Foster v. Wood

Headnote

This Court 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 be received as a defence at law, or unless, without any neglect or default on his part, he was prevented, by fraud or accident, or the act of the opposite party, from availing himself of the defence.

As, where a defendant paid part of a judgment, recovered against him, and the plaintiff in that judgment, afterwards, brought an action of debt on the judgment, in which F. became special bail, and recovered a second judgment for the whole of the original debt, and costs, against the defendant, who neglected to prove the payment, which was omitted to be credited by the plaintiff, who, afterwards, sued F; the special bail, and recovered judgment against him for the whole debt, damages, and costs, by default, F. being ignorant of the payment made by the principal on the first judgment: Held,on a bill filed by F., the bail, that he was not entitled to relief.

THE bill stated, that the plaintiff, Foster, on the 30th of August, 1815, was seised in fee of lot No. 147, in the Onondaga reservation; and, in November, 1815, sold and conveyed to the plaintiff, Bissell, for the consideration of 0,600 dollars, 100 acres of the lot, and the residue of the lot to the plaintiff, Peck, for the consideration of 4,400 dollars. That B. and P., the purchasers, received warrantee deeds, and have made valuable improvements on the lands conveyed to them. That in May term, 1803, the defendant recovered judgment against Elijah Phillips, and Elias Stillwell, in the Supreme Court, for-142 dollars and 91 cents, in an action of assumpsit, in which S. alone was arrested, and issued a fi. fa. against their joint property, and the separate property of S. That S., on the 22d of August, 1803, paid the defendant seventy-six dollars on the judgment and execution. In 1812, the defendant brought

an action on the judgment against Phillips and Stillwell, and the plaintiff, Foster, became special bail for Phillips ; and the defendant, in August, 1812, recovered judgment in that suit against P. and S. for 142 dollars and 91 cents debt, and damages and costs, amounting, in the whole, to 317 dollars and 44 cents, no credit having been given or allowed by the defendant for the 76 dollars paid by S- on the first judgment; but if that credit had been given, the defendant could have recovered only the costs as in a Court of Common Pleas. That the plaintiff became fixed as special bail, confiding in the ability and integrity of P. to indemnify him, and was ignorant of the payment of the 76 dollars by S., as above mentioned. That not knowing df any legal defence, F. suffered judgment, by default, to pass against him on his recognisance, in October term, 1815, for 317 dollars and 44 cents, and the damages and costs were taxed at 87 dollars and 76 cents. That the defendant issued an execution on this judgment against F., who paid to the defendant, on the-28th of October, 1815, the sum of 258 dollars and 98 cents, being more than would have been due to him for the debt, damages, and costs, if the 76 dollars, paid by S,, had been duly credited by the defendant. That the plaintiffs, Peck and Bissell, knew nothing of the encumbrance of that judgment until February last. That the defendant, though he resides within a mile of P. and B., gave them no information of the judgment. That Phillips died insolvent, on the 10th of August, 1815, without paying to F. any part of the judgment against him. That the plaintiff, F., is insolvent, and unable to save the plaintiffs, P. and B., harmless. That the defendant has lately caused all the right and title of F. to the lands so sold by him to P. and B., to be advertised for sale under his judgment against F., to satisfy the balance claimed by him, amounting to 200 dollars, including interest and Sheriff’s fees. The plaintiffs charged, that the credit of the 76 dollars, paid by S., was fraudulently

omitted by the defendant, and was neglected to be proved by P. and S., in the second suit against them, on the first judgment. The bill prayed, that the defendant be decreed to allow the seventy-six dollars, as of the time when it was paid, and that the costs of the judgment be reduced to costs of a Court of Common Pleas, and that the plaintiffs may be relieved on paying the balance only, and for an injunction to stay execution, 8zc.

The defendant demurred to the bill, because, if the charges were true, which he did not admit, there was no ground of relief in equity, as P. and S. had a good defence at law, as to the pretended payment, and that the plaintiff, F., could not, as special bail, make any defence which might have been made by P. and S.