this case: "Public morals, public justice, and the well-established principles of all judicial tribunals, alike forbid the interposition of courts of justice to lend their aid to purposes like this. To enforce a contract which began with the corruption of a public officer, and progressed in the practice of known and willful deception in its execution, can never be consummated or sanctioned by any court. The law leaves the parties to such a contract where it found them. If either has sustained a loss by the bad faith of a particeps criminis, it is but a just infliction for premeditated and deeply practiced fraud; which, when detected, deprives him of anticipated profits, or subjects him to unexpected losses. He must not expect that a judicial tribunal will degrade itself by an exertion of its powers, by shifting the loss from one to the other, or to equalize the benefits or burdens which may have resulted by the violation of every principle of morals and of laws."

Let the judgment of the court below be affirmed.

CONTRACTS IN VIOLATION OF LAW CAN NOT BE ENFORCED: Gravier v. Carraby, 36 Am. Dec. 608, and note referring to other decisions in this series; Webb v. Fulchire, 40 Id. 419; Black v. Oliver, 35 Id. 38; Norris v. Norris' Adm'r, Id. 138; Boyd v. Barclay, 34 Id. 762.

PEARCE v. CHASTAIN.

[3 GEORGIA, 226.]

CHANCERY MAY GRANT RELIEF AGAINST A JUDGMENT AT LAW, but the power will be exercised with extreme caution and only in cases of fraud or surprise or in extraordinary cases where manifest injustice has been done.

EQUITY WILL INTERPOSE WHERE THE SUBJECT-MATTER OF DEFENSE could not be known to the defendant at the time of trial by the exercise of due diligence.

COSTS IN CHANCERY rest in the sound discretion of the court, to be awarded according to the justice of the case.

THE facts are stated in the opinion.

R. F. Lyon, for the plaintiffs in error.

Eli Warren, for the defendants in error.

By Court, LUMPKIN, J. On the eighth of August, 1836, Allen B. Chastain, Ira E. Durpree, and Hartwell H. Tarver, a mercantile firm, doing business in the town of Hawkinsville, Pulaski county, in this state, under the style of Chastain & Dur

pree, made and delivered to Samuel B. Pearce & Co., of Boston, their promissory note for one hundred and sixty-one dollars and three cents, due six months after date. Suit was brought upon this note, it being unpaid, against all the partners, in favor of the payees, to the January term, 1841, of the superior court of Twiggs county. The sheriff returned "not to be found," as to Chastain, and judgment was confessed by the other two defendants for the whole amount of principal and interest due on said note, together with the costs of suit. Contemporaneously with this proceeding, an action was instituted on the same claim, against all the partners, in Lee county, where Chastain resided, and where the sheriff returned "not to be found" as to Durpree and Tarver. Final judgment was rendered against Chastain on the seventeenth day of July, 1846, for the debt, who now files his bill, alleging that the judgment in Twiggs has long since been paid off in full by Durpree and Tarver, or one of them, or some person for them, or for one of them. That he had reason to believe this, and verily did believe it at the time judgment was rendered against him, but that he had no means of ascertaining or establishing it. That he made diligent search for the fi. fa. in the clerk's office of Twiggs county, to which it should have been returned satisfied, but that he was unable to find it. He further charges, that what was then mere matter of suspicion, he has since ascertained to be unquestionably true; and that he will be abundantly able to prove it, by appealing to the conscience of the party. To this bill a demurrer was filed for want of equity, and being overruled by the court, the defendants below excepted. Is there sufficient matter stated in the bill to require an answer?

The general rule is, that courts of chancery will not interfere after verdict and judgment at law, except in cases of fraud, or surprise, or in extraordinary cases where manifest injustice. would be done; nor where the party might have defended himself fully at law and neglected it. Great abuse would be made of a contrary doctrine, by drawing within the jurisdiction of equity, as by a side wind, almost all causes decided at law. The high powers intrusted to chancery to promote the purposes of justice should not be abused to the vexation of the citizens and the unsettling solemn decisions of other courts, where it is to be always presumed that full justice has been done: Bateman v. Willoe, 1 Sch. & Lef. 201; Williams v. Lee, 3 Atk. 223, 224. No doubt has been entertained since the contest in 1616, between the two jurisdictions, that chancery has the power to

grant relief against a judgment at law: 3 Bl. Com. 54; 1 Woodeson, 186. I repeat, however, that it will be exercised with extreme caution.

In the case of the Countess of Gainsborough v. Gifford, 2 P. Wms. 424, the court granted relief against a judgment where the defendant afterwards discovered a receipt under the plaintiff's own hand for the money in question, of the existence of which the defendant was not apprised at the time, although the paper was in his own custody. Whenever injustice has been done by the verdict at law, by surprise, or accident, or ignorance, as in the case in 2 P. Wms. 424, supra, chancery will interfere: Roy v. Duke of Beaufort, 2 Atk. 190; Richards v. Symes, Id. 319; 1 Id. 268 [miscited]; Humphreys v. Humphreys, 3 P. Wms. 395; Mitchell v. Harris, 2 Ves. 135; 10 Id. 422 [miscited]; 6 Bro. P. C. 470 [miscited]; Turpin v. Thomas, 2 Hen. & Mun. 139 [3 Am. Dec. 615]. Where the plaintiff knew the fact to be different from what the jury found it, and the defendant was ignorant of it at the time of the trial, chancery will relieve against such a verdict: Gatlin v. Kilpatrick, 1 N. C. Repos. 534 [6 Am. Dec. 557]. Payments and set-off at law are subjects of equity jurisdiction, and relief will be given in chancery against a judgment where the defense was not made at law: Hughes v. McCoun, 3 Bibb. 254; Appleton v. Harwell, Cooke, 242.

