson, after the indorsement of the said credit; that a suit was brought upon the bond, and the complainants relying that the plaintiff at law would give the proper credits did not attend court, and the credits had not been allowed, but a judgment taken for the whole amount.
    It does not appear from the bill what plea was filed by the complainants to the action at law, or whether any was filed, nor is any reason assigned why they relied upon the plaintiff to give the credit except that the plaintiff knew they were entitled to it.
    The prayer of the bill is to be relieved against the payment of the seventy-six dollars.
    To this bill the defendants filed a demurrer, alleging in substance that the defence of the complainants was properly triable in a court of law, and that no good reason is assigned why it was not made there.
    
      Haywood, for the complainants,
    cited the following cases: — 2 Hay. Rep. 342 ; 2 Ves. jr. 135 ; 2 Wash. 268, 36, 273.
    
      Dickinson, for the defendants,
    cited 1 Vern. 119; 2 Vern. 325; 2 Com. Dig. 542 ; 4 Johns. 527.
   White, J.

I am of opinion that the complainants have not made out such a case in their bill as will entitle them to relief in a court of equity. Ho principle is better settled than this : That where a defence is purely legal it ought to be made at law. If a defendant makes a defence at law in a case purely legal and fails, or if he neglects to make his defence there when he might have done so, a court of equity will give him no relief. The only exception to this rule is in cases where he was prevented from making the proper defence at law, owing to causes over which he had no control and in which no neglect is imputable to him. But it should appear that he made use of every exertion to make his proper defence. It can he no ground for coming into a court of equity that the party has been negligent, although in consequence of that negligence his adversary has unjustly and unconscientiously obtained an improper verdict.

There can be no doubt but that the defence set up in this bill is a matter purely legal. The complainants neglected to bring the question before a court of law, and the only excuse they offer for this neglect is that they relied upon the plaintiff at law to give the proper credits. I am willing to admit that if a plaintiff at law promises to give a certain credit, in consequence of which the adverse party relying upon this promise fails to defend the suit, a court of equity will give relief if such credit is withheld; because in such case the party claiming the benefit of the credit is prevented from obtaining it at law by reason of the fraud and imposition of his adversary. But such is not the case in the present instance.

It is insisted, however, that Hogan concealed from the Court and jury such facts as were beneficial to the complainants. It is only necessary to state that the bill does not charge that kind of concealment which will authorize the interference of a court of equity. If one party who alone has knowledge of the fact conceals such fact from his adversary, by which means an unjust verdict is obtained, I would have no hesitation in giving relief. But the principles upon which such relief is extended do not apply to cases where the fact material for the defence is as well known to the defendant as to the plaintiff.

Suppose a plaintiff brings an action at law, in a case where he really has a good cause of action, but upon the trial he introduces no proof, and a verdict is rendered for the defendant ? If he then brought a suit in equity, alleging the justness of his claim and charging that he relied upon the defendant, upon the trial, to admit the demand, would he be relieved ? Certainly not. Suppose, on the other hand, a defendant is sued in an action at law, who makes no defence, in consequence of which a verdict is recovered against him for more than is really due. If he then comes into a court of equity, praying for relief and alleging that he had relied upon the plaintiff to give him all just credits, would the injury be redressed ? No relief could, by the rules of equity, be afforded him, except the plaintiff had by false and fraudulent representations induced him to make no defence; and except also, in a case where the evidence to support the defence could not be procured but by the oath of the plaintiff.

In this case the defence was purely legal. The complainants had no reason to suppose that the plaintiff at law would show both sides of the case. If we were to give relief it would be a usurpation upon the rights and powers of the courts of law, which I am not dispdsed to commit. If injustice has been done, it has arisen from the neglect of the complainants, by the consequences of which they must abide,

Overton, J.

It is insisted that the Court have jurisdiction on. the ground of fraud, concealment, and accident. Considerable range of argument has been assumed. With other topics, it has been insisted that courts of equity had original jurisdiction of partial payments, and that a trial at law does not take it away.

It is certainly true, as a general proposition, that where the subject-matter was originally equitable, and that equity is not rendered available at law, after due diligence, that a court of equity will entertain jurisdiction. This is on the ground that courts of law permit an examination of such equitable matter. It is said that the pleading of payment at law arose from statute, and if the party fail to plead it he may have recourse to this Court. I am unable as yet to find any precedents in the books to support this ground. To establish the origin of any legal or equitable jurisdiction is always difficult and seldom necessary, provided the exercise of such jurisdiction is sanctioned by the dictates of reason. 1 Fonb. 18.

In the case before the Court the complainants had an opportunity of defending themselves at law. If by relying on the honesty or attention of the plaintiff there they have been damaged, it is no reason for coming here. The remedy at law was a complete and adequate one, which is the true ground upon which this case rests. The ascertainment of payments were plain matters of fact, unmixed with legal disquisitions, and no way complicated in their nature. A court of law was as completely competent.to afford redress, and more so, than a court of equity. This bill does not seek an account, but that a credit may be obtained for particular payments.

There are two distinct grounds upon which the jurisdiction of the Court rests. First, where the subject of complaint is of an equitable, and not of a legal nature originally, and properly cognizable in a court of equity. Secondly, where the subject is purely legal, but, in endeavoring to obtain justice in a court of law, some obstacles arise over which the complainant had no control. In this case, if the complainants, after using due diligence at law, were defeated of their remedy by fraud or other improper means, they would obtain relief in equity. . But a complainant cannot come into this Court, in such a case, as a matter of course. He must show some equitable ground, and make a case free from the imputation of neglect, be-ford he can transfer a legal question to an'equitable jurisdiction. 4 Hen. & Mum. 423,470, 491.

No attempt has been made to get clear of the imputation of neglect, and this Court cannot aid the negligence of parties. No fraud, undue means, or improper circumstances are charged to have taken place at law, but simply a want of attention of the defendants to the complainants’ interest at the trial. The allegations in the bill amount to this and no more.

The law presumes that every man will and ought to attend to his own interest; and least of all that his adversary in a judicial contest will do it for him.

The demurrer must, therefore, be sustained. 
      
       Note erom Original Errata. — Judge White’s opinion was delivered verbally; afterwards, during the same term, a joint opinion in writing was filed, which is in the words of Judge Overton’s opinion, on page 177.
     