#### Donally v. Ginatt’s Adm’r.

April, 1834.

Richmond.

(Absent Bbooke, J.)

Chancery Practice- Relief against Judgment — Negligence in Defence at I-aw *— Case at Bar. — A landlord having distrained goods as goods of his tenant for rent, another person claiming the goods as his property brings replevin for the same, but his action of replevin is dismissed for want of a declaration, and this is imputable to his own neglect: then the lan dlord brings suit on the replevin bond and recovers judgment: Held, the defendant is not entitled to relief in equity on the ground that the goods distrained were in fact his property.

*140Same— Injunction — Partial Dissolution — Costs.†— Injunction to a judgment at law is perpetuated as to part,'being'the amount of just discounts claimed by plaintiff in equity, of which he might have availed himself at law if he had made defence ; an d is dissolved as to the residue ; and the chancellor decrees, that the plaintiff in equity shall pay the defendant there, his costs: Held, the decree for costs is right.

A bill was exhibited in the superior court of chancery of Clarksburg, by Donally & Steele against Ginatt, setting forth, that Slaughter and Ginatt, being each owners of salt works in Kanawha, severally leased the same to one Cheek; that Cheek delivered 35 barrels of salt to Slaughter, on account of the rent due to him, and Slaughter sold the salt to Donally & Steele; that Ginatt afterwards distrained the same salt, as the property of Cheek, for rent due by Cheek to him, whereupon Donally *&*Steele brought replevin against him; that they retained Mr. James Wilson as their attorney to prosecute the suit, but it was dismissed for want of a declaration; that they then discovered that Mr. Wilson *had not acted as their attorney, and he now said, that he early told the plaintiff Donally that he should withdraw from the suit, but of this Donally had no recollection; that Ginatt, having had the action of replevin dismissed, brought suit against Donally & Steele and their surety, upon the replevin bond, and recovered in the circuit court of Kanawha, judgment for 161 dollars, the court being of opinion that it was not competent to Donally & Steele to shew, in that action, either that there was no rent due from Cheek to Ginatt, or that the salt he had distrained, was their property. That Donally & Steele, pending Ginatt’s action against them on the replevin bond, had recovered two judgments against Ginatt before a justice of the peace, one for 18 dollars, and the other for 20 dollars, with interest and costs, and had thereupon sued out writs of ca. sa. upon which Ginatt was taken in custody, and afterwards discharged as insolvent, he surrendering in his schedule of effects, his claim against Donally & Steele on their replevin bond. And that Ginatt was bound as special bail for one Smith in an action which Donally had brought against Smith, and that Smith had absconded. And the prayer of the bill was for an injunction to inhibit Ginatt from executing his judgment at law upon the replevin bond, on the ground that the 35 barrels of salt he had distrained was really, at the time, the property of Donally & Steele, and that the dismission of their action of replevin without a trial of the merits, was accidental; or at least, that the plaintiffs’ just claims against Ginatt upon the magistrate’s judgments, and Donally’s claim against him as special bail of Smith, should be set-off against his judgment against them.

Ginatt, in his answer, denied that Mr. Wilson had been retained by Donally & Steele in their action of replevin against him, and shewed that that action was continued on the docket for nineteen months before it was dismissed for want of a declaration. And he demurred to so much of the bill as sought to open the question, whether there was any rent in arrear and due to him from Cheek, at the time of his distress for rent, or whether the -salt distrained was the ^property of Donally & Steele. As to the set-offs claimed in the the bill, he alleged, that he had other demands against Donally & Steele, which would nearly suffice to extinguish those set-offs; and as to his obligation as special bail of Smith to Donally, he objected, that that would furnish no ground of set-off, until he should be made liable as bail.

There were several depositions taken and filed by the plaintiffs, to prove that the 35 barrels of salt, which had been distrained by Ginatt, really belonged to them. And it appeared, that Mr. Wilson ordered the writ of replevin for Donally & Steele against Ginatt; but that a few days after, he informed them, that he should withdraw from the cause, in consequence of his being retained as Ginatt’s counsel in several other cases, and that Donally & Steele acquiesced, and said they would retain other counsel. They never, in fact, retained any other counsel to prosecute the suit for them. It appeared also (as the answer alleged) that the action of replevin was continued on the docket for nineteen months, before it was dismissed for want of a declaration.

Pending the suit, the plaintiff Steele and the defendant Ginatt died ; and it was revived against Ginatt’s administrator.

The chancellor, on a hearing, allowed the surviving plaintiff three set-offs, one for IS dollars 50 cents and one for 20 dollars (being the two magistrate’s judgments recovered against Ginatt), and a third for 35 dollars 16 cents (being a balance due from Ginatt for prison fees, while he was in custody under the writs of ca. sa.), with interest on each &c., and as to so much he perpetuated the injunction ; and he dissolved it as to the residue of Ginatt’s judgment at law; and decreed, that the plaintiff should pay the defendant his costs. The plaintiff appealed from the decree to this court.

Johnson, for the appellant.

Stanard, for the appellee.

