and that he did not know that they were relying upon what they now allege has misled them.

In all this there is certainly no fraud; in fact, there is not enough to suggest a fault on the part of the plaintiff in error. He presented an account, which, it is now confessed, for them, if not by them, that the defendants in error ought at the time to have paid. This they refused to do, denying all liability for any amount, on the ground that no legal claim could arise for services, such as were rendered, no matter how valuable they had been. Suit was then brought upon the claim, both upon an express and an implied contract. It was contested at every point. The parties were adversaries, and there is no ground whatever for any claim on the part of the defendants in error, that they were relying upon assurances of any character upon the part of Embry. If they took anything for granted, it was upon their own responsibility and at their own risk. They neither expected nor feared a recovery against them for any excess beyond the contract rate, because they were confident they would defeat it altogether. Embry was an administrator. He had sought to obtain payment without litigation, and failed. It was his duty to sue for and recover whatever the law would give him. He owed no duty to his adversaries, except the opportunity of defence. That they have enjoyed, if not improved; and if it has not been as available as it would have been, in case they had limited themselves, as they claim their opponent should have done, to the special contract, which they now insist was binding upon both him and them, it was, as found in this record, in part at least, "because their counsel had undue confidence in legal defences against the entire demand, and, therefore, did not apprehend the full importance to the interests of his clients of being prepared with proof of the special agreement." That agreement they sought to avoid on the ground that it was illegal and immoral to contract for any compensation for the services rendered; and having deliberately staked their case upon that single issue, they seek to impute to their adversary the responsibility of their own mistake.

The laches of the defendants in error is equally manifest. One of them was absent from the trial; the report of the

committee states that "his attendance might have been secured by reasonable diligence, if such attendance had been deemed very important." The other was in Washington, but too ill to attend the trial. His counsel asked a postponement on that account; but, as the report continues, "no affidavit was offered in support of the motion, and it was denied. The petitioners' counsel appears to have been content to proceed with the trial in the absence of his clients. He had full and, as it turned out, undue confidence in the legal defences which appeared by the record to have been set up at the trial, and took it for granted that in no event could more be recovered than $2,296.29." There were two letters from Atkinson to the defendants in error in their possession, and not known to the plaintiff in error, expressly referring to the special agreement as fixing the rate of compensation, which might have been produced on the trial, but were not. They had escaped the recollection of the active partner, Stanton, who, for the preparation of the defence, had placed in the hands of his counsel in Washington all the papers which he supposed related to the subject of the suit. The letters' referred to were not found by him until after the trial and disposition of the case in the Supreme Court of the District of Columbia. It is entirely clear from this statement that the defendants in error are chargeable with carelessness and want of diligence in not making and sustaining the defence on the ground of an express agreement for a fixed rate of compensation. It is fully accounted for by the other facts in the case. The report of the committee states that they were "not alive to the importance of being prepared at the trial in Washington with the proof of the special agreement which the letters furnished;" and for the reason that they took it for granted, without sufficient grounds, as we have already seen, that no recovery could be had for a larger amount, and this was based chiefly on their overweening confidence in their ability to defeat the recovery altogether.

But this is not all. The question whether there was not a special agreement limiting the compensation, as appears by the record in the case, was left to the jury upon evidence submitted. It was one of the points of the issue, and was so regarded by both parties. The counsel for the defendants in

error asked an instruction to the jury on the subject, and the court did instruct the jury in reference to it. After the verdict, a motion for a new trial was made on two grounds, first, that the damages were excessive, and, second, "that since the trial evidence vital to the case has been discovered." That motion was overruled, and an appeal was taken to the general term, where the judgment was affirmed. The motion for a new trial does not disclose what new evidence had been discovered, nor was any affidavit filed setting out its materiality, the circumstances of its discovery, and the reasons why it could not have been produced at the trial. There is no reason to doubt but that the evidence in question consisted of the very letters referred to.

