delivered the opinion of the Court:
This was a bill in chancery, brought by William Ennor, in the circuit court of Jo Daviess county, for relief in respect of a judgment for $5678, rendered against him in favor of the Galena and Southern Wisconsin Railroad Company, on June 30, 1879, for the subscription price of eight of the first mortgage bonds of said company, which he had agreed to pay by signing the following subscription paper for eight bonds:
“We, the undersigned, hereby agree to take the number of first mortgage bonds and shares of stock of the Galena and Southern Wisconsin Railroad Company set opposite our names, and to pay for the same at the rate of $650, in cash, for each $1000 bond and five shares of stock, on demand *60being 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 foi’—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 *61of stock, that the judgment be set aside, arid 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 Bailroad 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; *62and 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 condition's 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 wras 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*63dence 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 ex-secretary 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. *64The 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 authorities,' 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. Gowerneur & Kemble, 1 Johns. Gas. 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. Cb. 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 hé 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*65sideration whatever. The judgment did not release the railroad company from furnishing the bonds, but notwithstanding the judgment, and in entire consistency with it in its full integrity, the duty yet remained with the company to deliver the bonds on payment of the judgment. Under the-contract' . of subscription, the delivery of the bonds and payment of the purchase price were concurrent acts. Neither party was bound to perform without performance, or ability and readiness to perform, on the part of the other. The judgment was •not a payment of the purchase price, and the company was not bound to deliver the bonds until the judgment was paid, but when paid, it should, under the contract, deliver the r.bonds. The judgment is in course of being satisfied by imprisonment of-the person of complainant in jail, and has been satisfied, in part, by the suffering. of some fourteen and a half months’ imprisonment. The inability to furnish -the bonds has come through the company’s default, and it should answer in respect of it upon this judgment, as it is the only mode in which it can be made to respond for the consideration of it. To enjoin the collection of the judgment until the production of the bonds for delivery, amounts to an annulment of the judgment,—it is a perpetual stay of its collection. This, we think, is more than equity requires. It -is of no benefit to complainant to have the bonds in specie. They are, of themselves, independent of the mortgage security, worthless. It is only their value, which, in an equitable view, complainant is entitled to have. This is not necessarily the face value of the bonds, or the price at which they were subscribed for. It does not appear that there has ever been any depreciation of value in the bonds, and if there had been, any loss from that cause should not be borne by the railroad company, as the complainant has never entitled himself to have the bonds, never having paid the purchase price. Frequent demands were made upon the complainant for his subscription, when the bonds were ready to be de*66livered to him on payment, but he has ever refused to make any payment. It was the right of the company to hold the bonds until payment was made for them. We are satisfied, 'from the evidence, that, at least, the bonds never underwent any depreciation in value after the time the company became unable to deliver them. The company is, we think, under a no more rigorous responsibility than would come from a conversion of the bonds, considering them as held in trust for complainant/- stt the time the-company disposed of them or became unable to deliver them. The measure of damages for a conversion of the bonds would not have been their face value or purchase price, but their actual value. All the value the bonds ever had, so far as appears, consisted in the mortgage • security given for their payment. This mortgage has been foreclosed, and the mortgaged property bought in,-in satisfaction of the bonds the mortgage was given to secure, these bonds for which complainant subscribed being among them, they entering into and forming part of the decree of foreclosure. The proportional share of the eight bonds for which complainant subscribed, in the mortgage security and -the avails of it, is wdiat we think complainant is entitled to 'have; that he is entitled to have the value of such proportionate share credited- and allowed upon the judgment, and that such is the full measure of relief in this respect; that in’equity complainant is not entitled to have the bonds themselves.
It is objected that this goes in impeachment of the. judgment ; but it does not at all, in our view. It consists with "the full force arid conelusiveness of the judgment. ' That there had been delivery of the bonds was not found by the judgment, nor wras such delivery within the issue in the case. It was only needful to the recovery of the judgment that there should have been an ability and readiness to deliver the bonds upon paying for them. It was entirely consistent with the judgment, that after it was rendered the bonds *67should be held, and not delivered until the judgment was ready to he paid. It is said that at the time of rendering the judgment, complainant might have required the bonds to be deposited in court, and there kept ready to be delivered upon payment of the judgment. This may have been, but the not doing so should not debar the right afterwards to have delivery of the bonds, upon payment of the judgment.
In respect of the set-off of the $500 note of the company against the judgment, the point made against that is, that the company was insolvent at the time of the judgment, and that the set-off should have been pleaded in that action wherein the judgment was recovered. Chicago, Danville and Vincennes Railroad Co. v. Field, 86 Ill. 270, is referred to as being supposed to decide that it is only insolvency occurring subsequent to the judgment, which will form ground for equitable jurisdiction to have a demand in favor of the judgment debtor set off against the judgment. That was a case of insolvency arising after the judgment, which fact strengthened the equity of the application, and the language there used may have been calculated to mislead, and carry the idea-that it was only such subsequent insolvency which would give the jurisdiction in equity. But that case is not to be taken as so deciding, and we are referred to no authority which so holds. Although the note might have been set off in the action at law, that was permissive, but not compulsory upon the defendant. (Field’s case, supra.) There being no question as to the validity of the rióte or the insolvency of the railroad company, we are of opinion the set-off of the note should have been allowed, irrespective of the time of the occurrence of the insolvency, whether before or subsequent to the judgment.
The decree of the Appellate Court will be reversed, and the cause remanded to the circuit court for further proceedings consistent with this opinion, the injunction, however," decreed by the Appellate Court, to be continued ■ until the value of *68such proportionate share as above mentioned, of complainant’s bonds and stock, shall have been ascertained and applied as a credit upon the judgment, as also the amount of said promissory note. -r,
Decree reversed.