Windwart v. Allen

Tuck, J.,

delivered the opinion of this court.

Courts of chancery do not lightly interfere with judgments at law, and relief will not be granted, if the party has had an opportunity of making his defences. Fowler vs. Lee, 10 G. & J., 358 . Prather vs. Prather, 11 G. & J., 110 .

Conceding that the complainant had a defence in bar of the attachment issued and laid in his hands, as a debtor of Seibert, we must inquire whether he had an opportunity of making that defence. Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandi rests on the party impeaching such acts. If Chariton’s testimony were excluded, as insisted by the appellant’s counsel, there would be no evidence to question the constable’s return, that could be safely relied on for that purpose. That his evidence must be deemed as properly before us, even, if incompetent, is shown by the act of 1833, ch. 302, sec. 5. Jones vs. Hardesty, 10 G. & J., 414 . This witness states expressly, that he spoke to Windwart both in English and German, and was answered in both languages. It may be, as proved by the witnesses, that Windwart understands English very imperfectly, but they state that he understands it a little when spoken to. Blum’s evidence cannot be relied on with much confidence when relating what passed between Wind-wart and the officer; because he admits that he cannot speak English at all, and, having been examined through an inter- *201 prefer, the probability is, that he understands it very imperfectly when others may be speaking in that language; and," yet he undertakes to narrate what Chariton said in English to' Windwart. But as far as Volkmar and Blum testify, they corroborate Chariton. Volkmar says, that Windwart told him he had been inquired of by a man as to his indebtedness to Seibert, and cautioned not to pay the money to him; and Blum says, that the officer showed papers, and directed Windwart to write something on a slate which he did, and that he recollects the name of Alexander Allen, and the county sheriff’s office, as having been mentioned by Chariton to Windwart.

Chariton’s evidence is direct and positive, that he explained the business to the complainant, in German and in English; that he made memoranda by his direction, on a slate, and that the entry was afterwards explained by Windwart, in English, and was correct. The substance of Behmeir’s testimony is, that Chariton speaks the Pennsylvania German, and not the language .of the natives, and that all Germans do not understand that dialect; but this ought not to overthrow the statement of Chariton, when he swears to the proper performance of his duty as constable, and shows, if he is believed, that he gave such explanations, and that the party made such memoranda at the time, as were sufficient to have enabled him to appear and answer the process, which it was the business of the officer to serve.

It does not appear that Windwart made any inquiry into the business, until after the judgments of condemnation had been entered and fi. fas. issued. If he did not fully understand the nature of it, he might have gone to an interpreter. He knew that. Alexander Allen was concerned, according to Blum’s testimony, and that the county sheriff’s office was the place mentioned by Chariton, yet he does not appear to have gone there or made any inquiry.

Probably Windwart did not comprehend the nature of the business, but ought the plaintiff in the judgments to suffer the consequences of his want of understanding, or of knowledge of our language ? It was his own omission to appear to the writs, if the process was served, which we must take to have *202 been done, from all the evidence in the cause. Apart from' the positive declarations of the officer, the proof on the part of the complainant does not overcome the prima facie effect of his return. This case is different from that of Tabler vs. Castle, 12 Md. Rep., 144, where relief was granted, in view of the peculiar circumstances attending a former action on the' same cause, so as to have the merits investigated.

(Decided March 17th, 1859.)

The point of the appellant, under the act of 1831, ch. 271, if available''at all,--was a proper defence before the justice of the peace; oh'-’ the, return of the attachment, and cannot aid the present proceeding. See Brumbaugh vs. Schnebly, 2 Md. Rep., 320 .

Decree affirmed.