#### More and Bates, Appellants, v. Bagley, Borer and Robbins, Appellees.

APPEAL FROM GREENE.

If a party neglects to make Ms defense at law, a court of chancery will'not relieve him.

Opinion of the Court by

Justice Lockwood.

It appears from the bill exhibited in this cause, that an action was commenced before a justice of the peace on a promissory note, and that on the trial of the cause, the defendants offered to prove by their own oaths the fact, and called on plaintiffs *95below to disprove, that the consideration of the note was for the sale of an improvement on public lands. The bill also states that the justice overruled this defense, and gave judgment for the plaintiffs. Without intending to decide whether this defense ought to have availed the defendants if they had proved it, it is sufficient for this court to say, that the complainants have mistaken their remedy. The defense set up by the complainants before the justice was purely a legal one. Their only remedy, in case the justice decided erroneously, was to appeal to the circuit court. The complainants having neglected to avail themselves of this remedy, can not now ask the interposition of a court of equity. The allegation in the bill, that complainants could only prove the facts in what the consideration of the note consisted, either by their own oath, or the oath of the plaintiff, can be no reason for not prosecuting an appeal from the justice’s decision. Had an appeal been taken, the complainants could, by filing a bill of discovery, have obtained the necessary proof. In the case of Duncan & Lyon, 3 Johnson’s Chan. cases, 351, chancellor Kent says, that “ it is a settled principle that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report (of referees) by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.” The decree below must therefore be reversed, (a) , (1)

McRoberts, for defendants in error.

Decree reversed.

(a)

The court of chancery will not relieve a party on the ground of his having proceeded to trial at law without sufficient evidence, when it was in his power to have obtained that evidence by a bill of discovery. 4 Johns. Rep., 510.

(1)

It was said by the court in Propst v. Meadows, 13 Ill., 169, that “It is within the ordinary jurisdiction of this court to grant relief against judgments at law, either by granting new trials, or by perpetual injunction, if it shall appear that the judgment complained of was obtained by fraud, or resulted from inevitable accident, and that the courts of law can not grant adequate relief.” See Beaugenon v. Turcotte, post; Hubbard v. Hobson, id.; Beames et al. v. Denham et al., 2 Scam., 58; Wierich v. DeZoya, et al., 2 Gilm., 388; Scott v. Whitlow, 20 Ill., 310.

A party who seeks to set aside a judgment by a proceeding in chancery, so as to obtain a new trial, must show himself clear of all laches, and also that every effort on his part was made to prevent the judgment against him. Ballance v. Loomis et al., 22 Ill., 82.

The rule that equity will not relieve against the neglect of a party in a suit at law, who has not made a proper defense, or to move for a new trial, will depend upon the fact that he knowingly had a day in court. Owens v. Ranstead, 22 Ill., 161.