
    William Henderson v. Daniel A. Mitchell.
    Equity will not relieve against a judgment at law, on the ground of after-discov* ered evidence, which the party might, by ordinary diligence, have obtained in season; nor upon any other ground, of which he might have availed himself at law, bilt neglected, or omitted to do so.
    It is no ground for relief against a judgrdent at law, that the defendant wa§ a lunatic, unless it appear that lie wds not represented.
    Where the condition of a penal bond has been submitted to a jury, under the act of 1792, the determination is final, and concludes the jurisdiction of the Court of Equity to relieve against the penally.
    Objection to the jurisdiction sustained, after ah account taken under a decretal order, from Which the defendant ought 'to have appealed sooner; the account, however, sustained as to what was admitted by the answer; but without costs. ,
    
    The complainant was a co-obligOr, with others, in a joint and Several bond, to the defendant, as sheriff of Union District, the condition of which was, that one Lewis M'Elmurry should faithfully discharge the duties of a deputy-sheriff. On this bond the defendant recovered a judgment at law against the complainant, to the amount of $1,121.45, for several defaults of M'Elmurry, in failing to pay over moneys collected by him. And this bill was filed to be relieved from the judgment, on tire grounds: that the complainant, Who had been a lúnátic, was not sufficiently recovered, at the time of the trial of the action at law, to be Capable of properly defending it; that the verdict had been obtained fraudulently; that since the time, evidence had been obtained from M'Elmurry, who had left the State before the trial, which evidence proved blearly, that the defendant had recovered more than he was intitled to ; and that as the judgment was upon a penal bond, the complainant had a right to come into Equity for relief upon the condition. The defendant, by his answer, admitted an error in'the Verdict, to the extent of $130, which M'Elmurry had received, but which, aS the defendant had since discovered, had been paid over to the parties intitled. He denied, however, that there was any Other erfor in the verdict; and alleged, that M'Elmurry had received other moneys, which he had not paid over, and which wete not included in the verdict: and these' moneys, it was insisted, should be set off against the $130*
    
      The cause came on for hearing at Union, in August, 1827, before j)e Saussure, Chancellor, who, by his decretal order, sustained the-jurisdiction, and directed the commissioner to take an account of the sum which the defendant was justly intitled to recover.
    In June, 1829, the case came up before Harper, Chancellor, on exceptions to the commissioner’s report upon the accounts. One exception was, that the bill shewed no ground of jurisdiction for relief in Equity. The Chancellor held, that the question of jurisdiction was concluded by the decretal order, and overruled' the exception : and on this ground, among others, the defendant appealed from the several orders made in the cause.
    Herndon, for the motion.
    Although Chancellor Harper was concluded by the decretal order, this Court is not; and it is now open to the defendant, for the rule of Court prohibited his appealing from it sooner. It is clear that the bill contains no ground for relief. It is nothing more than a motion for a new trial; and Equity will not interfere to relieve a party from a judgment at law, on a ground of which he might have availed himself there, but omitted to do so. Ware v. Horwood, 14 Ves. 30. If injustice has been done to the complainant, which, however, is emphatically denied, it was his own fault. It is said he had been a lunatic; but he had a committee, and he had counsel, and his interests were sufficiently protected. The after-discovered evidence might have been obtained before the trial; for M'Elmun-y remained here for a considerable time after the action was commenced, and all the evidence said to have been furnished by him afterwards, might have been readily obtained before. As to the alleged fraud in obtaining the verdict, it consists in nothing more, than in submitting the condition of the bond to a jury, as i*equired by the act of 1792, instead of taking judgment for the whole penalty. If this be a fraud, it is one for which the legislature are responsible; for they have required it. Act of 1792, 1 Faust 213. There is no part of complainant’s defence to the bond, of which he might not have availed himself on the trial at law; and if he is now allowed to come into Equity, it will be to throw all appeals into that Court.
    A. W. Thomson, contra.
    
