Terry, C. J. concurring.
A preliminary motion is made by Respondent to dismiss this appeal. The ground is, that the order appealed from is not a final judgment or order, disposing of the merits of the case, but is only a rehearing in equity, which is not appealable matter, *302A decree, final in form and effect, was entered for the Appellants on the coming in of the referee’s report; and this decree was, on motion of the Respondents, set aside. The effect of this order was to give the Respondents a new trial. There is no substantial difference between a rehearing in an equity case which opens a decree and places the case before the Court for trial de novo, and a new trial in a case at law, tried and decided by the Court. The mode of trial is the same, and the effect of the order the same in both cases.
Eor convenience and uniformity, we have held that the Practice Act, regulating proceedings in civil cases, applies as a general rule, as well to equity as common law suits. The statute gives a right of appeal from orders granting or overruling motions for new trials; and this is substantially, if not literally, such a motion.
The questions involved in this dispute grow out of this state of facts : Cronin & Markley, once merchants of San Francisco, in 1851 made an assignment of goods to Bartol & McVickar; the assignors owed one Pendleton; he assigned his claim to one Baker, defendant in this suit, who held for himself and one Jenkins. Baker, in 1854, filed his bill against Bartol—McVickar then being dead—charging fraud in the assignment, and that these assignees had received over thirty thousand dollars from the assigned property—goods—over and above all incumbrances, etc. which sum, it is charged, was, or should be, subject to the claim of the plaintiff. This claim had been reduced to judgment. Bill prayed appointment of receivers. The Court, by its order, directed Bartol to submit to the appointment of a receiver, or to give bond to perform any decree that might be rendered against him. Bartol gave the bond, and plaintiffs here, Riddle & Eaton, were his sureties. This case was tried in November, 1855. Lockwood and Baldwin were witnesses on the trial, and swore for the plaintiffs, fixing, by their testimony, the value of the goods assigned at forty thousand dollars. The case was decided for plaintiffs. Defendants appealed to Supreme Court; decree affirmed. (See 6 Cal. 483.) No stay of proceedings was had, and Baker, soon after the decree, sued Riddle & Eaton on their bond; got judgment. Case appealed to Supremo Court; judgment there affirmed. (7 Cal. 551.) After this affirmance *303the plaintiffs filed this bill, alleging that the decree was obtained on the testimony of these two witnesses, Lockwood and Baldwin ; that this decree was procured by conspiracy, fraud, and perjury; that the defendants secretly conspired together to obtain the decree, well knowing that there was no legal or equitable foundation for the same ; that fraud, deception, and imposition, were practised upon the Superior Court in the managing, procuring, and giving, the evidence upon which the decree was obtained; and, in this connection, the plaintiffs allege some facts not material, as to the manner of the obtaining of this claim by Baker; then that Jenkins, Lockwood, and Baldwin, were Clerks of Cronin & Marlcley; that they were to get, for being witnesses, a part of the recovery; that they were to swear falsely to the value of the goods; that they did so swear; that a judgment was obtained on their testimony; and that the plaintiffs only knew of those facts after the judgment was affirmed in the Superior Court on the bond. The bill prays for an injunction.
Several very formidable points of exception are taken by the defendants to this proceeding—to some of which it has vexed the characteristic ingenuity of the counsel for the Respondent to give a plausible answer. But it is not necessary to consider these questions, as, in our judgment, another point, arising on the proofs, is clearly fatal to the whole case.
Upon the trial of the case of Baker v. Bartol, before Judge Shattuek, these facts appear: That the ease was continued several times at request of defendant; when called for trial and the evidence closed on the part of the plaintiff the defendants procured a postponement to get in evidence; after this period elapsed, and the defendant not appearing, one or more adjournments were had before Bartol arrived; when he arrived he said that he had evidence which would explain and contradict the evidence that had been introduced by the plaintiff, and that he must have it there; the case was again adjourned. EFo such evidence, after all these delays, was procured, and the case was decided after being fully argued.
