TULL v. POPE.

matter, not known at the trial at law, has equity ever interfered to grant a new trial, and then not for matter to repel. the charge by opposing proof, but such as destroys the proof."

See also Powell v. Watson, 6 Ired. Eq., and particularly Burgess v. Lovingood, 2 Jones Eq. 460, where all the cases in our Courts are collected and commented on.

And further:

A party cannot ask equity for a new trial at law merely because he failed to make good a legal defense at law. Gatlin v. Kirkpatrick, 1 Car. Law Rep. 534; Fentress v. Rollins, Term Rep. 177; Peace v. Nailing, 1 Dev. Eq. 289; Bizzell v. Bozeman, 2 Dev. Eq. 154; Champion v. Miller, 2 Jones Eq. 194; Martin v. Harding, 3 Ired. Eq. 603.

Nor because he can adduce cumulative evidence as to the facts on which his defense rested at law. Pemberton v. Kirk, 4 Ired. Eq. 178; Alley v. Ledbetter, 1 Dev. Eq. 449; and where defendant while plaintiff, concealed facts at law. Fish v. Lane, 2 Hay. 342.

One who does not prove on trial at law payment which he alleges he has made, can have no relief in equity unless he can show fraud and circumvention practiced to prevent his making proof. Deaver v. Erwin, 7 Ired. Eq. 250.

Cases where it was alleged witness for opponent had perjured himself: Peagram v. King, 2 Hawkes 295; Ibid 605; Dyche v. Patton, 8 Ired. Eq. 286; 3 Ired. Eq. 332.

Cases of newly-discovered evidence where the relief was refused: Wilson v. Leigh, 4 Ired. Eq. 100; Powell v. Watson, 6 Ired. Eq. 94.

Character of new evidence must be decisive. Houston v. Smith, 6 Ired. 264; Burgess v. Lovingood, 2 Jones Eq. 457.

Battle & Son, contra:

This is a civil action brought by plaintiff to obtain a new trial in a case in which he was defendant in the Superior

TULL V. POPE.

Court. It is a proceeding in the nature of a bill in equity, and as such the case of Peagram v. King, 2 Hawkes 295 and 605, is directly in point, and in our favor.

The circumstances under which the newly-discovered testimony was found show that the plaintiff in this suit was not guilty of any negligence in not having produced it on the former trial, and the evidence is of such a character that it not only repels the adversary's charge, but it destroys his proofs.

The principles laid down in Peagram v. King are fully recognized in Houston v. Smith, 6 Ired. Eq. 264.

PEARSON, C. J. The newly-discovered evidence on which this proceeding is based, to-wit: the entries in the books of White amount only to this: Tull is credited with the principal of Washington's note, $512, on what Tull owed White, and Washington is charged in account with the principal and interest of his note, $638.

This adds little if any force to the evidence which Tull offered on the trial of the issue, to-wit: Did White and Washington have a settlement in which the note of Washington was allowed as a set off in satisfaction pro tanto of White's indebtedness to Washington? This issue was found against Tull, and the weight of the evidence, throwing into the scale the entries alone referred to, is decidedly against Tull. White and Washington did not have the settlement set out in the issue. So the case does not fall within the principle of Bledsoe v. Nixon, at this term, nor of James v. Saunders. 64 N. C. Rep. 367.

Had Tull been well advised he might have "bought his peace" at the sale of the note, probably for a trifling amount, but he took his own course, and must abide by it. If Pope collects the money there may be a question of usury by White's entries, but it is not now presented.

The point in regard to adding to the indorsement by

WOODY v. JORDAN et al.

proof of a verbal agreement that it was to be without recourse on Tull was properly abandoned in this Court. The action will be dismissed with cost.

Let this opinion be certified.

PER CURIAM.

Action dismissed.

JAMES R. WOODY v. HENRY T. JORDAN and others.

A plaintiff having an action pending, cannot maintain a second action against the same defendant for the same cause. Such pending action should be pleaded in abatement.

But a judgment in an action brought to recover certain property specifically is no bar to a subsequent action between the same parties seeking to recover damages for the taking and conversion of such property.

A defendant is not bound to assert a set off or counterclaims in an action brought against him whenever he may do so; nor does the plaintiff's recovery bar a subsequent action for such counterclaim, which the defendant might have, but did not plead in the original action.

