My opinion is, the motion ought to have prevailed. When the case was originally tried, in Washington county court, the judgment was in favor of the defendant, Miller. There being no exceptions, that judgment was a conclusive bar to the claim of the plaintiff. In *226this state of case, application was made to the Legislature for its interference, and, in pursuance of the request, the act of Assembly was passed. It authorized the opening of the case, and the incorporation into its record of exceptions which had been taken in another case, and upon the validity of which the Court of Appeals had pronounced. By agreement of counsel, the judgment which had been entered in this case, in favor of the defendant, was stricken out, and one entered in favor of the plaintiff, the agreement providing, that if the Court of Appeals should declare the act of Assembly constitutional, then the substituted judgment should remain in full force, but if it should be of opinion that the act was unconstitutional, then the appeal was to be dismissed. The court held the act to be unconstitutional, and, in conformity with the agreement, dismissed the appeal. This left the judgment against the defendant in full force. To cause it to be stricken out, and to restore the record to its original condition, is the object of the motion which has been made by the appellant.

The act of Assembly authorizes the court to strike out a judgment which has been entered because of fraud, accident 'or mistake. This, in my judgment, is a clear case of mistake. The agreement did not clearly, or rather did not as fully as it should have done, express the real intention and purpose of the parties. To give to it the construction contended for on behalf of the appellee, is, in my opinion, to stultify the parties to it. To my mind, it is perfectly clear that it was the purpose of the parties to have submitted to the Court of Appeals the question of the constitutionality of the act of Assembly, and •upon the decision of that question was to rest the decision of the case; that is to say, if the law should be pronounced constitutional, then the judgment in favor of the plaintiff was to stand, but if it should be pronounced unconstitutional, then the appeal was to be dismissed, and the judgment reversed. The whole difficulty in the case, as it now stands, grows out of the omission of the agreement to confer, in words, upon the Court of Appeals (if they should be of opinion the law was unconstitutional) the right to reverse the judgment. But *227that it was the understanding of the parties that it did confer this power, I have no doubt. Otherwise, the agreement is all one-sided, for, in any event, the defendant was to, be defeated. If the law ivas constitutional, he was to he hound, and also was he to he hound if it should he unconstitutional. This is the substance of the construction placed on the agreement on the part of the appellee. It is impossible for me to bring my mind to the belief that it ever was the intention of the appellant to enter into an agreement to prosecute an appeal and incur the costs and vexations incident to it, when the only result of it could be to defeat his interests. He had a judgment in his favor, which he insisted upon, and that, too, so pertinaciously that the plaintiff applied to the Legislature to interfere in its behalf. The defendant denied the right of the Legislature to interfere, and contested the constitutionality of its action, and yet we are asked to believe (after all. this) he willingly made an agreement to the effect that whether or not the law was constitutional, there should he a judgment against him! There are cases so clear in their nature that the simple statement of them constitutes their clearest illustration, and I think this is such a one. My opinion is, the judgment ought to be stricken out, and the original judgment restored.

Upon this question, however, the court is equally divided in opinion, and, therefore, the ruling of the court below, refusing to strike out the judgment, must be affirmed.

As to the demurrer in the sci. fa. case, the court is unanimously of opinion that the defence was not, the subject matter of a plea at law, and that the judgment on demurrer was right, a majority of the judges being of the opinion, that as the agreement was designed to prevent the plaintiff from proceeding on his judgment, if the act of Assembly was declared to be void, the defendant is entitled to be discharged in a court of equity, and that relief may now be had against the judgment.

Judgment affirmed without prejudice.

A majority of the court have expressed an opinion that, by a proceeding in equity, the appellants may be *228relieved from the judgment of the appellee against Samuel Miller, rendered at November term 1847. In this view of the subject I do not concur.

It is. a well established principle of equity that where equities are equal, and one party has the legal advantage over the other, a court of equity will not interfere by taking away such advantage at law.

Applying this rule to the present controversy, my opinion is, that the appellants are not entitled to relief in a court of equity.

At November term 1843, this case was first tried, when a verdict was given in favor of the defendant, Samuel Miller. A motion was made for a new trial, which motion was overruled, at November term 1844, and judgment given for defendant.

The case not having been so conducted on the part of the plaintiff as to give him the benefit of an appeal, as no bills of exceptions on his part had been regularly prepared and signed, he applied to the Legislature for relief in the premises, and the act of 1845, ch. 358, was passed. This act provides, “That the court of Washington county be and the same is hereby authorized and required to grant aii appeal in the case heretofore decided by said court., wherein the State of Maryland, use of Lewis Fiery, was plaintiff, and a certain Samuel Miller was defendant; and that the points of law decided, and the instructions given, by the said court, as set forth and contained in an appeal already granted by said court, wherein the said Stale of Maryland, use of Henry Fiery, was plaintiff, and the said Samuel Miller defendant, and in every way similar to the case first herein mentioned, be set forth and embodied in the record of the appeal herein provided for; provided, nevertheless, that the said court shall be satisfied that the plaintiff aforesaid lost his right to appeal in the above case, at the proper and regular time for taking the same, by a misunderstanding of the counsel engaged in the case, in regard to the taking of the said appeal.”

Under this act the case was prepared by Washington county court to be sent up to the Court of Appeals. It was not, however, sent up as thus prepared. But, by the agreement of the *229parties, t.he judgment of 1844, rendered in favor of the defendant upon the verdict of November term 1843, was stricken out, the cause reinstated upon the docket, and, at November term 1847, a verdict and judgment were rendered in favor of the State, use of Lewis Fiery.

