Martin Andrews against Christian Fenter.

Appeal from Hot Spring Circuit Court.

To authorize a party to be relieved in Chancery against a judgment at law, it must conclusively appear that tho judgment was obtained by fraud, accident, or mistake, unmixed with any negligence or fault on his part.

The defendant at law cannot come into a Court of Chancery for a new trial or relief, when there is no special ground of surprise or ignorance of important facts suggested, or where no equitable circumstances have arisen since the trial, and when he has neglected to defend himself with due diligence in the proper place.

If a party becomes remediless at law by negligence, he shall not be relieved in equity. To entitle him to relief, he must show that he has lost his remedy at law by fraud, accident, casualty, misfortune, or misrepresentation.

Where courts of law and equity have concurrent jurisdiction, and the facts alleged are all examined at law, after the case has been decided, equity will not interfere. To give to equity jurisdiction in such casos, it is indispensable to show that tho party having the law in his favor, was prevented by some unavoidable occurrence from bringing his case fairly and fully before the court at law.

The refusal of tho court of law to grant a continuance, when applied for on the ground that after March Term, 3834, the defendant had obtained a subpoena for the only witness by whom he could prove certain material facts, which subpoena he sent by mail in due time before the next term of the court, to the Sheriff of the adjoining county, where the witness resided; that the subpoena was returned without service, of which return the defendant was ignorant, and that such witness was not in attendance at March Term, 1835, when the application was made and overruled, is no foundation for the interference of equity.

The appellee filed bis bill in Chancery in the Hot Spring Circuit Court, on the 21st September, 1835, in which he set forth that on the 17th of March, 1827, he executed his writing obligatory to the appellant, at thirty- days, for $192 63 cents, with interest at 10 per cent, per annum from time due till paid; that on the 3d of June, 1828, he executed to the appellant a second writing obligatory, at three months, for $71 82 cents, also to hear interest at 10 per cent; and that on the 13th of April, 1825, he and one Andrew Fenter executed to the appellant their promissory note, at eight months, for $29 37i cents. He further alleged, that when the first writing obligatory was'executed there was a contract between him and one Joseph Henderson, partner of the appellant, for the delivery to them by him, at Little Rock, of a quantity of oil-stones; that on the day when the first writing obligatory was executed, he agreed with Henderson, partner and agent of the appellant, that if he should deliver the oil-stones in Little Rock by the 1st of April, 1829, in case there1 should be a steam-boat at Little Rock, the appellant would receive them at 7-f cents per pound,in payment of the first writing obligatory; that before the day appointed, the oil-stones were delivered according to the contract, and that a steam-boat was then lying at Little Rock; that the oil-stones were received in payment of the first writing obligatory, to wit, 3873 pounds or upward, at 74 cents per pound, amounting to $281 15& cents, leaving abalance due the appellee of $88 50 cents; that when he executed the second writing obligatory he did not know that the oil-stones had been received in payment as aforesaid, but supposed them to have been shipped by the appellant, on his, the appellee’s account, and that he was indebted to the appellant in the amount of the second writing obligatory, for freightage on the oil-stones to Little Rock, and under that supposition, and upon Henderson’s representation to that effect, he executed the second writing obligatory for that amount; and further that the promissory note had long been barred by the statute of limitations.

He further alleged that on the 10th of January, 1834, the appellant commenced an action of debt against him in Hot Spring Circuit •Court, on the two writings obligatory and the promissory note, to which he pleaded payment of the writings obligatory, and the statute of limitations as to the note; that after a continuance at March Term, 1834, he obtained a subpoena for a witness by whom alone he could prove the number and price of the oil-stones; that the subpoena was sent by mail, in due time before the next term of the court, to the Sheriff of Pulaski county, where the witness then resided, but was returned by the said Sheriff without service, of which return the appellee was wholly ignorant; that at March Terra, 1835, he, by attorney, moved the court for a continuance, on the ground of the absence of said witness, which ■motion was overruled, and judgment went against him for $293 82l •debt and $215 47 damages, and costs of suit.

Upon this ¿ill he prayed an injunction to restrain the appellant from farther proceeding on his judgment at law, which was granted.

