text:
    RICHARDSON VS WILLIAMS.

      Touching the limitation to writs of error.

    1. The statute limiting the prosecution of writs of error, to three years, applies as well to a writ of error from a Superior to an Inferior Court, as to one issued from a Court and returnable to itself, to revoke its own judgment.
    2. One who has lost a right to sue out a writ of error, cannot object, that the opposing party had died and there was no representative against whom to sue out the writ.
    3. In a case where it may be essential to sue out a writ of error against a deceased party, whose estate has not been administered on for the period of three months after his death, — one, desiring the advantage of such writ, should apply to the County Court, and have administration granted to the Sheriff.
    In error to the Circuit of Greene county.
    The plaintiff in this case, carne into Court and prayed that a certain judgment, rendered against him, in the Court below, might be reversed and held for nothing.
    And upon examining the record, it appeared that the plaintiff had, at September term, in the year eighteen hundred and thirty-six, of the Circuit Court of Greene county, presented his petition to that Court, in which he represented, that theretofore, to wit, on the-day of-, in the year -, he was sued in the same Court by one Joseph G. Williams, on a note which he executed as security, for one Paulding Anderson, in the State of Virginia: That a judgment was obtained, on said note, against petitioner, by said Williams, at the September term of said Court, eighteen hundred and thirty-one, from which judgment, petitioner appealed to the Supreme Court. During the pendency of said appeal, it came to the knowledge of petitioner, that the said Joseph G. Williams was dead; and had departed this life, before the rendition of the judgment, aforesaid, against the petitioner, and before the institution of the suit; in consequence of which, petitioner by counsel, at the fall term of eighteen hundred and thirty-three, made, and had entered, on the docket of said Court, a motion, to set aside the said judgment, which motion had been continued from some cause, from Court to Court, and yet remained undetermined, and the petitioner had been informed by counsel, and was confident in the belief, that no execution could issue on said judgment, until said motion was decided or disposed of by the Court. Petitioner in the petition, charged the fact to be, that Joseph G. Williams departed this life, before the rendition of the judgment in the Circuit Court, aforesaid, which he was ready to' establish and prove to the satifaction of the Court. Yet at the January term of the Supreme Court, the judgment was affirmed against the petitioner and certified to the clerk of the Circuit Court of Greene county, aforesaid; and notwithstanding the motion aforesaid, was then depending and undetermined, and no execution could properly issue, yet the clerk of the said Circuit Court, had on the twenty-ninth day of March, eighteen hundred and thirty-five, issu ed a writ offieri facias, against the petitioner, for the debt and all the costs, ■which had accrued both in the Circuit and in the Supreme Court, amounting to the sum of five hundred dollars and seventy-one cents. The execution was, at the date of the petition, in the hands of the sheriff of Greene county, and petitioner’s property was liable to be taken for the payment of the sum of money, when there was no plaintiff to receive it; all of which, plaintiff thought was manifestly unjust and injurious to him, and inasmuch as he was remediless-in the premises, without the aid of the Court, he therefore prayed that he might be granted a writ of supersedeas, directed to the sheriff of Greene county, commanding him to suspend the levying of said execution, until the matters contained in the petition, could be fully heard and determined, and that the Court would grant such other and further relief as was proper, &c.
    Petitioner swore that the things stated in the petition, were true to be best of his knowledge and belief.
    And thereupon, the Court ordered the supersedeas to issue, agreeably to the prayer of the petitioner, on the usual terms of bond and security, &c.
    And by consent of parties, the case was submitted to the Court for decision in vacation, and the decision so made was to be valid and effectual to all intents and purposes, — as much so, as if rendered in open Court.
    And then at September term, in eighteen hundred and thirty-six, a motion was made by the defendant to quash the supersedeas awarded in this case, and deliberation was thereupon had, and it was considered by the Court, that the same should be quashed: and thereupon it was further considered by the Court, that the case be dismissed, and that defendant go thence and recover of plaintiff his costs, in and about his defence in that behalf expended, for which execution might issue, &c.
    And plaintiff prayed an appeal from the judgment at that term, in the case, and filed his bond, with proper security, according to law, and the'appeal was granted, and it was ordered'that the record. and proceedings had in the cause, should be certified to the next term of the Supreme Court:
    And a motion was also made by defendant, to set aside the judgment rendered against him in this Court; and that motion was continued.
    The following was the statement contained in the bill of exceptions, on which the case was brought up: That the counsel for defendant moved the Court to quash the supersedeas, and thereupon the counsel for plaintiff, called upon them’ to say, who they represented: to which they answered, that they represented the defendant in the record. Plaintiff then objected that defendant was dead, and offered to shew that fact by affidavit, produced in Court, and objected to the appearance of counsel, inasmuch as there was no person in existence whom they could represent, and proposed to the Court, to inquire into that fact, and that they should be required to satisfy the Court that they represented a living person, or say whom they represented, if any other than Williams. But these objections were overruled, and the said motion to quash, was heard by the Court. The counsel for Richardson, then moved the Court for leave to make the sheriff of Greene county, to whom administration had been committed, on the estate of the defendant, on the first Saturday of the term, a party to the said supersedeas\ but the Court sustained the motion to quash, on the ground that the judgment had been rendered in this Court, and affirmed by the Supreme Court, and could not be annulled or vacated in this Court, and that the death, not having' been pleaded to the action, the plaintiff in the judgment was entitled to execution against Richardson.- The Court therefore quashed the supersedeas, to which said Richardson excepted, &c.
    The affidavits stated, to wit, — John A. Smith, made oath, that Joseph G. Williams of Nottoway county, Virginia, in whose name a suit had been brought against Daniel B. Richardson, in this State, and in the county of Greene, died to the best of his recollection, and from general report, some time in the year eighteen hundred and thirty.
    The plaintiff in error, made oath, that he did not know that said Joseph G. Williams was dead, until some time after the plaintiff recovered a judgment against him, in the Circuit Court of Greene county.
    And Asa B. Wynne of said county of Greene, deposed, that he formerly resided in the county of Nottaway, in the State of Virginia, and was personally and intimately acquainted with Mr Joseph G. Williams of said county and State, and lived not far distant from him, and he further saith, that he knew the defendant Richardson, when he lived in -Lunenburg county, about twenty miles distant from the residence of said Williams, and he fdrther saith, that., the said Joseph G. Williams, died in Virginia, and while this affiant still lived in Virginia, in the spring or summer of the year eighteen hundred and thirty. This affiant said, that of the death of the said Williams, in the year eighteen hundred and thirty, he is certain and positive.
    „ The errors assigned, were—
    ,1. That the Court below had erred in quashing the writ of supersedeas.

      2. The Court should have allowed the plaintiff, to have made the administrator of Williams, a party, and should not have refused the application to do so.
    3. The Court erred in rendering judgment against Richardson, as shewn in the record.
   COLLIER, C. J.

The plaintiff in error obtained an order for a supersedeas, on the twelfth May, eighteen hundred and thirty-five, upon his petition, setting forth, that, at the September term, eighteen hundred and thirty-one, of the Circuit Court of Greene, a judgment was obtained against him, at the suit of one Joseph G. Williams: that Williams had died previous to the commencement of the action ; that he had appealed from that judgment to the Supreme Court, where, at its term holden in January, eighteen hundred and thirty-five, it was affirmed. The petition prays the issuance of a su-persedeas, and such other relief as may be necessary.

At the September term, eighteen hundred and thirty-six, of the Circuit Court, counsel professing to represent Williams, appeared and moved the Court to quash the supersedeas, — this was objected to, by the plaintiff’s counsel, who offered to' prove the death of Williams, and required that the adverse counsel should satify the Court, that they represented a- “ living person but these objections were overruled. Thereupon, the counsel for the plaintiff moved the Court, for leave to make the sheriff, (to whom administration of Williams’s' estate had been granted two days previously,) a party, as administrator; but the Court sustained the motion-to quash the supersedeas on the ground, that the judgment rendered in the Circuit Court, had been affirmed by the Supreme Court, and could not be annulled by the former; and for the further reason, that the plaintiff had omitted to' plead the death of Williams in abatement of the action.

For the plaintiff, it has been argued, that his remedy by writ of error, coram 'nobis, at common law; was clearly defined, and that he was correctly pursuing it, when his petition was dismissed. The defendant, denying the justness of this argument, insists, that whatever remedy the plaintiff’ may have had, it is lost by the operation of the statute of limitations, limiting all writs of error to three'years from the rendition of the judgment.

The statute is in these words ; “A writ of error may issue to reverse any final judgment in the Circuit Court, at any time within three years after the rendition of the judgment, and not afterward.” — ^ The terms of this act are general, and must be taken to apply as well to writs from an inferior to a superior Court, to reverse a,judgment; as where the writ issues from a Court returnable to itsfclf, to reyoke its own judgment. And as the time prescribed elapsed before the plaintiff commenced his proceeding, the bar is complete, unless the influence of the statute, can be superseded.

It is insisted, that Williams having died previous to'the judgment recovered against the plaintiff, and no administration appearing to have been had upon his estate, there was no one to proceed against, so that the statute could not run. Without sloping to inquire, whether the plaintiff might have taken the initiatory step, to procure a revocation of the judgment against him, before an administrator was appointed, we are of opinion, that it was his duty to have procured the appointment of the sheriff so that office, which would have been done by the County Court, by shewing, prima facie, that Williams had been dead as much as three months, and his estate unadministered on. Upon the supposition that an administrator was necessary to authorise the plaintiff to commence his proceeding, to set aside the judgment against him, — in calculating time, he must be allowed in addition to three years, (the statute bar,) three months, the period within which, he could not procure the grant of administration to the sheriff.

