I fully concur in the opinion which the presiding judge of the court has prepared in this case, except that part of it which considers the decision of the inferior court erroneous, in not continuing the cause.
I do not think there was any legal ground presented for delaying the trial, and I do not believe the justice of the case requires our interference.
The cause was commenced on the 22d May of 1827, and the trial was had in June, 1829. It appears to have been delayed during this time, by the various proceedings *418had on the matters set up in defence by the pleadings of the defendants.
When filed, they were stated to be exceptions to the plaintiff’s petition, and on examination, they were found to contain not only exceptions, but an answer on the merits. The district court sustained the exceptions, and the plaintiff was compelled to appeal. In this tribunal, the decision was reversed, and the cause remanded. On its return to the district court, no further answer was put in. The plaintiff, misled, I presume, by the defendant’s having stated his defence to consist of exceptions, took a judgment by default, and the court made it final. From this judgment, the defendant, in turn, appealed, and it was reversed—this court expressly declaring, that the original answer contained not only exceptions, but a defence on the merits.
After the defendant was thus relieved from the effects of a final judgment, and relieved, too, on the express ground that she had pleaded to the merits; as soon as the cause was called for trial in the court below, she moved for a continuance, on the ground, that she had never conceived her *419cause at issue; and her counsel made an affidavit that he had also been of that opinion.
In addition to this affidavit, we have that of the defendant, who swears, that she had been informed by her husband, and verily believes it to be true, that he had been, sued for the debt due Russell, in 1809, in Philadelphia, and that a copy of the record of said suit would show, that the said debt was originally due by her husband; that, deponent not being aware of the importance of said information, never communicated the same to her counsel, until it was too late to procure the said record for the present term of the court.
If, on such facts, a party can claim a continuance, and the cause is to be remanded from this tribunal, to be tried again, because it was refused, I do not see well in what kind of a case it can hereafter be denied, where ignorance or surprise is laid as the ground. The well established rule is, that new trials should never be granted, for the discovery or want of evidence, which the party might, by due diligence, have procured ; or for surprise, which was not cau*420sed by some art of the adversary, but from the application of the known rules of proceeding, to the cause. This rule, like all the others on this subject, is, for obvious reasons, one of great utility, and should never be deviated from, unless in cases which plainly show, that the want of diligence, or surprise, was attributable to causes which satisfactorily take the case out of the reasons on which the rule is founded. In this instance, nothing of that kind has been shown. The defendant’s want of diligence is excused by no one circumstance, but an allegation that she did not know the information was of any importance, and, therefore, did not communicate it to her counsel. Two years before, she apprized those intrusted with her defence, that she was only surety for her husband, and pleaded expressly in her answer, that she was not responsible for his debts.
The surprise alleged on the ground, that the defendant was not aware there was a plea to the merits, although she had pleaded the engagement never had any legal force against her, being signed as surety, does not require a particular examination. *421It is most clear, it was a defence on the merits, and it is equally clear, the defendant can claim no advantage from such a mistake.
The law presumes a certain degree of legal knowledge in all parties litigant in courts: or supposes the means of obtaining it through a certain class of persons, whose lives are devoted to the acquisition of that knowledge, and whose profession and duty it is, to afford their aid to all who may honestly demand it. Without this presumption, and the rules predicated on its existence, no cause could be terminated. Parties would come before us again and again, with pleas of ignorance, inattention, misapprehension and mistakes. In some instances, they would be well founded. In others, they would be used by the crafty and unprincipled, as an engine of delay, and as a means of trying a cause a second or third time, or oftener, if the decision was unfavorable.
If the rule, to an observance of which I attach so much importance, should be ever deviated from, it ought only to he in cases where there is a strong probability injustice has been done. Not merely injustice, *422by depriving a party of a strictly legal defence, but one in which equity too enters for its share. That this view is correct, I think is manifest from the reflection, that no defence which was purely legal, could give a stronger right to the defendant to have the judgment set aside, than her inattention to, or violation of, the rules of proceeding conferrred on the plaintiff to have that judgment maintained. In the instance before us, that equity has not been shown to my satisfaction. It was strongly pressed in argument, that the obligation by which the wife acknowledged the debt had turned to her benefit, proved the contrary, because it showed that debt to have been originally contracted by the husband. But the debt may have been so contracted, and yet the wife have derived great benefit from it. The contract of marriage comes up with the record, and is placed before us. By it, we see that neither party had any property at the time of its celebration, except their wearing apparel. It is not shown the wife carried on a separate commerce, nor that she has received property by succession, or otherwise. The husband is now insolvent. The wife *423owns either a plantation and slaves, sold to Gray for $45,000, or the debt due for them.
How this property was acquired, the evidence affords no information, except the declaration in the contract with the plaintiff, by which the wife acknowledges the debt due to him had turned to her benefit. If this declaration be true, the presumption is, that the money, or the value received from Russell, was applied to the acquisition of property for her. It is possible this view may be erroneous; but when a party seeks to set aside a judgment which has been regularly obtained on a clear legal right, she ought to show more than that she would have had a legal defence. Equity, on a consideration of the whole case, should also appear to be in her favor.
I conclude that, as the law is clearly with the plaintiff, and the equity, to say the least of it, doubtful, that the judgment of the inferior court should be confirmed, except in relation to the interest. The obligation which the wife contracted for her husband, was novated by the acceptance of an assignment of a debt due by Gray, and the judgment of the inferior court inforces this assignment on the property mortgaged by Gray, *424which has since come into the hands of the husband of the appellant. It also gives interest on the sum due to Russell at the time of the acceptance of Gray’s debt, in lieu of the notes then held by the former. I can discover nothing in the transfer of the debt which authorises this. It is for the sum of $11,500, to be paid at certain periods, and is silent in respect to any interest.
I, therefore, think the judgment of the district court should be reversed, so far as it gives interest, and that it be confirmed for the principal.