On the 27th of April, 1836, Andrews filed his answer, by which he alleged that the pleas filed by Fenter in the action at law were voluntarily withdrawn by him on the trial; that Joseph Henderson never was his partner, hut his clerk, and as such, his agent; that no such agreement was ever made, as stated by Fenter in his hill, nor any agreement to receive oil-stones in payment, as he had been informed by Henderson, and believed to be true; but that he bad been informed by Henderson, and believed it to be true, that the agreement was that the oil-stones should be shipped and carried to different points for sale, on the account and at the risk of Fenter; that Fenter was to bear the expense, and that the nett proceeds were to be applied to the payment of the debts: and that the sale of the oil-stones had not covered the expenses incurred on them, and that he had never received one cent from t he sale of them.

The answer set up as a defence, that Fenter had a clear and adequate remedy in the premises at law, of which he endeavored, and was bound, to avail himself there, and that he was entitled to no relief in chancery.

At May Term, 1837, Andrews moved to dissolve the injunction on the face of the bill and answer, which motion was overruled.

The following evidence was filed in the case: Jared McCarty, for the appellee, deposed, that in the spring of 1827 he was living with James Lockhart, who was employed by Fenter to haul to Little Rock the oil-stones; that he went in with every load, and attended to them; that Henderson was urging him to hasten with them, and that when he hauled in the two last loads he told him that if he had been two hours later he would not have received them; that the oil-stones were taken from his wagon on board the steam-boat. He estimated the quantity delivered at over 3500 pounds.

Philip S. Physic deposed, that after Fenter delivered the oil-stones to Andrews, Andrews told him that he had bought them of Fenter at either 71 or 7 b cents a pound.

Samuel Williams deposed, that he heard Fenter ask Andrews if he would take oil-ptoncs for the amount he owed him; that Andrews agreed to do so if he would have them at Little Rock by a certain time, when a steam-boat would be there: that Fenter then employed the deponent to polish the oil-stones, which he did, and they were hauled in, in due time, by James Lockhart’s wagons; that while engaged in polishing them, he again saw Andrews and asked him to buy some oil-stones of him, which Andrews declined, saying that he had bought a quantity of Fenter, and did not wish to purchase any more until he saw what he could do with them, that he did not know whether he would realise any profit from them. He stated the quantity of oil-stones sent to Little Rock at between 3500 and 4000 pounds, at 7i cents a pound. He further deposed that Fenter had given his note to Andrews, at 10 per cent, interest, and the agreement was that if the pi-stones got there by the time spoken of, Andrews would receive th®m in payment of the note; and further, that the oil-stones were started for Little Rock soon enough to have reached there in time — whether they did so, he did not know.

A letter of Henderson was also filed, by which he agreed to take as many oil-ston es as he would take goods for, until Andrews arrived, which would be in December, 1826.

The deposition of Henderson stated that in the spring of 1827 he agreed with Fender to ship oil-stones for him to different points, to be sold at Fenter's expense and on his account and risk, the nett profits to • be applied to the payment of Fender's debt to Andrews, due on certain notes or obligations; that the oil-stones were shipped, but enough of them have never been sold to pay expenses; and that there never was any agreement to receive oil-stones as an absolute payment on said notes or obligations.

The court below thereupon decreed that the injunction should be made perpetual for the sum of $268 88 cents, part cf the debt, and $203 62 cents, part of the damages recovered at law; that the complainant should recover bis costs in his suit in chancery, and the de- ( fendant below should have the benefit of his judgment for 24 ¿ cents, residue of the debt, and $11 85 cents, residue of the damages, and costs of his suit at law. From this decree Andrews appealed.

Teapnall, Cocke, and Watkins, for the appellant:

1. The groundwork of chancery jurisdiction running through all the books is, that the party hath no adequate remedy at law. The pleas of the statute of limitations, and payment, are both peculiarly defences at law, and afford as adequate relief at low as they could do in chancery. 4 Inst. 36; 3 Inst. 33; Oro. Jac. 335; Cro. Car. 595; 1 Mod. 60.

2. The doctrine in the old books is, that u a cause shall not be ex.amined in chancery, or other court of equity, after judgment at the common law.” But the severity of this general rule has been modified by later decisions. The general principle running through those decisions, is, that where any equitable matter of defence arises subsequent to a trial at law, of which the party could not have availed himself on the trials or any newly discovered evidence which the parly had not the means of discovering before the trial at law, equity will interfere and relieve against the judgment. A party who has mistaken or misshapen his defence at law, cannot require relief in equity. 1 Vernon, 71; 3 'dikyns, 223; 1 Chun. Rep.,47', Penny vs. Martin, i Johnson Chan. Rep., 556; Foster vs. Wood, 6 John. Chan, lisp, 87; Floyd vs. Jayne, 6 John. Chan. Rep,, 479; 1 Bibb, 173, 252, 351; 2 Bibb, 5, 192; 3 Monroe, 293; Evans vs. Soliy, 9 Pries, 525.