Without intending to adopt, except with a modification, the principles to their full extent laid down in those cases, and much less to disturb the well-considered doctrines ruled by this court in Bostwick v. Perkins et al., 1 Ga. 136, we are inclined to retain this bill. The case as made is a weak one. And yet, if it be true that this money has been paid to the original creditors, either by the two defendants in Twiggs, or some one for them, and that the execution is still kept open in Lee and pressed against Chastain's property, and that he used what diligence he could to procure proof of the fact in order to defend himself at law, and was unable to do so-indeed, although he suspected it to be true, he could not at that time ascertain the fact so as to put in his defense at law-I repeat, that if all this be true, and the complainant in the bill alleges that it is, justice has certainly not been done. Here is an important matter-not within the knowledge or power of Chastain, which was well known to Samuel B. Pearce & Co., the plaintiffs at law-which has been discovered since the trial, but not within time to make it the ground of a motion for a new trial, and which would unquestionably have defeated the recovery if it had been known

in time. If the defendants in their answer admit these statements to be true-and by their demurrer they do admit them— in conscience and equity they ought not to avail themselves of the judgment which they have obtained. While on the one hand, therefore, we are not willing to suffer the partnership of Chastain & Durpree to be adjusted in this summary way, by allowing the two partners in Twiggs, or one who has discharged the debt for them, to realize the whole amount of it out of Chastain, yet, acting upon the legal presumption that all three are equally liable for the outstanding debts of the concern, and as he who asks equity must do it, we see no reason why Chastain should not be forced to pay his third of this debt, whether by way of reimbursement to the other members of the firm, or to the person who has interposed in this affair at their instance and for their benefit. And to this extent the injurction should be dissolved.

Moreover, as this court is clothed with authority to award in every case such order and direction in the premises as may be consistent with the justice of the case, we deem it but right that the complainant should be taxed with the costs. Costs in chancery do not always follow the event of the suit, but are awarded according to the justice of the cause. They rest in the sound discretion of the court, to be exercised upon full view of all the merits and circumstances of the case: Green v. Winter, 1 Johns. Ch. 77 [7 Am. Dec. 475]; Nicoll v. Huntington, Id. 166; Getman v. Beardsley, 2 Id. 274; Eastburn v. Kirk, Id. 317; Williams v. Wilkins, 3 Id. 65; Travis v. Waters, 12 Johns. 500; Clay v. Hopkins, 3 A. K. Marsh. 488; Coleman v. Moore, 3 Litt. 355. In this case it is not without some reluctance and misgiving that we have retained the bill and held up the injunction, even as to two thirds of the debt.

Judgment affirmed.

THE PRINCIPAL CASE IS CITED to the point, that the power of a court of equity to grant relief against a judgment at law should be exercised with extreme caution, in Mullins v. Christopher, 36 Ga. 586.

CHANCERY MAY GRANT RELIEF AGAINST A JUDGMENT AT LAW: See Oliver v. Pray, 19 Am. Dec. 595, and note 603 et seq., where the subject is discussed at length.

COSTS IN EQUITY, ALLOWANCE BY LOWER COURT RARELY REVIEWED: Saunders v. Frost, 16 Am. Dec. 405, note, where the subject is discussed at length.

CURAN V. COLBERT.

[3 GEORGIA, 239.]

BILL ASKING DISCOVERY AND ALSO RELIEF, upon a sufficient statement of facts, is an original bill, and if chancery has jurisdiction, an order dissolving an injunction and allowing answer to be read, does not dismiss the bill.

DISMISSAL OF LEVY, BY CREDITOR, AGAINST THE PRINCIPAL damnifies and discharges the surety.

THE RELATION OF PRINCIPAL AND SURETY CONTINUES AFTER JUDGMENT in favor of surety.

THE opinion states the facts.

G. R. Hunter, for the plaintiff in error.

Green & Cawsey, for the defendant in error.

At or

By Court, NISBET, J. The following are the facts appearing on this record: Curan, the complainant in the bill, became surety on a note for some two hundred and fifty dollars, to Colbert, the defendant in the bill, for Tharp. Curan notified Colbert to sue, informing him at the same time that his principal, Tharp, had property sufficient to pay the debt, and that he would point it out so soon as the judgment was had. Colbert reduced the debt to judgment, both against the principal Tharp, and Curan the surety. Curan pointed out property of his principal sufficient to pay the debt, and at that time he was solvent. The levy was made and released (Colbert taking the principal's word that he would pay at Christmas following), without the consent of Curan, and without consultation with him. before the expiration of the time given to the principal, he had removed all his property out of the state, and was insolvent. The surety, Curan, had in the mean time removed to Alabama, and the plaintiff in the execution fraudulently procuring a valuable wagon and team to be brought into the state of Georgia, which belonged to the surety, caused it to be levied on and sold, and he became the purchaser at less than half its value. Curan did not know of the levy until a few days before the sale, and in consequence of his distance from the place of sale, and of sickness, could not attend, and was thereby prevented from putting in a claim or otherwise arresting the sale, but had notice given at the sale, that it was illegal. Afterwards, Curan brought trover for the wagon and team, and at the first trial term, in consequence of inability to make the necessary proof, a judgment was confessed for the defendant, and an appeal entered. Pending the appeal, Curan filed his bill, setting forth these