5 Ark. 501 | Ark. | 1844
By the Court,
It is perfectly clear that equity will relieve from a judgment at law, where a party was prevented from making his defence by an unavoidable necessity occasioned by no fault on his part. The authorities cited in the brief are conclusive on this point; and they are in strict conformity to the principles of reason and justice; and courts of equity would indeed be deprived of a large and important portion of their jurisdiction, if they could not grant relief in such cases. A party, to entitle himself to their interposition, must show that he has been guilty of no laches or negligence, and that his personal presence was necessary at the trial in order to have let in the defence. All this is alleged and proved in the present case. The Complainant states that he was sued at law as the partner of one Barnes on note given by the firm of Babcock, and assigned by them to Watson, (who it is admitted was always the true owner,) and that this was a forgery, and that he was prevented from attending the trial at law by extreme illness, which commenced some time before thh term at which judgment was had against him, and continued long afterwards. And that he was advised that his only defence was non esi factum, and that the plea had to be sworn to, and required his personal attendance at the trial. The allegation of the forgery is fully proven, and so is the charge that there never was a partnership between the complainant and Barnes. The answer denies the statements of the bill and puts the complainant to the proof, and he has. proved his continued illness which prevented his attending the trial at law, by only one witness. Is this sufficient? We hold that it is. The general rule is that where a material fact is put in issue by the answer, .courts of equity follow the maxim of the civil law: responsio unius non omnino audiatur. In such cases it requires two witnesses, or one and other corroborating facts to authorize a decree. The rule is founded on the principle of an equal right to credit which a defendant may claim, when there is but a single witness opposed to his oath, and where he has answered positively, precisely and clearly as to a fact, and consequently, if he has sworn falsely, would subject him to the penalties of the law. 2 Ch. Ca. 8. Bath vs. Montague, 3 Ch. Ca. 123. 1 Ves. 161.
Where a defendant, by his answer, only denies a fact charged in fhe bill according to his knowledge and belief, a single witness on the part of the complainant will authorize a decree. Knickerbocker vs. Harris, 1 Paige 209. Again, the testimony of one witness' will be sufficient against the denial of an answer, where the defendant can have no personal knowledge of the fact. Combs vs. Boswell, 2 Dana, 474. The same principle holds where the fact denied cannot be supposed within the knowledge of the defendant. Lawrence vs. Lawrence, 4 Bibb. 385. In such a case the only effect of the denial in the answer is to put the complainant to the proof. This is precisely the principle in this case: the bill avers positively the sickness of the complainant and his inability to attend the trial at law. The answer denies the fact and complainant is put to the proof, and he established the charge fully by one witness, and this we hold to be sufficient. The decree, therefore, was rightly entered up perpetuating the injunction; and as the defendant showed no equity in his cross bill, it was properly adjudged against him. Decree affirmed.