Where there is a remedy at common law, none can be given in chancery. Where a party in an action at law had notice of a de-fence in time to avail himself of it, but neglected to do so, he will not be allowed to litigate the matter In chancery, but is forever excluded by the judgment. Cutting vs. Shach/ord, Cary Hep. 15, 201; Le Guer vs. Governeur et ah, 1 Johns. Cfos.,430; 5 Pci. Con. Rep.

Whei’e a defendant neglects to set up matters of defence at law. either before arbitrators or a jury, he cannot afterwards make such matters the basis of a suit in equity, unless there was some accident os fraud of which the party could not avail himself at law.

The court will not relieve a party on the ground of his having proceeded to trial at law without suScient evidence, when it was in his power to have obtained that evidence by bill ©f discovery. McVicar vs. Wolcott, 4 John. Rep., 510; 2 J. J. Marshall, p. 358; same p. 573; 2 Bibb, 320, Veech vs. Pennybacher; 1 Marshall, 155.

Quere, whether a person who has neglected at law to plead Ms discharge under an insolvent act, can avail himself of it in equity.— Roily vs. Lamar, 2 Crunch, 314; Mason arguemlo, 353.

What jurisdiction a court of equity may exercise after a trial at law. If die defence be purely legal, it should be made on the trial at law. Barrett vs. Floyd, 3 Call. 531; Maupin vs. Whiting, 1 Call. Rep. 224.

3. The reasons why a matter peculiarly cognizable in a court of law, and there adjudicated upon, shall not be afterwards examinable in chancery, are,

1st. That the whole jurisdiction of courts of chancery and their mode of proceedings are in derogation and subversive of the common • law, which is the birthright of every Saxon, and were originally exercised only by sufferance.

2. A matter in controversy should not be drawn out of a court of law into a court of chancery, because it will be subjected, ad aliud examen, to a trial by witnesses, and the conscience of a single Judge, instead of the trial by jury, where the testimony is by depositions, and. not oral, in the face of the court and the parties.

3. Where a matter hath once been adjudicated upon and decided in a court of law, that matter should not be renewed between the same parties, but one party should be quiet and make no more clamor, else there would be no" end to litigation, and every defendant would neglect or refuse to obey process of law, and then set up bis own laches as ground of relief in chancery, to the utter subversion of the courts of common law.

4.In a court of lav/ after judgment, if there be any newly discovered matter of defence, or any manifest error, either of fact or of law, ample redress may be had by audita querela;, motion in arrest, or new trial, or by appeal, or writ of error. The Circuit Court in chancery hath no authority to erect itself into an appellate court, to revise the proceedings or correct the errors of a Circuit Court at common law.

4. The appellee in his bill does not allege even, any equitable ground for the interference of chancery — no fraud — no accident — no newly discovered matter of defence or matter of evidence — nothing but his own laches in not taking the proper steps to procure bis testimony, before the third appplication for continuance.

5. The appellant insists, independent of every other consideration. - that the weight of evidence is in bis favor, from the bill and answer, and the depositions, and that the decree is against equity and good conscience.

6. But tbs decree should be reversed and set aside, because it is vague, inconclusive, and uncertain. In one part of the decree, the chancellor says, that the plea of the statute of limitations is purely a legal defence, and that the appellee acted clearly in his own wrong when he withdrew that plea on tlie trial at law as to the promissory note, amounting to £*S3 did, and-interest from the 13th December, 1825; but instead of allowing the appellant to have the benefit of his judgment at law for the amount of the promissory note, with interest by way of damages, the decree goes on to say that the injunction shall lie perpetual as to the sum of §’208 88, part of the debt, and $203 62, part of the damages, and that the appellant have the benefit of his judgment at law for 2-ií cents, residue of ills debt, and $Ti 85, residue cf his damages. So that it is uncertain, and the appellant is utterly ignorant oí t.ic .*1111011111' v/.nc.i me decree entities him to sue out execution for upon his judgment at law,

Rurao, Chief Justice, having been of coansel in {,3i;i znr.o. did not sit therein.

The ease being submitted by the appellee without argument,

Lacy, Judge,

delivered the opinion of the court:

The appellee, Christian Fenicr, exhibited his bill of complaint, to be delivered of a judgment at law, obtained against him by Martin Andrews, in the Hot Spring Circuit Court.

