#### Pelham vs. Moreland et al.

Several writs of garnishment, at the suit of different plaintiffs, against the same defendants at the same term of the court in relation to the same debtor, the defendants file an answer in one case, denying all indebtedness and possession of property &c.;uthe plaintiff by his attorney agrees that the defendants need not file an an swer m his case, as they had filed an answer fully purging themselves in one of the. cases, and that he would proceed no. further against the garnishees ; but at a subsequent term tabes judgment against them by default: Held, that this is such a surprise as entitles the defendants to relief in a court of chancery.

An answer neither admitting nor denying such agreement but averring that the plaintiff had done nothing by himself or attorney to induce the defendants not to make their defence at law, is not responsive to the bill.

Where an answer is put in issue, what is confessed and admitted need not be proved ; but the defendant must prove what he insists on by way of avoidance. So, having virtually admitted the agreement set up in the bill by his failure so to deny *443it as to put the truth of it in issue, he must prove any facts relied on to avoid the agreement.

A court of equity cannot set aside the judgment of a court of law and grant a party a new trial — it cannot act upon the case, but may upon lhe person, and so might well decree that, unless the party consents to have the judgment set aside and a new trial awarded, he shall be perpetually injoined from executing it.

Appeal from the Circuit Court of Marion County, in Chancery.

The appellees filed their bill in chancery in the circuit court of Marion county, setting forth (so far as it is material to state the allegations) that several writs of garnishment, in one of which the defendant was plaintiff, were issued against them returnable to the October term, 1842, of said court, requiring them to answer what moneys &c., they had in their hands belonging to Jesse N. Everett; that interrogatories were filed as required by the statute; that they employed counsel in all the cases and filed an answer in one of them, in which they denied all indebtedness to Everett and the possession of any money &c., belonging to him at or since the issuance of the writ, and were discharged from that suit; that “ they were informed by their attorney that the answer in one case was sufficient, that there was no ne. eessity for answering the others as they all stood upon the same ground and that the defendant (as he understood by consultation on both sides) had agreed not to proceed any further in the matter, that confiding in these representations they left court satisfied that they had been discharged from all liability in regard to said suits.” “The attorney for the said defendant was heard to say, when the other cases (of which the defendant’s was one) were called, that it was unnecessary to answer as they had answered nulla bona in one case they would certainly do so in the others, and that it was unnessary to incur further cost. By means whereof they were induced to believe that any further answer was not required by the defendant in the premises and so they returned home satisfied that the matter was forever settled: that at the April term, 1845, judgment was *444rendered against them by default, of which they were ignorant until court adjourned or they would have made defence at law.” Prayer, that the judgment be set aside and that they be allowed to interpose their answer to the interrogatories, or that the judgment be perpetually injoined.

The answer denies it to be true “ that said complainants did not know of the existence of said suit,” and alleges “ that they had been duly served with process of garnishment, and that one of them at least during the term of said court at which said judgment was rendered, was informed of said suit and told that he had better attend to it;” “ that the defendant, his counsel or attorneys never did any act which should have in the least induced said complainants not to have made their defence at law, if they had any, but on the contrary, they were warned and notified at the very term of said court at which said judgment was rendered that said cause was pending against them and that they had not answered“ that the defendant did not do any thing in the premises whereby the said complainants could be possibly deceived or misled, that he is informed and believes his counsel never said or did any thing to the complainants with a view to deceive or mislead them in the premises, that they never said or did any thing in the premises whereby the said complainants were or could be misled or deceived,” “ that there was no fraud or misrepresentation or deception by this defendant or by any one for him in obtaining said judgment;” that if the complainants had any defence they could have made it at law, and the defendant insists upon the facts set forth in his defence as fully as if they were set forth by way of plea. The answer then submits that there are no facts set forth in the bill to justify any relief in a court of equity and prays that he may have the same benefit of the defence as if he had demurred to the bill.

The court decreed that the said judgment so rendered against complainants in favor of the defendant be set aside and vacated and held for nought, and that complainants and defendant be placed in the same situation and restored to all the rights and privileges that they and each of them had at the time of the *445rendition of the said judgment and that the complainants be permitted and allowed to appear on or before the third day of the next term of the court and file their answer in the suit at' law to the interrogatories heretofore filed by the said defendant.

On application to the Hon. Thomas Johnson, C. J., an appeal was granted to the defendant; and the cause was determined in this court by the Hon. Thomas Johnson, C. J. and the Hon. 0. C. Scott, J. — the Hon. David Walker, J. not sitting.

Fowler, for the appellant.

