delivered the opinion of the Court:
There is no question about facts here.
The demurrer admits the facts stated in the bill. It is the same state of facts substantially, excepting what relates to the injunction bond and judgment on it, as set up in the former bill of Weaver against Poyer. to enjoin the judgment rendered without service. That bill has been before this court on review of the decision sustaining a demurrer to it, and dismissing it, and the bill was sustained by this court, as entitling Weaver to have that judgment rendered against him without service set aside, as void. We have then the admitted facts, and the judgment of this court upon their force, which establishes that Weaver had a perfect defense to the suit brought against him by Poyer on the 27th of February, 1872, and that the judgment therein obtained by Poyer against him was null and void.
There is, then, here the glaring injustice of Poyer holding a judgment against Weaver for $1,318.13, for the amount of that void judgment, and for no other consideration.
All that appellee has to say in its support is, that it is in accordance with the injunction bond, and so must stand."
Appellee has the advantage, under the injunction bond, of a strict legal right. This bond was not given by Weaver voluntarily, but under the requirement of the statute, in order to obtain an injunction to restrain the collection of the void judgment against him, it being that he should give a bond conditioned for the payment of all moneys due to the plaintiff on the judgment, in case the injunction should be dissolved.
The injunction bond was given merely for the purpose of suing out a writ of injunction to stay the collection of a void judgment. It was not given for any other consideration.
Immediately upon the dissolution of the first injunction, another injunction was obtained to restrain the collection of the judgment, and, on its dissolution by the court below, this court reversed the decision, and that suit is now pending, with the injunction restored and in force under the decision of this court.
That judgment was unjust and wrongful. There was no legal or moral obligation upon the part of Weaver to pay it.
The judgment on the injunction bond was rendered for, and on account of, and for no other consideration than the enjoined judgment. It was recovered to collect that.
Both judgments, in right and justice, rest upon the same foundation. Their real basis is the unfounded and unjust claim for the value of the goods held on commission by Weaver, which had been destroyed by fire without fat'dt on his part. They but represent the value of those goods being for the amount thereof.
Weaver never has had the opportunity to make his defense to that unjust claim.
It is equally inequitable, and as much against conscience, to enforce the latter judgment as to collect the former one; but the judgment on the injunction bond was legally obtained, and there is a legal right to it. Is it within the scope of the jurisdiction of a court of equity to relieve against the judgment?
As laid down by Mr. Justice Story, “ the whole system of equity jurisprudence proceeds upon the ground that a party having a legal right shall not be permitted to avail himself of it for the purposes of injustice, or fraud, or oppression, or harsh and vindictive injury.” 2 Story JEq. Jur. sec. 1316.
Courts of equity do, in some cases, interpose and restrain the exercise of a legal right, when it would be inequitable and against conscience to assert it. Instances of the exercise of this jurisdiction are, the relief afforded in cases of penalties annexed to bonds, and of mortgages. At law, there was a legal right to the penalty of the bond, on non-performance of the condition; but courts of equity interfered and restrained the legal right to the penalty, and limited the party to the damage really incurred by the non-performance of the condition, upon the ground of it being unjust for the party to avail himself of the penalty.
In the case of a“ mortgage, upon default of payment of the mortgage money at the time stipulated for payment, the title of the mortgagee became absolute at law. The land, legally, was absolutely his; so by the express contract of the parties. But equity extends relief against assertion of the legal right, and allows a redemption, upon payment of the mortgage monev and interest, upon the ground of the unconscionableness of insisting upon taking the land for the money. The same author above quoted lays it down : “And it may now be stated generally that, where an inequitable loss or injury will otherwise fall upon a party, from circumstances beyond his own control, or from his own acts, done in entire good faith and in the performance of a supposed duty, without negligence, courts of equity will interfere to grant him relief.” 1 Story Eq. Jur. sec. 89.
This jurisdiction of equity has been exercised in relief against unjust judgments. In the case of Countess of Gainsborough v. Gifford, 2 Peere Williams, 424, it was said by the Master of the Bolls: “If the plaintiff at law recovers debt against the defendant, and the defendant afterwards find a receipt, under the plaintiff’s own hand, for the very money in question, the verdict is against conscience, and, though the receipt were in the defendant’s own custody, yet he, not being apprised of it, seems entitled to the aid of equity, it being against conscience that the plaintiff should be twice paid the same debt.”
This principle was recognized and acted upon in Wilday v. McConnel, 63 Ill. 279, where, in reference to enjoining the collection of a judgment, this court said : “We are strongly inclined to the opinion that, unless relief can be afforded, a debt will be twice paid. This would be in opposition to every principle of right and equity.”
There is all the injustice here as of paying a debt twice. It is, in either case, paying a debt which does not exist. It is equally inequitable and against conscience to have to pay a pretended debt which never existed, as to pay a second time a debt which once had existence.
The obtaining of these judgments was not through the fault or negligence of the defendants, or either of them.
The first one, of Poyer against Weaver, was obtained without any notice of the suit to Weaver, so that he had no opportunity to make his defense against it. In the suit on the injunction bond, there was no legal defense to it, and the judgment had to go against the defendants. The equitable defense now urged, of being against equity and conscience, could not have been set up in that suit at law; nor was it necessary to have enjoined the prosecution of such suit at law because of having a defense in equity. Gregg v. Brower, 67 Ill. 526. So that the inequitable injury, unless relief is afforded, from these judgments, will have fallen upon the parties, from circumstances beyond their own control.
This judgment on the injunction bond does appear to be inequitable and unjust, and, although, as observed by Lord Eldon, in Sanders v. Pope, 12 Vesey, 282, “ there is no branch of the jurisdiction, of this court more delicate than that which goes to restrain the exercise of a legal right,” we believe there to be the warrant of both principle and authority for the exercise of the equitable jurisdiction which is here invoked.
■ Our conclusion, then, is, that there was error in dissolving the injunction, sustaining the demurrer to the bill and dismissing the same for want of equity.
The order dissolving the injunction, and the decree, will be reversed, and the cause remanded for further proceedings in conformity with ¿his opinion.
Decree reversed.