The bill charged that he executed two writings obligatory, and one promissory note, payable to the respondent; and that at the time of the execution of the first writing obligatory, the complainant entered into a contract with Joseph Henderson, (who is represented to be the partner and agent of the appellant.) for the purchase and delivery of a certain quantity of oil stones, and which were agreed by Henderson to be taken and accepted in discharge of the respondent’s obligation, at the rate of seven and a fourth cents per pound. That he delivered the quantity or number of pounds of oil stones agreed upon, in discharge of his obligation; and that after paying off the fall amount due upon the first obligation, there was a balance still remaining in favor of the responderle. That at the time lie executed his second obligation to Martin Andrews, be was ignorant of the fact that the oil stones had been delivered and accepted; but believed from the representation and misstatements of Henderson, that he was indebted to them for freight and charges; and consequently he agreed and did execute his second obligation. The bill further alleges, that both obligations were fully paid off, and discharged by (he purchase and delivery of the oilstones, before the respondent commenced hissdiat law in January, 1834, on the writings obligatory and promissory note. It further alleges, that the complainant put in the plea of payment to the writings obligatory, and the statute oflimitations to the promL'scry note in bar of the action of debt. That after the case was continued at the March Term, 1834, he caused a subpoena to issue for Samuel Williams, the only witness by whom he could prove the price of the oil-stones agreed to be purchased, or the amount or quantity delivered. That he forwarded the summons to the Sheriff of Pulaski county, where the witness resided, and the writ was returned, not executed.— That at the March Term, 1835, when he moved the court by his attorney, for a continuance of the cas e, he was ignorant of the fact that the subpoena had not been served on the witness. That the bill further charges, that the complainant’s motion for a continuance was overruled, and that the plaintiff had judgment against him for the amount of the debí, in the declaration mentioned, and for damages and costs. The complainant prays that a writ of injunction be granted to him io stay and restrain the proceedings upon the judgment at law, and that, on the final hearing of the cause, that the balance due him from Martin Andrczus, for the purchase and delivery of the oil-stones, be decreed in his favor, and that the injunction be made perpetual.

The bill further alleges, that the note sued on was barred by the statute of limitations; and it contains a prayer for general relief. The injunction was granted, and the proceedings on the judgment at law, were restrained and superseded by the writ issued on chancery. The answer denies all the material allegations of the bill. It admits the ' execution of the writings obligatory and promissory note, and that judgment was obtained upon them. It alleges that the plea of payment, and the statute of limitation, were withdrawn, and that judgment was given by nil dlcil. It denies that Henderson ever was a partner with the respondent; but states that he was a clerk in his store, and that the contract pretended to be set up by the complainant, is wholly unfounded; but that Henderson agreed to receive for the respondent whatever oil-stones he might think proper to deliver and to ship them for sale, and after deducting the expenses for freight, charges, and commission, to apply the nett proceeds in discharge of ^he complainant’s obligations. That on these express conditions, the oil-stones were delivered to Henderson for the respondent, at the risk and loss of the complainant. That according to the agreement, a quantity of oil-stones were delivered to different points, for the benefit of the complainant, and that the profit arising from the sales had not been sufficient to defray the expenses of the shipment and commission.

The answer sets up another matter in defence: It alleges that the complainant had a full and adequate remedy at law, and having failed tc make his defence at a proper lime, and before a competent tribunal, that a court of chancery has not jurisdiction of the case, and prays hat the bill may be dismissed with costs.