*

Equitable Relief — Laches.—In Slack v. Wood, 9 Gratt. 40.42 (see also, *foot-note*to this case), it is said: ‘In the case of Floyd v. Jayne, 6 John. Ch. R. 479, Ghakoiíi J.OB Kent states the settled doctrine and practice of the courtof equity as well as of courts of law, to be, that a party is not entitled to relief after verdict upon testimony which with ordinary care and diligence he might have procured and used upon the trial at law : And he adds that ‘it would be establishing a grievous precedent, and one of great public inconvenience, to interfere in any other case than one of indispensable necessity and wholly free from any kind of negligence.' This doctrine has been fully recognized in this court by repeated adjudications. Bierne v. Mann, 5 Leigh 364; Oswald, etc., v. Tyler, etc., 4 Rand. 19 ; Faulkner’s Adm'x v. Harwood, 6 Rand. 125. And to the same effect are De Lima v. Glassell’s Adm’r, 4 Hen. & Munf. 369; Turpin v. Thomas, 2 Hen. & Munf. 139; Tapp v. Rankin, 9 Leigh 478 ; *Donally v. Ginatt's*Adm'r, 5 *Leigh*359; Haden v. Garden, 7 Leigh 157; Turner v. Davis, 7 Leigh 227 : Auditor v. Nicholas, 2 Munf. 31; Arthur *140v. Chavis, 6 Rand. 142 ; Fenwick v. McMurdo, 2 Munf. 244.”

See also, *foot-note*to next case.

†

Costs. — On the subject of costs, see principal case cited in Tuley v. Barton, 79 Va. 401.

See further on this subject, monographic *note*on “Costs” appended to Jones v. Tatum, 19 Gratt. 720. As to costs in injunction cases, see also, monographic *note*on “Injunctions” appended to Claytor v. Anthony, 15 Gratt. 518.

BROCKENBROUGH, J.

I think the decree should be affirmed. The appellant had no right to come into equity, :;'after his great laches in prosecuting his action of replevin. The excuse he alleges for his negligence, has no foundation. The attorney whom he employed at first, and who ordered the writ against Ginatt, applied to him to be released from his engagement, and the appellant agreed that he might withdraw.

As to the decree for costs, I think that also right. The injunction was dissolved, except as to the sum of 71 dollars 66 cents, which the chancellor allowed as a good set-*141off against Ginatt’s judgment. The sum was composed of two judgm nts on magistrate’s warrants, which Donally had recovered against Ginatt, and for which he had taken him in execution, and of the jail fees for supporting Ginatt while in custody. The judgment of Ginatt against Donally and others on the replevin bond, was rendered in the circuit court after the two magistrate’s judgments were rendered, and after the jail expenses were incurred. If Donally had applied by motion to the circuit court, to allow him a credit, for the amount of the two judgments and the jail fees, on the execution which Ginatt might issue on his judgment against him, that court would have heard the application, and allowed the credit. There would have been, then, no necessity for his applying to a court of equity to allow him the set-offs, since he could have obtained them as well by applying to the court of law. I do not mean to say, that the chancellor did not rightly allow' them; at any rate, the appellee does not complain of it. But, surely, the allowance of these set-offs to the appellant, affords no reason why the costs of the suit in chancery should be thrown on the appellee, who has substantially prevailed in that court, and in this court.

CARR, J.

The decree should be affirmed. The statute 1 Rev. Code, ch. 113, *'£*23, 4, 5, pp. 451, 2, prescribes a particular mode in which a third person, claiming property distrained for rent, shall proceed to contest the right. Donally & Steele resorted to that mode; and it was their own gross neglect alone that prevented them from having a trial. Dor nineteen months, they seem wholly to have abandoned the *suit. They retained no attorney to prosecute it; for Mr. Wilson proves, very distinctly, that soon after ordering the writ, Donally, on his application, agreed that he might withdraw. On whom then could they depend? If negligence like this is to open the case to them, and raise up an equity in their favor, we must reverse the maxim, and say dormientibus non vigilantibus curat lex. The decree was right for costs too. They would never have been incurred, but for the negligence of the plaintiffs; and it was the exercise of a sound discretion to make them pay them.

CABEUE, J., concurred.

TUCKER, P.

To what has been said by my brother Carr, in which I entirely concur, I wish only to add as to the costs,— that though, in general, if a party, plaintiff in injunction, succeeds in obtaining a perpetuation as to part, he is entitled to costs, and though this court may reverse for error in decreeing costs, though in all other respects the decree be affirmed (Ross v. Gordon, 2 Munf. 289), yet where the party was under no necessity of coming into equity to get his discounts allowed, he ought not to have costs. In this case, the discounts for which the injunction to Ginatt’s judgment is perpetuated, consisted, first, of two small magistrate’s judgments, on which Ginatt had been imprisoned by Donally, and on which he swore out, surrendering as part of his schedule, this very demand against Donally on the replevin bond. By this act, these demands were set-off against each other, in effect, for the amount when recovered, must to the extent of the two magistrate’s judgments be paid over, or (which is the same thing) allowed to Donally in part payment of Ginatt’s judgment. Secondly, the set-off of 35 dollars, balance allowed for the prison fees, could not entitle the appellant to the costs of this suit in equity, because he asked for no such set-off in the bill. It has been allowed him without being demanded, and he has, therefore, more reason to be thankful than to complain.

Decree affirmed.