
    Kearney and Moore vs. Smith and Jackson.
    A party will not be aided by a court of chancery, after a trial at law, unless he can impeach the justice of the verdict on grounds which he could not have availed himself of at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.
    
    The bill charges, that in the year 1818, John 3. Moore, in the state of Virginia, recovered a judgment against Benjamin Jackson, one of the defendants, for about 120 dollars; that this judgment in the name of John I. being in fact for the bénefit of Wm. H. Moore, he brought a copy of it to Alabama, and finding defendant Jackson, he caused him to be sued on a copy of said record, and obtained a judgment against him there; that said Benjamin brought from Virginia two negroes, his slaves, which he sold to Theoderick L. Smith, the other defendant, who is also'his brother-in-law, without consideration, and to defraud his creditors in general, and complainant Moore in particular; that complainant, William H. disregarding such fraudulent transfer, sold Sol, one of said slaves, under execution on said judgment, as said Benjamin’s property, and prevailed upon Gustin, the other complainant, to purchase said Sol for him at such sale, under an agreement to save said Gustin harmless. Smith brought an action of detinue against Kearney in Alabama. Complainant’s counsel advised a plea of misnomer in abatement. This plea being overruled, and a plea to the merits and a trial instanter ordered by the court, the cause proceeded in the absence of complainant’s best lawyer, who was sick, and of complainants, who were given to understand by their counsel that their presence would be unnecessary, and in the absence of their witnesses, who were scattered over several counties. Besides, if they had all been present, complainants say, they are by no means certain that they would have proved enough to have satisfied the mind of the jury of the existing fraud between the defendants, without an answer from defendant Smith. The consequence was a verdict and judgment against Kearney for about 400 dollars. That a copy of ‘ this record was brought to Giles county, where said Kearney lives, and a suit brought and a judgment rendered against him thereon. On these charges complainants pray for an injunction and general relief.
    The defendants admit that John I. Moore obtained a judgment against defendant, Jackson, in Virginia, but they do not admit that said judgment was for the benefit of William H. nor that he has any. interest therein. They also admit that a judgment was obtained against said Benjamin, on a record of said judgment from Virginia, and that previous to that judgment, Benjamin sold Sol to said Theodorick L.; but both positively deny that the sale was with a view to defraud creditors; on the contrary, they affirm that a fair price was given, and the greater part of the money actually paid to creditors of said Benjamin; and said defendant Smith insists that said William H. has not the least right to interfere, having no interest in the controversy, and insists upon his judgment at law against Kearney, as absolutely conclusive of the right to said slave.
    Craighead,, for the defendants.
    There are several depositions on both sides, relating entirely to the validity of Smith’s title. These I shall not notice, as it may be Safely said of them, that they are not more conclusive than complainant himself anticipated they would be, if the witnesses had been examined upon the trial at law. Be this as it may, there are two points upon which the defence may, I think, be safely rested.
    .1. The absence of/John I. Moore from, and the intrusion of William H. into this suit. '
    2. A defect of jurisdiction in this court in this cause, which was properly cognizable at law, and has been tried and determined there.
    As to the first, John I. Moore obtained the judgment in Virginia; that in Alabama was founded on this record, and -if with his knowledge and consent, is his. If, as is more probable, it be wholly unknown and unauthorized by him, it is an act of barratry, and confers no right upon any one. But in every view, William H. is a mere intruder. He vaguely alleges an interest that is not admitted, and it is not proved.
    And as to the second, the trial of the action of deti-nue brought the validity of Smith’s purchase directly before the jury. If the defendant in that action, Kear-ney, has either mistaken or misshapen his defence at law, he can have no relief here. Evans vs. Sully, 9 Price, 525, cited 1 Chitty’s Dig. 592. I Vernon, 238, Underwood vs. Mordaunt. And Kinney vs. Smith, 1 Scho. and Lefroy, 205. These cases, and especially the last, are so full, so able, so directly in point to every part of this last position, that I think it useless to attempt to strengthen or explain them.
    In conclusion, I beg leave to remind the court, that “interest reipublicce ut finis sit litium” • But here a controversy about some hundred dollars, at first, has extended finally and last, through several states and counties, and has endured for nearly 12 years, and has grown up tobe a considerable sum of money. The arguments and evidence ought to be extremely strong that would induce your honors to overturn the two judgments that now stand, the one in Alabama, the other iníGiles county, against complainant Kearney, in favor of defendant Smith.
    