The deposition details no facts, which excuse the failure or neglect to defend at law, which tend to fix fraud upon Pelham or his attorney, or which sustain the allegations in the bill. And even were the bill fully sustained by the deposition, as the answer positively denies the fraud and all the equitable circumstances stated in the bill, one witness without strong corroborating circumstances would not be sufficient to overturn the answer. 5 Pet. R. 110. 1 Cow. R. 703-20 Pick. R. 35. Gray vs. Paris, 7 Terg. R. 160. Roundtree vs. 1'Gordon, 8 Mo. R. 25.

T£e complainants show no equitable ground for relief, but show by the judgment at law and their neglect to resist it, a complete bar to any relief they might otherwise have had; and these objections are made in the answer as if by plea or demurrer. Champlin vs. Champlin, 2 Ewd. Ch. R. 364. Dormer vs. Fortesque., ■2 Atk. R. 284.

The defence being a legal one, equity could not take jurisdiction of the case unless the complainants were prevented, by fraud or accident, unmixed with any fault or negligence of themselves, their agents or attorneys, from making their defence at law. 5 How. (U.S.) Rep. 142. 6 John. Ch. R. 90. 3 Bibb249. LeGuen vs, Governeur, 1 John. Cas. 492. Lee et al. vs. Ins. Bank, 2 Ala. R. (New Series) 22. Cunninham vs. Caldwell, Hardin’s R. 136. 1 Bibb 174. 10 Peters R. 505. 5 Litt. R. 9. 5 Ark. 11; 6 id. 84. 1 Freem. Ch. R~ 153; ib. 389. 4 John. R. 533. 10 Smedes & Marsh. R. 506. 5 How. (Miss.) R. 105. 18 John. R. 533. 6 John. Ch. R. 482. 1 Freem. Ch. R. 380.

*446An injunction can operate only on the person of the party; and a court of chancery has no power to set aside or vacate a judgment, even upon merits. Overton vs. Perkins etal. Mart. & Yerg. R. 372. Yancy vs. Downer, 5 Lilt. R. 9. 6 Pet. R. 658. 8 Yerg. R. 459.

Cummins, contra.

If the answer be responsive to the bill and a positive denial of the allegations, the court will not decree against the answer unless the allegations in the bill be sustained by two witnesses or one witness and strong corroborating circumstances ; otherwise where the answer is not directly responsive, or a positive denial, as where it is evasive, or a denial of some of the allegations only, or a denial by inference, or on belief to a positive charge. Gres. E.q Ev. 4. Walton vs. Hobbs, 2 Atk. 19. LeNeve vs. LeNeve, 1 Yes. Sr. 66; ib. 95; ib. 125.

The answer is no evidence of new facts not responsive to the bill. Hart vs. Ten Eyck, 2 J. Ch. R. 91. Brown vs. Cutter, 8 Ohio R. 142. Watson et al. vs. Palmer Sfc. 5 Ark. 501.

Courts of equity will relieve whenever it is against conscience to enforce the judgment at law, Marine Ins. Co. vs. Hodgion, 7 Cranch 336; or for mistake, Smith vs. Wallace, 1 Wash. 254, or where a party acted under the mistaken advise of counsel. Fitzgerald vs. Peak, (4 Litt. R. 125.) Watson et al. Palmer et al. (5 Ark. R. 501,) and certainly where his conduct was induced by the advice or consent of the attorney on the other side. See also the cases of Union bank of Georgetown vs. Geary, 5 Pet. R. 99. Oliver el al. vs. Pray, 4 Ham. Ohio R. 174.

Courts of equity may compel parties to interplead at law; it may send particular issues to courts of law to be tried, set aside judgments at law and require new trials therein, and grant any relief which the justice of the case requires. 1 Story’s Eq. sec. 26,27. 4 Ham. OhioR. 174. Humphries vs. Blevins, 1 Ten. 12.36.

Mr. Chief Justice Johnson

delivered the opinion of the Court.

