If a plaintiff at law obtains a verdict on false testimony, it is against conscience for him to enforce the judgment. Courts of Equity relieve the defendant by a decree that the plaintiff consenttoset aside the verdict andjudgment, and have the case tried at law de novo. This is the primary equity. An injunction to restrain execution is auxiliary. Whether the bill will be entertained, except upon an allegation, that the witness who swears falsely, has been convicted of perjury, is a point about which the authorities are not agreed.
So, if a plaintiff at law obtains a verdict and judgment by surprise, as, it a suit be pending in McDowell Superior Court, and the plaintiff tells the defendant, he nfeed hot attend Court, for he will meet him at Buncombe, and arrange the matter, and the plaintiff at McDowell Court presses a trial, and takes a verdict and judgment in the absence of the defendant, a court of equity will relieve, by a decree that the plaintiff consent to set aside the verdict and judgment, and have the case tried de novo. This is the primary equity; an injunction issues as ancillary.
So, if a decree be obtained in a court of equity, by false testimony, or by surprise, the Court will entertain a bill to impeach the decree, and on proof of the allegation, the former decree will be put out of the way, and the matter proceeded in, as if such decree, had not been entered.
This is a bill to impeach a decree as having been obtained by surprise, and it is held, the decree having been obtained in this Court which has no original jurisdiction, that the Court of Equity below has jurisdiction. Kincade v. Conley, Phil. Eq., 270. It is held further that “from the answer, enough appears to show that the plaintiffs were, under the extraordinary circumstances in which they were placed, taken by surprise, by the final decree in this Court, and that it would be a fraud (on the part of the defendants) to have it enforced.” Accordingly the case was sent back to the Court below, to be there heard and determined, as the right of the parties may *390be established; treating the final decree in this Court, as. put out of the way.
The interlocutory decree declaring the defendant J. W. Conley entitled to a share as administrator of his first wife, was of course to stand: Conley v. Kincade, Win. Eq. 44.
This brief reference to the principle, on which a bill' in the Superior Court was sustained to impeach a decree of this Court, as having been obtained by surprise, is made necessary by reason of the fact, that the statement of the case in the Court below, does not show clearly, that his Honor did fully comprehend the scope of the bill, or the principle on which it rests.
Eor the plaintiffs it is insisted: His Honor in declaring “there is no ground or accident” ruled in opposition to the decision, when the case was last before this Court, by which it is held, that from the answer it does appear that the plaintiffs were taken by surprise by the final decree, and it would be fraud on the part of the defendants to enforce it.
Eor the defendants it is insisted: His Honor admitting the surprise, which amounts to fraud, in obtaining the final decree in this Court, heard the case as if that decree was out of the way, and, upon the pleadings and proofs offered before him, declares, as a matter of fact, that there was no fraud in regard to the receipt of Confederate notes by the plaintiffs in payment of ante-war debts, and that the plaintiffs, in receiving Confederate notes, acted in their own wrong, and without the consent or concurrence of the defendants.
It appears, by the transcript of the record, that, by consent, the bill is dismissed as to J. W. Oonley. He represented two shares, and bought land at the sale made by the plaintiffs, at the price of some $5000, which he paid in Confederate notes, and could not, in conscience, demand payment in other funds. So the case is relieved from much complication, by the withdrawal of all claim on his part.
It also appears by the transcript, that at August term *3911867, on the fihng of the certificate from the Supreme Court, “replication and commission,” was entered, and at Spring Term 1868, “the cause is set for hearing, and, by consent, the parties are allowed to take testimony during the term.”
The statement of Tod. R. Caldwell, Esq., is filed by the defendants, and by it, the allegation of the plaintiffs, that they had received Confederate notes by the consent and approval of the defendants, other than J. W. Conley, is disproved, and it is established that they acted in their own wrong. The plaintiffs offer no proofs.
The transcript further shows, that the cause was heard upon bill, answers, exhibits, proofs, and argument of counsel on both sides.
So we are led to the conclusion, that, as to the defendant, J. W. Conley, the plaintiffs failed to establish the allegations of the bill; that the cause was heard upon the merits; and that his Honor declares there was no fraud or accident as alleged, not in regard to the matter of surprise, on account of which the decree in this Court had been put out of the way, but because, in a fair showing, the plaintiffs could not prove, that they had been induced to receive Confederate notes, orto investin Confederate funds, by the advice and concurrence of the parties, who were then holding them to account.
This view is confirmed by the fact, that, in regard to the share of Isabella Boon, the injunction is continued, and a reference made as to what amounts, if any, have been paid to her administrator or heirs, before or since the decree of the Superior Court.
The point, suggested on the argument, that, as it was not proved that Archibald Kineade received the Confederate notes, he ought not to be charged by the decree, cannot be acted on. There is no allegation in the pleadings and proof, that he did not receive Confederate notes, or concur with his co-executor, in the Confederate funds: proof, without *392allegation, is as unavailing as allegation without proof. In judicial proceedings, there must he “ allegata et probata.”
We see no error. Decree affirmed. This will be certified.
Per Curiam. No Error.