"I think that it is no objection to specific performance," "that there is a clause in the agreement, that the party making it shall keep it in repair when made." "I may order that the work shall be done; and the question of repairs will be a matter of inquiry, when a breach of that part of the agreement occurs." § 1568. In this case an inquiry arose in regard to the extent of the term "siding," and there occurred the usual contradiction in the testimony of the experts. On the part of the plaintiff, it was deposed by numerous witnesses, that it imported nothing less than all the appliances of a furnished station for the receipt and discharge of freight, with a servant of the company in constant attendance to accommodate the public; and, on the part of the defendant, that nothing more was intended by the term, than a side-track where cars could be set aside, for the discharge and receipt of freight, the responsibility of lading and unlading resting with the owners chiefly. The learned judge said: "I cannot give much credit to the witnesses who say that a siding, according to their interpretation of the word, means numerous other things, which may no doubt be very convenient, but which are not covered by the true signification of the word. According to that construction the words should be equivalent to a siding with all proper conveniences connected therewith; but nothing of that kind is specified in the agreement." And again, "If he" (the plaintiff) "had wished to have a station made, it would have been easy to have said so; the meaning of that word is familiar to every one." § 1569. Equity interferes also to restrain one railway company from interfering with the exclusive franchises of another, which have been secured to them by legislative grant. But this question involves such an extensive inquiry into important and difficult constitutional questions, that we can do little more than refer to some of the leading cases upon the subject.1 1 Dart. Coll. v. Woodward, 4 Wheaton, 518; Providence Bank v. Billings, 4 Peters, Sup. Ct. 514; Charles River Bridge v. Warren Bridge, 11 Peters, Sup. Ct. 420; Redfield on Railways, § 214, p. 500503; id. § 231, p. 537-562, where the cases bearing upon the question are extensively cited. CHAPTER XLVI. THE EFFECTS OF JUDGMENTS AT LAW.-FOREIGN JUDGMENTS. [* § 1570. How far courts of equity control judgments at law. § 1571. Can only enjoin the collection of such judgment. § 1572. Grounds upon which such injunctions granted. § 1573. In what cases judgment at law conclusive. § 1574. When courts of equity rehear cases decided at law. § 1575. How far fraud is a defence against a judgment. § 1575 a. What preliminaries requisite to lay the foundation for a bill to set aside conveyances or levies. § 1576. Foreign judgments generally held conclusive. § 1577. Review of the later cases upon the question. § 1578. The difficulty of defining any limitation. 1579. Accounts rendered by executors in a foreign court. § 1580. How far decisions of courts of last resort revisable. § 1581. How far fraud affects foreign judgments. § 1582. It must be fraud in obtaining the judgment. § 1582 a. Foreign judgment in rem conclusive upon the parties. § 1583. The disposition to deal summarily with foreign judgments. § 1584. The facility thus afforded to evade their effects.] § 1570. As courts of law constitute a jurisdiction altogether independent of and foreign to that of courts of equity, the control which courts of equity assume to exercise over the judgments of such courts is very much the same which it exercises over the judgments of courts altogether foreign to the forum where the court of equity exists. It may be important, therefore, to obtain clear views of the grounds and the mode of this interference, that we may be the better able to comprehend the true limits of the jurisdiction; and thus to define, with accuracy and precision, where any excess is liable to occur, and especially where it may be proper to invoke the interference of courts of equity in regard to judg ments at law. § 1571. Equity never attempts to act upon the court of law itself, and does not claim any supervisory power over such courts, or the proceedings therein. It acts solely upon the party, and will enjoin him, in a proper case, from pursuing any claim in a court of law, over which the courts of equity have a concurrent jurisdiction and a more perfect means of doing complete justice. This it never attempts to accomplish, after judgment, in a matter 1 Ante, § 875, and cases cited. where the court of law had concurrent jurisdiction, by declaring the judgment void, or setting it aside, but only by enjoining the party from proceeding to