Lissentimie. The appellee filed his original and supplemental bills against the appellant, in the circuit court of Putnam county, asking to enjoin the latter from the collection of a certain judgment which had been obtained in said court in favor of the appellant against the appellee, as security for William Grass, late sheriff of said county.
The judgment it appears, was for the amount of two receipts executed by Grass to the appellant, Harvey, for fee bills due him as clerk of the circuit and county courts of *123said county, wbicb receipts were dated tbe 15th. of September, 1857.
The original bill alleges that the process in the suit in which the judgment in controversy was obtained, was served on the complainant, Seashol, and that he was soon thereafter compelled to remove to the State of Ohio, in order to avoid the rebels, who had made repeated attempts to arrest him, &c. That Grass removed to the State of Missouri in the fall of 1860, leaving his official papers in the clerk’s office of Putnam county.
The giving of the receipts of the 15th of September, 1857, by Grass to Harvey for the fee bills, is admitted, but it is' claimed they were settled by Grass, and included in a receipt given to him by Harvey for 160 dollars, dated the first of November, 1859, which latter receipt, it is alleged, was in full of all fee bills up to the first of July, 1858, including the two official receipts of Grass, on which the judgment was founded; and it is further alleged that the receipt for 160 dollars was not found by the said Seashol until some time after the judgment aforesaid was obtained; but no other reason is assigned why the appellee failed to defend himself at law.
The answer of Harvey to this bill denies that the receipt for 160 dollar’s was intended to be in full of the two receipts of the 15th of September, 1857, and avers that it did not include the same, and that it was distinctly understood between him and Grass when it was given, that the receipt and settlement then made were not to preclude Harvey from collecting the fee bills in controversy if he should thereafter find the receipts of Grass given for the same, which receipts, he avers, he could not then find, but that he after-wards found them and obtained his judgment for the amount of the fee bills included in the same.
The answer, in this respect, is fully and distinctly sustained by the evidence of John L. Middleton taken in the cause, and on motion of the appellant, the injunction awarded on this bill was dissolved.
*124The amended or supplemental bill alleges that the ap-pellee was an out-spoken Union man, in consequence of wbicb be was threatened and persecuted, and bis property taken by the rebels, who threatened to kill him and his wife, and that being the object of their peculiar hatred and dislike, he was compelled, for the safety of himself and family, to leave the State and seek protection elsewhere; that he accordingly removed to the State of Ohio in February, 1864, and remained there until the fall of 1865, when he returned again to this State; that he was afraid to come into Putnam county, to attend the courts, and that he had no knowledge of the existence of the receipt for 160 dollars until September, 1864, long after the judgment was obtained against him; and the disturbed condition of the country,the uncertainty of the courts, and fear and anxiety for his life and that of his family, together with the want of knowledge of the existence of said receipt, are the reasons assigned why he failed to defend the suit at law.
The answer to this bill doubts the excessive loyalty of the appellee, avers that he sold off his property leisurely before moving to Ohio, and often returned to Putnam county afterwards to attend to his business, and that he could have attended the courts of that county without danger or hindrance; that if he was ignorant of the receipt it was wilful ignorance, as all the official papers of Grass were, and had been for a long time before, in the possession of one of the appellee’s co-securities at his instance, and at all times accessible to him.
The question now to be adjudged is whether the appellee has shown himself entitled to the relief prayed for, and which was granted him by the decree complained of.
There is, perhaps, no more inflexible rule of law than that which requires diligence on the part of suitors in defending themselves at law whenever they could do so by the use of proper diligence, and hence it is that applications to courts of equity for new trials, upon the ground of after-discovered evidence are uniformly refused, unless such due *125diligence to discover such evidence is both averred and proved.
If anything could induce a relaxation of the rule, the peculiar circumstances surrounding the appellee, and the extraordinary condition of the whole country at the time of the rendition of the judgment complained of, would seem to afford a justification for it in the present instance;'but as no diligence in reference to the receipt relied on is alleged in either of the bills, and none whatever shown by the evidence in the cause, I do not think we would be justified in departing from the established doctrine. ,
On the contrary, it seems to me, that the wisdom of the rule is strongly illustrated and demonstrated by the facts of this cause, for as it appears that the official papers of Grass were in the hands of the co-securities of the appellee, or of some of them, of which fact he was cognizant, and that the receipt in question had been by them or their counsel placed in the hands of the witness, George Ellis, for safe keeping, it is quite certain that the proper diligence and inquiry on the part of the appellee would have led to its discovery. See Black v. Wood, 9 Grat., 40; Mecum v. Rucker, 10 Grat., 506; Floyd v. Joyne, 6 Johns. Chy. R., 479; Snider v. Myers, 3 W. Va. Rep., 195.
I think the decree should be reversed, with costs to the appellant here, the injunction dissolved, and the bills dismissed with costs to the appellant in the court below.
Decree reversed, injunction to the execution perpetuated, and a new trial at law granted to the appellee.