      Bramlett, for complainants.
    Complainants might to be relieved from said judgment, because of the surprise which took place at the trial of the action of de-tinue in Alabama, in the striking out of the plea of misnomer, and by the sickness of their counsel, who alone knew the merits of their cause; which were circumstances that no diligence could on their part, either foresee or avoid; by which they have been prevented from a trial of the merits of said cause. See Click vs. Gillespie and E. Jones, 4 Haywood’s Rep. 8, and Rogers vs. "Waller and Beaty, 4 Haywood’s Rep. 209: Armstrong vs. Thompson, 3 Haywood’s Rep. 127 and 8: Winchester vs. Jackson and Evans, 3 Haywood’s Rep. 316: 3 Haywood’s Rep. 305. The cases already cited, are cases in their character purely legal; but where the subject matter was originally of an equitable character, there the cases would be different, and the law would be different.
    This is a case of fraud, and courts of equity have always, since their first organization, entertained original, and in many cases ■ concurrent jurisdiction with courts of law in matters of fraud; and where a plaintiff in a court of law, has elected to coerce his adversary into a court of law, to investigate a matter of which a court of equity originally had jurisdiction, and the defendant attempts to do so, but is ultimately defeated, still such defendant will have a right to call upon the plaintiff at law to investigate the matter in a court of equity: for the defendant at law had no election of the forum in which to investigate his rights in the first instance, and the chancery court is not ousted of its jurisdiction by the trial at law. This rule holds equally in cases where the courts of law and chancery have concurrent jurisdiction, as in the case before the court; and especially where the merits were not and could not be investigated in the trial at law, in the necessary absence of the counsel employed, and in the absence of all his testimony to prove the fraud, and the surprise produced in striking out the plea at the trial term, and the haste required for another plea and trial of the cause. To support the above position, see 2 Tenn. Rep. 236, and Stothartvs. Bennet, Cooke’s Rep. 420: Appleton vs. Harwell, Cooke’s Rep. 242.
    As to the question of fraud in this case, I conceive it to be clearly settled, that where a bill of sale for slaves or other personal property is made, which purports to be absolute on its face, it is taken to be fraudulent and void as to creditors, unless the possession of the property accompany and follow the deed. The proof abundantly shows, that that was not the case in this cause, nor was the bill of sale ever proven and registered. Fraud, the most glaring, is apparent on the face of the whole transaction; and I do believe the complainants ought to be relieved. Edwards vs. Harbin, 2 Term Rep. 587. Ragan vs. Kennedy, 1 Tenn. Rep. 91. Russell’s case, 1 Cranch, 309.
    
      
       Vide Thurmond vs. Durham, ante, page 99.
    
   Green, J.

delivered the opinion of the court.

The circuit judge dismissed this bill because there had been a trial at law, in a court having ample jurisdiction to determine the whole merits of the case. We are of opinion that the decision of the circuit judge was right.

A party will not be aided by a court of chancery, after a trial at law, unless he can impeach the justice of the verdict, on grounds of which he could not have availed himself at law, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part. 1 Vern. 238. 1 Sch. and Lef. 201. 7 Cranch, 336. Smith vs. M’ver, 7 Wheaton. 3 Desa. Rep. 324-5. 4 Munf. 115. 3 John. Ch. Rep. 356. 1 John. Ch. Rep. 323. 4 John. Ch. Rep. 566.

Chancellor Kent, in the case of Duncan vs. Lyon (3 John. Ch. Rep. 357) well remarks, that “if the principle was to be materially relaxed, the departure from it would soon be perceived and felt to be a great public grievance, by encouraging negligence, protracting litigation, exhausting parties, and drawing within the cognizance of this court the general review of trials at law.

The complainant, to give this court jurisdiction, states in his bill, that his plea in [abatement was unexpectedly stricken out, and a plea to the merits required instanter, which being filed, the cause was put to the jury in the absence of all his witnesses, by whom he could have proved the fraud; and that the counsel on whom he principally relied, was absent and sick. This would not bring his case within either of the exceptions before stated, even if the facts were true. But the proof does not support this allegation. There is no proof that the attorney was absent, or that his witnesses were not sworn and examined in that trial.

It is unnecessary, after what has been said, to consider the question of fraud. The evidence upon this point is contradictory and very unsatisfactory. A suspicion that all was not exactly fair, may exist; but the proof is too inconclusive to have authorized a decree, had the question of jurisdiction been out of the way.

Decree affirmed.  