The object of the bill in this case, is to obtain relief, either by perpetual injunction, or -otherwise, against a judgment obtained in the common pleas of Morris county, by Elias Hedges, the defendant in this suit, against Jacob Glover, the complainant; on the ground that the verdict and judgment, were obtained in the court of common pleas, by a fraudulent concealment of facts, and is therefore unconscientious. The complainant alleges, that he wTas unable to make the necessary proof on the trial at law ; but has since discovered evidence to show satisfactorily, that the judgment is entirely without foundation, and ought not in justice or equity to be sustained or enforced. The gravamen of the bill is, that the defendant obtained a judgment in the pleas, against the complainant, for two hundred and twenty-three dollars, for improperly cancelling a certain bond and mortgage, theretofore given by one. *119Samuel Hedges to Elias Hedges, which was deposited by Elias Hedges in the hands of Jacob Glover, as a collateral security, and which lias actually been paid, by Samuel Hedges to Elias Hedges, and therefore properly cancelled by Glover.
On the other hand, the defendant, Hedges, insists, that he has an interest in the mortgage, and by the agreement of his brother Samuel, and with the knowledge of the complainant, he was justly entitled to it, as a collateral security, for certain responsibilities entered into for Samuel: that he lias paid money for Samuel to the amount of the mortgage, and must lose it, unless he can be permitted to collect and receive the money on the judgment recovered against Glover, for the improper cancellation.
A jury of the country, upon an investigation of the facts, have declared, that the bond and mortgage were wrongfully cancel-led, and they have assessed the amount of the plaintiff's damages. The verdict must be taken as conclusive, upon the facts before the jury. There can be no appeal to this court by way of new trial. There are cases, nevertheless, in which this court will interfere, to prevent fraud or gross injustice. Where there has been a fraudulent concealment of facts, on the part of the plaintiff, and the judgment obtained against conscience, equity will relieve. Stander v. Edwards, 1 Ves. jr. 113; 1 Mad. Ch. 236-7. It must appear, however, that the party seeking relief, has used all proper diligence to defend himself at law. The possession of new testimony, which with proper care might have been procured before, is no ground for a new trial at law, much less can it form the ground for an equitable interference with the judgment.
Much testimony was taken by the parties : after the evidence was closed, the cause came on to be heard : and in 1827 it was decreed that the bill should be dismissed ;—the court being of opinion, that the complainant had not made out his case. A petition for a rehearing was filed,-in which it was stated that new and material evidence has been discovered, by which the complainant would show conclusively, that the plaintiff below had received satisfaction for the money recovered of the defendant. The petition, signed by two counsel, was granted as of course. A supplemental bill was then filed, and under this a new volume *120of evidence has been taken, much of which consists of an attack upon, and defence of, the witnesses before examined : neither a profitable nor commendable mode of proceeding' at this stage of the cause.
The cause has been heard a second time. It was objected by the defendant, that the cause could not be reheard on the merits, but that the complainant must be confined to his new matter. This is not so. On an order for rehearing generally, the whole cause is open, and the party supposing himself aggrieved, has a right to insist on a reconsideration of any part of it. I have accordingly reviewed the whole of the evidence.
Two questions arise.
1. Was the former decree right?
2. Is the additional and newly discovered evidence, sufficient to warrant an alteration ?
As to the first, I have no difficulty in saying, I am satisfied with the decree formerly made. The case as presented was certainly not a clear one ; and I think this court shquld be perfectly satisfied of its ground, before it undertakes to defeat the right, which a party has acquired by the verdict of a jury; especially when such verdict is the result of an investigation of facts, which it is so peculiarly the province of a jury to pass upon, and for the ascertainment of which that tribunal is so admirably adapted.
2. Is the additional evidence such as to warrant an alteration of the decree ?
The testimony of Chauncey Griswold is relied on, as furnishing evidence sufficient to show, that the recovery in the Pleas was wrong and unconscientious. It proves the confession of Samuel Hedges, that he and his brother Elias had settled, and that the old mortgage was paid. The witness says, that this was known to Glover before the trial at law, but he was told the evidence could not be received then. That was certainly correct : Samuel Hedges was not sworn as a witness in that case, and his allegations could not be received against his brother; but this witness, Chauncey Griswold, was sworn and examined in this cause, before the first hearing, and immediately after Samuel Pledges. Why was not this evidence given at that time ? Griswold says, he was not asked as to that matter. If *121this be so, and it appears to be, from the examination itself, why did not the defendant, Glover, cause him to be examined on that subject ? The fact was known to Glover, why was it withheld ?
I cannot consider this as newly discovered evidence. It is not within the petition for rehearing, or the supplemental bill. No reason was assigned why it was kept back ; and to receive it at this time, and under these circumstances, would be a precedent of dangerous tendency.
The new evidence relied on by the complainant, is that of Abraham Britton. He testifies that he cannot say distinctly what he has heard from Elias and Samuel Hedges, about the purchase of the Frederick place. His impression, derived from conversations with one or both of them, is, that Elias purchased the place to secure himself from responsibilities entered into by him for Samuel. This is too indefinite to be of any weight. He speaks merely of an impression derived from conversations with one or both of them. If derived from one only, and that one Elias Hedges, it is not competent evidence ; if from Samuel Hedges, it is not sufficiently certain to rest upon.
From the best view I have been enabled to take of this case, l think it is not made out satisfactorily, even with the help of the additional evidence. There ought to remain no reasonable doubt.
Let the bill be dismissed, without costs.