Giving the plaintiff three years and three months after the judgment was obtained against him, to exhibit his petition, and still the limitation would have expired.—See to the same effect, Hutchison vs Tolls, 2 Porter’s Rep. 44; and Houpi vs Shields' adm’r 2 ib. 247.

Judgment is affirmed.


source: Caselaw Access Project

author: GOLDTHWAITE, J.

license: Public Domain

text:
    THE STATE OF ALABAMA VS STANDIFER, et al.

      Concerning the plea of autre ibis acquit.
    1. On an indictment, where a jury can convict a defendant of a lesser offence, — there, an acquittal for the major crime, is a bar to a subsequent indictment for the minor offence.

      2. As if one be indicted for murder, and acquitted, he could not be again indicted for manslaughter.
    3. So, where one is indicted on a charge of burglary, he can not be again tried for larceny.
    4. The same individual, may however, at the same time, and in the same transaction, commit two or more, distinct crimes, and an acquittal of one, will not be a bar to punishment for the other.

      5. Thus, to an indictment for assult on J. L. with intent to murder, — it cannot be plead, in bar, that defendants had previously been acquitted on an indictment for the murder of L. L. — the transactions inducing the indictments being averred to have been identical.
    Indictment for assault, with intent to murder.
    The indictment was prefered and found in the Circuit Court of St. Clair county,-at September term, eighteen hundred and thirty-five, against William H. Standifer, Israel Standifer, sen. James Standifer, Jesse Standifer, Samuel Standifer, Franklin Standifer, and Israel Standifer, jun’r. and .charged the commission of the offence on the body of John W. F. Lowry.
    The venue was changed .to Benton county, where the defendants appeared, and for a plea, said, that -t^ie State of Alabama ought not further to prosecute the said indictment against them, because they said, that “Heretofore, to wit, at the September term of the said Circuit Court, at a Court, held at the Court house, in the town of Asimile, in St. Clair county, aforesaid, and on the second day of said term, it being the twenty-ninth day of September, in the year one thousand eight hundred and thirty-five, the grand jury, impanneled, sworn and charged for the said county of St. Clair, to wit, James J. Bothwell, &c. by their foreman, James J. Both well, he having been duly qualified, as such, returned into Court, the following bill of indictment, to wit:
    “The State of Alabama, St- Clair county: The grand j urors for the State, upon their oaths present,— William H. Standifer, Israel Standifer, sen. James Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun. late of said county, on the fifteenth day of July, one thousand eight hundred and thirty-five, in the county aforesaid, in and upon the body of Levi A. R. Lowry, feloniously and wilfully and of their malice aforethought, did make an assault, and that the said William H. Standifer, Israel Standifer, sen’r, James Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer and Israel Standifer, jun’r. in their hands, then and there, had and held, then and there, feloniously and wilfully, and of their malice aforethought, did discharge, and shoot off, to, against, and upon, the said Levi A. R. Lowry, and which the said William H. Standifer, Israel Standifer, sen’r. Janies Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun’r, with the leaden bullet aforesaid, out of the gun aforesaid, then and there, by the force of the gunpow - der, aforesaid, by the said William H. Standifer, Israel Standifer, sen’r, James Standifer, Jesse Standi-fer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun’r, discharged and shot off as aforesaid, then and there, feloniously, wilfully and of ¿heir malice aforethought, did strike, penetrate and wound the said Levi A. R. Lowry, then and there, with the leaden bullets aforesaid, so as aforesaid discharged and shot out of the gun aforesaid, by the said William H. Standifer, Israel Standifer, sen’r, James Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun’r, and upon the left hip bone of the body of him, the said Levi A. R. Lowry, one mortal wound of the depth of four inches, and of the breadth of one inch, did make, of which said mortal wound, he, the said Levi A. R. Lowry, on and from the fifteenth day of July, aforesaid, until the sixteenth day of July, of the same year,' in the county aforesaid,' did suffer and languish, and languishing, did live, on which sixteenth day of July, aforesaid, in the county aforesaid, he, the said Levi A. R. Low-ry, of the mortal wound, aforesaid, died; and so the jurors, aforesaid, upon their oaths aforesaid, do say, that the said William H. Standifer, Israel Standifer, sen’r. James Standifer, Jesse Standifer, Lemuel Standifer, Franklin Standifer, and Israel Standifer, jun’r, him, the said Levi A. R. Lowry, in the manner and by the means aforesaid, did feloniously and wilfully, and of their malice aforethought did kill and murder, contrary to the statute, in such case made and provided, against the peace and dignity of the State of Alabama, &c.
    “And afterwards, the grand jurors aforesaid, brought into said Court, the said bill of indictment, with the following indorsement made thereon, to wit: “A true bill, James J. Bothwell, foreman of the grand jury,” «fee.
    “And afterwards, defendants being brought to the bar, and arraigned, severally, pleaded not guilty, and put themselves upon the country, and the Friday nest succeeding the arraignment, was appointed for the trial of the cause, and a copy of the bill of indictment, and a list of thirty-six jurors, were served upon defendants, and defendants were remanded, «fee.
    “And afterwards, on the Friday aforesaid, one of the defendants, to wit, Jesse Standifer, made oath, that one Lowry, the father of Levi A. R. Lowry, mentioned in the bill of indictment, John Lowry, brother of the said Levi A. R. Lowry, Charles Price, brother-in-law of said John and one Thomson, all present at the Court, had, except the father of the deceased, from the time of the commission of the homicide in the indictment, mentioned, up to that time, been, and were, as affiant had been credibly informed and verily believed, engaged actively, among the people of the county, circulating reports, concerning the crime alleged, hgainst defendants, much aggravated, and to the prejudice of defendants; that he was informed and believed that said Lowry, the father of the deceased, had, since the jury in this case had been summoned, held communications with some of the jurors, which were well calculated, and doubtless, intended to bias said jury in favor of the prosecution: that by these and other means, affiant believed such a prejudice had been produced oh the minds of the citizens of St. Clair county, that a fair and impartial trial could not be had: wherefore, he prayed that the venue be changed, to some other county, free from like exceptions, &c.
    “And thereupon it was ordered that the venue be changed to Jackson county, the nearest adjoining county, free from the exceptions, and that the clerk transmit the papers, &c. to Jackson county, which ' was done.
    “And thereupon, at the October term, one thousand eight hundred and thirty-five, of the Court at Jackson county, came the parties, and a jury of good and lawful men of said county, and defendant Jesse Standifer, moved the Court, that the said jury retire and consider of his guilt or innocence, which was done; and the jury, on their oaths, said they found said Jesse Standifer not guilty, — and afterwards the jury again retired, to consider of their verdict in regard to the other defendants, and, upon their oaths, said they found the other defendants not guilty, as charged in the said bill-of indictment. It was, therefore, considered by the Court, that the defendants, Jesse Standifer, William H. Standifer, Israel Standifer, sen., James Ctcraflifcr, Lemuel Standifer, Franklin Standifer, í.tPí: Lr.'L Ch’.ivhL:’, L-’/ ar-ai-dAed and discharged from the prosecution, as by the record thereof will more fully and at large appear— which said judgment still remained in full force and effect, and not in the least reversed or made void. And the said defendants, in fact, said, that they, William H. Standifer, &c., and the said William H. Standifer, &c. so indicted and acquitted, as last aforesaid, are one and the same persons and not other and different persons; and that the assault and murder of which they, the said William H. Standifer, &c. were so indicted and acquitted, as aforesaid, and the assault with the intent to commit murder,of which they are now indicted, are one and the same assault, and committed at the same time, that the killing took place, under the same prosecution-, and not other and different assaults, for other and different prosecutions ; but that it was one transaction, committed at one and the same time — and this, the said defendants are ready to verify:— wherefore, they pray judgment, and that by the Court here, they may be dismissed and discharged from the said prosecution, in the present indictment specified,” &c.
    . To which plea, as above pleaded, there was a general demurrer and joinder in demurrer, and the said demurrer being heard and overruled, a jury of good and lawful men came, who, upon their oaths,said they found the defendant, Jesse Standifer, not guilty, in manner and form as charged ; and it was therefore considered by the Court, that the defendant, Jesse Standifer, stand acquitted of this prosecution. — -And then the said jury, further, upon their oaths, said, they found Lemuel Standifer, Franklin Standifer, James Standifer, and Israel Standifer¿ junior, not guilty, as charged in the bill; and William H. Standifer, and Israel Standifer, senior, not guilty of an assault and battery with an intent to murder;, but guilty of an assault and battery, and assessed their fines, to wit: that William Standifer pay a fine of two hundred dollars, and Israel Stan-difer, senior, pay a fine of one hundred dollars.— It was, therefore, further considered by the Court, that Lemuel Standifer, Franklin Standifer, James Standifer, and Israel Standifer, junior, go thence without day, and that William H. Standifer and Israel Standifer, senior, remain in custody, &c. until the fines aforesaid, and the costs be paid, &c.
    And then the defendants, William H. Standifer and Israel Standifer, senior, came and moved the Court to certify to the next term of the Supreme Court, for their revision, the matters of law arising upon their plea of a former trial and acquittal.— Whereupon the said plea and demurrer thereto, are, in the opinion of the Court, both novel and difficult: It is ordered that the questions of law be reserved for the revision of the said Supreme Court, and that the record and proceedings in the cause be transmitted to the next term of the Su-' preme Court, &e.
    And the defendants now came and said—
    1. The Circuit Court erred in sustaining the demurrer to the defendant’s pleas of former acquittal.

      2. The Court erred in deciding that said plea was not a bar to the prosecution.

      3. Said Court erred in rendering judgment against the defendants,
    . Chilton, for the defendants.

      Attorney General, contra.
    Cited,' 2 Hale, 519, and notes; Archbold’s C. P. 88 ; 2Russ, on C. 38, 41; 4 Black. C. 336; 2 Hale, 246; 2 East. O. L. 519; 12 Pick. R. 496,
   GOLDTHWAITE, J.

