p. 325Joshua Dyett, plaintiff in error, against John B. Peneleton, defendant in error.Headnote
After judgment, and error brought, no bail being in, the defendant in error sued out a fi. fa.; and the plaintiff in error gave Ms notes for the amount Of the judgment, agreeing that it would stand as security. Held, no ground for setting aside or staying proceedings on the writ of error.Even a payment of the judgment would be no ground for this. Per Jones; chancellor, and Golden, senator.
Nor would the collection of the money by execution. Per Golden, senator.
Semb. the court of errors cannot try a question of fact arising on motion by a jury; nor can they send it to an inferior court for trial in that way.
On error from the supreme court, on a judgment there, for damages and costs, in favor of Pendleton against Dyett.
J. A. Dunlop for the defendant,
moved that the writ of error be quashed, on the ground that no bail in error having been put in, a fi. fa. was issued and levied; and the suit settled by certain negotiable promissory notes, given by the defendant below; the judgment to stand as,security. The notes were at three, six and nine months. Proof of the settlement was by the affidavit of the defendant in error; and the deputy who held the fi. fa.
p. 326*5¡ W Warner, contra,
read an affidavit of the plaintiff m error, denying that the notes .were given upon any agreement or understanding not"- to bring error; but on the eontrary, accompanied with a declaration of an intention to bring error.
Dunlap said the court of error would always interfere and'dismiss the proceeding summarily, whe'ré' the writ'- of error was prosecuted vexatiously, as for delay, or against an agreement of the parties,"" or contrary to good faith. (Hartshorne v. Sleght, 3 John. Rep. 554 , 556, 7, per the Chancellor. Camden v. Edie, 1 H. Bl. 21.) Here was a settlement of the suit. This of itself operated as an agreement not to proceed with the writ of error. It put an end to the suit. It was not necessary that such agreement should have been in" writing, (Chamberlain v. Fitch, 2 Cowen,243, 245.) In Executors of Wright v. Nutt, (1 T. R. 388,) the agreement of the attorney not to bring error was by parol-; yet the court of error" held him to it, and 'nonprossed the writ; In" Gates v. West, (2 T. R. 183,) the defendant’s attorney had agreed that the money should be paid, if time was given. Time was given, and yet he brought error. The court allowed execution to- go, although bail was" in. They held -the writ of error to be contrary to good faith. Agreements not to bring writs of error are-favored and construed liberally by the "courts. (1 Arch. Pr. 211 1 T. R. 388.) Entwistle v. Shepherd, (2 T. R. 78,) and note(c) to that case," show that the court of error will struggle to avoid the effect of the writ, where it appears to be merely, for delay. In the casé atbar, the object is plainly mere delay. Nothing can be gained by the plaintiff in error, even if there -be-a reversal, except the costs of the suit in this court,1 especially, if the notes have been assigned.
But the defendant in error denies that -, this-suit was settled by.-the notes. He says the right to go on with the writ-of error, -was expressly reserved by him-.- This: would seem to destroy the effect which you attribute to the settlement. It goes" to contradict your
p. 327*case. How are we to satisfy ourselves that the parties in- „ , , . . „ -mi „ . tended to dispose of this writ of error
i The fact is dis-r
Dunlap. The court should at any rate give us a chance to try the fact. Here is testimony independent of the parties. A jury would of course be with us; or this court can take the same ground.
I am aware of no power in this court to try a question of fact by jury ; nor that they can send down the question to another court. But no agreement as to this writ of error is sworn to. The defendant in error seeks to make one out merely by way of inference. The plaintiff in error sets up a fact not at all inconsistent with the facts on the other side, which shows that there was no agreement in the case. The mere giving of the notes in payment or security of the judgment below, can form no objection to the writ of error. I think the motion should be denied.
This case is perfectly clear. It must rest on one of two grounds, either that an accord and satisfaction is made out, or that there was an agreement not to pursue the writ of error. Neither is sworn to directly on the part of the application, while both are denied by the plaintiff in error. If he had paid the money on the judgment voluntarily, that would have been no ground for this motion. If the judgment be reversed, it will be a good defence against the notes, provided they remain in the hands of the defendant in error. If they shall be assigned, a writ of restitution may issue. In any point of view, the motion must be denied.
This case is certainly not so strong for the motion, as if the money had been paid, or collected on execution; and I never heard that either would be a reason against a writ of error. It might still proceed, and on reversal, writ of restitution would go. The plain