The depositions taken in the cause, do not, in express terms, or by any legal or just interpretation, prove the material allegations in the bill. One of the witnesses states, that the oil-stones were delivered, and that Henderson, the agent or the partner of Andrews, paid him for the hauling. Two other witnesses proved that, in a conversation with Martin Andrews, that he spoke of having purchased oil-stenes from the complainant, and cue cf them gives the amount and price; but neither of the witnesses denied the nature of the contract, nor do they state in express terms, that the oil-stones were delivered in payment of the obligations. One of them says he polished the stones, and that in a conversation with the respondent, he understood they would be delivered in discharge of his obligations, and he was paid in the store of Andrews for bis labor. A letter from ilonderson was introduced, which states that he had concluded not to make any other contract for more oil-stones, than the complainant was willing to take goods for, until Map Andrews wrote him further on the subject The deposition of Henderson expressly disproves the allegations of the bill and states that the agreement between Fenter and himself to be literally such, as is set forth in the respondent’s answer: that the oil-stones were not received, or taken in payment of the obligations; but that a quantity of them 'were delivered at the risk and Iols of the complainant: that it was the express understanding between the parties, that Andrews was to ship the stones for complainant’s benefit; and after deducting all that was due for freight and charges, he was to apply the nett proceeds, if any was remaining, to the payment of his debt: that the sales of the stones, he believed, has not paid the freight, charges and costs of shipment. This is, in substance, the whole proof in the eause. On this state of the case, the Circuit Court rendered e. decree that the injunction be made perpetual for the amount of the proceeds of the sale of the oil-stones, and interest thereon, fiotn the time of the delivery; and that the complainant be forever released from so much of the judgment at law, had and obtained against him by the respondent, and that the balance remaining on the judgment unpaid and due, was decreed in favor of the respondent, and that he pay the costs of the suit. And it was further decreed, that the note executed by the complainant to the respondent, was not barred by the statute of limitations. From this decree, the respondeat prayed an appeal-— Admitting that a court of chance y has jurisdiction of the cause, (which is by no means conceded in this case,) the cuestión then mi-ses, does the bill upon its face show any equity, or are its ¡satería! and important allegations sestnioou by toe proof. The contract ciargcd is not established by the depo;:.'ti-;os, and if it were, it v.oukl form no ground for relief in equity. Toe injury the party complains of is, that judgment was rendered against Ida», when it ought net to have been, in the absence of a material witness, and whoa the debt war ully paid off and discharged. The r.ubpBnc was sued out for the. witness in March, 1831-, and the trial vras not had until March, 1835. It does not aopear that, on the motion for the continuance of the cause, the defendant ever filed an affidavit, or that he swore to it. The bill simply charges, that by attorney, he moved the court to continue the case, which motion was overruled. Admitting the proper affidavit was made, did the court err in continuing the cause ? The only excuse that is given for the absence of the witness, is, that the subpoena was returned by the fcl'iuriif, not served; and the defendant alleges, that he was ignorant of that fact at the trial, .though it must have been returnable to the term preceding; for it issued in March, 1834, and judgment was not rendered until March, 1835. Can a judgment at law be impeached in chancery, when, by the party’s own' showing, he is guilty of gross negligence or laches, and that too, in a case where his remedy was complete and adequate at law. We are not aware that equity has ever interfered to sot acide a judgment at law, for mere irregularity. In this cuso the judgment was perfectly regular, and the continuance properly refused. To authorize a party to be relieved against a judgment at law, it must appear conclusively that the judgment was obtained by fraud, accident-or mistake, unmixed with any negligence or fault on his part. The defendant cannot come into a court of chancery for a new trial or relief, when there is no special ground of surprise, or ignorance of important facts suggested, or where no equitable circumstances have arisen since the trial, and where he has neglected to defend himself with due negligence ia the proper place.

This principle is settled in the case of Scotland vs. Wheeler, 3 Johnson's Rep. 238; Dekemer vs. DeChatillon, 4 Johnson, 92; and Baker vs. Elking, 1 Johnson's Rep. 444; Smith vs. Lowrie, 3 Johnson’s Rep. 322. In the case now before the court, has the party shown that he was taken by surprise? erhas be suggested that he was ignorant of any important diet that has since come to his knowledge, and which he could not have discovered before, by due diligence? Or has be alleged that the judgment was obtained by fraud ? It is most manifest that none of these equitable grounds are charged in the bill; and it is equally evident, from his own showing, that he was guilty of very gross negligence, in not preparing his case for trial. Upon this allegation of the bill, it is clear that the complainant has not the slightest claim or pretext to the interposition of a court of equity for relief. Is the contract set up by the bill admitted by the answer, or established by the proof? The answer expressly denies it. The proof is vague and uncertain, and does not legally establish the allegations of the bill.— The witnesses speak of a purchase of oil-stones made by Andrews from the complainant; but they neither define or illustrate the nature or condition of the contract, nor do they say that the purchase thus made was to go in discharge of the complainant’s obligation. The letter of Henderson does not state that the oil-stones were so received or accepted. It merely says that he was unwilling to make a contract for the delivery of any more oil-stones, until he heard from Andrews, and it clearly intimates what had already been delivered was paid for in . goods.

If this testimony stood uncontradicted, it would be wholly inconclusive and unsatisfactory, and would not authorize a decree upon the. bill. The answer denies that any contract was made, or any purchase entered into, for tha delivery of any quantity of oil-stones, in payment of the obligations and note held upon the complainant.

