Alexandria gazette & daily advertiser. [volume] (Alexandria [Va.]) 1817-1822, 1817-10-29

thS Sou'' we wv "Pl''' va PS'
son having right. 1t certainly is true
that though the Judgment be frau
dulent, yet only those who can be pre-
JUDGED Ivy it are authorized 10 draw
it in question. 1t is not necessary to
decide here whether every creditor
has the right--One Of the applicants
has younger judgment and execu-
ton, and he doubtless can test the va
lidity of the prior judgment and exc
cution. which stand in the way of his
debt-Nor is it any answer to him
that he may have some other remedy.
IL it be true that another remedy
does exit, it cannot take away his
right to this remedy, or destroy the
power of the court to do him justice
in this easy, and to the plaintiff, equi-
table way, as he may make out his
own case by his own showing.
Is this case of fraud? Without
going at large into the evidence on
the part of the applicants, it is suffi-
cient for the court to say, that from
the facts stated, and the differences
fairly drawn in the afiidavi.s, the
court would be bound on these ailida.
Wits, il they were uncOntradicted, to
set aside the judgment as being with
out consideration and void.
But the plaintiff has made a counter
statement-he AYERS that he had a
long account with the defendant,
which he could not get him to settle
I hat the defendant, however, finally
agreed to give him bond in judg-
ment for five hundred dollars, which
the parties believed to be about the a.
mount of the account, and if it turned
out to be less. the plaintiff was to ad-
lust with the defendant. The plaintiff
now exhibits his account, commencing
in April 1903, and carried down to
ISl6-tllis account is principally i'll
small items for cash advances, it has
no credits whatever, and with interest
added ON the charges Of each year,
amounted when the bond was given,
to a sum but little rising 600 dollars.
Now as to this account, the court
have several ditficulties-In the first
place, it is strange the account should
have been running for upwards of 8
years, the plaintiff making continual
cash advances, with single receipt
or credit. and the defendant all the
while putting OF settlemcnt-This
is certainly not in the usual course of
business.
Again, if the defendant would not,
as is stated by the plaintiff. come to a
settlement, which seems to imply that
something more was to be done than
to look over the charges of the plain
tiff, some counter charges to be bro't,
it is ratherunaCcOuntabie that the par
ties should think an account which,
without the interest. was less than i 80
dollars, amounted to 500 dollars, and
particularly that the plaintiff, with his
books frequently in his hands to settle
the very account, should so believe.
And it is equally strange that the de-
PENDANT, who felt such reluctance to
come to any settlement with the plain
tiff, should so willingly give him a
Judgment CONTROLLING his person and
property for a sum 81 much beyond
the pretended debt other circumstan-
ces might be mentioned, but the court
intentionally omit them. as it might
prejudice the plaintiff in the course a.
bout to be taken.
Upon the whole, the court see e.
nough in this transaction to make
them hesitate but as they wish not
to decide the fact under the circum-
stances of the case, without the inter-
ycntiop of a jury, they direct an is
sue to try the charge of fraud-and,
i'm the mean time, the plaintiff to col
lect the sum of $50 dollars on the ex-
ecution, and to pay the same into
court, that sum appearing sufficient to
cover the demand of the plaintiff at
the time of giving the bond according
to his own showing.
RULE.
tits ordered that a feigned issue be
made up under the direction of one of
the judges Of this court TO try the fact
whether the Judgment in this cause
was entered for the purpose of secu-
ring or enforcing bona fde debt due
at the time and its amount, or to CO.