1860.

V.

other, "we believed there was a good defense to the entire June Term, cause of action, and we set up by plea and notice, what we believed to be a good and substantial defense on the ABLEMAN et al. merits, and what we believed could be sustained by the RoTH et al. proofs." Tested by the rules which ordinarily govern courts of law and equity in the admissibility and weight of evidence, these statements are entirely incompetent to establish the existence of such defenses. They are hardly sufficient to raise the most shadowy presumption that they existed, or that the judgments, proceedings upon which the plaintiffs seek to restrain, are not in themselves perfectly fair and equitable. It was urged, though not very strenuously, by the appellants' counsel, that in this respect, cases like the present are to be excepted from the general rule. But we know of no warrant or authority for this; nor can we discover any substantial reason why it should be so. We were asked to establish this distinction, in analogy to what was said to be the practice in courts of law, upon applications for new trial. It was said that in those courts, where the proceeding is by motion founded upon ex parte affidavits, statements upon information and belief are sufficient, and, therefore, they should be so held in equity. But here, again, we are at fault. We do not so understand the rule at law. With some rare exceptions, the reasons for which must be clearly shown, we understand the practice there to require the affidavits to be made by witnesses, who can testify to a knowledge of the facts concerning which they speak. In the present case, the witnesses do not even depose that they have any information, credible or otherwise, concerning the facts set up by way of defense. It was likewise said that in a court of law judg ments like those against which the plaintiffs seek relief, would be set aside without affidavit of merit. No authority was cited, and we know of no case where a judgment regularly obtained will be set aside, without merits being shown. It was furthermore said that the rule of evidence in equity should be relaxed, because the obtaining of a new trial at law is an easy matter, for the reason that the proofs are ex parte, the witnesses not subject to cross-examination, and counter affidavits touching the merits of the controversy

V.

Roru et al.

June Term, cannot be received. If the meaning of this is, and we can 1860. discover no other, that courts of law, by reason of their ABLEMAN et al. mode of proceeding in such matters, are more easily deceived and imposed upon by perjury and falsehood than courts of equity, it furnishes the strongest reason why the latter should the more stringently exercise their powers to ascertain the truth. We see no reason for changing the rules of evidence in cases of this nature, and the plaintiffs, having elected or been compelled to seek redress in a court of equity, must be held to a compliance with the law and practice of that court.

The cases, therefore, turn upon the question, whether it was, or was not, necessary for the plaintiffs to give evidence, establishing, or tending to establish, that they had good defenses, which they had set up by way of plea or notice to the original actions. Upon this question, we are clearly of opinion that it was necessary for them to do so, for two reasons: first, because, without such proof, the charge of fraud was not made out; and, second, because a court of equity will not disturb or restrain proceedings upon a judgment at law, unless such judgment be unjust and inequitable in itself.

Upon the first, we say that no deceptive, cunning, or treacherous art or practice, is a fraud, in its legal or equitable sense, unless it results in loss or damage to another. It may be morally dishonest, wrong and indefensible; but it is not actionable in the courts. To be so, it must be injuri ous. Legal or equitable fraud is well defined by Judge Story (1 Story's Eq. Jur., § 187). He says: "Fraud, indeed, in the sense of a court of equity, properly includes all acts, omissions and concealments, which involve a breach of legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another." The presumption of law is in favor of the justice of every judgment of a court of competent jurisdiction. There was but one way for the plaintiffs to have shown that the deceitful practices complained of were injurious, or that thereby undue or unconscientious advantages were obtained over them, which was by show

1860.

V.

ing that they had defenses, or in other words, that the judg- June Term, ments were, in whole or in part, unfounded. This they did not do, and therefore the fraud is not shown. The bills al- ABLEMAN et al. lege that by the deceptions practiced, they were cheated out Rorn et al. of their defenses. Can the court determine that this was so, until they establish that they had them? Manifestly it

cannot.

Upon the second reason we say, that all courts and writers agree, that equity interferes to stay proceedings at law, only to prevent injustice by the unfair use of the process of the courts in which proceedings are pending. The fundamental and governing principle is, that it is against conscience to permit the party enjoined to proceed. In case of a judgment, it must be shown to be against conscience to allow it to be executed; otherwise the powers of the court will not be called into exercise. In addition to this, the injured party must show, either that he could not have availed himself of the facts which make it unjust, in the court of law, or that he was prevented from so doing by fraud, accident or mistake, without negligence on the part of himself or his agents (2 Story's Eq. Jur., § 887, and cases there cited). Courts of equity will not interfere to grant a new trial, where no substantial right has been lost, and no unfair advantage gained, simply because, by some trick or artifice, a judgment, which is just and equitable in itself, has been obtained in advance of the time when it would otherwise have been rendered. In this respect they follow the practice of courts of law, with whom it is said to be a rule of universal application and controlling efficacy, that where substantial justice has been done, no new trial will be granted; and that their discretion consists in deciding this fundamental question (2 Graham and Waterman on New Trials, 47). It must appear that the judgment is either wholly or partially unfounded, or that the damages were excessive. They do not stay proceedings at law, merely on account of any irreg ularity or defect of jurisdiction in the court where the action is pending, or when no process has been served on the defendant (2 Story Eq. Jur., § 898; Sear vs. Woodward, 8 Ala., 500, 767.