It seems that the only matter of controversy was the value of these goods. There appears to have been no insuperable difficulty to procuring full proofs on this subject, for, even on the trial of this suit below, occurring a long time after the first. *304various witnesses, who seem to have had knowledge on the subject, gave testimony in respect to the value, and their estimates differ very much as to what that value was. Lockwood and Baldwin were not examined on their voir dire, or otherwise, as to their interest, nor was any attempt made to discredit them. The question arises on this state of facts: Could Bartol, under the circumstances, at this late day, after all the litigation and all these opportunities for litigating those questions, file a bill to set aside the decree thus rendered and thus affirmed on the ground of fraud recently discovered, as to the mode or circumstances in which the testimony was procured against him on the trial ? "We are at a loss to see upon what principle. Chancery would only interpose to vacate a solemn judgment (alleged only to be wrong in part, too,) upon the ground of irreparable injury done to a party who had no other means of relief against it. But a party, to obtain the aid of Chancery must show that he has exhausted all proper diligence to defend at law, or to defend in Chancery if the first suit was in that form. The fraud or practices of the other party are no excuse to him for not attempting to counteract them. He must show that he was defrauded of his opportunity to defend, and that his defense, which, but for the practices of his adversary, would have been effectual, was, by such practices, rendered Unavailing.
To hold that a party may stand by, and, discovering improper practices, or illegitimate arts, in the management or conduct of his case by his antagonist, neglect to countervail them when in his power, or when he sees incorrect or even perjured testimony offered, refuse to go further with the case, and then rely upon the fact that this course has been pursued as a ground for avoiding the judgment, would make litigation perpetual. The very object of a trial is, to afford each party an opportunity of contesting fully all the proofs and all the principles of law relied on by the other side; and if false testimony be introduced, it must be met and combatted, when that is practicable, at the trial, or so soon after as possible—if the falsity is not, and could not, with all proper diligence, be discovered before. In this case no such efforts appear to have been made. The defendant, Bartol, had full notice by the pleadings of what was alleged and what would be attempted to be proven against him. The issue of fact *305was extremely simple. It involved the value of certain goods. The knowledge of this value did not lie exclusively with the plaintiffs’ witnesses.' By the showing made years afterwards, it appears that evidence on this subject could have been obtained from other sources. These assignors were merchants, whose business and stock were known to their customers and to their competitors in trade. The Court extended unusual liberality and indulgence to the defendant. Long delays intervened after he was fully apprised of the precise case made against him. He did not even cross-examine the plaintiffs’ witnesses as to their relations to the case; nor did he seek to contradict them by other proofs. The case was tried and decided—appealed, and decided again. That, upon these facts, the defendant could not, if, under any circumstances he could, have filed a bill like this to vacate this affirmed judgment, can scarcely be contended. The ready answer to his application would be, that he had not done all he could to avoid that which he now, without such efforts, seeks to annul. Indeed, this matter would not be sufficient ground for a motion for a new trial, for newly discovered evidence, in an ordinary case.
But it is urged that these plaintiffs, his sureties, to answer the decree, stand on better ground. We do not think so. We admit, that if there had been collusion between Bartol and the plaintiffs to get and suffer this judgment, the case might, and probably would, be different. But there is no pretense of such collusion. It has been observed that the obligation of these sureties is to answer the decree of the Superior Court. The decree was for the payment of the money sued for. They contested their obligation in the Court below, and lost the case, and then, on appeal, lost it again.
Their liability was collateral to the main suit; but it was made by the terms of their obligation to depend upon its issue. They were not parties to the original litigation, any more than a surety on appeal is a party to the suit in the Appellate Court. They had no rights in Court as contesting parties. They assumed the responsibility of a contestation by other parties, and of the result of a controversy which they could not control. If the suit were mismanaged, if—for example, not otherwise—incompetent counsel had been employed, if the defendant neg*306lected or made default, or mismanaged his case, they had no right to retry it, or to deny the obligations of their undertaking. They chose, in plain language, absolutely to bind themselves in a given event; the event happened, and they are charged. To hold otherwise would be to hold that the surety in an appeal bond or undertaking, could demand a retrial of everything tried in the suit, or, what is the same thing, in effect, that a party giving such an obligation, could, in the name of the surety, hold himself practically absolved from the judgment, at least, without further trial. It would be the interest of a party to make mistakes and be guilty of negligence, since this would afford a pretext for opening the judgment and trying anew the suit decided against him. In order to hold so dangerous a doctrine, we would have to interpolate new conditions in the bond, and to expunge the terms therein written. We think the surety in such a bond stands in the shoes of his principal, so far as the definitive force of the judgment is concerned, subject to the single exception, that if the judgment be procured by collusion between the plaintiff and defendant, he is not bound.
Several other points wo think equally fatal to the Respondents; but this one is enough. We think that the matter relied on in the bill could only be availed of by way of bill of review, and that this bill is fatally defective as such. But it is not necessary to elaborate this point, or to refer to any others; for what we have said is conclusive of the merits.
The order granting the new trial is reversed, and the decree dismissing the bill reinstated.
Ordered accordingly.
See Pico v. Webster, Sheriff, and his sureties, post.