Harvey v. Seashol

4 W. Va. 115

• Court: West Virginia Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinions

Maxwell, J.

This case shows that Seashol, who was one of the sureties of Grass, as sheriff, did not know of the existence of any defence, at the time the judgment injoined was rendered against him. Not only the knowledge of the fact that a defence existed came to the defendant after the judgment at law was rendered, but the evidence of the de-fence, which was a receipt, was discovered after the judgment.

It is, therefore, a proper case for the interposition of a court of equity by injunction. Barrett and others v. Floyd and others, 3 Call., 530; 2 Tucker’s Com., 476.

The decree, so far as it perpetuates the injunction, is correct, but the decree should have gone further, and set aside the judgment at law and awarded a new trial to the defendant.

The decree will have to be reversed, the injunction perpetuated to the execution, the judgment at law set aside, and a new trial granted the defendant.

Brown, President, concurred with Maxwell, J.