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The opinion of the Court was delivered by

Whitman C. J.

The bill in this case states, that a suit at law is pending in this Court, in another county, in this State, wherein the plaintiff, Chalmers, a citizen of New York, and two other persons, now resident in this State, who were formerly his copartners in trade, were sued in assumpsit by said Hack; and that after the suit had been sometime pending, he, the plaintiff, received a notification in New York of its pendency, and that he might appear and show cause why judgment should' not be rendered against him. That he employed counsel, who moved for a continuance of the action, to enable him to make preparation for his defence, which motion was overruled; whereupon his counsel submitted to a default, under an agreement that he should be heard on inquiry as to the damages; and that said Chase was confederate with said Hack, and had be-» come interested in said suit, by purchase, and had conspired with him to defraud the plaintiff; and had taken undue means, in aid of said Hack, to procure testimony, of which the plaintiff was ignorant, until after the default, as agreed upon, had been entered. Thereupon the plaintiff prays for an injunction to stay proceedings at law, and for a discovery and relief.

Said Hack, being a citizen of Maryland, without the jurisdiction of this Court, and having no estate which could be *127reached by its process, the plaintiff lias caused Wm. P. Haines, the counsel of said Hack in the suit at law, to be summoned to defend in this suit. And the said Haines, in obedience to the said summons, appears; and, protesting that he does not appear for the said Hack, but in obedience merely to said summons, demurs to the said bill, for want of jurisdiction in the Court.

It becomes the Court, in all cases, to stay proceedings, whenever it is made manifest that it has not jurisdiction in the case. Whenever this knowledge is obtained, it matters not whether it be by an inspection of its proceedings, or is suggested by an amicus curicc.

In this case, it seems that Hack, one of the defendants, has not, at any time, been a citizen of or resident in this State; nor is it protended that he has any estate within the same, subject to a distringas. He is not therefore ordinarily subject to the jurisdiction of its courts. If however he be a plaintiff at law here, against the plaintiff in equity, it may be that he is so far amenable to the equitable jurisdiction of this Court, as that a bill of injunction may be entertained against him, and that serving his attorney at law with a subpoena would be a good substituted service to subject him to the jurisdiction of this Court; so far at least as to authorise it, a proper case being made out, to grant an injunction against proceeding in the action at law. But independent of such an object no bill could be sustained. There would be no mode of enforcing any decree against him, as an attachment would not reach him, and as no distringas could reach his estate. 1 Atkyns, 19.

Whether this Court, then, has jurisdiction in the present case must depend on the remedy, which the plaintiff' in equity has at law. At present no judgment has been rendered against him. Although a default has been entered by his consent. The damages have not been assessed in the case. The default may be removed, and the action may be reinstated for trial; provided the default has been entered upon consent through fraud or covin, in any wise practised upon the defendant therein ; or even if it has been consented to and entered by mistake, *128without fault on his part. And it would seem, that, whatever would be adapted to induce the court to grant an injunction, would be equally efficacious, by way of inducing the court to afford him an opportunity to avail himself of his defence at law.

This seems to be an appeal, by way of a bill in equity, from the exercise of the discretion of this Court, sitting as a court of law, to its discretion sitting as a court of equity. In the former case, it has all the powers of a court of equity, and in the latter its powers are merely co-extensive.

The plaintiff in equity complains that he was unable to obtain a continuance, in the action at law, to enable him to prepare for trial. This was a question, addressed to this court at law, in regard to which it was bound to exercise a sound discretion ; and we must presume that it did so. Sitting as a .court of equity, then, it affords no ground for issuing an injunction. On the whole, it does not appear but that the plaintiff jn equity has had, or may have, a plain and adequate remedy at law; and accordingly the decree is, that the bill, as to the .said Hack, be dismissed.

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