(dissenting.) When I cannot agree with my brethren, I feel it incumbent upon me, particularly in cases so important as tMs, to give the reasons for my dissent.
It seems from the evidence that there had been running accounts between these parties for some time, and that Parish became indebted to Gear for various matters, including liabilities to a large amount. In May, 1836, the parties, according the deposition of William S. Hamilton, met to close up their business, and a mortgage was given by Parish to Gear for $4,200, the amount then supposed to be claimed and due. The witness states that at the time the mortgage was given, it was supposed that the amount specified in the mortgage would cover the debt, but that the balance, whatever it might be, whether in Parish or Gear's favor, was to be settled as just and correct. Prom the tenor of the deposition, I understand the mortgage to have been given as a security for whatever might be due. The witness says that Gear's books were there, but from the facts respecting the manner in which the sum was stated, and the understanding respecting whatever balance there might be, it requires no stretch of imagination to perceive that there may have been liabilities on other transactions not recollected at the time. The mortgage was payable in four months, and was paid when due, and Parish received, and produced on the trial his receipt for the $4,200. The mortgage was never recorded but was kept by Gear, who resides in Ulinois. It does not appear that the paper was ever in *273Wisconsin, until it was produced at the trial by Gear for cancellation; and he avers that he would have given it over to Parish, but that he could not find it. In October, 1837, the claim of Gear against Parish was put into the hands of Mr. Hoge, a lawyer of Galena, for collection. This claim, deducting the credit of the mortgage, and the amount of $4,200 paid thereon, left a balance of upward of $1,500 due to Gear, to which he swears in his bill; for the recovery of which suit was instituted in the district court of Iowa county against Parish, and after consulting counsel he voluntarily confessed judgment thereon for the balance claimed. The defendant rested satisfied with this judgment against him until September following, when he filed his bill for an injunction against it, alleging fraud. He alleges that he gave the judgment for the purpose of procuring from Gear, the mortgage, and that Mr. Hoge promised to have the mortgage surrendered to him. The only proof of this is by the declarations or acknowledgments of Mr. Hoge that he did say so, and this is proved by the counsel of Parish, whom he had consulted before he confessed the judgment. If there was any thing in this it was competent to have Mr. Hoge testify; he was a competent witness, and his declarations were not the best evidence. But there is nothing in it to found a decree upon enjoining this judgment. For before the judgment was confessed, the whole account was presented to Parish, on which he consulted counsel; he then came into court and acknowledged it to be correct by his confession of judgment. Why should Parish confess a judgment for upwards of $1,500, and thereby create a lien on his lands, for the purpose of getting into his possession a mortgage that was never recorded, and merely in the possession of a man in Illinois, and for which he held a full and entire release and discharge % It is too preposterous to admit of serious consideration. And if there is any fraud proved in obtaining this judgment on the part of Gear or Hoge, I cannot see it.
*274All the pointed allegations in the bill are fully and positively denied.by the defendant Gear, and all the testimony in the case was, the deposition of Hamilton relating to the settlement, and the deposition of Turney, who was the attorney of Parish, and consulted by him before he confessed the judgment, who proves what Parish said to him, and the above acknowledgment of Hoge. This was not evidence under any circumstances, and should not be considered. If such testimony were allowed, a client and his attorney can make as much evidence as may be necessary to gain any cause. In addition to this, what took place between client and counsel respecting a cause, as in this case, should not be received as evidence. Graham’s Practice, 39. Mr. Hoge could have been examined, and consequently his acknowledgment was not, in the first place, the best evidence. But it was as to the surrender of the mortgage only, not as to the legality or honesty of the consideration of the judgment. But there is nothing in this, as at the trial the mortgage was in court to be canceled, and the defendant had a receipt in full for its amount.
Even if Hamilton’s testimony was conclusive, and left no doubt or uncertainty as to the real balance between the parties, there is but the testimony of one witness to the transaction, which is not sufficient, unless accompanied with strong corroborating circumstances. 9 Cranch, 153. The corroborating circumstances relied upon are the bond and mortgage, and these cannot be used as a substitute for another witness, when the balance, by agreement, was to be afterward settled, and for that balance a judgment was confessed upon consultation and professional advice. In the case of The Marine Insurance Company v. Hodgson, 7 Cranch, 322, which was a bill to enjoin a judgment on the ground of a misrepresentation of the age and tonnage of the vessel, whereby the underwriters were induced, to agree to a high valuation, and were thereby defrauded, Marshall, C. J., says, without attempting to draw any precise line to which courts of *275equity will advance, and which, they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said, that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured 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 fault or negligence of himself or agent, will justify an appeal to a court of chancery.
A defense cannot be set up in equity, which has been fully and fairly tried at law, although it may be the opinion of that court that the defense ought to have been sustained at law. The equity of the applicant must be free from doubt. And the court there decided, that as the party was not prevented from making his defense at law, by any act of the plaintiff, or by any positive rule which disabled him from doing so, a clear case was not made out for the interposition of a court of chancery, and the injunction was denied. Such should have been the decision in this case, for that was stronger than this. Here the mortgage was given upon an understanding that whatever balance should appear on either side should be afterward settled; the settlement, too, whatever it was, was only proven by one witness, the mortgage was paid and receipted, and never recorded; the balance afterward presented and demanded, and sued for, when it was probably filed with the declaration, and after consultation with counsel, a judgment was confessed for it, which remained nearly one year before any application was made to disturb it, and then on a pretense of the non-surrender of the paid mortgage, which was in court at the trial for cancellation. The party could have had all these matters investigated at law, he was not prevented in any way, and then the accounts between the parties could have been fully settled. This, in my opinion, does not present any such case as requires the extraordinary decree of a perpetual injunction.
*276If the court was fully satisfied that the accounts should be examined, possibly the judgment might have been opened, or an issue directed,» to try and investigate the same. Such a practice has been pursued. 2 Wash. C. C. 433; 14 Serg. & R. 137, Relief might be obtained in a proper case on a writ of error coram nobis. 1 Rawle, 323. This is the most the party could ask, and it is very doubtful whether, under all circumstances, the court should even go thus far, but certainly no farther.
Note.—The appellant, Gear, appealed from the foregoing decision to the supreme court of the United States, whereupon the decree of the supreme and district courts of Wisconsin was reversed, and the bill was ordered to be dismissed. Gear v. Parish, 5 How. 168.