June Term, 1860.

V.

RоTH et al.

It is impossible to perceive how the plaintiffs, in these cases, are in a worse position than they would have been, if ABLEMAN et al. no process in the original suits had ever been served upon them. In the case of Chambers vs. Hoadley, 4 Bibb, 284, a new trial at law was decreed, on account of fraud in procuring the officer to change his return of non est inventus, and contrary to the truth, to return the process executed, it likewise appearing that the judgment was unjust. In the case of Stokes vs Knarr, decided at the present term, this court determined that it would not grant an injunction to restrain proceedings upon the judgment of a justice of the peace, which, for the sake of the decision, was admitted to be void for want of jurisdiction in the justice at the time it was rendered, because it was not alleged in the complaint that such pretended judgment was inequitable and unjust. The defect of jurisdiction was alleged to have consisted in an illegal adjournment of the cause, after receiving the verdict of the jury, and before pronouncing judgment, as required by statute, whereby jurisdiction was lost. The record being regular on its face, and the time to appeal having expired, the defendant sought relief in equity, which, for the reasons above stated, was denied. The means of taking advantage of the defect at law having been lost by lapse of time, the judgment became as good for all purposes of enforcing payment of the honest debt, as a valid one would have been. It was a kind of "illegal justice," which equity would not disturb.

As to the extent to which the proof that injustice has been done, ought to go, we are of opinion that in proceedings in equity, for a new trial merely, the same rule should prevail as at law. The defense need not be made out clearly and beyond any doubt; but enough should be shown to make it reasonably doubtful in the mind of the court, whether the merits have been fully and fairly tested and determined; and if it is probable from the testimony, that the party applying might succeed, or if he produces such evidence, as convinces the court that he should have an opportunity of submitting his case to a jury, the application should be

granted. Graham & Waterman, supra, and authorities there June Term, cited; Cummins vs. Kennedy, 4 J. J. Marsh., 642.

1860.

The judgments of the circuit court are affirmed, with THE TOWN OF

costs.

MILWAUKEE

V.

THE TOWN OF MILWAUKEE VS. THE CITY OF MIL

WAUKEE.

The legislature has not the power, either directly or indirectly to divest a municipal corporation of its private property, without the consent of its inhabitants.

The legislature, however, has an undoubted right to change the territorial limits of municipal corporations, and to detach from a town a portion of its territory and annex it to another town; and, in so doing, may provide for an equitable division of the common property.

Where the legislature takes from a town a portion of its territory, which includes land to which it has the exclusive title, and annexes the same to another town or municipality, without providing for the disposal of such land, under such circumstances that the assent of the town to part with its title cannot be presumed, such town still continues to be the owner of such land, notwithstanding such separation.

By an act of the territorial legislature, approved

January 3d, 1838, fractional townships 7 and 8, in Milwaukee county, were formed into a town by the name of the town of Milwaukee, and on the 14th of January, 1846, the supervisors of the town acquired, by purchase, a title to the land in controversy, "in trust for the sole use and benefit of said town forever;" the territorial statute, at the time, giving to every such town, as a body corporate, the power to hold real estate for the public uses of its inhabitants, and convey or dispose of the same as might be deemed conducive to their interests, and providing, also, in case of the division of a town, or annexation of a part thereof to another town, for an equitable partition of such real estate, or apportionment of its proceeds, by the supervisors of the respective towns. The provision for the apportionment of property in case of the division of towns, ceased to be in force from and after the 1st day of May, 1849. On the 31st of January, 1838, a portion of town 7 was incorporated as the village of Milwaukee, but the government of the town of Milwaukee continued over both fractional towns, until January 31st, 1846, when the charter of the city of Milwaukee put an end to the government of the town of Milwaukee, in the territory embraced in the city limits, and the land in controversy continued to be within the town of Milwaukee, until February, 1852, when the limits of the city of Milwaukee were enlarged by an act of the legislature, so as to include said land; none of said acts making any provision for the division or apportionment of the common property: Held, that the act extending the limits of the city of Milwaukee over the land in question, did not divest the town of its title thereto.

THE CITY OF
MILWAUKEE.