-The defendants were indicted at the Fall term of the year eighteen hundred and thirty-five, of the Circuit Court of St. Clair county, for an assault and battery, with intent to commit murder, on one John W. F. Low-ry. The venue was changed to Benton county, — * and at May term, one thousand eight hundred and thirty-six, the defendants pleaded in bar of the said indictment, — that they had before that time been indicted, tried and acquitted, of the murder of Levi A. Lowry, setting forth in their plea, the indictment, proceedings thereon, trial and acquittal, averring their identity, and that the assault and murder, with which they were so charged, tried and acquitted, were identical with the crime wherewith they were then charged, which was committed at the same time, and in the same transaction, in which the killing of the said Levi A. Lowry, took place; and concluding with the prayer that they might be discharged of the indictment.

To this plea, the State demurred, and the demurrer was sustained by the Circuit Court, which reserved the questions bt law arising on the plea and demurrer, as novel and difficult, for the consideration of this Court.

A trial was had on the plea of not guilty, which resulted in the conviction of the defendants, of the assault and battery, without the intent, &c.

No argument has been submitted by the defendants to sustain their plea, and we. have arrived, without difficulty, at the conclusion, that the demurrer was properly sustained.

It is not of unfrequent occurrence, that the same individual, at the same time, and in the same transaction, commits two or more distinct crimes, and an acquittal of one, will not be a bar to punishment for the other.

As in the case presented by the demurrer to the plea, now under consideration, one person may be killed and another assaulted in the same affray. If the indictment included both offences, it must be pronounced bad; yet it could not be tolerated, that the offender, because acquitted of killing, must necessarily be discharged of the assault.

Cases exist in which a minor offence may be discharged by the acquittal of the individual charged, on an indictment for a major offence; but these are cases in which the jury, trying the case, could have lawfully returned a verdict for the lesser crime.— Thus an acquittal for murder, would ,be a bar to an indictment for manslaughter. So of a burglary, when the same indictment included a charge of larceny — an acquittal would be a complete discharge. But the reason, in such cases is, that the jury could, if the evidence was satisfactory, have convicted the offender of the less criminal charge.

In the present’, case, no question can possibly arise as to the law. The offences have no appearance of identity: they could not be included in the same indictment; and and the evidence, which would produce an acquittal of the one, might produce a conviction of the other.

If it were necessary to produce authorities, on a subject so evidently clear, those referred to by the counsel for the State, are apt and conclusive.

The judgment rendered by the Court below, was correct in point of law, and must be so certi-|i,ed;


author: ORMOND, J.

text:
    THE UNITED STATES VS HADEN and EVERETT.

      Of points of practice in the Supreme Court,

    1. If one suing out a writ of error, fails, from any cause, to file the transcript at the term to which the writ is returnable, — a new writ of error may be sued out, al any time before the affirmance of the judgment, on certificate.
    2. And the neglect or omission of a defendant in error, to affirm the judgment on certificate, where the transcript is not filed, at the first term, or any time thereafter, — precludes his right to such affirmance, on certificate, at a subsequent term, when the case has been brought up by a new writ of error, and the transcript is filed.
    This was a motion for the affirmance of a judgment, on certificate.

      Sallee, for the motion. Stewart, contra.
   ORMOND, J.

This is amotion to affirm a judgment of the Circuit Court of Mobile county, on the certificate of the clerk, that a writ of error had been taken to this Court, and bond given to supersede the judgment. Two certificates of the clerk are presented to us. One certifies that a writ of error was sued out in said cause, returnable to the January term, eighteen hundred and thirty-six, of this Court; and bond for supersedeas executed, on the eleventh of December, eighteen hundred and thirty-five. The other recites that a writ of error, .has be.en sued out in this case, returnable to the June term, eighteen hundred and thirty-six, of this Court; bond to supersede, executed on the eighteenth of March, eighteen hundred and thirty-six.

By an act of the Legislature, (Aikin’s Digest, 256,) it is provided that, “in case, the transcript of the record, in the cause below, and the assignment of errors, should not be delivered to the clerk of the Supreme Court, on or before the third day of the term, to which the writ of error shall be returnable, it shall be lawful for the Supreme Court, ,at that term, or any term thereafter, on motion of the defendant in error,, or his attorney, and on pi-oducing a copy of thetcitation, served upon the defendants, certified by the sheriff, or on producing a certificate from the clerk of the Court, from which the writ of error issued, showing the time at which it issued, and^ amount for which judgment was rendered, and at what term of the Court below — to affirm the judgment of the Circuit Court, with costs of suit, unless the plaintiff in error, or some other person, shall make affidavit, that the transcript of the record, could .not be procured from the clerk of the Court below: but the cause may be reinstated on the docket, at any time du* ring the term to which the writ shall be made returnable, upon showing sufficient cause, to said Supreme Court.”

In this case, the defendant in error had, doubtless, a right to move for affirmance on the certificate, presented at any time after suing out the writs of error, and before the filing of the record; and some explanations have been made at the bar, why this has not been done. But the fact is now made known, to us, that this cause is now pending in this Court, on a writ of error sued out, since' the last term of the Court: And the,single question before the Court, is, whether the defendant in error is entitled to an affirmance of the judgment, on one of the first writs of error, sued out, notwithstanding the cause is now depending in this Court; on a writ of error sued out before this motion was made.

The affirmative of this proposition is maintained on the statute recited, which, in substance, declares that if the transcript be not filed at the first term of this Court after the writ of error is sued out, the judgment may be affirmed, on the certificate of the clerk of the Court in which the judgment was rendered. Is it imperative on the plaintiff in error, to file the transcript of the record, at the first term after the writ of error is sued out — or show good reason for not doing so? And may he not, ifj from any, cause, the transcript and writ of error were not filed in time, sue out another writ of error, at any time before the affirmance of the judgment, on certificate? We are of that opinion. — ■ At any Court, which has intervened since the fir^t writ of error sued out in this case, the defendant might have had his judgment affirmed. He has not done so, — and now asks the Court to affirm his judgment, while the causéis depending in Court on a writ of error.

It is manifest, that the Court are invested with a large discretion over this subject; and we can not think it would be a proper exercise of it, in this case, to affirm this judgment. The power given by the statute, to defendants in error, at the return term of the writ of error,, or at any term thereafter, to move for an affirmance of the judgment below, is a full answer to the argument, that this view of the statute would he productive of delay.

The motion for an affirmance of the judgment below, is refused.

GOLDTHWAITE, J. not sitting.


text:
    HILL, SHERIFF, &c. VS THE PRESIDENT AND DIRECTORS OF THE BANK OF THE STATE OF ALABAMA.

      Proceedings against a sheriff,, for failing to return an - execution.

