The hill alleges that the complainants became sureties for one McKinney, to Doty, upon two promissory notes, for fifty dollars each. Doty at three several times extended the payment for ninety days each, without the knowledge or assent of the complainants. That at the time said extension was' granted, McKinney was able to pay, but after the time t'o which payment had been extended by Doty had elapsed, was insolvent. That at two several times Doty commenced suits upon said notes before Robert Abbott, Magistrate. That the complainants appeared and set up their defence to wit: that they were sureties, and the extension-of the time of payment by Doty. That the only witness to support their defence, (the agreement to extend the time of payment) was one Sidney S. Hawkins, (since deceased,) who acted as the agent of McKinney, in that behalf and was on one occasion sworn, and gave his testimony ; and after the witness was examined, Doty discontinued his suit: That the parties appeared on both occasions and were ready to make their defence, &c., and the suits were discontinued. That after the decease of said Hawkins, the only witness, new suits were commenced, on which judgments were recovered, the said suits being undefended. To this bill there is a general demurrer. The ground of the defence is that this court will not relieve against a judgment at law on the ground of its being contrary to equity, unless the defendant in the judgment, was ignorant of the fact in question, pending the suit, or it could not be received as a defence at law, or unless without any neglect or default on his part, he was prevented by fraud, or accident, or the act of the opposite party, from availing himself of the defence. This is undoubtedly the true rule, it has been frequently so held by this court. See Barrows vs. Doty, ante page 1; Wright vs. King, ante page 12 and note on pages 17, 18.
It is insisted, however, that this case does not come within it.— That the defendants below have been prevented from making their defence by repeated discontinuances, when the parties appeared to make their defence, until the death of the only witness. That from the constitution of Justices’ Courts, a continuance cannot be had fora sufficient time to obtain a discovery. That Courts of Chancery interfere with reluctance with inferior jurisdictions, and that this being *369a casé of original Chancery jurisdiction, this court should now entertain this bill and grant relief. In support of these grounds, the cases of Rathbone vs. Warren, 10 J. R. 396; Boyce’s Executors vs. Grundy 3 Pet. R. 214; 2 Swanst. 539, are cited. It is clear from the case made'by the bill, that the complainants were discharged from their liability. It is also undoubtedly true that Courts of Chancery have always sustained their jurisdiction in this class of cases. A Court of Chancery was formerly the only tribunal which could afford adequate relief. But recently courts of law have also given effect to defences of this kind. The Court of Chancery having originally exclusive jurisdiction, still retains it. But if the party has a good defence at law, and it is in his power to make it there, without a resort to this court; and he permits a judgment to pass against him, a Court of Chancery would not relieve him. It is apparent from the case as made, that the defendants by the act of Doty, after having two suits commenced, at two several times were deprived of making their defence, by the discontinuances, until the death of their only witness. That a resort to this court was indispensable, and that this necessity has resulted from the act of Doty, the plaintiff below. The only doubt in the case is, were the parties bound to apply to this court before judgment rendered in the court below. It has been urged that the defendants below could have taken appeals to the Circuit Court, and could then have applied to this court for a discovery, and would have been entitled to their remedy. I have entertained much doubt whether this case comes within the exceptions to the general rule as stated in the case in 10 J. R. 590, and 3 Pet. R 214. Was it necessary ? was it incumbent upon the parties to adopt this more expensive and circuitous proceeding to make their defence, after having on two several occasions appeared, in both suits, made their defence, and produced their witness ? lam inclined to think not.— The necessity for a resort here at all, has been caused by this extraordinary and unjust proceeding on the part of Doty, the defendant. In the case in 3 Pet., R. 214, where the court did relieve against a judgment, the judge in delivering the opinion of the court, says: “It is not enough that there is a remedy at law, it must be plain and adequate; in other words as practical and as efficient to the ends of justice and its prompt administration, as the remedy in equity. ” He *370says, also : “ Although the defence might have been made at law, the complainant would still have been left to renew the contest upon a series of suits ; and that probably after the death of witnesses. ” The case in 10 J. R. was a case against bail; where the time had been extended. There had been a judgment in the Supreme Court against the bail, but relief still was granted. Here the complainants were prevented from making their defence by the act of the defendant. This was a case in which it would, have been competent for this court to afford relief in any stage of the proceedings and the resort here having been rendered indispensable by the act of Doty, it will be unjust and inequitable to permit him to take advantage of his own wrong.
Demurrer overruled.