It admits a quantity of oil-stones were received on commission, and states, after deducting the amount due ibr freight, charges, and shipment, that the nett proceeds arising from the sales, were to be applied to the payment of his debt, and that no prolit or balance is due to the complainant on that account, as the sum for which they sold is not suf-ficientlo pay the amount with which they are charged. Henderson, the witness who made the contract with the complainant, and wh® acted as the agent of the parties and factor in the business, expressly disproves the whole contract charged in the complainant’s bill, and establishes the agreement fully and completely, as set up by the answer. The bill, then, containing no equity upon its face, and all its material allegations being denied by the answer, and expressly disproved by the testimony, should have been dismissed with costs. The court might here close their inquiries, but as there is another important question raised by the answer, which is directly before us, we consider itour duty to examine and decide it. The answer alleges that the plaintiff had a full and ample remedy at law, and having failed to make his defence before the proper tribunal, he caanot now come into a Court of Equity. The picas to the action of debt in this case, were payment and the statute of limitations. It is obvious that the defence set up is entirely legal, and the pleas, if proved, formed a good bar to the action.

“The concurrent jurisdiction of equity,” says Justice Story, “has its true origin ih one of two sources, either the courts of law, though they have general jurisdiction in the matter, cannot give adequate, specific, and perfect relief, or under the actual circumstances of the case, they cannot give any relief at all.” Story's Com. on Equity, 93. Equity will embrace all cases of legal rights under peculiar circumstances, where there does not exist a complete, adequate and plain remedy at law. See Jeremy on Equity Jurisprudence, 292 and 297.

The ancient doctrine upon the subject was, that a cause shall not be examined in Equity, after it has been tried and determined at law. Cro. Jac. 335, Cro. Car. 595; 3 Inst. 33, 4 Inst. 36; Aikyns 323.— But the severity of the rule has been greatly relieved by very many recent decisions. In the case of Perry vs. Martin, 4 Johnson’s Chan. Rep. 536 and Foster vs. Wood, 4 Johnson’s Chan. Rep. 67; Floyd vs. Jayne, 6 Johnson's Rep. 479, the doctrine is clearly laid down, and the chancellor in giving his opinion remarks — “That he does not know of any principle that will authorize equity to take jurisdiction of a case where the remedy was in the first instance full and adequate at law; because the party may have lost that remedy, founded on negligence, and not on accident, misfortune, misrepresentation or fraud.” If a party becomes remediless at law by negligence, he shall not be relieved in Equity. To entitle him to relief, he must show that he has lost his remedy at law, by fraud, accident, casualty, misfortune, or misrepresentation. Fonblanque on Equity, p. 30, and the cases there cited; 2 Cran. 334; 4 Cran. 531; 1 Call, 224. Where courts of law and equity have concurrent jurisdictions, and the facts alleged are all examined at law, after the case has been decided, Equity will not interfere. To give to Equity jurisdiction in such cases, it is indispensable to show that the party having the law in his favor, was prevented by some unavailable occurrence from bringing his case fairly and fully before the court.

The question has been fully examined and settled in the case of Smith vs. McIwer, 9 Wheaton, 534. “Admitting,” says Chief Justice Marshall, “ the concurrent jurisdictions of Equity and Law, in matters of fraud, we think the cause must be decided by the tribunal which first obtained possession of it, and that each court must respect the judgment and decree of the other. A question decided at law cannot be reversed in a Court of Equity without the suggestion of some equitable circumstances of which the party could not avail himself at law.” In the case now before us, docs the bill charge any eclu*table circumstances that the complainant could not have availed himself of on the trial at law 1

Does it allege surprise or the discovery of new evidence since the trial, which by due diligence he could nothave procured before? Or does it charge either accident, mistake, misrepresentation, misfortune,, or fraud? None of these things are alleged in the bill, and as the complainant’s remedy was full and adquate at law, and he failed to make it through negligence or ignorance, he cannot now be relieved in Equity.

In every respect in whieh this case presents itself to our minds, either on its merits, or the question of jurisdiction, we are clearly of the opinion, that the decree of the court below was evidently erroneous. The judgment of the Circuit Court in entering up the decree, must, therefore, be reversed with costs; the cause remanded to be proceeded in agreeably to the opinion here delivered, with instructions that the complainant’s bill be dismissed for want of jurisdiction, with costs, and that the writ of injunction be dissolved, and that the appellant have the full benefit of his judgment at law, with six per centum damages on the amount released from the injunction.