    1. In proceedings by motion, against asheriff, seeking to make him liable, under the acts of eighteen hundred and seven,, and eighteen hundred and nineteen, for failing to return an execution, the plaintiff is required, in his notice, to inform the sheriff, on which of the two acts, authorising the proceedings, he relies.
    To warrant a judgment against a sheriff, the record of the proceedings must also shew, that it was proved, that the sheriff did not return the execution. — The failure to return, in these summary proceedings, can not be presumed: and every thing necessary to sustain the 'judgment, must appear on the record.
    3. In a case of this character, a discontinuance of the proceedings as to sureties, who are not served with notice, is not necessary : and if done, it dees not prejudice the proceedings against the sheriff.
    4. The proceedings authorised by these statutes, even construing them in pari materia, are not restricted to the return term of the execution.
    la error to the County Court of Tuskaloosa county.
    Motion to enter up judgment against plaintiff in error, for not returning a. certain execution. At the January terra of the County Court of Tuska-loosa county, eighteen hundred and thirty-six, the President and Directors of the Bank of the State-. of Alabama, filed a notice in that Court, in the following words, to wit:
    “ Whereas an execution of fieri facias, in favor of the President and Directors of the Bank of the State of Alabama, against John W. Lindsay, Thomas B. Creagh, and Samuel W. Frazier, issued from the clerk's office of the County Court of Tus-kaloosa County, on the fifth day of August, eighteen hundred and thirty-four, returnable at a term of the said Court to be holden on the third Monday in January next, thereafter, on a judgment rendered the first day of August eighteen hundred and thirty-four, for the sum of nine hundred and thirty-one dollars and five cents, directed to the sheriff of Wilcox county, commanding him, that of the goods and chattels, lands and tenements of the said John W. Lindsay, Thomas B. Creagh, and Samuel W. Frazier, in his county, he cause to be made the sum of nine hundred dollars, as well as the sum of thirty-one dollars and five cents, their damages, by way of interest, besides their costs in that behalf expended; and that he should have the monies aforesaid, together with said writ of execution, before the judge of said Court, on the third Monday in January next, thereafter, to render to said President and Directors of the Bank of the State of Alabama, their debt, damages and costs ; — which said execution, before the time at which it was made returnable, came into the hands of J. M. Hill, then sheriff of the county of Wilcox, to be executed, and which he, the said J. M. Hill, hath failed to return, according to law,
    Now, therefore, you, the said J. FL Hill, and you, John Jenkins and Thomas Armstrong, secueities of said sheriff, are hereby notified, that the said President and Directors of the Bank of the State of Alabama, will, by their attorney, on the first day of the County Court, to be holden on the third Monday in January next, for the county of Tuska-loosa, move said Court for judgment against you, according to the statute in such case, made and provided. In testimony whereof, I have hereunto set my hand and affixed the seal of the corporation, the first day of September, eighteen hundred and thirty-five, [l.s.] H. M. Andrews. President p. t.
    [Endorsement.] “ I.accept service of the within. September twelfth, eighteen hundred and thirty-five. J. M. Hill.”
    And at the January term of said Court, the plaintiffs came and discontinued this suit as to John Jenkins and Thomas Armstrong, and moved the Court for judgment against the said J. M. Hill, late sheriff of Wilcox county, for failing to return an execution, which issued from the clerk’s office of said Court, in favor of the President and Directors of the Bank of the State of Alabama, on the fifth day of August, in the year eighteen hundred and thirty-four, on a judgment rendered the first day of August, eighteen hundred and thirty-four, aforesaid, for the sum of nine hundred dollars debt, and thirty-one dollars and five cents, damages, besides costs of suit; directed to the said J. M. Hill, sheriff as aforesaid, commanding him, that, of the goods and chattels, lands and tenements of John W. Lindsay, Thomas B. Creagh, and Samuel W. Frazier, he should cause to be made the said debt, damages and costs, and that he should have the said monies before the Judge of said Court, on the third Monday in January, eighteen hundred and thirty-five, to render unto said President and Directors of the Bank of the State of Alabancia, their debt, damages, and costs, aforesaid.
    And it appeared, to the satisfaction of the Court, that the , said execution, before the return day, so appointed for the return thereof, came to the possession of the said J. M. Hill, sheriff, as aforesaid, in time to be returned; and it also appeared to the satisfaction of the Court, that the said J. M. Hill, was sheriff of the county of Wilcox, at that time, and that he was notified of tiiis motion for said default, by a notice, under seal of the President and Directors of the Bank of the State of Alabama, and served by an authorised agent, acting under the seal of said corporation, at least ten days before the making of the same : If was, therefore, considered by the Court, that the said J. M. Hill, late sheriff of Wilcox county, for such, his default, pay to the said President and Directors of the Bank of the State of Alabama, a fine of five hundred and seventy-six- dollars and sixty cents, the same being five per cent, per month, upon the amount of said debt, and damages, from the return day of said execution, to the day of rendering this judgment; and also the costs in that behalf expended, — for which execution might issue, &c.
    And the plaintiff in error, comes, and assigns the following causes of error, in the judgment of the Court below:
    1. The Court erred in entertaining the motion, and rendering judgment, against the plaintiff in error, because a term bad intervened between a return of the execution, and the institution of these proceedings.
    2. The notice is uncertain and insufficient.
    3. The proceedings were instituted against the plaintiff in error, jointly with John Jenkins and Thomas Armstrong, and afterwards discontinued, as to said Jenkins and Armstrong, which operated as a discontinuance of the whole action. The Court therefore erred in rendering judgment against plaintiff in error.
    4. Judgment should have been rendered against the plaintiff, for the penalty of five per cent, per month, only, up to the term.next after the execution was returnable.
    5. The evidence is insufficient to sustain the judgment.
    6. Judgment should have been rendered for defendant below, on the whole record: in refusing to render such judgment, and in rendering judgment for the plaintiffs below, the Court erred. For these errors, plaintiff in error, moved that the judgment be reversed; and the defendants denied that there was error in the record.

      Peck and Clark, for plaintiffs in error.
    Ellis, contra.
   ORMOND, J.

This was a motion by the defendants in error, against the plaintiff in error, for failing to return an execution. The notice, after describing the judgment and execution, and that it came to the hands of the sheriff, in time to be returned, concludes thus:

“Now therefore, you the said J. M. Hill, and you, John Jenkins and Thomas Armstrong, sureties of said sheriff, are hereby notified, that the said President and Directors of the Bank of the State of Alabama, will by attorney, on the first day of the County Court, to be holden on the third Monday in January next, for the county of Tuscaloosa, move said Court for judgment against you, according to the statute, in such case made and provided.”

The service of the notice was acknowledged by Hill, and not executed on the others. The motion was discontinued as to Jenkins and Armstrong, and judgment against Hill, for five per cent, per month, upon the amount of the debt and damages, from the return day of the said execution, to the day of rendering this judgment. The plaintiff assigns for error:

1. The Court erred in entertaining the motion, and rendering judgment against the plaintiff in error, because a term had intervened between the return of the execution, and the institution of these proceedings.

2. The notice is uncertain and insufficient.

3. The proceedings were instituted against the plaintiff in error, jointly with John Jenkins and Thomas Armstrong, and afterwards discontinued as to the latter, which operates a discontinuance as to all.

4. Judgment should have been rendered for the penalty of five per cent, a month, only up to the term, next after the execution was returnable.

5. The evidence is insufficient to maintain the action.

6. Judgment should have been for the defendant below.

The first and fourth assignments of error, as they present the sames questions, will be considered together. The question depends on the construction, to be put on the acts of the Legislature, author-ising proceedings by motion against sheriffs.

By the act of eighteen hundred and seven, (Aikin’s Digest, 173,) a remedy is given against sheriffs, for failing to return an execution, by motion, and the Court is authorised to enter a fine of five dollars per month, on the amount of the judgment against him.

By an act, passed in eighteen hundred arid nineteen, (Aikin’s Digest, 164,) a remedy is also given by motion against the sheriff; for failing to pay over money, or for failing to return an execution. These acts are silent as to the time when the motion is to be made By section seventy-four, .of the.act of eighteen hundred and seven, (Aikin’s Digest, 174,) a motion is allowed against the sheriff, at the next succeeding Court, from which the execution issued, and fifteen per cent, per annum allowed to be recovered against him, for failing to pay over money when he has returned an execution satisfied. It is insisted that these acts must all be taken together, as they relate to the same subject, and that they shew that no motion can be made against the sheriff after the return of the execution. Admitting, as we do, that these statutes must be taken altogether, we can see no reason to justify such a construction: The acts, to be sure, all relate to the same subject,'but to different aspects of it. The Legislature have thought proper to make a distinction between them, and it is not the province of this Court to say that no distinction exists.— Even if the distinction were purely arbitrary, it is the Legislative will, and should be respected. These assignments of error, are not well taken.

To what extent all the acts giving penalties by motion, against sheriffs, may be controlled, by the acts.prohibiting penal actions, after one year, as the question has not been argued, we give no opinion.

The uncertainty of the notice refered to, in the second assignment, is, in argument, said to be, that it is not stated in the notice, on which of the statutes the plaintiff will rely; whether on the act of eighteen hundred and seven, or on the act of eighteen hundred and nineteen, before cited. By the first of these acts, a penalty of five dollars per month, is allowed against a sheriff for failing to return an execution. ■ By the last recited act, no rule is laid down, by which the measure of damages for a failure to return an execution, is tobe ascertained. This Court is aware, that the construction which the Circuit Courts have put on this act, has been to allow the whole amount of the execution, to be recovered from the sheriff. But to give a penalty so enormous as this might be, by mere construction,' is not warranted by the established rule for expounding penal statutes, which is, that they be construed strictly. If the ■ defendant in execution, be insolvent, or unable to pay, there ears, be no reason why the mere failure of the sheriff, to return the execution, should entitle the plaintiff in execution, to make the money from the sheriff. If the defendant be in fact able to pay, the plaintiff may suggest, that by due diligence, the money could have been made, and thus secure his debt.

Gould this question now be considered open,— this Court, for the reasons which have been given,, would determine that the act of eighteen hundred and nineteen, above referred to, merely recognizes and refers to the previous act of eighteen hundred and seven, which gives a penally of five dollars-per month, on each hundred dollars, of the amount of the execution; but not only have the Circuit Courts, uniformly interpreted this statute differently, but this Court has at different times recognized the correctness of that construction. (See Ala. Rep. 376. 1 Stewart 63, 3 Stewart 134.) The law having been thus considered as settled, and this construction acquiesced in, for such a length of time, it would be unwise now to put a different-construction on the statute.

It appears, then, that there were two statutes, under which the plaintiff below could have proceeded. One is purely penal in its character,— the other in the nature of a penalty. It was the duty of the plaintiff below, to advise the defendant on which he intended to proceed. The language of the notice — that “ the plaintiff will move the Court for judgment against you, according to the statute in such case, made and provided,” did not convey to the mind of the defendant below*, with any precision, what was demanded of him,- — wbe-ther the fine of five per cent, on the amount of the •judgment, or the amount of the judgment itself. If the former, the Court had a discretion over the matter, and the sheriff might show circumstances in palliation. — -1 Stew. 375.

As the rights, both of plaintiff and defendant were different under the two acts before recited, at least in proceedings of this summary and highly penal character, it was the duty of the plaintiff below to inform the sheriff, on which of the two acts authorising"this proceeding, he would act. This assignment of error, therefore, is sustained,

The answer to the third assignment of error is, that as the sureties of the sheriff were not served with notice, they were not parties to the proceeding against the sheriff. There was, therefore, no .necessity to discontinue against them, and the discontinuance, which appears by the record to have been entered as to them, was a mere idle act, which can not prejudice. This point has been expressly ruled by this Court, in the case of Lyon vs The State Bank, 1 Stewart 470.

The fifth assignment of error must be sustained. The record does not shew, that it was proven that the sheriff did not return the execution. This, it was in the power of. the plaintiff to do, and was a fact at least as important and necessary to be proved, as any other in the cause, to warrant a judgment against the sheriff. It can not be presumed— In these summary proceedings, every thing necessary to sustain the judgment, must appear, by the record, to have been proved, as has been repeatedly decided by this Court.

The judgment must be reversed,


author: COLLIER, C. J.

text:
    M'GREW VS THE TOMBECKBEE BANK.

      Touching equity jurisdiction.

    1. A defendant to a bill in chancery, may avail himself of a want of equity in the bill, — though he has answered fully, without urging an objection to the jurisdiction.

