#### *Price’s Executor v. Fuqua’s Administrator.

February, 1813.

a. Chancery Practice — New Trial — Mistake—Accident* —Case at Bar. — An Bxecutor, being- sued on a bond of his testator of more than twenty years standing, was advised by his counsel to rely on the presumption of payment arising from the length of time, and supposing such presumption a sufficient defence, neglected to fortify it by other testimony, which was in his power. In consequence of evidence given by one of the Jurors in the J uryroom, a verdict was found against him.— He moved for a new trial on that ground, but was denied it. He afterwards obtained a new trial, by applying to a Court of lüquity, on the ground of mistake and accident.

This was a Bill of Injunction to stay proceedings on the Judgment at law, in favour of Warren, Administrator of Fuqua against Price’s Executor, which was affirmed by the Court of Appeals, as reported in 1 H. and M. 385.

The Equity stated in the Bill, (which was filed in January 1808,) was, that the complainant had uniformly been advised by his counsel, that he need not make any defence, «except that furnished by the antiquity of the bond ; the legal presumption being that the debt was paid, unless that presumption should he repelled by evidence on the part of the plaintiff : — that no such evidence was offered at the trial, but the verdict was found in consequence of evidence given in the jury room : —the complainant, therefore, conceived that he had not had a fair trial of his cause : — that, if he had been told it was necessary or proper, he could have produced evidence on his part to fortify the presumption, on which alone he rested his defence :— he could have proved, and was still able to prove, that his testator was abundantly able, at any time during the last twenty years of his life, to have discharged the debt; that Euqua was a near neighbour to the said testator, was in very embarrassed circumstances for many years, sold his property for payment of his debts, and applied to the said testator as a friend, to attend the sale and encourage it by bidding. The complainant was himself present at a time when his testator made an application to the said Euqua for the bond; and the said Euqua, after making some difficulty about finding it, promised that it never should be brought against him. The bill further stated that Euqua had brought several suits on bonds of old date, which were proved to have been paid ; and that the complainant, in the course of four or five weeks past, in examining the papers of his testator, had found a receipt bearing date the 1st of May, 1775, for 491. 15s. 9d. paid to the said Fuqua. *He therefore prayed that a new trial of the suit at law be granted him.

The Chancellor awarded the injunction upon the usual terms. The defendant being not an inhabitant of this Commonwealth, an order of publication was made against him, which order was executed, and the bill taken as confessed, for want of an answer. The affidavit of William Morton, in support of the bill, stated, that he was appointed, with others, by the County Court of Charlotte, to settle the account current of Joseph Fuqua, executor or administrator of John Fuqua ; that, having met at his house, they applied to him for his accounts : — he informed them he had no accounts, but gave them the key of his desk, that there they might find papers to make the account; — among which they found several bonds : — one was from William Price, senior, to Joseph Fuqua, of considerable amount: they asked him the reason for not applying these bonds to the discharge of his debts, when his property was almost all sold ? — his reply was, “they were chiefly paid, and particularly Price’s bond.”

The complainant farther proved by the affidavit of Francis Scott, who acted as Sheriff for Charlotte County, in the years 1786,1787, 1788, and 1789, that, in those years, or some of them, the greatest part of Joseph Fuqua’s personal property was sold by executions ; that he never heard Joseph Fuqua say that William Price senior, was indebted to him in any sum of money ; and he believed, if it had been the ease, the said Fuqua would have made exertions to have collected it:— that the witness well knew the said Price, and that he, during his knowledge of him, was able to pay any debt he owed.

The cause came on to he heard on the 21st of September, 1811, when the Chancellor was of opinion, “that, so far as the law of this case has been settled in 1 H. & M. 385, it should be the rule of this Court; and the allegation, that the plaintiff had uniformly been advised by his counsel not to make any defence in the suit at law, except that furnished by the antiquity of the bond, upon the authority of Syme and '^others v. Montague, 4 H. & M. 180, might have been the ground of a motion for a new trial, but it was not; nor is any reasonable excuse offered for this neglect. But, again, as the plaintiff had two grounds of defence, and made his election by the advice of counsel, he should abide the consequences thereof; for he was grossly negligent, as he did not go prepared to defend himself by all the reasonable means in his power; and it is a little remarkable that, while he was endeavouring to avail himself of a new trial upon another ground, the ill advice of his counsel was not resorted to.” It was therefore decreed that the bill be dismissed ; to which decree a writ of supersedeas was awarded by this Court on the petition of the complainant.

Munford, for the plaintiff in error,

represented, that the mistakes into which he was accidentally led by his counsel in the District *36Court, together with the unforeseen circumstance of the evidence given in the jury-room, whereby he was prevented from having a fair trial at law, where sufficient reasons to entitle him to relief in equity, notwithstanding he might not have been entitled to a new trial by the strict rules of the common law : — that he was surely not guilty of any neglect in relying on the advice of his counsel, whose knowledge of the law was so much greater than his own, and who assured him, in the first instance, that the presumption arising from the length of time would overthrow the claim ; (in which, indeed, he would not have been disappointed, but for the testimony, so improperly given in the jury-room ;) and, in the second instance, that the facts disclosed by the affidavits of two of the Jurors were sufficient grounds for a new trial. The mistake of counsel would not have been a ground to support the motion in the Court of common law;(1) but it is in a Court of equity, whose peculiar province is to give relief according to justice, in cases of mistake and accident.

*At any rate, a credit should have been given for the amount of the receipt, dated May 1st, 1775, which was not found by the complainant until after the judgment at law. (2)

No counsel appeared for Fuqua’s administrator.

*

See monographic *note*on “New Trials” appended to Boswell v. Jones, 1 Wash. 322.

The decision In the principal case is discussed In Henry v. Davis, 13 W. Va. 254, 255, 256.

(1)

 Note. It was not decided in Syme and others v. Montague, 4 H. & M. 180, that a new trial might be obtained at law, on-the ground of a mistake of counsel. — Note in Original Edition.

(2)

 Note. The case of De Lima v. Glassel's administrator. 4 H. & M. 369, seems opposed to this position.

Friday, the 12th of March, 1813.

JUDGE ROANE

pronounced the Court’s opinion, that the decree be reversed, and the cause remanded to the Superior Court of Chancery, with directions to that Court to order a new trial of the issue at law, in the Superior Court for the County of Prince Edward.