It thus appears that after the trial, and after the consequences of the failure of the defendants in error to make good the defence now relied on had become manifest, they had the opportunity to bring the very matter to the attention of the Supreme Court of the District, and did in fact appeal to its discretionary power to grant a new trial for reasonable and sufficient cause. The motion for a new trial was made March 17, 1873, was not overruled at special term till April 19, 1873, and the appeal to the general term was not disposed of until Oct. 27, 1873, and in fact, owing to an irregularity in the entry of judgment, the verdict was under the control of the court until Sept. 28, 1874. During this interval there was ample time in which to present the facts and the application, and all illusions as to the intentions of the plaintiff in error had been dispelled by the trial and verdict. If it was not brought forward, it was from pure neglect. If it was, as it appears to have been, a court of competent jurisdiction has passed upon the very matter sought to be again litigated in the courts of Connecticut. The judgment of the Supreme Court of the District of Columbia refusing to grant a new trial was final. It was not, for that cause, subject to be reviewed on an appeal or a writ of error in any superior jurisdiction, and, for the same cause, it is not to be reviewed elsewhere. In Marine Insurance Company v. Hodgson, supra, the court had refused to permit the defendant to file the additional pleas raising the defence which was the basis of the application for relief in equity.

The court, when the original case was before it on a writ of error, said: "This court does not think that the refusal of an inferior court to receive an additional plea, or to amend one already filed, can ever be assigned for error. This depends so much on the discretion of the court below, which must be regulated more by the particular circumstances of every case, than by any precise and known rule of law, and of which the Supreme Court can never become fully possessed, that there would be more danger of injury in revising matters of this kind than what might result now and then from an arbitrary or improper exercise of this discretion." 6 Cranch, 206, 217. In Crim v. Handley, 94 U. S. 652, 659, it was said: "Nor does the allegation that one of his witnesses was sick during the examination, that it impaired his recollection and rendered him incapable of stating material facts within his knowledge, afford any sufficient support to the present application. Accidents of the kind occasionally occur in the course of the trial; but the plain remedy for such an embarrassment is an application to the court to postpone the trial or to continue the case, as the circumstances may require. Applications of the kind, if well founded, are seldom or never refused; but if a party elects to proceed and take his chance of success, he cannot, if the verdict and judgment are against him, go into equity and claim to have the judgment enjoined. If a witness is too unwell to testify understandingly, the proper remedy for the party is to move for a postponement of the trial; and if lie elects to proceed and is unsuccessful, his only remedy is a motion for new trial to the court where the accident occurred."

The Supreme Court of Errors of Connecticut rest their judgment upon another ground, which it is proper to examine and consider. It may be stated as follows: That Atkinson, himself, if alive, could not have obtained a judgment, except upon his special contract, without such a suggestion of a falsehood as would have made it unconscionable for him to retain it; that the administrator, representing him, stands in no different position, as he is seeking to enforce a judgment, which his intestate could not equitably do, and that his having "failed to come to the knowledge of the truth as to the debt, and in ignorance misled the court into the rendition of a wrongful judg

ment, does not destroy the right of the petitioners to have the wrong corrected now that it is pointed out.'

But, in our opinion, this view cannot be maintained. It seems to constitute the plaintiff the guardian, not only of his own rights, but also of his adversaries, and to relieve them from the obligation of taking any care of themselves. We are not prepared to say, that, if Atkinson, in his lifetime, had presented his account for the amount now admitted to be due upon the contract, and had been told by Stanton and Palmer that they repudiated all liability on the ground that his services were illegal and against public policy, and therefore not entitled to compensation at all, he would have been guilty of any breach of law or morals, in insisting upon whatever the law would award for their actual value. Certainly, he was not bound, after that, to confine his claim to the limits of a contract which the other parties refused either to recognize or perform; and if, on suit brought, he left them to use it as a defence, if they saw fit, or to waive it for the chance of defeating his recovery altogether, we know of no principle of equity which would forbid it. It is to be remembered that there is nothing unconscionable or oppressive in the judgment itself, which is the subject of the present complaint. It represents, by the adjudication of a competent judicial tribunal, having full jurisdiction of the parties and the controversy, the reasonable, actual value of beneficial services rendered by Atkinson to the defendants in error. No fraud or unfairness was practised by the plaintiff in error in procuring it. The defendants in error had abundant opportunity to make the defence they now urge, and if they failed to do so, it was altogether their own fault. The judgment is conclusive between the parties, upon all the points made in the present suit, in the jurisdiction where it was rendered, and was entitled to be so regarded in the courts of Connecticut. In restraining further proceedings upon it, in the terms of the decree under review, the Supreme Court of Errors of that State have not given it that due effect to which, under the authority of the Constitution and laws of the United States, it is entitled. In that respect, there is manifest error in its decree, to the prejudice of the plaintiff in error, for which it must be reversed, and the cause remanded to