1821.

Hughes

V.

Blake.

The defendant pleaded in bar, both to the relief and the discovery sought by the bill, a former verdict and judgment at law rendered in his favour, in the Supreme Court of Massachusetts, in the year 1810, upon a suit commenced against him by the present plaintiffs, in 1804, being long before the exhibition of the present bill, for the same cause of action. The plea averred, that the judgment at law was still in force; that the matters in controversy, and the parties in both suits, were the same; that the whole merits of the case, as stated by the bill, were fully heard, tried, and determined in the action at law, and in a Court of competent jurisdiction; and that the judgment was obtained fairly, and without fraud, covin, or misrepresentation, or the taking any undue advantage. It was also averred by the plea, that no evidence has come to the plaintiff's knowledge, since the trial at law, respecting any of the facts alleged in the bill, and which he did not, or might not have produced on such trial: and further, that the defen

dant has at no time, as alleged in the bill, obtained of a certain E. Williams, any allowance or payment, for, or on account of his, the defendant's, being liable as bail for Gibson, in the plaintiff's bill mentioned, and for which liability he has claimed in the action at law an indemnity out of a fund on the credit of which he had accepted the order in favour of the plaintiff. The defendant, then, without waiving his plea, proceeded to answer and deny the matters alleged by the bill, as circumstances of equity to avoid the effect of the proceedings at law, and which he had already denied by the averment in his plea.

To this plea and answer the plaintiff filed a general replication in the usual form, and witnesses were examined by both parties.

At the hearing, the identity of the causes of action were sought to be established, without the aid of collateral proof, from a comparison of the matters set forth in the bill, with the averments contained in the several counts of the plaintiff's declaration; it appearing, moreover, that, in the trial at law, the plaintiff had submitted to the jury, in support of these counts, the depositions of the same witnesses, on whose evidence he relied, in support of his bill. The principal other question of fact related to the subject of the ncgotiation respecting the lands before mentioned, alleged in the plaintiff's bill to have taken place in 1814, between the defendant and E. Williams, whose testimony respecting it, was insisted by the plaintiff not to be sufficient to outweigh the effect of the positive denials contained in his plea and answer.

The cause being heard on the issue joined, and the proofs taken in it, the Court below decreed that the plea was sufficiently proved, and therefore dismissed the bill with costs, and the cause was brought by appeal to this Court.

1821.

Hughes

V.

Blake.

Mr. Pinkney, for the appellant, stated three ques- February 19th. tions for the consideration of the Court: (1.) Whether the plea was in itself sufficient, supposing its sufficiency to be now an open question? (2.) Whether it has been proved? (3.) Whether its sufficiency, supposing it to be proved, is now open for

1821.

Hughes

V.

Blake.

inquiry? The first of these questions being answered negatively, and the third affirmatively, would produce a reversal of the decree: and let them be answered as they might, if the second be answered negatively, a reversal would equally follow.

1. The plaintiff's allegations must be taken to be true, except so far as the averments in the plea, and the answer in support of the plea, deny them." And if the plea does not deny whatever is alleged, and if true, would make the plea no bar, it is no plea." The result of an examination of the allegations in the bill will be found to be, that the defendant was the legal owner of the notes taken for the sale of the lands, by taking and holding them in his own name; that the plaintiff, and the other persons interested, were cestui que trusts according to their respective interests, explained and known to the defendant; that the defendant's conditional acceptance of the order in the plaintiff's favour, so far as it affected to authorize him to apply the plaintiff's interest as an indemnity for his liability as Gibson's bail, being without the plaintiff's consent, did not destroy the defendant's character of trustee. That when he afterwards sold the plaintiff's interest, (it being still a merely equitable one in the view of Chancery, the conditional acceptance being of no force in equity,) in order to apply the money to the wrongful purpose of the conditional acceptance, the defendant still remained answerable, in equity, upon the foundation

a Coop. Pl. 231. 2 Atk. 155. Gilb. Ch. 158.

b Coop. Pl. 226. 266.

of the original trust. That the defendant knew all the material facts charged in the bill, out of which arose the trust, and breach of trust, and his alleged continuing accountability. That the defendant, insisting upon thus misapplying the money, the plaintiff, mistaking the proper forum, sued the defendant at law, and a verdict and judgment passed against him; and the bill charges the defendant's breaches of trust, and abuse of his power as legal owner in taking advantage of the plaintiff, and the impossibility of his obtaining a full and fair trial of the whole merits at law, as reasons why the verdict and judgment should not be suffered to prevent relief in equity. The defendant, notwithstanding all this, pleads the verdict and judgment in bar of the relief and discovery. The plea leaves uncontradicted whatever in the bill showed a mere equitable trust, and undue advantage taken of the defendant's character of legal owner and holder of the fund. Since, then, the plaintiff could obtain relief no where, but upon the mere trust, which was properly cognizable in Chancery; and even if it were barely possible that a Court of law could relieve, and that great difficulties only stood in the way arising out of the nature of the subject, his miscarriage at law ought not to oust a Court of equity of its power of relief in a matter appertaining to its jurisdiction. It cannot be denied on the other side, that a judgment at law may be relieved against in equity upon equitable inducements of various kinds. Cases of this sort furnish the familiar and ordinary business of the Court of

1821.

Hughes

V.

Blake.

1821.

Hughes

V.

Blake.

Chancery. The only question, therefore, is, upon what grounds will it relieve? I admit, with Lord Chancellors Eldon and Redesdale, that mere inattention, omission, or neglect, however fatal the consequences may be, shall not of itself be a ground of equitable relief against a judgment at law." But where the matter is cognizable in equity, although also cognizable at law, and effectual cognizance has not, and cannot be taken at law, Chancery will relieve against a judgment at law; especially if the matter is better adapted to equitable cognizance, and forms a favourite subject of that jurisdiction. The instances put by Lord Redesdale of cases in which cquity will interfere, although a verdict and judgment have been obtained at law, are only put by way of example. They are not all the excepted cases and the case actually before him, where he refused to interfere, was a case of crassa negligentia on the part of the defendant at law. If there has been no such gross negligence, and if the Court of law be not only of competent jurisdiction, but competent to do justice in the case, from the nature of the subject, and its mode of proceeding, doubtless its judgment is conclusive. But this does not exclude the right of equity to control the judgment of a Court of law, for equitable purposes. It is no just reproach to a Court of law, that it cannot do complete justice in all cases where it may have jurisdiction. The

a Coop. Pl. 141. Toth. Rep. 231. 1 Ch. Cas. 56.

b Ware v. Harwood, 14 Ves. jun. 31. Bateman v. Willoe. 1 Sch. & Lef. 201.

c 1 Sch. & Lef. 205.