The purpose of the statute (R. C. § 2814) authorizing the grant of rehearings in courts of law, after the close of the term, at which judgment was rendered, when a defendant has been prevented from making his defence by surprise, accident, mistake, or fraud, without fault on his part, was to furnish at law a less expensive and more summary remedy than that afforded by resort to a court of equity for relief. The case for which the statute provides is the case in which a court of equity intervenes. After judgment at law, a defendant having a meritorious defence available at law, which without want of diligence on his part by the fraud of his adversary, or by surprise, mistake or accident, he failed to interpose successfully, was and is entitled to relief in a court of equity. The fraud, surprise, accident or mistake, and the matter of defence, must be distinctly alleged, and clearly proved, and due diligence must have been *60exercised to. discover and render it available before judgment, or a court of equity never arrests a judgment at law. French v. Garner, Port. 549; Lee & Norton v. Ins. Bank Columbus, 2 Ala. 21; Stinnett v. Br. Bank Mobile, 9 Ala. 120; Taliaferro v. Br. Bank Montgomery, 23 Ala. 755. In tbe numerous decisions which have been pronounced on this statute, this court has kept steadily in view the principles on which a court of equity proceeds in granting the relief the statute authorizes the court of law to grant. 2 Brick. Dig. 278, §§ 334-65.
If the petition disclosed a meritorious defence to the suit, in which judgment was rendered, it is wanting in every essential allegation of the diligence, which is exacted from a party who is to be declared without fault in not having made his defence available before judgment. The suit was instituted in the life of the testator of petitioner, on a promisory note. The testator made no defence to the suit, and so far as is disclosed by the petition, never contemplated making any. After his death, a scire'facias to revive the suit, issued to and was served on the petitioners, who then, in the language of the petition, “employed an attorney at law to make whatever defence was necessary to protect said estate of William Waddill, deceased, and that thereupon said attorney and this defendant used all the diligence they could to make proper defence to said cause ; but the makers of the note sued upon, all being dead, as well as said P. J. Weaver,” (the intestate of appellee,) “who had possession of said note, they were unable to learn the facts hereinafter stated, which is a good and meritorious defence to said suit.” The meritorious defence, is that one Ann P. Weaver, and not the intestate of the appellee, was the real and beneficial owner of the note on which the suit is founded. The most favorable construction of the allegation of the petition which can be made for the petitioner, is that he was ignorant until after the judgment of the defence, he now interposes. There are cases in which a court has interposed to arrest a final judgment at law, because of a valid defence, of which the defendant was ignorant when the judgment was rendered. But in such cases it must be made to appear by direct and positive allegation of facts, not only that the ground of defence was unknown at the trial, but that the requisite knowledge could not have been obtained by the use of due diligence. McGrew v. Tombeckbee Bank, 5 Port. 547; 2 Lead Cases in Eq. 197. This does not appear from the petition filed by the appellant. True, it is alleged that he and the appellee labored under the common mistake that the note sued on *61was the property of appellee’s intestate,- and that he and his attorney used all the diligence they could to make proper defence. Such a general allegation of diligence cannot be received as disclosing a ground for the relief the statute affords, or as negativing a want of fault in not introducing the defence before judgment. It is not' traversable, and is but the assertion of a conclusion of law and fact, founded as the pleader supposes, on facts resting within his knowledge, but which he does not disclose to the court, that it may be seen the conclusion is well founded. His adversary is not informed of the particular facts constituting the diligence, that he may controvert them if necessary.; On such an allegation no relief should be granted in any case, and certainly a solemn judgment and the litigation it quiets, should not be opened. The party should have shown what diligence he exercised — what were the efforts he made to ascertain if there was a defence to the suit. He was put on inquiry as to the plaintiff’s ownership of the note by the very character of the suit. The plaintiff’s intestate was not the payee of the note, nor had it been indorsed or assigned to him. His only claim of title was by transfer by delivery. Yet, so far as is shown, no inquiry as to his title was made. In a short time after judgment, 'and after the suit had been pending for more than four years, it is discovered that a stranger to the suit is the real owner of the note. How the discovery was made, and what prevented it from being'sooner made, we are not informed. Nor can we say if the diligence the judgment quickened had been previously employed, the discovery could not have been made in time for effectual defence. There was, so far as the petition shows, no impediment to the discovery of the fact at any time when proper efforts were made. It would wrest the statute from the beneficent purposes it was intended to accomplish, and pervert it into a cover for negligence, and an instrument of fraud, if on such allegations a court proceeding under it, should open a judgment rendered after full opportunity for defence.
2. Nor should the petition have been entertained to let in a defence of the character averred. A rehearing under the statute should not be granted unless it appears that if the judgment is not opened, substantial injustice will be -done— that the party applying for relief will be subjected to a liability he ought not in equity and good conscience to bear. It ought not to be granted to let in mere technical or formal defences, not affecting the real merits of the case. It is not pretended the debt, on which the judgment is founded, is not just — that it was not contracted in good faith, on a val*62uable consideration, and is wholly unpaid. Nor is it pretended that before the judgment was rendered, the appellant or his testator had any notice or reason to believe it was not the property of the intestate of the appellee, nor that since any person has preferred any adverse claim to it. The whole ground of defence is, that the appellee had not the real, beneficial ownership of it, but that such ownership resides in another, who does not interpose any objection to the appellee’s collection of the judgment. If, on this application, the judgment should be opened and a recovery defeated, an action by the real owner would be barred by the statutes of non-claim, and of limitations. Thus, the appellant would be absolved from liability for an honest debt. The statute cannot be prostituted to such injustice. If the ownership of the debt does not reside in the appellee, the real owner can recover the money of him when he collects it, or if necessary, may arrest his collection of it and compel its payment directly to himself. The appellant is in no danger of being compelled to pay the debt more than once. Not having notice before judgment that the appellee was not the owner of the note, the judgment will protect him against any liability to another.
The judgment is affirmed.