The first point presented relates to the equity of the bill. The complainants allege, substantially, that the defendant by his at*447torney agreed at the return term of the garnishment that as they had already filed an answer in another case broadly denying any indebtedness to Everett, or that they had any of his property in their possession or under their control, they need not answer his garnishment, and that he would not proceed any further against them, and that under such assurances they left the court fully satisfied they had been discharged from all liability in regard to said suit. They further allege no steps were taken nor any entry of record made from the October term, A.D. 1842, (the return term of the garnishment) until the 17th of April, 1845, at which time judgment by default was rendered against them, and that they were wholly ignorant that the judgment had been so rendered until after the adjournment of the court. This agreement, set up in the bill, is neither admitted nor denied in direct and positive terms; but, on the contrary, it is evaded by a general and sweeping denial that any act had been done either by himself, his counsel or attorneys, which should, in the least, have induced them not to make their defence at law, if they had any, but that, on the contrary, they were warned and notified, at the very term of said court at which said judgment was rendered, that said cause was pending against them and that they had not answered. The first allegation in respect to notice to the complainants, contained in the answer of the defendant, tending to negative the idea of surprise, is that at the April term, 1845, (the term at which judgment by default was taken against the complainants) the complainants and also their attorney, Greenwood, as he was informed and believed, did attend and that having wholly failed to file any answer, the court on the last day of the term rendered judgment against them. The second allegation in respect to the same matter is, that one of the complainants, at least, during the term at which said judgment was rendered, was informed of said suit and told that he had better attend to it. And the third is, as heretofore stated, that they the complainants were warned and notified at the very term of said court at which said judgment was rendered, that said cause was pending against them and that they had not answered. If the *448defendant had gone farther and also denied that he had not only done any act but that he had not uttered one solitary word that was in the least calculated to induce the complainants to decline putting in their answer, still it would have been utterly insufficient as it would not have been responsive to the allegation in the bill. If he had denied the agreement s,et up in the bill the complainants could then have tendered him an issue upon it, and its truth or falsity could have been manifested by the proof.

It was certainly a most material allegation in -the bill, as it formed the whole foundation upon which its equity rested, and consequently, if not denied by the answer, stood confessed as true.

It is not deemed necessary to notice the subsequent averment in. the answer in which it is denied that the defendant ever said or did any thing whereby the complainants either were or could be misled or deceived, as it has already been ruled that it could not have drawn the allegation in the bill in issue. Under this construction the general denial in the answer is inadmissible by way of plea. The question then to be decided is whether it could avail the defendant in the way of a demurrer, as práyed in the answer. We think not. If it is once admitted that the agreement was actually made, it is clear that unless it has been nullified by matter subsequent, it constituted a full and perfect equity, as in our opinion it was well calculated to entrap and surprise the complainants. The question then is, has it been nullified or avoided?

Where an answer is put in issue, what is confessed and admitted need not be proved; but the defendant must prove what he insists on by way of avoidance. The chancellor of New York, in the case of Hart vs. Ten Eyck, (2 John. Ch. R. 88) when commenting upon the rule laid down by L. Ch. J. Cowper, in 1707, reported in Gilberts Law of Evidence, said, “ The answer was put in issue and it was urged that the defendant having charged himself and no testimony appearing, he ought to find credit when he swore in his own discharge. But it was resolved by the court that when an answer was put in issue, what was confessed and admitted by it, need not be proved, but that the *449defendant must make out by proof what was insisted on by way of avoidance.” The defendant, by his failure to deny the agreement charged in the bill, in such a manner as to put its truth in issue, has virtually admitted it and consequently what he has set up going to negative the presumption of surprise, is by way of avoidance and therefore should have been supported by prooi aliunde. If any thing transpired subsequently to the agreement set up in the bill, which is relied upon by the defendant to release him from it, it is affirmative matter and consequently should have been supported by proof. It is clear from this view of the whole case, that upon the merits the complainants showed themselves entitled to be relieved from the judgment at law.

But the question here is, whether the decree was warranted in the shape that it was rendered by the circuit court. The court of appeals of Kentucky, in the case of Young vs. Downer, (5 Litt. 9) said, “We could not sustain the decree of the court below, if the merits of the cause were in its favor. It directly sets aside the jugdment at law, and awards a new trial, totidem verbis. We cannot concede to the chancellor the power of setting aside and altering the records of a court of law. If the powers of a chancellor were separated from the person of the judge of a court of law, which is done elsewhere and may be done here, we cannot tell how the chancellor would enforce such a decree — whether he would retry the cause himself or compel the court of common law to do it. Hence this court has decided that the chancellor must in such case, act on the person only and not on the proceedings at common law; or, in other words, he ought to decree that unless the defendant in chancery consent in the common law court to a new trial in a reasonable time, his hands shall be tied and be perpetually restrained from executing his judgment.” We entertain no doubt but that this is the correct doctrine, and that although the. case upon the merits is in favor of the complainants, yet inasmuch as the decree sets aside and vacates the judgment at law, it is for that cause erroneous and consequently ought to be reversed.

The decree of the circuit court of Marion county sitting in *450chancery in this cause, is therefore reversed, annulled and set aside and the cause remanded to said circuit court to be proceeded in according to law and not inconsistent with this opinion; and it is further ordered that upon its return to said court both parties have leave to amend their pleadings if they shall desire to do so.