KIBBE

v.

BENSON

Mr. Justice HUNT delivered the opinion of the court.

The cases in which equity will interfere to relieve against a judgment at law, are reasonably well settled.

1st. It will not relieve against a judgment at law on the ground of its'being contrary to equity, unless the defendant was ignorant of the fact creating such equity pending the trial, or it could not have been received as a defence.*

2d. If the party could .have defended the suit, but allowed judgment to go by his own neglect, he cannot have relief in equity for a matter which he might have availed himself of at law.*

3d. If there be a defence, but the party could not avail himself of it in the suit at -law, by reason of fraud or accident,equity will relieve against the judgment at law. The rule is well expressed by C. J. Marshall in the Marine Insurance Company v. Hodgson:† Without attempting (he says) to draw any precise line to which equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said, that any fact which clearly proves it to be against con-^ science to execute a judgment and of which the injured party could not have availed himself in a court of law, or of which he might have-availed himself at law, but was prevented by fraud or accident unmixed with any.fault or negligence in himself or his agents, will justify an application to a court of chancery.’/

The question of jurisdiction in the present case is identical with the question of the merits. If the party has established the facts on which he relies to sustain his action, he comes within the rules giving-relief in equity agaiust judgments at law. If .he is not one of the class entitled to such relief, he has no standing in a court of equity. A determination of the allegations of fact upon which the jurisdiction rests, will, therefore, determine the entire case.

The most important fact in dispute concerns the service of the declaration upon John Benson, the father of the original defendant', and'the manner and place of such service.

Turner testifies that the service was made at a point not exceeding one hundred and twenty-five feet from the dwelling-house^ but does not assert that it was within'any of the adjoining buildings or out-houses-; and if within what is familiarly called the door-yard of the establishment, it was at a remote corner of the yard. -Benson, the father, locates the sgepe at a point one hundred and fifty to one hundred and eighty rods distant from the dwelling-house. No one would contend that a service at this last point could with propriety be called a service at the dwelling-house.

Some latitude was, no doubt, intended to be given by this statute. It is not required that the papier shall be delivered to a person who is in the house at the time of such delivery. It may be delivered to one who is at the dwelling-house merely. This expresses the idea of nearness of place, and is less definite than if it'had beeu said, in the house or on the house. To say that one is at home, may mean that he is in the town or city of his residence, or it may mean that he is upon his grounds or in his house.

The intended effect of this expression is illustrated by the other portiou of the provision, which forbids (by implication) the delivery of the papier to one who is not of the age of ten years or upwards. If delivered to a young child, there would not be that probability of its delivery to the defendant in the suit, which might be expected if it was left with one understanding the necessity of its. delivery to the person for whom it was intended. Both the person upon whom, and the place where, service may thus-be made, are intended tó secure a delivery to the party interested. It is not unreasonable to require that it should be delivered on the steps or on a portico, or in some-out-house adjoining to or immediately connected with the family mansion, where, if dropped or left, it would be likely to reach its destination. A distance of one hundred and twenty-five feet and in a corner of the yard is not a compliance with this requirement.

The case falls’within the scope of the authorities in which relief is given .against-a judgment. "When Turner made affidavit that he served the declaration, by delivering the same to John Benson, at the dwelling-house of his son, he erred ^either as to the law or the fact. If he did not deliver the paper to Benson at all, he was wrong in his statement of fact. If he did deliver it, he was wrong in his conclusion that he delivered it at the dwelling-house of his son. A judgnient has been entered where the service was insufficient , mid the.defendant has had no opportunity to defend his estate. It is not necessary to decide upon the conflicting evidence. It is a' case, where, either by fraud or by accident, or by mistake,'without fault on bis part,'the defendant has been deprived of the opportunity to make bis defence, and within the rule laid down by C. J. Marshall, tbe judgment must be set aside, and an opportunity afforded to test the question in a.court of law.

Judgment aeeirmed.

*

Lansing v. Eddy, 1 Johnson’s Chancery, 49; Barker v. Elkins, Ib. 465; Norton v. Woods, 22 Wendell, 520.

*

Hewlett v. Hewlett, 4 Edward’s Chancery, 7; Floyd v. Jayne, 6 Johnson’s Chancery, 479; Graham v. Stagg, 2 Paige, 321.

†

7 Cranch, 336.