Bell v. Kelly & Kelly

Hornblower, C. J.,

delivered the unanimous opinion of the Court.

It is objected that the motion of the defendant comes too late. That he effected, or at least occasioned delay, by not putting in bail in season, and ought not now to be entertained in an application of this sort. I do not see that there was any want of good faith on the part of the defendant. The delay of filing bail was sufficiently explained on the argument, by tlie defendant’s counsel, and was owing to the late period in term, when the writ was served and the distance of the defendant’s residence from-court, and from his attorney. If plaintiff had been satisfied with the bail, they might for all that appears, have had their judgment in September term, 1838. The delay however was not an unusual one. Judgment was yielded to them in November term, 1898; sooner probably, than could have been done if the defendant had not, for wmnt of bail being filed in due season, have fallen somewhat into the power of the plaintiff.

It would, however, be too late if this application was founded merely on an irregularity, (11 Petersd. tit. Judg. p. 660, margin and seq.; Jones v. Dunning, 2 Johns. Cases, 74; see also Hind v. *273 Tubb. 10 Johns. Rep. 486,) and especially so, after an agreement on the part of the defendant not to bring error. Bat the defendant comes before the court upon a ground, which if sufficiently made out, goes to the plaintiffs right of action, and entitles the defendant to the favourable ear of the court. There is no rule that I know of which forbids us to listen to an application of this sort, founded on merits, unless it is made the same term, or the term after that in which the judgment was entered. On the contrary, such motion may be made, and will be entertained at any time while the cause is within the power and under the control of the court, provided the party has not slept on his rights, but Isas embraced' the first opportunity he had of presenting his case; and it ought perhaps fo be added, provided also, the court can hear the defendant without endangering the rights of the plaintiff as against him.

Upon this subject a much more liberal policy, has of late years, been pursued, by the court: and a policy, in my opinion, much more congenial to the advancement of justice, than that which formerly prevailed. In Delafield v. Tanner, 5 Taunt. 856, a regular judgment was set aside, and the defendant let in to plead infancy. In Evans v. Gill, 1 Bos. and Pull. 52, a regular judgment was set aside, on an affidavit of merits, and the defendant permitted to plead bankruptcy. And in Maddoks v. Holmes, 1 Bos. and Pull. 228, the defendant was let in to plead the siatute of limitations.

Formerly, too, the court would not set aside a regular judgment even upon an affidavit of merits, if the plaintiff had lost a trial. 11 Pertersd. tit. Judg. p. 661, in marg. &c. But that rule is no longer adhered to; nevertheless the court will take care to impose proper terms; and if necessary for tire plaintiff’s security, will order the money to be brought into court. 2 Archb. pr. 11, and cases there cited.

But Secondly, It is objected that the affidavit is not sufficiently certain. The affidavit in substance states, that prior to the commencement of this suit, the defendant liad on several occasions indorsed notes for the firm of Geo. W. Tyson & Co. and therefore when sued in this action, he supposed it was upon one of those notes; but that on or about the 17th of May last, he for the first time discovered that one of the firm of Geo. W. Tyson *274 &Co., had forged his name as indorser on several promissory notes for the payment of large sums of money — tiiat he now has no knowledge or recollection of indorsing the note in question, or of authorizing any person to indorse it for him; but on the contrary that he verily believes the said indorsement to bo false, forged, and counterfeited. It is true the defendant does not swear possitively, as counsel insist he ought to have done, that his name indorsed on the note in question, is a forgery: but I think he sufficiently excuses himself in his affidavit, for not doing so. As soon as his suspicions were awakened, he called on the plaintiffs’ attorney, and requested permission to see the note. The attorney refused to let him see it, and of course the defendant could not swear to the falsity of the identical note in question; he could only swear, as he has done; viz.- that he verily believes, that it is false, forged and counterfeit.

This is not the case of a defendant against whom a cause of action once existed, and who is now seeking to be indulged in setting up an equitable, or even a strictly legal, though a hard defence, of which by due attention to his business, he might have availed himself at an earlier stage of the cause, but it is the case of a man, against whom, if the indorsement is a forgery, the plaintiff nover had any cause of action at all.

It is not long since, in a case, the name of which I do not now recollect, we set aside a judgment and execution, on the ground that the defendant supposed himself sued on a note which he knew was standing out against him; and never discovered until after judgment and execution, that the suit was on a note upon which a former judgment had been obtained against him, and which he had paid off and satisfied.

There is something in my mind that reluctates against the idea of enforcing a judgment against a man, when he asserts, and gives u,s reason to believe, not that under all circumstances he ought to be excused; but, that there never was any foundation in law or justice, fortheclaim againsthim, merely, because he was not so diligent or so fortunate as to find out his true condition, before the forms of law had fastened the claims upon him. What would be thought of sending a man to the gallows, when he- assured us that since his conviction, ho had discovered and was ready to prove, that the supposed victim of his malice, was in full *275 life; simply, on the ground, that he had neglected his defence, and in the exercise of ordinary diligence might have proved it on his trial. Humanity indeed, would be more outraged in such a case; but in principle it would be the same, as to enforce this judgment against the defendant, if in point of fact he never made the contract on which he has been sued.

In my opinion, the defendant ought to be permitted to set up this defence; but on terms that shall be perfectly fair and safe to the plaintiffs. Judgment of amercement must be entered up against the sheriff, to stand as security: the costs of that and of the original judgment must be paid, and the defendant must plead instanter and take notice of trial at the next circuit.

Judgment opened on payment of costs; the Sheriff to be amerced, for security of plaintiffs.