      2. Chancery will not relieve against a judgment at law, where the party has a defence which might there have been relied on; except such defence has been omitted, through circumstances, not attributable to such party’s neglect or inattention.
    3. A bill for discovery, where the facts are supposed to be within the knowledge of the opposite party, cannot be entertained after judgment — unless an excuse be shewn why such bill was not exhibited earlier.
    4. A bilL in the nature of one for a new trial at law, will not be entertained.
    5. Chancery will not relieve a surety to a note, from a judgment at law, which judgment he submitted to without an attempt at a legal defence, — on the ground, that he has discovered, since the rendition of the judgment, that other sureties to the same note, have discharged themselves of the note; a^d on the supposition that he can effect a discovery fiord the plaintiffs, — the facts showing great neglect and inattention on the part of the complainant.
    Bill in chancery, — determined in the Circuit Court of Washington county.
    The hill alleged, that on or about the twenty-seventh day of September, A. D. eighteen hundred and twenty, orator signed a note as surety, for one Thomas H. Douglass, payable to the President, Directors and Company of the Tombeckbee Bank, for the sum of five hundred dollars, payable ninety days after date, and made payable and negotiable at said Bank. That the said note was signed by Thomas H. Douglass as principal, and by James S. Crawford and James G. Lyon, (in addition to orator,) as sureties, was offered by Douglass for discount at the bank, and was, as orator had been informed, discounted. Orator residing at a considerable distance from the Bank, relying upon the responsibility of Douglass, the principal in the note, and supposing that he would discharge the same, when it became due, gave himself no farther trouble or concern about it. The ninety days, (the time specified for the note to run,) elapsed, and orator received no information of Douglass’ failure to pay the note, nor was he ever notified that he was looked to for the payment of the note, until some time in the year eighteen hundred and twenty-five, a suit was commenced by the Tombeckbee Bank, founded on said note, against orator, and against James G. Lyon, and the legal representatives of James S. Crawford — Thomas H. Douglass having died, between the time of giving the note, and the commencement of the suit. Orator knowing of no defence at the time the suit was brought, and supposing that the amount specified in the note, was really in good faith due to the Bank, (although Douglass had been indulged an unreasonable length of time, without his knowledge or consent,) made no attempt to defend the suit, but quietly submitted to the rendition of a judgment against him. The other two defendants and co-securities of orator, employed counsel, and resisted the payment of the note — -upon grounds at that time unknown to orator. At the term of the Circuit Court of Washington county, at which judgment was rendered against orator, the suit, as to the other two defendants, (Crawford’s representatives and I. G. Lyon,) was continued, and had since been successfully defended by them.
    It appeared from the testimony of Benjamin S. Smoot, one of the Directors of the Bank, taken in writing, in the suit as to Crawford’s administrator and Lyon, founded upon the same note upon 'which judgment was rendered against orator, (a certified copy of which was annexed,) that Douglass, the principal in the note, upon ascertaining that the amount borrowed by him, from the Bank, added to an amount which he expected to raise from another source, would not relieve him from his embarrassments; and upon being advised by Col. Smoot, the witness, to refund the five hundred dollars to the Bank, and not to involve his friends, determined to refund the money; and went to the Bank in company with James S. Crawford, one of his securities, with that view, and upon his return, stated that he had done so. Some time after this, as appeared by the same testimony, Douglass made another application to the Bank, for the loan of' two hundred dollars; and when his application was pending before the board of Directors, D. Buchanan, one of that body, remarked, that Mr Douglass, a short tithe previous thereunto, obtained a discount for five hundred dollars. Col. Smoot stated, that the five hundred dollars had either been returned, or not drawn out of the Bank, by Douglass; and the acting cashier of the Bank, Francis H. Gaines,' now deceased, being appealed to, stated that the money had been refunded by Douglass; and upon his statement, the two hundred dollars were loaned to Douglass.
    Orator further stated, that he could not have availed himself of this defence at law, because a a knowledge of these facts did not reach him, till long after the judgment had beed recovered against him. Orator indulged a hope however, after the testimony of Col. Smoot, one of the Directors of the Bank, came to the knowledge of the present managers of that institution, that they would cease to harrass him with a claim, neither founded in equity or good conscience; but in this reasonable hope, he had been deceived. An execution founded upon the judgment aforesaid, for the -sum of five hundred and forty-six dollars, debt, together with the sum of one hundred and forty-six dollars, damage, by way of interest, besides the sum of eighteen dollars and eighteen cents, costs of suit, was then in the hands of the sheriff of Marengo county, and would be levied upon the property of orator, unless he should be relieved by the interference of a Court of Equity. In tender consideration whereof, and for as much as orator was re-mediless by the strict rules of the common law, and relievable only in this honorable Court, lie respectfully prayed a writ of injunction;- — which was granted.
    The defendants answer stated, that on or about the twenty seventh day of September, in the year of our Lord, one thousand eight hundred and twenty, a note signed by Thomas H. Douglass as principal, and James G. Lyon and James S. Crawford and John M’Grew as securities, for the sum of five hundred dollars, was discounted by the Tombeck-bee Bank, and that the proceeds of the said note were placed to the credit of the said Thomas H. Douglass, and were drawn from the said Bank, and paid over to the said Thomas Douglass, upon his check, as would appear by the said check, thereto annexed, and made a part of the answer.
    The defendants answer further said, that the said Thomas H. Douglass did hot, nor did any other person for him, at any time whatever, return to the said Bank, the proceeds of the said note, or pay to the said Bank, the amount of the said note; which note was thereto annexed, and made a part of the answer. They further said, that the Books of the said Bank, kept by the said Francis H. Gaines, who was a clerk in the said Bank, shew, that the note never had been paid, — that the funds of the said Bank were deficient to the amount of the proceeds of the said note — that the said note had always remained in the possession of the said Bank, from the time of the discount of the same — and the check of the said Douglass, from the time the money was drawn. These respondents could not believe, that if the said Thomas H. Douglass had paid the said note, he would have permitted it to remain in Bank, together with his check for the proceeds, without any evidence of payment; nor ■could they believe that the cash account of the said books of the said Bank, would, from the time of the discount of the said note, have been deficient to the amount of the proceeds of the said note, if the same had been paid; nor that the books of the said Bank, kept by the said Francis H. Gaines, as clerk, would, if the said note had been paid, have shewn the same note to have been unpaid, and still due.
    Respondents further said, that if the declarations attributed to the said Francis H. Gaines, by Col. Benjamin S. Smoot, were made by him, it was contrary to the fact, contradicted by the hooks of the bank, and by the acts of the said Francis H. Gaines, as clerk in the said bank .' and they insisted that the declarations of the said Francis S, Gaines were inadmissible, as testimony, and could not be received by the Court.
    Respondents further replied, that there was no trial on the suit instituted by the said bank, on the said note, against the administrator of James S. Crawford and James G. Lyon : that the said suit was dismissed by the bank, because the estate of the said James S. Crawford was insolvent, and nothing could be made, by an execution against the estate of the said James G. Lyon; and also, because the bank already had a judgment on the note against the complainant, whom they considered sufficient for the payment of the same; and because they did not wish to incur expense, in obtaining judgments againt Lyon, and the estate of Crawford, when such judgments would be unavailing.
    At the April term, eighteen hundred and thirty, the ease coming on to be finally heard, the injunction was dissolved, and the bill dismissed; and thereupon the complainant took a writ of error.

      Hopkins, for the defendant in error.-
   COLLIER, C. J.

In May eighteen hundred and twenty-eight, the plain tiff exhibited his bill, on the equity side of the Circuit Court of Washington. The bill states, that about the twenty-seventh September, eighteen hundred and twenty, Thomas ¿I. Douglass, as principal, and James S. Crawford, J. G. Lyon, and the plaintiff, as his securities, made'' 'their promissory note for the sum of five hundred dollars, payable ninety days after date, to the defendant — which note defendant discounted. That the plaintiff resided at a considerable distance from the Tombeckbee Bank ; and, confiding in the responsibility of his principal to discharge his note; gave himself no concern about it, — nor had notice,that he was looked to for payment, until sometime in the year eighteen hundred and twenty-five, a suit was brought by the defendant against him,James G. Lyon, and the representatives of James S. Crawford — Douglass having previously died — • his representatives were not sued.

The plaintiff knew of no defence, at the time suit was brought; but, supposing the amount of the note was really due to the defendant, (though his principal had been unreasonably indulged, without his knowledge,) quietly submitted to a judgment against him.

At the term of the Court, when judgment was rendered against the plaintiff, Lyon and the representatives of Crawford caused the suit to be contri nued as to them, and have since defended it successfully.

The bill then states circumstances, tending to show the note to have been paid off, by Douglass, soon after it was discounted by the bank, without having used the proceeds — and avers the plaintiff’s belief, that it was fully discharged, by his principal. That these circumstances were unknown to the plaintiff, until long after the judgment was obtained against him, — so that he could not have defended at law. — That he had hoped, the disclosure made upon the trial of the case, against Lyon and Crawford’s representatives, would have induced an abandonment of the judgment against him; but in this he has been disappointed.

The bill then prays an injunction, which was awarded.

At the Spring term of the Circuit Court in eighteen hundred and thirty, the injunction was dissolved, the bill dismissed, and execution directed against the plaintiff’s security in the bond, for an injunction.

The first question raised is this, — has Equity jurisdiction of the case disclosed in the bill'l

It has been repeatedly determined here, that a defendant may avail himself of a want of Equity in a bill, though he has submitted to answer fully, without pointing out any objection to the jurisdiction of the Court.—See Herbert & Kyle vs Hobbs & Fennell, 3 Stew. R. 9; Moore vs Dial, ib. 155.