    The question of jurisdiction is concluded by the decretal order. It was in its nature final, and the defendant was bound to appeal if he was dissatisfied. It is too late after a decree, to object to the jurisdiction. M'Donald v. Crockett, 2 M‘C. Ch. 130. And more especially where, as in this case, the defendant has, by his answer, not merely submitted to the jurisdiction, but admitted a fact which gives jurisdiction. Under-hill v. Van Cortlandt, 2 Johns. CL B.339. Foster v. Wood,'6 Id. 87. Duncan v. Lyon, 3 Id. 350. The latter case is peculiarly strong; because, whilst deciding [against interfering wi-th^a judgment, three exceptions are admitted, within every one of which the present case comes. That Equity will relieve against a judgment at law, upon after discovered evidence, is too well settled to be disputed. Gainsborough v. Gifford, 2 P. Wms. 424; and see the authorities collected in 1 Mad. Ch. 77, 78, et seq. It will be done wherever the verdict is unconscientious, and the defendant had no sufficient opportunity to prevent it. Blackwell v. Combs, 2 P. Wms. 70. Hankey v. Vernon, 2 Cox. 12. Taylor and Knight, 2 Eq. Ca. Abr. 161. Billon v. Hyde, 1 Atk. 126. Lyon v. Tallmadge, 14 Johns. 501. The bill brings the complanant’s case clearly within settled rules; and, as far as it depends upon testimony, it was fully proved, as is established by the decretal order.
    But it is said, that the defendant was negligent. Negligent of what 1 He was a lunatic, or nearly so ; and although he had a committee, yet the committee had ceased to act, and knew nothing of his affairs. Counsel was retained, but not in season to communicate with M'Elmurry, and obtain evidence from him in time for the trial. They did not attend to the verdict, because they"did not intend to deny the bond; and they did not submit the condition to the jury, because they were not prepared with evidence to rebut the plaintiff’s demands. If the plaintiff chose to submit the condition, that cannot deprive the defendant of his right to relief from the penalty in Equity. This is the true construction of the act of 1792, which was never intended to divest the jurisdiction of the Court of Equity ; and on this ground, independently of every other, the jurisdiction in this case must be sustained.
    Johnston, same side.
    Where the jurisdiction is doubtful, and the defendant has answered, instead of demurring, he cannot object to the jurisdiction at the final hearing. Wilson v. Cheshire, 1 M‘C. Ch. 233. The bill and the evidence fully sustain the propriety of the decretal order; but independently of the injustice done to complainant by the verdict, he was entitled to come into Equity upon condition of the bond. The act of 1792 has not divested the jurisdiction of Equity in the case of penal bonds, unless the defendant ba? submitted the condition to the jury. Mitchell v. Humphries and Dawkins., Harper, 479. The extension to courts of law of matters of equity j urisdiction dqes nqt divest the jurisdiction of Courts of Equity. Kemp v. Pryor, 7 Ves. 249. And how does it appear that even the plaintiff submitted the condition to the jury 1 The declaration does not set out the condition, nor is there any suggestion of breaches; neither is there any order to submit the condition, and the only evidence that it was submitted, is the verdict. .Tf such a verdict can oust the right of the defendant to come into Equity, it operates a most injurious .surprize ; such an one as would, of itself, give jurisdiction.
   Colcock, J.

delivered the opinion of the Court,

I am not disposed, in considering this case, to call in question the general doctrines of the counsel for the complainant. Fraud is a Subject of equity jurisdiction; and the discovery of written evidence after verdict, is, according to circumstances, a ground for a new trial, or of equity jurisdiction. But neither of these positions, nor any others, that I am aware of, will support a direct appeal from the decision of a Court of law, having co-extensive jurisdiction of the Subject matter. If the negligence of a party, or of those concerned for him, in the management of a cause, were a ground of equity jurisdiction, I should not doubt the right of the complainant to come here for relief; for it is obvious, thpt'this was asimple case, involvjpg no sort of difficulty, either as to the facts, or the law, I will consider the objections made, in their order.

It is said, the defendant was a lunatic. Then he was, or wp.s not, liable to a suit, according to circumstances. If he was not represented, he could not be sued. If he was, then the suit was legal. But it is left doubtful whether he was sufficiently recovered to attend personally to his affairs : although it is admitted, that if he was not so recovered, h¡s committee was still in commission, and consequently he was represented. Butit is asked, what could the committee know of the transactions of the complainant! The answer is, that in such a case as the present, they could, and did know, as much as the complainant could have known if he had not been a lunatic; and that any one man was as well qualified to defend the action as any other. What could the surety know of the defalcations of his principal ? When the bill of particulars was filed, the infoimation was immediately afforded which was necessary for the defence. The complainant, • • , ** . . or his committee, might have summoned the parties, plaintiffs, and defendants, if necessary, to say how much the deputy had received from the one, and paid to the other. And as to the principal, he was in the State when the suit was commenced, and might have been detained here.

Next it is urged, that the action was on a penal bond, and that no verdict was had, that is, legally taken on the condition of the bond. There was a verdict in fact, but it is insisted to have been a fraudulent one. In a case settled at law according to the provisions of the act of 1792, the determination must be final, and the jurisdiction of the Court of Equity concluded, or otherwise, the act was a work of mere supererogation. And if the preceding was irregular, what was there to prevent the party from taking advantage of the informality, by pleading, or appeal 1

Again. It is said that the defendant, by answering, and not appealing from the order of the Chancellor, directing a reference, admitted the jurisdiction of the Court. As to the answer, although it admits the fact of recovering too much in the Court of L aw, it does not follow that the jurisdiction was admitted. Indeed, it is said by the defendant’s counsel, thatit was disputed. On the question, whether the defendant should have appealed, we have only to remark, that it has been found difficult, in all cases, to apply the rule of this Court, that no case can be brought up until a final decision; and therefore the counsel might well doubt in this* case. But this is a two-edged argument; for if the defendant should have appealed on the reference, it was much more the duty of the complainant to appeal on the dissolution of the injunction, for then he was clearly left at the mercy of the defendant.

The Court, feeling great reluctance to turn a party round, after a long litigation, consented to by both parties, have gone, it must be admitted, great lengths, but, I think, not so far, as to sustain entirely such a bill as this. In that spirit, we will suffer the complainant to have the benefit of the admission of the defendant, but without costs.

Evans, J. concurred.

Johnson, J. absent, from indisposition.

Decree modified.  