Opinion of the Court.

being made by the secretary of the company,-the money to be deposited in one of the banks of Galena, as collected, and kept as a special fund, to be used for building and equipping an extension of the Galena and Southern Wisconsin railroad to Wingville. This subscription not to be binding unless one. hundred of said bonds shall be subscribed for.

GALENA, Feb., 1877."

The action wherein the judgment was recovered, was brought upon said subscription paper. The bill sets out that the complainant never received from the company the bonds or stock so subscribed for, and that the company is utterly unable to furnish and deliver the bonds and stock; that the company is wholly insolvent; that its railroad, and all its property and franchises, were sold and conveyed, on May 3, 1879, to a purchaser at a foreclosure sale, under a decree of foreclosure of a mortgage given by the company, to secure all the bonds issued by it; that one hundred of said bonds were never subscribed for a fact of which the complainant was ignorant at the time of the recovery of the judgment, and has since discovered; that on July 11, 1879, upon a writ of capias ad satisfaciendum issued upon the judgment, the complainant was arrested and imprisoned in jail, and kept so imprisoned until September 28, 1880, a period of more than fourteen and a half months, when he was released on bail, pending proceedings on appeal for discharge under the Insolvent Debtor act, which proceedings were still pending; and that it was not until after such release from imprisonment, when, for the first time, he learned that the full number of one hundred bonds had not been subscribed for. Fraud is charged in obtaining the judgment through false representations and false testimony on the part of the railroad company. The bill prays for an injunction to restrain any further attempts. to collect the judgment until the defendant is able and ready to produce and deliver the said eight bonds and forty shares

Opinion of the Court.

of stock, that the judgment be set aside, and a new trial granted. Also, that a promissory note for $500, which the complainant holds against the company, be set off against the judgment. The circuit court, on hearing, dismissed the bill. On appeal to the Appellate Court for the Second District, that court reversed the judgment of the circuit court, and entered a final order that a new trial be granted, and that the collection of the judgment be enjoined until the railroad company produce the bonds and stock in court, to be delivered to the complainant-whereupon the defendant took this appeal.

There is no controversy upon the facts, and we do not think they show ground for setting aside the judgment and allowing a new trial.

As respects there not having been the number of one hundred bonds subscribed for, it appears there were three subscription papers,-the one signed by the complainant, upon which were subscribed seventy-three bonds; upon another similar paper, nineteen bonds; and a third paper, containing ten bonds, is as follows:

"GALENA, April 13, 1877. "We, the undersigned, hereby agree to take the number of first mortgage bonds, of $1000 each, of the Galena and Southern Wisconsin Railroad Company, set opposite our names, at sixty-five cents on the dollar, and pay for the same on demand being made by the secretary of the company, at any time after said railroad is graded to a point within five miles of the village of Montfort, Wis. The above to be in force only until September 20, 1877."

As to a portion of the bonds on the paper containing the seventy-three, it is objected that the subscription for them was only colorable, in this, that two of the subscriptions, for five bonds each, were under the secret agreement that the subscribers should be required to take and pay for two, only;

Opinion of the Court.

and another, for five bonds, was under a similar agreement that only three should be taken and paid for. Such secret agreement was fraudulent as to the other subscribers, and was void and of no avail, and the subscription is to be regarded a valid one for the amount subscribed. Melvin v. Lamar Ins. Co. 80 Ill. 457.

As to the paper containing the ten bonds, it appears that the company never graded the railroad to a point within five miles of the village of Montfort, and ceased work upon the road before September 20, 1877, and never again resumed the work. Nothing was ever paid on any of these bonds, and none of them were ever taken, and this was an invalid subscription from non-compliance with the conditions thereof by the railroad company. So, then, there were but ninety-two bonds subscribed, and complainant's subscription did not become binding upon him, there not having been one hundred bonds subscribed for. This was a defence which might have been and should have been made in the action at law wherein the judgment was recovered. And it was not mere matter of defence, the one hundred bonds not being subscribed, which it was for the defendant to find out and make appear, but the subscription for them was an element of the cause of action, without proof of which there could not have been a judgment recovered. The declaration was upon the subscription paper, averring that the one hundred bonds had been subscribed. The defendant appeared and defended against the suit by his attorney. All that was needed to avoid the recovery of the judgment was for the defendant to stand upon his legal rights, and insist upon the cause of action being established in a legal mode. Instead of this being done, there was produced upon the trial only the one subscription paper signed by the defendant, and secondary evidence, without objection by the defendant, was given by the statement of a witness that one hundred bonds had been subscribed. Thus the defendant waived his right to have the best evidence, and the legal evi

Opinion of the Court.

dence of the subscription, to-wit, the subscription papers, produced, when, if he had but stood upon such right, the subscription papers would have to have been produced, which, of themselves, would have shown the lacking subscription, and have defeated the action. The result, the judgment recovered, came from the defendant's neglect and inattention as to his legal rights.

What is relied upon as showing the fraud charged, in obtaining the judgment through false representations and false testimony, is, that the president of the company told the complainant several times after his subscription, that the one hundred bonds were subscribed for, and that the exsecretary of the company testified on the trial that the one. hundred bonds were subscribed for. We see nothing in this to warrant a charge of fraud. The hundred bonds were, in fact, subscribed for, and although the subscription for ten of them was conditional, yet, if the condition had been complied with, they would have been valid and available, and have met the requirement of complainant's subscription, and willful falsity can hardly be imputed to the statement that one hundred bonds had been subscribed. It can not be allowed as a ground for setting aside a judgment, that there was false testimony given on the trial, or false assertions as to liability, previously made. If this were admitted there would be little stability in judgments. The declaration itself contains the assertion that one hundred bonds had been subscribed for, but this, though untrue, could not be adduced as evidence of fraud or in justification of reliance upon it, to the neglect of any defending against the suit. But little more of reliance was complainant entitled to place upon such representations as above, which had been made to him. The circumstance of not introducing in evidence the subscription papers, and giving parol evidence as to the number of bonds subscribed for, did not, as claimed, amount to a fraudulent suppression of knowledge of the number of bonds subscribed.

Opinion of the Court.

The proof fails to show that the complainant was prevented from availing himself of his defence by the fraud or act of the opposite party, unmixed with negligence or fault on his part. Under the anthorities, a case is not presented for the interference of a court of equity to set aside the judgment. As said by KENT, J., in the case of LeGuen v. Gouverneur & Kemble, 1 Johns. Cas. 502: "Every person is bound to take care of his own rights, and to vindicate them in due season and in proper order. That is a sound and salutary principle of law. Accordingly, if a defendant, having the means of defence in his power, neglects to use them, and suffers a recovery to be had against him by a competent tribunal, he is forever precluded." And again says Chancellor KENT, in Duncan v. Lyon, 3 Johns. Ch. 351: "It is a settled principle that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict by facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the acts of the opposite party, unmixed with negligence or fault on his part."

But if this relief fails, of having the judgment set aside and a new trial granted, complainant insists that he is entitled to the relief of having the collection of the judgment enjoined until the railroad company produce the bonds and stock in court, to be delivered to the complainant. This is the relief the Appellate Court granted, and we are of opinion complainant was entitled to some relief in this direction, but not to the extent allowed by the Appellate Court. The judgment is for the purchase price of the bonds and stock, and it is inequitable that complainant should be made to pay the judgment and get neither bonds nor stock. He has as yet received nothing whatever, and it is admitted on both sides that it is not now, and never will be, in the power of the railroad company to furnish and deliver any bonds or stock. If, then, the collection of the judgment is enforced, a large sum of money will have to be paid without any con