enforce it.1 § 1572. And this it will never do upon the ground of mistake or error in the judgment of the court of law; or that the court of equity, in deciding the same questions decided by the court of law, would have come to a different conclusion. But only upon the ground that the party had some defence against the claim, which has occurred, or first come to his knowledge, since the trial in the court of law, whereby it would be a virtual fraud in the party recovering at law now to insist upon enforcing his judgment.2 But where the fact existed before the trial at law, upon which the relief in equity is claimed, and was also known to the party suing in equity, or might have been discovered by the exercise of diligence, and was as much a defence at law as in equity, no redress can ordinarily be obtained in equity.3 § 1573. In matters where the jurisdiction of the courts of law and equity is entirely concurrent, the adjudication of the court of law is conclusive upon courts of equity. And a court of equity will not interfere to relieve a party from such adjudication except upon the ground of newly discovered matter since the trial; of fraud in obtaining the judgment; or of some inevitable accident or mistake. But where the party has equitable rights, not cognizable in a court of law, which would in a court of equity have prevented such an adjudication as was made in the court of law, the judgment will interpose no obstacle to redress in equity, since the court of law had no proper jurisdiction of the subject-matter forming the basis of redress in equity.* 1 [Gairity v. Russell, 40 Conn. 450.] 2 Paddock v. Palmer, 19 Vermont, 581; ante, § 257 b. Ante, § 891, 895; [Gibbons v. Bressler, 61 Ill. 110; Smith v. Allen, 63 Ill. 474. Equity will not aid a defendant to avail himself of a discharge under the bankrupt law. Foote v. Perry, 40 Ind. 40. If there is fraud or collusion in prosecuting actions at law, or if a judgment so obtained is used to oppress or defraud, equity may interfere and enjoin or correct the wrong, if there is no adequate remedy at law. Hablitzel v. Latham, 35 Ia. 550; Jennings v. Whitemore, 2 Thomp. & C. 397; Busen v. Foster, 6 Heisk. 333. If a party has lost his remedy against an erroneous or irregular judgment, without his own fault, equity may interfere. Connery v. Swift, 9 Nev. 39; Dalton v. Lemburth, 9 Nev. 192. See also Loss v. Obrey, 7 C. E. Green, 52; Wingate v. Haywood, 40 N. H. 437; Currier v. Esty, 110 Mass. 543. But if a defendant elects his remedy in a suit against him, equity will not relieve him from the effect of his choice. Penn v. Reynolds, 23 Gratt. 518; and if a party has the means of correcting the erroneous judgment by appeal or writ of error or otherwise, equity cannot interfere. Lyme v. Allen, 51 N. H. 442. See ante, § 897, 898.] 4 Dunham v. Downer, 31 Vt. 249;. Lansing v. Eddy, 1 Johns. Ch. 49; Simp § 1574. And although some of the earlier decisions look almost like granting new trials in equity in regard to all matters adjudicated at law where there has been surprise at the trial, or newly discovered evidence,1 the more recent and better considered cases will justify no such proposition. The new trial is never granted, in terms. There can be, in no such case, any thing like another trial in the court of law. The case is effectually ended there. But where there was a distinct and decided fraud in the proceedings by which the judgment at law was obtained, as by putting in testimony which the party believed to be false; by giving no notice of the suit, or one calculated to mislead the defendant and thus deprive him of an opportunity to be heard in the trial at law; or, in any similar mode, making the trial at law fictitious or fallacious; and also where the defendant at law, through accident or mistake, and without default in the proper degree of watchfulness and care required of careful men in their own concerns of equal importance, fails to present his defence fully; courts of equity will in their discretion grant relief, by re-examining the son v. Hort, 1 Johns. Ch. 98; s. c. on appeal, 14 Johns. 63; ante, § 894, 895, 895 a; Clifton v. Livor, 24 Ga. 91. It is no objection to the conclusiveness of the finding of a court of equity, that the party had in fact full remedy at law, so that in truth the court of equity never had any proper jurisdiction of the case. And it makes no difference, in this respect, whether such want of jurisdiction appear upon the face of the bill, but, not being insisted upon, is disregarded by the Court of Equity, and a decree passes upon the merits; or such defect of jurisdiction is shown by the proofs in support of the answer; and the case is dismissed upon that ground, upon the final hearing. Munson v. Munson, 30 Conn. 425. As to the conclusiveness of judgments in ejectment in the American practice, see Miles v. aldwell, 2 Wallace, U. S. 36. 