The defense relied on in this case is purely legal, and would have prevailed, if properly proved, in the trial in the Circuit Court. The defense was attempted to be made in that court, but was ruled out, because the witness was incompetent to testify to the facts proposed to be proved by him.—Beadle v. Graham’s Adm’r, at the present term. The present is a bill in the nature of a bill for a new trial. Such bills are maintainable; only when the party invoking the jurisdiction had a valid defense, and was prevented from making it by the fraud of the opposite party, or by accident or mistake, unmixed with negligence on his own part. — 1 Brick. Dig. G66, § 376; 2 Story’s Eq. Jur. §§ 887-8. The excuse relied on in this case is accident; and it is shown that the lost docket of Justice Adams has been found. What that docket shows is made an exhibit to the bill. It does not tend, in the remotest degree, to show that the suit before Adams was tried on the merits. On the contrary, it tends strongly to show the suit was dismissed, without a trial on the merits. This is the only additional testimony the complainant avers he can produce, and it utterly fails to show a valid defense to the action. Complainant himself is incompetent to testify, regarding that trial, because it was a transaction with defendant’s intestate, now dead. — Code of 1876, § 3058.
A bill in such a case as this, to be sufficient, must show two things: “ First, that his failure to make defense was not attributable to his omission, neglect, or default; and, secondly, that his defense is good to the entire cause of action, or such part of it as he proposes by his bill to litigate.” Hair v. Lowe, 19 Ala. 224. To make the second of these grounds good, the complainant must not only set forth his defense, showing that it is a valid one, but he must show that on another trial he can prove his defense, as he avers it to exist. Without an averment that such proof exists, there would seem to be no possible good to come of a second trial. With all the additional testimony shown in this bill to have been discovered, the result would be the same as in the trial at law. This ruling is not in conflict with Cox v. Railroad, 44 Ala. 611; but, if it were, we would not be inclined to follow that case.
The chancellor’s decree is affirmed.