Baltzell and Chapman vs. Randolph.-Statement of Case. policy of the statute regulating the execution of wills might be seriously disturbed. We have given due consideration to the argument, but have been unable to appreciate its force. Fraud and imposition might be perpetrated as easily in the one case as in the other, and the mere difference in the number of witnesses required is deemed but of little importance, if a fraudulent design is contemplated. Upon full consideration of all the facts of this case, and the law bearing thereon, we are of the opinion that the decree of the court below should stand. It is therefore ordered and adjudged that the decree of the Chancellor, ordering the bill filed in this case to be dismissed, be and the same is hereby affirmed, with costs. BALTZELL AND CHAPMAN, APPELLANTS, VS. THOMAS P. RANDOLPH, APPELLEE. 1. Relief will be granted in equity against a judgment at law when the defence could not at the time, or under the circumstances, be made available at law, without any laches of the party. 2. So, if a fact material to the merits should be discovered after a trial,which could not, by ordinary diligence, have been discovered before, the like relief will be granted. This case was decided at Tallahassee. The facts of the case are sufficiently stated in the opinion of the court. Thomas Baltzell, for appellants. The excuse that complainant was prevented through ignorance of the facts from making his defence at law, is disproved by the allegations of his bill asserting "that since Baltzell and Chapman vs. Randolph.-Statement of Case. the bringing of the said suit, he has discovered," &c. And again: “a short time previous to the term at which said judgment was rendered, your orator understood that the suit was brought on a contract not made by your orator at all, or by the firm of which he was a member." It is more completely disproved by the four pleas filed in the suit, one of them asserting that there was no contract to which there was issue joined, and the three others demurred to, all of them withdrawn by defendant, and judgment allowed to go by confession. In like manner the allegation that it was not his contract or that of the firm of which he was a member, is disproved by the distinct admission of the bill, "that the original draft, as drawn by the old firm of C. M. Harris & Co., became due shortly after your orator and the said Harris became partners, and by some arrangement between the said B. and C. and the said Harris, the said draft was renewed by said Harris in the same manner as the original draft, to wit: in the name of C. M. Harris & Co." "It was understood by the parties that it was intended for the old firm, and the parties taking the draft received it as the paper, not of your orator and said Harris, but as the paper of said Lines & Harris" (the old firm of C. M. Harris & Co.) "During the existence of the first firm, he, Harris, contracted the debt," &c. The defendants, B. & C., deny the allegations of the bill, insist that they were purchasers of the note as negotiable paper for a fair consideration, and require proof of the allegations of the bill. Harris objected to as a witness incompetent to impeach his own act-deposing that "he does not recollect the date of the note, or whether Mr. Randolph was a partner at the time it was given in lieu of the draft, and had no means of ascertaining it; says that he was associated with Lines until his death in 1850, after which he continued business without Baltzell and Chapman vs. Randolph-Statement of Case. any partner until August, 1851, when T. P. Randolph associated with me, and we continued business until November or December of the same year." The note sued on is dated October 17th, 1852.. If credit be given to this statement of Harris, the note sued on was made by him ten months after the dissolution of the partnership, which would involve him as having committed the heinous crime of making a partnership note when there was no firm. He states that he does not recollect in this respect, so that his statement should be rejected entirely, the more so as it is directly opposed to the admission of the bill, that the note was given during the partnership of Randolph & Harris. Nor does the statement of this same witness, that "the transaction originating the draft was had by me before Mr. Randolph associated with me," conflict with that of Randolph & Harris making it. This refers to a draft accepted by C. M. Harris & Co., dated 17th April, 1852, and given to the same party, and not to the note on which judgment was rendered. The witness says nothing as to any agreement of the parties that the note was taken, not as the paper of Randolph & Harris, but of Harris & Lines. Such is the case-such are the allegations-such the proof on which the judgment of one of the Superior Courts of the country is asked to be set aside the main allegations of the bill distinctly admitted and proved by it to be false and untrue. Complainant could not make defence through ignorance of the facts before judgment. He did know them before judgment-he made defence by filing pleas he did not make the contract at all nor the firm of which he was a member. They did make it, but with an agreement that another firm and not themselves were to be bound. Plaintiff's witness shows that no firm made it, although he signed the notes as a partnership transaction. What decree can be made upon a bill contradicting itself in its main and important al Baltzell and Chapman vs. Randolph.-Opinion of Court. legations, or upon proof contradictory of itself and of the allegations of the bill? If courts of justice do not respect, uphold and maintain their own judgments, who else may be expected to do it? If, upon such pretext and under such circumstances, this judgment may be set aside, what one is safe even after full trial? That Randolph was incompetent as a witness. 3 Howard Sup. Ct. That he incapacitated himself. Greeley, 333; 2 Chitty Ev., 924n. There is no proof of other allegations in the bill of the infancy, youth, inexperience, &c., of complainant; they are therefore not noticed. D. P. Hogue for appellee. WALKER, J., delivered the opinion of the court. At the Fall Term of 1854, of Gadsden Circuit Court, appellants obtained judgment vs. appellee, for $655.37, and on 28th December, 1854, execution was issued and being levied on the property of the appellee, the bill in this case was filed for an injunction, which being granted and made perpetual, appellants brought the case to this court. In determining whether the Circuit Court erred in granting and perpetuating the injunction, two questions are to be considered. First, whether the equity of the case is with appellee; and second, whether he has not by his negligence lost his right to come into equity. It appears from the testimony of C. M. Harris, the only witness examined in this cause, that the judgment is based on a note signed "C. M. Harris & Co.," but that appellee was not at the time said note was made, and had not been for near a year prior to that time, a member of said firm of "C. M. Harris & Co.," and, moreover, that appellee had no con Baltzell and Chapman vs. Randolph.-Opinion of Court. nection whatever with the debt said note was given to secure, said debt being the individual debt of said C. M. Harris, contracted by him before his partnership with appellee, and in which appellee had no interest, and for which he never in any way rendered himself responsible. From this evidence we have no difficulty in concluding that the equity of the case is clearly with appellee. But why did not appellee set up these facts as a defence against the suit at law? In failing to do so, has he not been guilty of such negligence as will deprive a Court of Equity of the power to give him relief? The rule on this subject as laid down by Judge Story, and supported by all the authorities, is as follows: "Relief will be granted when the defence could not, at the time, or under the circumstances, be made available at law, without any laches of the party. Thus, for instance, if a party should recover a judgment for a debt, and the defendant should afterwards find a receipt under the plaintiff's own hand for the very money in question, the defendant, when there was no laches on his part, would be relieved by a perpetual injunction in equity. So, if a fact material to the merits should be discovered after a trial, which could not by ordinary diligence have been ascertained before, the like relief would be granted."-See 2 Story's Equity, 894. Adopting this as the true rule, let us see whether defendant could not, at the time, or under the circumstances, without any laches on his part, have availed himself of the defence as now disclosed by the testimony of Harris; or whether, after the judgment, he has discovered any fact material to the merits, which he could not, by ordinary diligence, have ascertained before the judgment. The appellee in his bill says: "Your orator further states that the reason of his not availing himself of this defence at law, was owing to his entire ignorance, at the time, of any |