Page:Federal Reporter, 1st Series, Volume 8.djvu/194

 180 FEDEEAIi BEPORTKU. �fraud or accident, or by reason of their being unknown to him in time for that purpose, without any fraud or negligence on his part, «quity would restrain the plaintiff by perpetuai injunction from pro- ■ceeding upon the judgment, or vrould otherwise relieve against it. Such jurisdiction, with the proper limitations upon it, was never more tersely or clearly stated than by Chief Justice Marshall, in the Marine Ins. Co. v. Hodgson, 7 Cranch, 836 ; �" Without attempting," says the learned judge, " to draw any precise line to which courts of equity will advance and which they cannot pass, in restrain- ing parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law, or of which he might have availed himself at law but was prevented by fraud or accident, unmixed with any fault or negligence in himself or his agents, will justify an application to a court of chancery." �See, also, Tompkins v. Tompkins, 3 Stock. 512; Freeman on Judg- ments, § 491; Inswrance Co. v. Field, 2 Story, 59. �The learned. counsel for the defendant, while admitting, on the argument, the general jurisdiction, insisted that there was nothing in the structure of the bill in the present case which authorized the court to treat the suit as an application for a new trial on account of newly-discovered evidence. �The specifie prayer undoubtedly is that the judgment be set aside on the ground that it was obtained by fraud. But there is also a prayer for an injunction and for general relief, and under these it has been the practice in equity, unless the case disclosed some defence peouliar to courts of equity and which would be unavailable at law, to decline to go further than to set aside the judgm'ent and leave the parties to a new trial in the original forum. This is especially so when the prayer of the bill is for an injunction ; bills of which sort, says Judge Story, are usually called bills for a new trial. Story, Eq. Jur. § 887. �Eegarding the case as in effect an application for a new trial, do the allegations of the bill authorize the court to interfere with the judgment? �As the alleged newly-discovered evidence is a legal and not an equi- table defence, the only questions are whether it is sufficient, if true, to prove fraud and injustice in the judgment, and whether the com- plainant has shown due diligence in the effort to procure the testimony for Ihe trial ? �1. T-iie complainant states in the bill of complaint that more than two years after the judgment, to-wit, in the spring of 1880, it ascer- ��� �