Unknown County MI Archives Court.....Mack, V. Doty 1837 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/mi/mifiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 August 9, 2008, 8:30 am Source: Cases In Chancery Written: 1837 CASES IN CHANCERY. FIRST CIRCUIT. Mack & Davis v. Ellis Doty. Relief against judgment at law. This court will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant was ignorant of his defense, pending the suit, or the facts could not be received as a defense at law, or unless, without any neglect or default on the part of the defendant, he was prevented by fraud or accident, or the act of the opposite party, from availing himself of his defense. (a.) But where the defendants were prevented from making their defense at law by the acts of the plaintiff until the only witness, by which the defense could be proved, was dead, and a resort to this court, in consequence thereof, became indispensable, it was held that the complainants were entitled to relief in this court, and that it was not necessary for them to appeal the case at law, and then apply to this court for a discovery, in order to entitle them to equitable relief. Where it appeared by the bill that the complainants became security for a third person to the defendant on two promissory notes, and that the defendant extended the time of payment three several times for ninety days each, without the knowledge or assent of the sureties, and the maker of the notes at the time of the extension was able to pay, but, at the time to which payment had been extended, he had become insolvent, and the defendant had commenced two several suits before a justice of the peace to recover the amount of the notes against the sureties, and they appeared and defended, and, after the testimony was taken, the defendant, who was plaintiff in the justice's court, discontinued his suits, and, after the decease of the only witness on the part of the defense, new suits were commenced, upon which judgments were recovered, the suits being undefended; upon demurrer, it was held that the case made by the bill was such as entitled the complainants to relief in equity, and that it was competent for this court to afford that relief in any stage of the proceedings, as well after as before judgments at law. Demurrer to a bill for discovery and relief against judgments at law. The opinion of the court contains a sufficient statement of the case. A. D. Fraser, in support of the demurrer. The bill seeks to enjoin two judgments recovered before a justice of the peace by default. The fact alleged might constitute a good defense at law if pleaded. No reason is assigned for not making a defense at law, nor does it appear why a discovery was not sought while the action was pending at law, and before judgment rendered. It is conceded that the court would coerce a discovery in aid of inferior courts, and that the amount in controversy alone constitutes the test of jurisdiction. At all events it was the duty of the complainants to have appealed to the circuit court, and then come to this court for a discovery. (1 Eq. Abr., 131; Jer. Eq. Jur., 268, 269; 1 Madd. Ch., 195; 1 Chit. Dig., 591, etc.; 1 Paige, 287.) This court will not afford relief against a judgment at law, on the ground of ignorance of facts, mismanagement of attorney, nor even when perjury has been committed. There must be a clear case of accident, surprise or fraud, before equity will interfere. (2 Vern., 696; 6 Johns. Ch., 87; 10 Pet., 505; Fonbl., 26, 27, 656, 657; 2 Paige, 321; 1 Johns. Cas., 492, 502; 3 Johns. Ch., 352; 1 Johns. Ch., 51, 320, 395, 465; 4 Ib., 510, 566; 7 Ib., 135, 337.) The parties should have put themselves in a situation to try the case by filing a plea. (6 Johns. Ch., 480, 481.) Goodwin & Hand, contra. If an obligee does an act to the injury of the surety, or varies the terms of his obligations, or enlarges the time of performance without his consent, the surety will be discharged. (2 Bro. C. C., 579; 6 Dow., 540; 2 Ves., 540; 10 Johns., 587; 3 Kent, 111; 12 Wheat, 554; Chit. on Bills (8th ed.), 442, and cases cited; 2 Swanst., 539; 2 Hov. on Frauds, 71, and cases cited; 4 Barn. & Cres., 506.) The rules as to the relief of a surety are the same in a court of equity as in a court of law, when the facts are the same. (2 Johns. Ch., 554; 17 Johns., 384.) When the sureties on the face of the instrument appear as sureties, the defense may be set up at law; when they do not so appear, it is doubtful as to whether the defense be available at law; in snch case the jurisdiction of a court of equity is undoubted, and in the other case this court would seem to have a concurrent jurisdiction, especially when a discovery is necessary. In this case the character of the complainants as securities does not appear on the notes. (4. Barn. & Cres., 506; 2 Swanst, 539.) The Chancellor.