concurring.
In my opinion the judgment of the Court in both these-causes, which were argued together, was erroneous.
1. I hold that when a party is sued in a Court of law, he is bound to make any legal defense which he has against the claim of the plaintiff, and if he is not prevented by fraud, *498accident, or the act of the adverse party, unmixed with negligence on his part, and fails to make his defense, the judgment, whether erroneous or not, if not excepted to within the time allowed by law, is conclusive against him, and the Legislature has no power to open it, to let in any legal defense which existed at the time of the trial.
2. A defendant sued at law is not bound, however, to set up a defense purely equitable, and a Court of Chancery may grant an injunction in such case before or after judgment; and I take it to be a correct principle that the Legislature may authorize any relief in a Court of law which can be had in Chancery without such legislation. But it must be such an equity between the parties as would be the proper subject of equitable interference, as the insolvency of the plaintiff, the fact that he is beyond the jurisdiction of the Court, or some other equitable defense or claim. In such case I see no good reason why the Legislature may not authorize the equitable claim of the defendant to be set-off against the judgment of the plaintiff, or why it may not authorize the judgment to be opened for that purpose.
This view of the power of a Court of Chancery to set aside or enjoin a judgment is sustained by numerous author-ties. I quote a single one from the opinion of Judge Lumpkin, in Polloch vs. Gilbert, 16th Georgia, on page 402, as follows: “ But when a case involves matter exclusively within the jurisdiction of equity, its final decision at law will not preclude a re-examination in Chancery. Under such circumstances the doctrine of res adjudicata does not apply. For as the matter in which the intervention of equity is asked could not have been determined at- law, it cannot be within the estoppel of the legal decision. The existence of an equitable defense, which could not have been made available as a legal defense, is therefore a sufficient ground for obtaining an injunction before or after judgment: 2 White and Tudor’s Leading Equity Cases, 96. And after reciting the cases of Foster vs. Wood, 6 Johns’ Ch. R., 89, and the Marine Insurance Company of Alexandria vs. Hodgson, 7 Cranch, 332, and Truly vs. Wanger, 5 Howard, 141, these annotators con*499tinue: “ It is well settled in accordance with the rule laid down in those cases, that equity will interfere by injunction either before or after judgment, whenever the case is shown to involve matters purely of equitable cognizanpe and essential to its proper determination. . (Ibid, 97.) Upon a proper case being made, a Court of Equity will interfere to arrest the proceeding at law at any stage of it. Thus an injunction is sometimes granted to stay trial; sometimes after verdict to stay judgment; sometimes after judgment to Itay execution; sometimes after execution to stay the money in the hands of the sheriff, if it be a case of fieri facias, or to stay the delivery of possession, if it be a writ of possession: 2 Wooddes’ Lectures, 56, pp. 406, 407, 412, 416; 1 Mad. Ch. Pr., 109, 110; Eden on Injunctions, ch. 11, p. 44. This is so complete an epitome of the whole doctrine upon this subject as deducible from the opinions of Chancellor Kent in the case, 6th Johnson, and of Chief Justice Marshall, in 7 Cranch, and of Mr. Justice Greer, in 5th Ho'ward, as well as the general current of authorities, that we consider it useless to extend the discussion.” Again, on page 405, Judge Lumpkin says:
* * * “ The general principle with regard to injunctions, after a judgment at law, is this: that any fact which proves it to be against consoience to execute-such judgment, and of which the 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 fraud or negligence in himself or his agents, will authorize a Court of Equity to interfere by injunction to restrain the adverse party from availing himself of said judgment ?”
From these authorities it appears that there is a class of cases where a Court of Equity may at any stage of the proceedings interfere by injunction, and arrest the proceedings at law, even after judgment, and I am well satisfied that the Legislature has power to authorize any such defense as might be made available in equity, to be made in the manner pointed out in the Relief Act, in a Court of law, after judgment has been rendered.
*500But I am not prepared to. go beyond this and hold that the Legislature has power to authorize judgments indiscriminately to be opened for causes of legal defense, which existed, and which it was the duty of the defendant to have set up before the rendition of the judgment. It does not appear from this record whether the defendant in this case had any such defense to the judgments which he sought to have opened in the Court below. But having filed his .affidavit in compliance with the statute, it was the duty of the Court, at the first term, to have permitted him by proper pleading to set up such cause against the judgment if it existed,'and I think the Court erred in dismissing the affidavits without allowing him that opportunity.
I will simply add, that the judgment may, in my opinion, be opened under the authority of an Act of the Legislature, to Jet in an equitable defense, which originated since its rendition, if the ends of justice require it, and it would be against equity and good conscience for the plaintiff to enforce the judgment