Irregular process, after it has been set aside, is no justification to the plaintiff in the action, or his attorneys and aiders.

Eborn v. Waldo, 5 Jones 438; Pannell v. Hampton, 10 Ired. 463; Skinner v. Moore, 2 Dev. & Bat. 138, cited and approved.

CIVIL ACTION, tried at the Fall Term, 1872, of the Superior Court of PERSON county, before his Honor, Tourgee, J. On the 2d October, 1869, at the instance of the plaintiff, a summons issued to the defendants, commanding them to appear, &c. In his complaint the plaintiff alleged that the defendants had theretofore brought an action against him for the possession of certain property, and at their instance the sheriff of Person county had seized the same and delivered it to C. H. Williams, one of the defendants; that the defendants entered into bond in the sum of $1,600 for the prosecution of the suit and the payment of costs and damages; that the suit was dismissed for want of jurisdiction by the clerk of Person Court, and that in consequence of

WOODY v. JORDAN et al.

said suit he has been endamaged to the extent of $800, for which he demands judgment.

In an amended complaint afterwards filed, the plaintiff charges defendants with seizing certain property, describing it, amounting in the aggregate to $1,485; that the property was seized by the sheriff at the request of the defendant, Jordan, aided and abetted by the other defendants; demanding judgment for $1,485 for the seizing and converting said property and the further sum of $1,000 damages for its detention.

The defendants deny the allegations of the complaint, and for further defense say, that the plaintiff heretofore obtained a judgment in the Superior Court of Person against them, for the return of the property mentioned in his complaint, and now has full and complete remedy by virtue of, and by motion in said action.

It appeared that the plaintiff was in possession of the property in May, 1869, when the sheriff seized the same and delivered it as above set forth to the defendant, Williams, the other defendants being present. To connect the defendant, Brooks, with the seizure, &c., the plaintiff offered in evidence an undertaking, purporting to be signed by Brooks, with the other defendants, as sureties for one M. A. Harris, in an action for the claim and delivery of personal property against the plaintiff in this action, being the property mentioned by plaintiff in his complaint filed in this action. This evidence was objected to, and ruled out by his Honor. Plaintiff excepted. Plaintiff then offered to ask the defendant, Jordan, if he did not sign the undertaking above mentioned. Objected to, ruled out, and the plaintiff again excepted.

The defendants afterwards offered in evidence the record of a suit wherein M. A. Harris was plaintiff, and James R. Woody, the plaintiff in this action, was defendant. With this record, was the undertaking offered by plaintiff as

WOODY v. JORDAN el al.

above set out, and which was now read. Further, the defendants to justify seizure of the property, offered the record of a judgment of the United States Circuit Court for this District, rendered at November Term, 1868, in favor of the said M. A. Harris and against the plaintiff, and a sale of the property in controversy in this suit by the United States Marshal, on the 26th of May, 1869, and the purchase of the same by defendant, Jordan, for his client, Harris, the then plaintiff. It further appeared, that after that sale, Jordan permitted the property to remain in the possession of Woody. It was also in evidence, that on the morning of the sale day, 26th of May, 1869, Jordan, as attorney of Harris, was served with a notice of a motion to set Harris' judgment aside. The property was demanded by Jordan, from Woody, the plaintiff here, who refused to deliver it, whereupon Harris, on the day of, 1869, sued out a summons, returnable within 20 days before the Clerk, against Woody, and having filed the affidavit prescribed by the Code of Civil Procedure, the Clerk issued an order directing the sheriff to take the same into possession, and upon Harris' filing the proper undertaking to deliver the property to him. That upon the return of this summons both parties appeared by their attorneys before the Clerk, and after the pleadings were filed, the defendant, (the plaintiff here,) moved to dismiss the proceedings, which was done, and the plaintiff, Harris, appealed. At the regular term of the Court, the plaintiff, Harris, asked leave to amend, the necessary notice of the motion having been given to the defendant. Motion to amend was granted. At the Term, 187—, thereafter, the action was dismissed, and judgment for costs in favor of Woody against Harris rendered, as also a judgment that he should return the property delivered to him by the sheriff. The introduction of this record was objected to: 1. That the undertaking required by law had not been complied with; and 2d. The judgment was void, because the sum