Where a party has a defence which might have been made at law, Equity will not relieve, unless he was prevented from making it available by circumstances not attributable to his neglect or inattention.—1 Caro. Law Rep. 534; 3 Dessaus. 323; 5 Cook’s R. 175 ; Hard. R. 173; 1 Bibb R. 173.

The plaintiff’s defence was clearly legal; yet no effort was made by him, to avail himself of it, at law. When sued, instead of resorting to the officers of the Bank for information, or advising with his co-sureties, and uniting with them in a defence, he allowed a judgment to be rendered against him. We take the allegations of his bill to be true, and think they establish great neglect and inattention to his interest.

The facts disclosed would not bring the plaintiff within any established rule, which governs Courts of law, on applications for new trials, and if they would not avail there, surely they cannot be held sufficient in equity. No excuse is stated why the plaintiff did not endeavor to be informed of his rights pending the suit at law, other than the confidence he had in the honesty of the demand made by the defendant. It may be his misfortune, that he was too confiding, — it will not however authorise a Court of Chancery, to entertain a defence purelylegal. ( Williams v Baldwin—18 Johns. 489.)

If the plaintiff had distrusted the justness of the cause of action, and believed the note was paid off, he might before judgment, have gone into equity, and elicited a disclosure upon oath, from the officers of the Bank. But a bill for a discovery, where the facts are supposed to be peculiarly within the knowledge of the opposite party, cannot be entertained after judgment, unless an excuse is shewn why it was not earlier exhibited. (14 Johns. R. 63. 1 Johns. C.R. 91.)

Again: the plaintiff's bill, is in the nature of a bill for a new trial in a Court of law, and in that view, cannot perhaps be entertained. (Anderson vs Roberts, 18. Johns. R. 515. Harrison v Harrison.— 1 Littell’s R. 140.)

It is objected to the decree, that it directs an execution against the surety in the injunction bond. Such direction can be considered as nothing more than an act of supererogation, for the statute of eighteen hundred and twenty-six, (Aik. Dig. 1 ed. 291,) enacts, that such bond, on the dissolution of an injunction, shall have the force and effect of a judgment in itself.

This view being decisive of the case, we are re* Jieved from considering the other points made in the argument.

The decree is affirmed, with costs.

GOLPTHWAITE J. not sitting.


author: GOLDTHWAITE, J. ORMOND, J.

text:
    Gregg, et al. vs Bethea.
    1, Where one, of several plaintiffs in error, dies before errors assigned, the suit docs not abate. The suggestion of the death is all that is required, and the case may proceed in the name of the survivors.
    .2. The writ of error is to be considered a new action, and fully within the letter and spirit of the statute passed in eighteen hundred and twenty-four.

    3. Semble — At common law, a writ of error is a supersedeas, which continues until'the court is apprised of the abatemeht of the writ, by scire facias; and therefore, when one of several plaintiffs in error, died before errors assigned, the defendant in error was obliged to sue out a scire facias quare execu-

      tionem non, against tbe survivors, to revive the judgment, before ho could sue out execution.
    4. The County courts of this State are invested with plenary jurisdiction, in all matters concerning the estates of infants ; and therefore, a claim for the maintenance of the infant, is properly brought, when presented to that tribunal

      5. As a general rule, where a legacy is given, to be paid or payable at a particular time, or when the legatee shall attain a particular age, the legacy is vested, and should he die before the happening of the event, the interest in the legacy will pass to his personal representative — the condition relating only to the time of payment, and the legacy being vested by the express terms of the gift.
    6. But whenever time is annexed to the payment of a legacy, and there is no express gift of the legacy, the legacy does not vest until the happening of the event. In such cases, however, if from other parts of the will, it can be gathered, that the testator intended that the legacy should vest immediately, such intention will control the general rule : for the rule itself was devised asa mean of expounding the will, and must of course yield to the expressed intention of the testator.
    7. Therefore, the following words, “ I will and bequeath unto-my beloved grandson, G. H. S, three negro girls, viz: — . Nance, Betsy and Susannah, &c. — to be given to him at the age of 21 years, by my executor, &c. — provided, that should my said grand-son die, leaving no widow or legally begotten children, then said negro girls, with their increase, shall return to my three daughters, M. A.” &c. — -were held to vest the legacy bequeathed, immediately, and the remainder supported as an executory devise, was held to be limited after the creation of the fee, and the legatee entitled to the annual product of the slaves.
    8. Where the probate of the will had taken place in eighteen hundred and twenty-one, and no application was made for setting apart a sum of money for the maintenance of an infant legatee of a vested legacy, until eighteen hundred and thirty-five; and the executor being cited to shew cause why a sum should not be so set apart, failed to appear — it was inferred that the estate was settled.
    9_ Where a guardian maíces application, in his own name, to have a sum of money set apart for the maintenance of an infant legatee of a vested legacy, and a judgment is obtained against the executor — the judgment will be reversed; as the application should have been in the name of the ward, and the judgment rendered in his favor.
    Error to the Circuit court of Wilcox county.
    The defendant in error, guardian of George H. Stro-ther, presented his application to the County court of Wilcox county, praying that a citation might issue to Robert H. Gregg, one of the plaintiffs in error, executor of the last will and testament of Lucy Strother, dec’d, requiring him to shew cause, on a day certain, why an order should not be made, making an appropriation to said defendant in error, guardian of the said' George H. Strother, for raising said George H. Strother, who was entitled to a legacy under the will of said Lucy Strother: — And thereupon, it was ordered that the application should be granted.
    And on the twenty-fourth day of October, eighteen hundred and thirty-five, a precept issued to the sheriff of Wilcox, commanding him to notify said Robert H. Gregg, executor of the last will and testament of Lucy Strother, deceased, to be and appear at the next term of the Orphans’ court, to be holden for Wilcox county, at the court-house thereof, on the third Monday in November then next, and shew cause, if any he could, why an appropriation should not be made to David Bethea, guardian for George H. Strother, a minor heir of said Lucy Strother, deceased, for raising, feeding and clothing, and educating the said minor. Therein not to fail, and to have then there, the precept, with his indorsement thereon, &c. This precept was returned, executed.
    And at December term of the same Court, it was ordered that an alias precept issue to said Robert H. Gregg, executor, &c. - to appear at the next term of the court, and shew cause why the appropriation to =said defendant in error, guardian, &e. of said George H. Strother, a minor heir of said decedent, for raising and supporting said minor, should not be made; and an alias precept accordingly issued to the sheriff as aforesaid, commanding him to notify said Robert H„ Gregg, executor, &c. to appear before the honorable judge of the Orphans’ court, at a court to be held for the county of Wilcox, at the court-house thereof, on the third Monday in January next ensuing, then and there to shew cause, &c., and therein not to fail, but to bring the precept, with an indorsement thereon ; .which was accordingly done, and the precept returned, executed, &c.
    And at the January term of the same court, eighteen hundred and thirty-six, the notice issued from the last term of the court, having been returned executed ; and the said Robert H. Gregg, the executor, not appearing, it was, on application of said David Be-thea, guardian for George H. Strother, a minor heir of the - estate of Lucy Strother, deceased, ordered, that an allowance should be made David Bethea, guardian of George H. Strother, minor as aforesaid, ' for the sum of eight hundred and twenty-three dol-lai’s and thirty-seven and a half cents, and that he should recover of and from Robert H. Gregg, executor of the last will and testament of Lucy Strother, deceased, the amount of the hire of certain negroes, named Betty, Nancy and Susannah, amounting, on the last day of December, eighteen hundred and thirty-five, to eight hundred and twenty-three dollars and thirty-seven and a half cents, for boarding, clothing, and schooling said minor, for which execution might issue, &c.
    The will of said Lucy Strother, on which the action was brought, and the judgment rendered, contained the followting provisions:
    1st. It was the will and desire of the testator, after her decease, to be decently interred.
    2d. It was her will and desire that all her just debts should be paid, and that her negroes therein not specially bequeathed, should remain on her jdantation, under the direction of her executor and executrix, until her just debts were fully satisfied.
    3d. She willed and bequeathed unto her beloved grand-son, George H. Strother, three negro girls, to-wit, Nance, Betty and Susannah/ also one bed and two cows and calves, to be given to him at the age of twenty-one years, by her executor and executrix thereafternamed; provided, that should her said grandson die, leaving no widow or legally begotten children, then the said negro girls, with their increase, should return to her three daughters, Mary Ann, Elizabeth H. and Harriet P. or their legal representatives.
    4th. She willed and bequeathed unto her beloved daughters, Mary Ann and Harriet P., each one negro woman, at their own election, giving first choice to her daughter Mary Ann, and said negroes to be valued and considered as a part of their portion ; provided, if there was a crop on hand, at her death, said negroes should be kept together until the ensuing January. Also, she. willed and bequeathed unto her two daughters, Mary Ann and Harriet P., all her household and kitchen furniture, except so much as was otherwise willed, to be equally divided between them at her death.
    5th. She willed and bequeathed unto her beloved grand-daughter, Lucy Ann Gregg, one negro girl named Beck, to be valued and considered so much of her daughter Elizabeth H. Gregg’s portion,

