McBroom v. Sommerville

2 Stew. 515

Opinion

By LIPSOMB, C. J.

The complainant prays that the judgment obtained on the covenant, and the decree dismissing Black’s bill, maybe opened, and that if this cannot be done, then that Ireland may be substituted in the judgment on the injunction bond in his place.

The counsel for the complainant insist that this bill is in the nature of a bill of review, and that Chancery ought to allow him all the equity that Black was entitled to. In Answer to this position, it will be only necessary to say, that it does not contain a single essential- ingredient of a bill of review; and as there is no fraud alleged in obtaining the decree, there cannot be the smallest pretence for opening and revising the matters charged in that bill; we presume that its merits were fully discussed, and duly considered on the final hearing. It is not important to inquire whether a sufficient excuse was rendered by Black in his hill, for not making his defence at common law when sued on his covenant, all the facts set up by him as grounds of relief Could have been used in his defence at law, and it does seem, if we were disposing of that question, that his shewing is a very imperfect one. There is no fraud suggested in the management of the suit, nor in obtaining the judgment. It is true that the inability ef counsel from sickness, to attend to a suit, would be a ground of relief under certain circumstances; it is not denied but thatMr. McClung was present, attending to the suit at law when it was tried, and we will presume he felt himsell fully prepared for its Í’efenee. If the sickness of his partner,, Mr. Hendei’son, ad left him unprepared for the defence, it should have been made a ground for a continuance before the tidal, oil of a new trial after verdict; neither of these modes was resorted to, and we are invoked to draw an inference of surprise without the faets to warrant such a conclusion. The same liberal indulgence is claimed for Black’s not sufficiently pressing his rights before the Chancellor on the final hearing of his bill. But as before remarked, these are considerations that grow out of points not znaterial in disposing of the case, for we are certainly not to consider whether the final decree dismissing the bill was based on sound principles of equity or not. The ease in 2 Johnson’s Chancery Reports,

Footnotes

•

a is conclusive, that so far as the complainant seeks relief from Sommerville, that he has no merits at all; it is clear that unless there had been fraud in dismissing the bill on the final hearing, the security to the injunction bond is not entitled to relief. The cases referred to by the complainant’s counsel are not in point, and cannot, it is believed, in any degree apply to this case; if a bill has been dismissed for a iailure to prosecute, it would not conclude the complainant; he might bring his bill again, and the former dismissal would be no more than a nonsuit or a discontinuance at common law. And this is the doctrine of the authorities relied on by the complainant’s counsel; but even in such cases, the security would not be discharged from the forfeiture of his bond.

It is urged, that as the debt was originally due from the firm of Black & Ireland, and that Black had given his own covenant for the firm debt; that the complainant is entitled to the same recourse ^against Ireland, that he would have had against Black, and he therefore prays that Ireland may be substituted in his stead in the judgment on the injunction bond. If the liability oí Ireland was admitted, yet the conclusion that he ought to be substituted in the place of the complainant, would not follow, for it is certain that if Black himself was solvent, Sommerville could not be compelled to discharge the complainant, and seek satisfaction of his judgmeiififrom him; how can a Court of Chancery, any more than a Court of Law, compel a party to relinquish a security, or to change it without his consent, when the liability of such security had been incurred without fraud? If the bill, so far as it professes to be an original bill, had have sought to make Ireland account over to the complainant, the inquiry would then have been, has he any equitable claim for such reimbursement? But as that has not been done, we will decline expressing any opinion of the liability of Ireland to the complainant; if he has any grounds for calling on him for reimbursement, the dismissing of this bill will not preclude his asserting them L' a proper form. We are unanimously of the opinion that the decree dismissing this bill, must be affirmed, with costs.

Judge White not sitting.

Page 213.