8 Port. 432 | Ala. | 1839
The first enquiry which presents itself, in considering this ease, Is. do the facts, disclosed by the bill, authorise the interference of equity.
The plaintiff does not inform us why he did not avail himself of his sets off, on the trial at law. If the omission resulted from his inability to prove them, without the aid of the defendant's testimony, it was certainly incumbent upon him to have exhibited his bill, previous to the judgment calling for a discovery, or else show a satisfactory excuse for Paving thus long neglected it.
Again»: The bill is in the nature of a bill for a new trial at law, while it docs not at all account for the plaintiff’s neglect. Gash bilis ara rarely entertained in equity — certainly never, where a pa:ty might have had the full benefit of a motion for that purpose, at law. No sur-, prise on the trial — no discovery of new facts are pretended : there is, then, no basis .on which the jurisdiction of chancery can rest. The cases of Herbert & Kyle vs. Hobbs & Fennell. 3 Stewart’s Rep. 9; Moore vs. Dial, 3 Stewart’s Rep. 155; and McGrew vs. The Tombeckbee
It is immaterial to consider the regularity of Livingston’s answer, or the exceptions to it, as the court very properly dismissed thebill. The decree is therefore affirmed.