      6th. She willed and bequeathed unto her three daughters, Mary Ann, Elizabeth and Harriet P., all the rest, residue, and remainder of her estate, both real and personal, not otherwise devised, to be given as soon as herdebts were paid.
    7th. It was her will and desire, that Robert H. Gregg, Mary Ann Strother, and Harriet P. Strother, should be, and were nominated and appointed her executor and executrixes, of that her last will and testament, in witness, &c.
    The will was proved by one of the subscribing witnesses, before the judge of the Orphans’ court of Wilcox county, in open court, on the first day of November, eighteen hundred and twenty-one; and to the will there was a copy of the returns of the executor, containing an abstract of his account, concerning the hire of the negroes, Nance, Betty and Susannah, from eighteen hundred and twenty-two, to eighteen hundred and thirty-five, inclusive; by which it appeared, there was in the hands of the executor, in eighteen hundred and thirty-five, the sum of eight hundred and twenty-three dollars and thirty-seven and a half cents.
    On the sixteenth day of March, eighteen hundred and thirty-six, Robert H. Gregg and Strother R. Gregg, the plaintiffs in error, entered into bond payable to defendant in error, conditioned to prosecute a writ of error, which they had sued out, returnable to the term of the Circuit court, to be held for the county of Wilcox, on the seventh Monday after the fourth Monday of March, instanter, to reverse the judgment given against Robert H. Gregg, executor, at the January term, eighteen hundred and thirty-six? of the Orphans’ court for said county, in favor of the defendant in error, &c.
    And at the spring term, eighteen hundred and thirty-six, of the Circuit court of said county, the plaintiff assigned for error—

      1. That the County court erred, in giving judgment against the plaintiff in error, before he settled his accounts, as executor of Lucy Strother, deceased, and before he was allowed expenses and commissions on the assets.
    2. That it was error in the County court to render judgment against the executor, in favor of the guardian, on a petition for an allowance for support of his ward, when the question of allowance was the only question then before the court.
    3. The County court erred in giving judgment for the whole amount of the inventory returned by the executor, before the amount of good or bad debts was ascertained, or debts due for negro hire, not then due and collected.
    4. It was error to give judgment before the executor was cited to settle his accounts.
    5. The court erred in giving judgment against the executor, who is not liable under the will to account, until the ward arrives at the age of twenty-one years, as would appear by reference to the copy of the will, in the record.
    To 'this assignment of errors in the Circuit court, there appears to have been a plea or answer, filed by the defendant in error, which stated, in relation to the first specification of the assignment :
    That it was the duty of the executor to settle his account annually, and the court would presume he did so. The County court only allowed the principal of the hire, leaving interest on the amounts from eighteen hundred and twenty-two, which was sufficient for commissions, &c. — besides, the court had a right to make the allowance : the executor had more property in his hands belonging to the minor, as appears by the will.
    2. It was not error for the County court to give judgment against the executor, after having examined the accounts of the guardian, and allowing them. The executor was notified of the application to make the allowance to the guardian out of the property in his hands, and if the court’ was satisfied with the guardian’s accounts, and allowed-them, which was the fact — " it had the right to give the judgment against the executor, he failing to bring the money into court: there was no other way to compel him but to give the judgment against him as executor, which was done — he having notice of the application, and failing to appear.
    3. The account of hire was returned into court, and the court had a right to make the allowance :— besides, there was other property, and the court could have gone further, if the guardian’s claims had been established for more than it was.
    4. The executor’s duty was to settle his accounts annually ; he was cited to do so ; he made returns, but returned into court no money.
    5. The court did not err in giving the judgment before the minor came to the age of twenty-one.— The minor had no other means of support; and it would be an extremely hard case were a construction given to the will, which would let the executor hold over all the legacy of the minor, and the proceeds arising from the same, &c.
    And at the spring term of the Circuit court, eighteen hundred and thirty-six, came the parties, and all and singular the records being seen and inspected by the court, and after a full hearing of the cause, and it appearing to the" satisfactiion of the court, there was no error — It was therefore considered by the court, that the judgment of the County court should be in all things affirmed, and that the defendant in error should recover of the plaintiff in error, and Strother R, Gregg, his security for the writ of error, the sum of eight hundred and twenty-three dollars and thirty seven and a half cents, the amount of the judgment of the court helo w, and the costs accrued in this court, See.

      The case was then brought into this court by writ of error, and the plaintiffs assigned for error, that the Circuit court did not sustain the assignment of error in that court, but overruled the same.
    2. That the Orphans’ court had no jurisdiction of the cause.
    The defendant in error denied that there was error in the record.
    And at the present term of this court, the death of Strother R. Gregg, one of the plaintiffs in error, was suggested to the Court, and a motion made to continue the case, for the purpose of calling in the personal representatives of said plaintiff, deceased, to make them, when known, parties to this suit.

      Bedford, for plaintiffs in error. .
    Porter, contra.

      Aikm’s Digest, 259.

   GOLDTHWAITE, J.

The death of Strother R. Gregg, one of the plaintiffs in error, is suggested, and it is now moved to continue the case, in order to make his personal representatives parties to this suit, when known.

At common law, a writ of error abated, where one of several plaintiffs in error died before errors assigned ; in which case, the defendant in error would have had to sue out a scire facias quare executionem non, against the survivors, to revive the judgment, before he could have sued out execution ; as á writ of error is a supersedeas, which continues until the court is apprised of the abatement of the writ, by a scire facias, — Spencer vs Rutland; Howard vs Pift. But if he die after, the writ did not abate, but the defendant might join in error, and proceed to have the judgment affirmed, if not erroneous, and where there was only one plaintiff in error, might afterwards revive it, against his executors.

The present suit originated in the County court, and the deceased party became a party to the judgment rendered in the Circuit court, in consequence of his being a surety in the writ of error bond; but this circumstance does not place him in a situation different from-that which he would have occupied, had he been a party to the original judgment; — having once become associated with his co-piaintiff in error by the judgment below, they can only be disconnected in the same manner as all other co-plaintiffs in error. It was thought, that if the motion had been with reference to a co-plaintiff, who was the party against whom the original judgment had been rendered, in the County court, some difficulty would be presented, as, in case of reversal, the case wight have to be remanded for further proceedings, in another court, where the personal representatives of the deceased co-plaintiff in error would necessarily have to be made parties. But it is not considered, that even inthatcase, would it be necessary to call in the personal representative into this court, as our statúte provides, that “where there are two or more plaintiffs or defendants to any suit or suits, in any court of this State, and one or moi'e of them die, if the cause of such action shall ■ survive to the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, the writ or action shall not be thereby abated ; but such death being suggested upon the record, the action shall proceed at the suit of the surviving plaintiff or plaintiffs, against the surviving defendant or defendants.”

In this case, the writ of error is sued out by both plaintiffs in error, and it is to be considered as a new action : and therefore, fully within the letter and spirit of the act before recited. The suggestion of the death being made in the record, is all winch is required, and the case must proceed in the name of the survivor. The motion is, therefore, denied.

And the case was then heard; upon its merits, and the opinion of the court delivered by

ORMOND, J.

This was a proceeding instituted in the County coui’t of Wilcox, by the defendant, as guardian of George H. Strother, against Robert H. Gregg, as executor of the last will of Lucy Strother, to have a sum of money set apart for the maintenance of the infant. The County court decreed in favor of the guardian, from which judgment, the plaintiffs in error prosecuted a writ of error to the Circuit court of Wilcox county, — where the judgment of the County court was affirmed. From that judgment a writ of error has heen taken to this court.

The errors assigned here are the same assigned in the Circuit court, and in addition thereto, that the County court had no jurisdiction of the case. The assignments of error will be taken up in their natural order, without regard to their position on the record. And, first, had the County Court jurisdiction l

In England, all power over this subject is vested in the Chancellor : — he is the guardian, in effect of all the infants in the realm; but in this State, the Judge of the County court is invested with ample power to determine almost all questions which can arise, in which a minor is concerned.

By an act, passed in eighteen hundred and seven, it is provided, that the County court shall have authority from time to time, to take cognizance of all matters concerning orphans and their estates, &c. A more plenary jurisdiction than this act confers, over the subject matter in question, can not well be conceived, unless it can be shewn, that the question of setting apart a portion of the estate of the orphan, for his maintenance, is not a matter appertaining to his estate. But, indepéndent of this general grant of power, the legislature, by an act passed in eighteen hundred and six, enacted, that if the personal estate, and rents and profits of the real estate, be insufficient for the maintenance and education of the \jard, the Orphans’ court may order a sale of the lands, &c. Here the power is not only expressly given, to appropriate the profits of the real and personal estate for the maintenance of the ward; but the high and delicate trust is conferred on the Orphans’ court, to sell for that purpose, the lands of infants, — a power which is rarely, if ever, exercised by the British Chancellor. There doubtless, may be cases, in which, from the peculiar nature of the trust, the County court could not act, and application would have to be made to the Chancellor. This is not one of those cases.

The next question which arises, is as to the legal effect o.f the bequest, under which the orphan claims. It is insisted, that the legacy does not vest until he attains the age of twenty-one years, — and that, therefore, he is not entitled to the profits of the estate during minority. The clause of the will reads thus :

“ I will and bequeath unto my beloved grandson, George H. Strother, three negro girls, viz: Nance, Betsy and Susannah ; also one bed, and two cows and calves: to be given to him at the age of twenty-one years, by my executor, and executors, hereafter to be named: Provided, that, should my said grandson die, leaving-no widow, or legally begotten children, then said negro girls, with their increase, shall return to my three daughters, Mary Ann,” <*fcc.

The general rule, applicable to this class of cases, is, that where a legacy is given to be paid, or payable at a particular true, or when the legatee shall attain a particular age, the legacy is vested — and, should he die before the happening of the event, the interest in the legacy will pass to his personal representatives. The condition which is annexed, relates only to the .time of payment, but the legacy is vested by the express terms of the gift. Wherever the time is annexed to the payment of the legacy and there is no ex-express gift of the legacy, the legacy does not vest, until the happening of the event; but even in such cases, if, from other parts of the will, it can be gathered, that the testator intended that the legacy should vest immediately, such intention will control the general rule: for the rule itself, has been devised as a mean of expounding the will, and must, of course, yield, to the expressed intention of the testator. So in this case, were it otherwise doubtful when this legacy should vest, other parts of the will explain the intention of the testator fully : for she provides, by a previous part of the will, that her negroes, not specially bequeathed, shall remain on the jdantaticn, until her debts are fully satisfied, — thereby shewing, very conclusively, that she did not intend the product of the labor of the negroes in question, to fall into her estate, during the minority of her grandson.