—The bill alleges that the complainants became sureties for one McKinney, to Doty, upon two promissory notes, for fifty dollars each. Doty, at three several times, extended the payment for ninety days each, without the knowledge or assent of the complainants. That, at the time said extension was granted, McKinney was able to pay, but, after the time to which payment had been extended by Doty had elapsed, was insolvent. That, at two several times, Doty commenced suits upon said notes before Robert Abbott, magistrate. That the complainants appeared and set up their defense, to wit, that they were sureties, and the extension of the time of payment by Doty. That the only witness to support their defense (the agreement to extend the time of payment) was one Sydney S. Hawkins (since deceased), who acted as the agent of McKinney in that behalf, and was on one occasion sworn, and gave his testimony; and, after the witness was examined, Doty discontinued his suit. That the parties appeared on both occasions, and were ready to make their defense, etc., and the suits were discontinued. That, after the decease of said Hawkins, the only witness, new suits were commenced, on which judgments were recovered, the said suits being undefended. To this bill there is a general demurrer. The ground of the defense is that this court will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question, pending the suit, or it could not be received as a defense at law, or unless, without any neglect or default on his part, he was prevented by fraud or accident, or the act of the opposite party, from availing himself of the defense. This is undoubtedly the true rule; it has been frequently so held by this court. (See Barrows v. Doty, ante, page 1; Wright v. King, ante, page 12, and notes.) It is insisted, however, that this case does not come within it. That the defendants below have been prevented from making their defense by repeated discontinuances, when the parties appeared to make their defense, until the death of the only witness. That, from the constitution of justices' courts, a continuance cannot be had for a sufficient time to obtain a discovery. That courts of chancery interfere with reluctance with inferior jurisdictions, and that this being a case of original chancery jurisdiction, this court should now entertain this bill and grant relief. In support of these grounds, the cases of Rathbone v. Warren, 10 Johns., 396; Boyce's Executors v. Grundy, 3 Pet, 214; 2 Swanst, 539, are cited. It is clear, from the case made by the bill, that the complainants were discharged from their liability. It is also undoubtedly true that courts of chancery have always sustained their jurisdiction in this class of cases. A court of chancery was formerly the only tribunal which could afford adequate relief. But recently courts of law have also given effect to defenses of this kind. The court of chancery, having originally exclusive jurisdiction, still retains it. But if the party has a good defense at law, and it is in his power to make it there, without a resort to this court, and he permits a judgment to pass against him, a court of chancery would not relieve him. It is apparent, from the case as made, that the defendants, by the act of Doty, after having two suits commenced, at two several times were deprived of making their defense, by the discontinuances, until the death of their only witness. That a resort to this court was indispensable, and that this necessity has resulted from the act of Doty, the plaintiff below. The only doubt in the case is, were the parties bound to apply to this court before judgment rendered in the court below. It has been urged that the defendants below could have taken appeals to the circuit court, and could have then applied to this court for a discovery, and would have been entitled to their remedy. I have entertained much doubt whether this case comes within the exceptions to the general rule as stated in the case in 10 Johns., 590, and 3 Pet., 214. Was it necessary? was it incumbent upon the parties to adopt this more expensive and circuitous proceeding to make their defense, after having, on two several occasions, appeared, in both suits, made their defense, and produced their witness? I am inclined to think not. The necessity for a resort here at all has been caused by this extraordinary and unjust proceeding on the part of Doty, the defendant. In the case in 3 Pet, 214, where the court did relieve against a judgment, the judge, in delivering the opinion of the court, says: "It is not enough that there is a remedy at law, it must be plain and adequate; in other words, as Practical and efficient to the ends of justice, and its prompt administration, as the remedy in equity." He says, also: "Although the defense might have been made at law, the complainant would still have been left to renew the contest upon a series of suits; and that, probably, after the death of witnesses." The case in 10 Johns, was a case against bail, where the time had been extended. There had been a judgment in the supreme court against the bail, but relief still was granted. Here the complainants were prevented from making their defense by the act of the defendant. This was a case in which it would have been competent for this court to afford relief in any stage of the proceedings, and the resort here having been rendered indispensable by the act of Doty, it will be unjust and inequitable to permit him to take advantage of his own wrong. Demurrer overruled. --------------------- (a.) See Barrows v. Doty, ante, 1, and cases cited in note. Additional Comments: CASES DETERMINED IN THE COURT OF CHANCERY FOR THE STATE OF MICHIGAN BY ELON FARNSWORTH, Chancellor File at: http://files.usgwarchives.net/mi/unknown/court/mack71gwl.txt This file has been created by a form at http://www.genrecords.org/mifiles/ File size: 11.2 Kb