Opinion
(June Term, 1830.)
1. A bill, the allegations of which are directly denied by the answer, and supported by one witness only, without corroborating circumstances, will be dismissed.
2. After a failure at law, the party cast cannot come into a court of equity merely because the verdict is unjust, unless the matters alleged in equity do not constitute a defense at law.
3. Where a discovery in aid of a defense at law is sought from the conscience of the defendant, it ought to be obtained pending the suit at law.
4. Discovery and relief are never given after a trial at law where the matter averred was available at law, unless the party seeking it avers and proves that he was ignorant of the defense or evidence at the time of the trial.
From RUTHERFORD. The plaintiffs were the sureties of Frederick F. Alley, late sheriff of Rutherford, and in their bill alleged that the sheriff, having a fieri facias against the defendant, had sold one of his negroes to satisfy it; that the sale of the slave produced $207.83 over and above the amount due upon the execution, which the defendant then might have received of the sheriff, but which he then lent him upon his (the sheriff's) individual responsibility; that the defendant had sued the plaintiff at law for the said sum of $207.83 without joining the sheriff; that although they had heard of the lending by the defendant to the sheriff, they knew of no witness by whom the same could be proved on the trial at law, but that since the judgment in the action at law they had discovered a witness by whom they could prove a loan of the surplus over and above the amount due on the execution. The plaintiffs prayed an injunction to restrain the defendant from issuing execution upon his judgment.
No counsel for plaintiffs.
Hogg for defendant.
(450) The defendant, by his answer, denied every allegation in the bill as to his lending or forbearing in any way to Alley, the sheriff, the surplus in his hands over and above the execution mentioned in the bill and insisted that he was needy, and had constantly, but without effect, urged its payment.
Gray Crowe, the only witness examined by the plaintiffs as to the main allegation in their bill, swore that he was at the house of Frederick F. Alley in September, 1820, when the defendant came there and asked Alley to pay him the surplus in his hands over and above the amount of an execution under which a negro of his (Ledbetter's) was sold; that Alley produced and counted the money, and then asked Ledbetter for the loan of it; upon which Ledbetter immediately lent him the amount.
I think the bill ought to be dismissed, on two grounds. The one is that the answer directly and positively denies the loan to the sheriff, and the contrary is proved by only one witness, Gray Crowe. If there were nothing particular to be said of his deposition, it is the constant course of the Court to refuse a decree upon the testimony of a single witness, unsupported by circumstances, against the answer, directly responsive to the bill. But it is almost impossible to believe the witness, without the contradiction. The transaction deposed to is, to say the least of it, most extraordinary. That a needy man, whose negro had been sold under execution, and who had the surplus money offered to him, should loan it to the sheriff without taking any security therefor, and this after application made by him for the money, cannot readily be credited without the testimony of more than one witness, uncorroborated in any manner.
But besides this, the plaintiffs come too late here. They ought (451) to have filed their bill of discovery pending the suit at law. After a trial there, which they resisted upon the evidence in their power, they cannot come here for a new trial merely because the verdict was unjust. If the matters alleged be no defense at law, that is a different case; for then the discovery would be of no avail. But if the discovery now sought might have availed as a defense at law (which is the case here), then the only excuse for not proving it at law, either by witnesses or by a discovery from the defendant, is that the fact was not then within the knowledge of the party. The plaintiff has no right to discovery and relief in this Court when by asking the discovery here in due time he might have had relief at law; for that would be altogether changing the forum by which facts are to be found in the ordinary jurisdiction of the courts. A jury is primarily to pass upon legal defenses; and no transfer of the jurisdiction ought to be allowed which does not arise from necessity. Here the plaintiffs admit they had heard of the loan before the trial at law. Why, then, did they not seek a discovery? Can any reason be given except that they wanted to find where the case pinched?
This, however, it may be said, applies only where the bill seeks relief upon the discovery in the defendant's answer solely — where the plaintiff puts himself on the defendant's conscience, and not where the relief is prayed upon the strength of evidence newly discovered. In the latter case the party relies upon his proof. I admit the difference. But it will not help these plaintiffs, because it does not appear in the evidence when they came to the knowledge of what the witness knew. As I have just said, equity does not interfere merely to prevent injustice, (452) but only upon the ground that the party had it not in his power to have justice done him. He had that power, if he knew of the existence of the witness and what he would swear. It is, therefore, a material allegation, in every such bill, that the plaintiff was ignorant, at the time of the trial at law, of the existence of the fact or of the witness by whom he can now prove it. And like every other material allegation, it must be proved. This may be always done, at least as to this purpose, by examining the witness as to the period of his communicating to the party his knowledge of the fact, as well as by examining him as to the principal point. Here nothing of the sort has been done. Crowe merely proves the loan by the defendant, and does not say one word why he kept it secret during the suit at law, nor when he told the plaintiffs. For anything we can know, he was purposely kept back, lest a Rutherford jury might not think fit to credit the very singular account he gives of the transaction.
PER CURIAM. Bill dismissed, with costs.