It is insisted, that the remainder in this bequest will prevent its vesting, so as to entitle the legatee to the annual product of the slaves; but it is not perceived how it can have that effect. The remainder can only be supported as an executory devise, and that may be limited, as it is in this case, after the creation of a fee. It may be added, that this species of remainder supposes that the particular estate is vested, as it is in this case.

A much more difficult question is presented by the first assignment of errors, — which insists that the Coui’t erred in giving judgment against the executor, before final settlement of the estate. By the act of eighteen hundred and twelve, it is provided that any person entitled to a legacy or estate, by will, may at any time after eighteen months from granting letters of administration, apply, by petition, to the County court, for distribution, &c.

The probate of the will, in this case, was in eighteen hundred and twenty-one: this application was made in eighteen hundred and thirty-five. The executor files his account of the hire of the negroes of the infant, and on being cited to appear at the Orphans court, to shew cause, against setting this money apart for the maintenance of the infant, he does not appeal’, and a decree is made against him. After such a lapse of time, and without any defence on his part, the inference is irresistible, that the estate has been settled.

In all cases, when, after the lapse of eighteen months, an application is made for distribution by the legatee or distributee, it devolves on the executor to shew that the distribution should not be made. He has possession of the estate, knows its condition, and must be held to show the reasons why distribution should not be made. Our determination, in this case, is founded on the lapse of time, and his failure to shew cause against it, which is equivalent to an admission that the estate is settled.

The third assignment of error, maintains that there is error in giving judgment against the executor, for the amount of the inventory, without allowing for bad debts. On reference to the inventory, it appears to be simply an. account for the hire of negroes, from the year'eighteen hundred and twenty-two, to the year eighteen hundred and thirty-five. Credits are claimed in this account for expenses. It cannot be presumed, when an account of this kind is filed as the basis of a settlement, that any part of the claims were bad, in the absence of any shewing to that effect. It must always be taken most strongly against the party making it.

It is also insisted in argument, that commissions should have been allowed the executor, for bis trouble, &c. The answer to this is, that none were claimed.

But it was error, for the guardian to make the application in his own name, or for the Court to render judgment in his favor. The application should have been in the name of the ward, and judgment in his favor — as was decided by this court, at its last term, in the case of Mason vs McLeod and again, at this term, in the case of Sutherland vs Goff. For this .cause the judgment must be reversed.

      1 Salk, 231.

      1 Let Raym. 244.

      2 Wms. Saund. 101, note 10 and p.

      Aikin's Dig 250

      2 Wms. Saund. 101, note 1, g.

      Aikin’s Digest, 250.

       Aikin’s Digest, 221.

      1 Vesey sen. 217; 11 Vesey 498; 8 Vesey, jun. 557; 3 Salk. 415; 3 Porter, 350.

       Aikin’s Digest, 155.

      5 Porter, 223.

      Ibid, 508


author: OUMOND, J.

text:
    MOCK vs CUNDIFF.
    1. To entitle a parly to relief in a Court of Chancery, against ü judgment at law, where no fraud is charged in obtaining the judgment, it. is necessary that he shew that he has used reasonable diligence to make his defence before the proper forum.
    2. Chancery will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question, pending the suit — or i.t could not have been received as a defence— or unless he was prevented from availing himself of the de-fence, by fraud or accident — or the act of the opposite party, unmixed with negligence or fault on his part.
    3. Therefore, where the bill stated that a judgment had been obtained on a note, given by complainant to one W. N. M., or bearer — which note was transferred to the plaintiff in the judgment — and before notice of the transfer, complainant had become the owner of a note for nearly the same sum, made by the said W. N. M: — and complainant had employed an attorney to make a defence to that effect, who was prevented from making the defence, by sickness — and judgment passed by nil dicil — but the bilí did not state that the off-set was delivered to the attorney, or that witnesses had been summoned to prove it; — and it appeared further that complainant had not attended the Court himself, and assigned no cause for his negligence in that behalf, — the bill was dismissed for want, of equity.
    Error to the Circuit court of Lowndes county.
    The bill in this case, was filed to spring term, eighteen hundred and thirty-six, of Lowndes Circuit court, and stated — That on the 27th day of January, in the year eighteen hundred and thirty-four, complainant made his promissory note for the sum of one hundred and seven dollars and forty cents, payable on or before the first day of January, eighteen hundred and thirty-five, to William N. Mock, or bearer, for value received: — That before the said note became due, and before complainant had any notice or knowledge of a transfer Gf said note, complainant became the lawful owner of a note drawn by the said William N. Mock, for one hundred and ten dollars, in favor of Mary Nibbs, or bearer, and due and dated the fifth day of March, eighteen hundred and thirty-four. The said last mentioned note, complainant intended as an off-set and payment of the first mentioned note, made by complainant as aforesaid. But the first mentioned note was transferred by said W illiam N. Mock, by delivery, to John Cundifi) who, as bearer of the said note, bi’ought suit thereon, against complainant, in the County court for the county of Lowndes, at the February term, eighteen hundred and thirty-five.
    The bill further stated, that complainant intended to offer the said note, drawn by said William N. Mock, in favor of Mary Nibbs, and transferred to complainant as aforesaid, as an off-set to the said first mentioned note, when the trial of the said suit should come on; and for that purpose had employed an attorney to attend to the same, and informed the attorney of the said set-off, and requested him to have the same before the court, at the said trial: but at the August term, eighteen hundred and thirty-five, said cause came on to be heard, and complainant’s attorney was unable to attend said court, or have the said cause attended to or continued. The cause was called, and judgment for one hundred and twelve dollars and sixty-two cents, was given against complainant, as nothing was said in bar or preclusion of said plaintiff’s claim, and execution had issued thereon against complainant.

      Complainant did not know, until after the said court had adjourned, that his said attorney was sick, and that his said cause would he undefended.
    The bill stated further, that William N. Mock was wholly insolvent, and had left the state.
    Prayer for an answer, and the writ of subpoena, and that the note and execution-might be enjoined, and that the note made by the said William N. Mock, as aforesaid, might be held and allowed as a set-off to the said first mentioned note, and for other and general relief, &c.
    • The bill was accompanied with the affidavit of complainant, stating that the matters and things set forth in the bill were true, as far as stated to be within his knowledge, and such as he had from information, he believed to be true, &c.
    On the hearing of the bill and affidavit, at chambers, on the fourteenth December, eighteen hundred and thirty-five, an injunction was granted on the usual terms, of bond with surety, in double the amount of the judgment, and a release of errors at law required, which was accordingly complied with, &c.
    And at the spring term of the same court, eighteen hundred and thirty-six, the case came on for hearing, and on motion, it was ordered and decreed, that the injunction be dissolved, and the bill be dismissed with costs, &c.
    And at this present term of this court, the case came on for hearing, when the plaintiff in error, assigned for error—
    1. That the injunction was dissolved.
    2. That the bill was dismissed with costs.

      Bedford, for plaintiff in error.

      Cook, contra.
   OUMOND, J.

This was a bill filed in Chancery by the plaintiff, enjoining a judgment at law, obtained by the defendant in error.

The bill charges, that he made his note for one-hundred and seven dollars and forty cents, to one William N. Mock — -payable to him or bearer : That the defendant in error became the proprietor of the note, and as bearer brought suit thereon, and recovered judgment. The bill further alleges, that the plaintiff before he received notice that Cundiff was the owner of the note above described, became the owner of another note, made by the said, William N. Mock, to one Mary Nibbs, or bearer — which note was for one hundred and ten dollars ; which last mentioned note fell due before the other.

The bill further states, that he employed an attorney to defend the cause — informed him of the set-off, and requested him to have the same before the court, at the trial That the attorney was unable, from sickness, to attend the court, and that judgment passed against him, by nil dipit. The court below, dismissed the bill, for want of equity — and this is now assigned for error in this court. . ■ • •

To entitle a party to relief, in a- Court of Chancery, against a judgment at law, where no fraud is charged, in obtaining the jugdment, it is necessary that he should shew, that he has used reasonable diligence, to make his defence before the proper forum.

Has that been done, in this case 1 The allegation in the bill is, that the plaintiff employed an attorney to defend the suit — informed him of the set-off, and requested him to have the same before the Court.— Is this sufficient? This may all be true, and yet the attorney would not have been able to defend the suit, and get the benefit of the off-set, had he been able to attend the court. It is not stated that the attorney was put in possession of the note, intended to be set off, or that witnesses were summoned, or in attendance to prove it: and, without these, the attorney, had he been present, could not have made the de-fence. It does not appear, then, from the bill, that the absence of the attorney, from sickness, has injuriously affected the plaintiff.

It is a circumstance of great weight, in considering this question, that the plaintiff did not attend the court himself. He shews no reason for his failure to do so,! — and appears to have been negligent of' his interests.

The doctrine applicable to this case, is laid down by Chancellor Kent, in 6th Johnson’s Ch. Reports, 90. “ The rule is, that Chancery will not relieve against a judgment at law, on the ground of' its being contrary to equity, unless the defendant in the judgment was ignorant of the fact in question, pending the suit, or it could not have been received as a defence, or unless he was prevented from availing himself of the defence, by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part.”

This has been acted on, as the same rule in such cases, by this court. It results from this, that there is no equity in the bill.

The judgment of the court below must be affirmed, with costs.

      2 Porter, 262.