1 Gainsborough v. Gifford, 2 P. Wms. 424. In a late case, where the question is examined, the law is thus stated: "The early English cases which have been brought to our notice, and which we have before had occasion to examine, and some of the American cases, and especially Colyer v. Langford, 1 A. K. Marshall, 237, seem to go upon the ground that a bill will be entertained for a new trial, in an action determined at law, upon very much the same grounds that new trials are granted at law, where the courts of law have no means of granting a new trial in the case" [or for any reason decline to interfere]. "But the numerous cases in this state, from Essex v. Berry, 2 Vt. 161, to Warner v. Conant, 24 Vt. 351, have established the rule upon a very much narrower basis. The rule of the best considered and more recent cases upon the subject is, that the party must have failed in obtaining redress in the suit at law, by the fraud of the opposite party, or inevitable accident or mistake, without any default either of the party or his counsel. That is the rule laid down in Emerson v. Udall, 13 Vt. 477, and Pettes v. Bank of Whitehall, 17 Vt. 435. The rule in Connecticut, Carrington v. Hollabaird, 17 Conn. 530, s. c. 19 id. 84, is laid down in almost the same terms, stress being laid upon the fact that the plaintiff's failure to obtain justice at law has been "without fault on his part." Burton v. Wiley, 26 Vt. 430, 432. 2 [But see ante, § 896, note.] case upon its merits, and either enjoining the party from pursuing the judgment at law; or, where some portion of the claim is due, granting such an injunction as to a portion of it; or upon condition that the plaintiff shall pay into court whatever sum is due upon the judgment, with reasonable costs.1 § 1574 a. But a creditor is not in a condition to claim the interference of a court of equity in removing conveyances made by his debtor of the property which it is claimed should go in payment of debts until he has perfected his own title against such debtor by judgment and levy. Nor will a court of equity set aside the levy of an execution upon real estate on the ground of alleged defects and irregularities in the same. The proper remedy in such case will be by application to the court rendering the judgment and where the levy remains of record.3 § 1575. It seems to be conclusively settled that a judgment can only be impeached in a court of equity for fraud in its concoction. It is said, "there is no case in which equity has ever undertaken to question a judgment for irregularity. The power of a court of law is always exercised in such cases in sound discretion, and the relief is frequently granted on terms. This court cannot impose any such terms or take any such cognizance of the case. If then the judgment of a court of competent jurisdiction can only be enjoined in a court of equity, upon the ground of fraud (and this fraud must have been practised in the very act of obtaining the judgment, or else it will be concluded by the judgment at law, 1 Emerson v. Udall, 13 Vt. 477; Cutting v. Carter, 29 Vt. 72; Stone v. Seaver, 5 Vt. 549. 2 Castle v. Bader, 23 Cal. 75. 3 Boles v. Johnston, 23 Cal. 226. See also Hurlbut v. Mayo, 1 D. Chip. Vt. 387. But see Ramsden v. O'Keefe, 9 Min. 74. 4 Chancellor Kent in Shottenkirk v. Wheeler, 3 Johns. Ch. 275, 280. This decision is based upon Baker v. Morgan, 2 Dow (H. Lds. Cas.), 526 (1814). The learned Chancellor adds, "The doctrine, coming from such masters of equity as Lord Redesdale and Lord Eldon, is undoubtedly to be considered as correctly declared. If there had been any case warranting the interference of chancery with an irregular judgment, they would have knowmit." The same principle is reaffirmed by the same learned judge, in De Riemer v. De Cantillon, 4 Johns. Ch. 85; French v. Shotwell, 6 Johns. Ch. 235; s. c. 5 Johns. Ch. 555; and in 20 Johns. 668. See also Elliott v. Balcom, 11 Gray, 286, where the general subject of relief in courts of equity against final judg ments in courts of general jurisdiction is considerably discussed. In Hubbard v. Eastman, 47 N. H. 507, it is said that any fact which proves it to be against good conscience to execute a judgment, and of which the injured party could not have availed himself in the court rendering the judgment as a defence against the action, or where he was prevented from so doing by fraud or accident, unmixed with any fault or negligence on his part, will justify the interference of a court of equity. |