Spotswood v. Higgenbotham

6 Va. 313

• Court: Supreme Court of Virginia
• Decided: March 10, 1819
• Status: Published

Opinion

The Court’s opinion was delivered by Judge Roane, as follows:

The Court

is of opinion, that as, on the hypothesis that the appellant did not execute the bond in question, he had regularly no day in Court in the action at common law, and was, therefore, not bound to take any steps for his relief in the said action; and, as, also, in this case of the remedy at law being considered doubtful,

(1) it would be too strict to deny him admittance for relief into a Court of Equity, the decree dissolving the Injunction is erroneous.

The opinion of the Court further is, that, as the appellee is probably entitled to his money either from the appellant or from the Serjeant, who is therefoi'e much interested in the question now in controversy in this case; and as the appellee has been deprived of his remedy by office judgment against the said Serjeant, by the rendition of the judgment now in joined, the interposition of this Court is necessary to give him relief; the Court is thereI?ore of opinion that the said Set~jeant ought to be made a party to the suit, in order to final and cornplete justice I)etwcen the parties.

The Decree is therefore reversed with costs, the injunction re-instated, am! the cause rema~I(IO(1, to be iwoceeded in according to the principles of this decree.

Note. See ante, the last case, in which, the Judge of 'the Superior Court was of opinion that the person returned as appearance bail, could not plead non est factum.