Among other things agreed upon by the parties, it was provided, “That if the proceedings of Washington County court, in signing and sealing the bills of exceptions set forth in said agreement, should be deemed by the Court of Appeals void, in consequence of the unconstitutionality of the act of Assembly by which those bills of exceptions were authorized and directed to be signed and sealed by Washington county court, then the appeal in the case should be dismissed; and that otherwise, it should be heard and determined upon the questions of law which were to be raised and decided at the trial of that cause, then about to be tried in Washington county court; which questions were similar to those presented in the case of the State, use of Henry Fiery, vs. said Samuel Miller. And it was further agreed, that the case of Lewis Fiery should abide the result or decision of the Court of Appeals in the case of the State, use of Henry Fiery, vs. Samuel Miller, upon the bills of exceptions of the defendant, which had been taken in the last mentioned case at the term when this agreement was made.”

The decision of the Court of Appeals in the case of Henry-Fiery, was in his favor, and they affirmed the judgment below. .Believing that the act of Assembly referred to in the case of Lewis Fiery was unconstitutional, the appellate tribunal dismissed the appeal, under and by virtue of the provision contained in the agreement. This dismissal of the appeal, as a matter of course, left the judgment of 1847, standing upon the docket of the court below, in favor of Lewis Fiery; and this is the judgment against which the appellants are now wishing to have relief.

They insist, that although the agreement did provide for a dismissal of the appeal, in case the court should decide the special act of Assembly to be unconstitutional, without any express provision in regard to reversing or annulling the judg*230ment of 1847, on which t-he appeal had been taken, it was, nevertheless, the design of the parties, and the true spirit of the agreement, that if the law should be held to be unconstitutional, the plaintiff’s judgment should not be enforced, but become a nullity; the real object of the agreement being to test the constitutionality of the law. And the appellants contend, that only in the event of the law being held constitutional, was it intended that the case of Lewis Fiery should abide and be governed by the result of Henry Fiery’s case. The appellee’s counsel, however, does not admit this to be a correct view of the matter.

If relief should be sought in equity, it. would be proper to look at the circumstances under which the agreement in dispute was made, and it will then appear that the claims of Lewis Fiery and Henry, his brother, were precisely alike, in principle. In Henry’s case bills of exceptions were taken, and, finally, he succeeded in recovering his claim; the verdict and judgment., at the last trial below, were in his favor, and the judgment was affirmed in the Court of Appeals. During the progress of the trial in the case of Lewis, no bills of exceptions were prepared. This, as alleged by his counsel, was the result of a belief that it had been agreed and understood that the exceptions should be prepared after the trial was over. Subsequently, when it was proposed to have the exceptions signed, under the alleged previous understanding, the counsel for the defendant objected, upon the ground that he had no recollection of such an agreement. In consequence of this alleged misunderstanding, the act of 1845, ch. 358, was passed by the Legislature, for the purpose of allowing Washington county court to grant an appeal.

A rule was laid on Miller to show cause why this act should not be carried into effect, which rule he answered and resisted. Affidavits on the subject were filed on both sides, and upon the consideration of them, the court being of the opinion that the points of law decided, and the instructions given, in the cause of the State, use of Henry Fieiy, against S. Miller, were substantially the same as those decided in the case of Lewis Fiery against the same defendant, and that Lewis had *231lost his right to appeal, at the proper time for taking the same, by a misunderstanding of the counsel in the case; bills of exceptions were signed by the court, and the cause ordered to be sent up to the Court of Appeals, in compliance with the said act.

After these bills were signed, and the canse ordered to be sent up, the agreement to reinstate the case of Lewis for a new trial, was entered into, by which the necessity of taking the case to the Court of Appeals by the plaintiff, under the proceedings directed by the act of Assembly, was dispensed with. The motive for this was to avoid unnecessary expense and delay, knowing, as the parties by (hat time did, how those exceptions would be decided, inasmuch as the same exceptions liad then been decided upon by the appellate court on the first appeal in Henry’s case, and in his favor. And the agreement so arranged the case of Lewis that, instead of the plaintiff being the appellant, as provided by the act of Assembly, it was made necessary for the defendant to appeal. Of course, when his appeal was dismissed, the judgment appealed from was left in full force at law against him.

Under the circumstances, it would seem to be very evident that, but for the misunderstanding between the counsel, bills of exceptions would have been regularly taken in Lewis’ case, on the trial in 1843; and, if so, judging from the result in Henry’s case, and the precise similarity of his claim to that of Lewis, it is a fair and reasonable inference that the claim of the latter would have been established. I, therefore, am of the opinion that a court of equity should not grant relief to the appellants.

Whatever rnay have been the intention of the agreement, it is certainly true that it has been before the former, as well as the present, Court of Appeals, and it has not, as yet, had the effect to reverse, strike out, annul, or enjoin the judgment. But it is said the appellants may now be relieved from it by a court of equity. Should there be a proceeding in equity for that purpose, it would not only bring before the court the construction of the agreement, but also the circumstances which led to its execution, including, likewise, the nature and char*232acter of the appellee’s claim, on which his suit was instituted. He yet has the judgment at law, and if the equities of the parties were equal, a court of equity would not annul or enjoin his judgment. And, moreover, in view of all the circumstances, I think the equities are in his favor.