star-pagination">*Page 398 items resting in the personal knowledge of the adverse party, or the balance depending upon the production of books and accounts, which a court of law could not order; or in cases where a party has improperly obtained an advantage at law, as by a verdict through fraud, and which it is unconscientious to avail himself of, equity will step in and lend her aid. But such cases must be made by the bill, and not stated in argument.

Now, in this case, for aught that appears by the bill, everything was ormight have been discussed in the trial at law with the same advantage and to the same extent that it can here, and the result have been the same.

A bill for a new trial is watched in equity with a zealous eye. A court of equity must not only see that injustice has been done, but that there is no other complete remedy which the party can have; and that he has not been reduced to that situation by his own neglect.

This bill does not pretend to make the difficulty of proof a ground for coming into this court; but charges that it is against conscience that the defendant should have the benefit of a judgment founded on a gaming consideration. This Court has already decided, in Hodges v. Pitman, ante, 276, that money lost fairly cannot be recovered back; and if the law would not raise a promise to refund it, the rule, to be consistent must say that equity will not step forward to prevent its payment, or, which is the same, to restrain a legal obligation to enforce it.

In whatever view, therefore, I consider the case, I think the (549) injunction should be dissolved. This case, however, steers clear of the inquiry whether equity will relieve against the payment of money on a gaming consideration; as the application is too late, when there was once a fair opportunity of full defense.

NOTE. — See Taylor v. Wood, 3 N.C. 332, and the cases referred to in the note.

Cited: Peace v. Nailing, 16 N.C. 291. *Page 399

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