Mahlon Pitney

“ It is upon the fact alleged to have been disclosed by Judge Henderson-the fact being Mr. Talbott's alleged misconduct, and not merely his alleged admission of it-that appellants are relying as a newly discovered defense to the action for libel. Now, the settled rule in equity is that a defense is not to be deemed 'newly discovered,' or as lost by 'accident or mistake,' if it was or ought to have been within the knowledge of the party when he was called upon for his defense in the action at law. ”

“ The question whether appellants, because of having originally made a public accusation of malfeasance in office against the appellee without having evidence of the truth of the accusation sufficient even to warrant prudent counsel in making an issue of it in a libel suit, are barred from relief in equity under the doctrine of 'clean hands,' it is unnecessary to consider. ”

“ The court recognized that this theory was applicable only if the statements made in the libelous article were true; and, accepting Judge Henderson's testimony as conclusive upon that issue, the court held it to be unconscionable for Talbott to enforce his judgment. We find it unnecessary to test the correctness of the theory, because, like the court of appeals, we differ with the trial court upon the question of fact. Under the pleadings, the burden was upon the complainants (now appellants) to prove the official misconduct of Talbott, and this they failed to prove. ”

“ Upon the whole case, therefore, it cannot be said that appellants omitted to plead justification in the libel suit because of any 'accident' or 'mistake' within the meaning of the equitable rule. That defense was considered by them and their counsel and deliberately and advisedly rejected because (a) it could not be sustained, and (b) a failure to sustain it would probably embarrass them in their defense under the general issue ”

“ The bill of complaint avers that at the time of the filing of the declaration in the libel suit the complainants believed it to be true (the ground of that belief is not distinctly averred) that Talbott had caused the indictment to be procured for the purpose of obtaining from the insurance companies certain large sums of money, and had thus used his public office for his personal gain ”

“ Upon these pleadings, and upon proofs submitted by the respective parties in support thereof, the cause was brought to final hearing, with the result already mentioned.
The principles upon which the decision of the case must turn are entirely familiar. ”