#### JOHN WOODFIN v. WILLIAM D. SMITH, et al.

A Court of Equity will not enjoin an execution, because the defendant at law has paid it, when he might have proved that fact on the trial, and was not by fraud or surprize, prevented from so doing.

This bill was originally filed, as an injunction bill. The injunction was dissolved on the coming in of the answers of the defendants, and the bill was then continued over as an original. The gravamen of the bill is that two judgment's were rendered against the plaintiff, before a justice, in favour of John W. Státton, which was satisfied by the plaintiff, through the agency of Hiram Whitehead i that upon the death of the said Whitehead, the satisfied judgments being found without any indorsement of satisfaction, among his papers, were put into the hands of an officer, who served a notice on the plaintiff, to show cause why executions should not issue thereon: that the plaintiff being obliged to attend a court at the distance of sixty miles, as a witness under subpcena, on the second day after that on which he was cited to appear, informed the officer of the payments made, and of his inability to attend on the appointed day to prove it, requested a postponement of the trial, and expected confidently, that the trial would be postponed accordingly: that the notice, nevertheless, was returned; and no defence being made, the executions were ordered, and came to the hands of the defendant Fortune, a deputy sheriff of the county: that an execution upon a judgment obtained against the plaintiff, in the County Court, by one Moses L. Hodges, also came to the hands of *452the said deputy sheriff: that the defendant, Smith, had purchased from the agent of the representative of Hiram Whitehead, the two judgments in the name of Station, with notice of plaintiff’s payment thereof, and was also the equitable proprietor of the judgment of Hodges: that the plaintiff made payments to Fortune of sundry sums of money, expressly to be applied to the judgment of Hodges, informing him that the other judgments had been satisfied ; and that he would not pay them again: but that Fortune, combining with Smith to prevent the plaintiff from setting up his defence against these judgments, had applied the sums so received in the first place, to the satisfaction of the executions upon them, and the balance in part payment of the judgment of Hodges; and was proceeding to enforce the collection of the residue of that judgment.

December, 1836.

The defendant, Fortune, explicitly denied in his answer, that the payments received by him from the plaintiff, were received on account of, or directed to be applied by the plaintiff, to the discharge of the court execution; but declared that they were applied in the first place, to the satisfaction of the justice’s judgments, simply because the payments were sufficient to extinguish them; and averred that this application was made with the knowledge and approbation of the plaintiff.

He distinctly denied all knowledge in relation to the alleged matters of defence set up by the plaintiff against those judgments, in the name of Station, and all concert and combination with his co-defendant, Smith. The defendant Smith, answered, that he had been informed and believed that Whitehead purchased the judgments of Statton, at the request of the plaintiff; and that after the death of Whitehead, the executions having remained dormant more than a year and a day, the administrator of Whitehead caused them to be revived by citation: that the defendant took those judgments from the administrator after they were so revived, and at their full amount, in satisfaction of a debt due him: that before he traded for them, he had repeated conversations with the plaintiff, in which the plaintiff stated that a settlement ought to have taken place between him and Whitehead, and that he *453believed he had claims against Whitehead, to the full amount of the judgments; but as Whitehead had died before any settlement, he would be obliged to pay them : that in consequence of these conversations, he consented to take the judgments, as a payment of the debt which the administrator of Whitehead was liable for: he denied all combination or collusion with his co-defendant; insisted that he was in conscience entitled to retain the money received upon those judgments; and further, that if in truth, the plaintiff had paid them off to Whitehead, or to Statton through Whitehead, the plaintiff ought to have made that defence before the magistrate, when cited to show cause why execution should not issue; or if prevented from obtaining justice there, he should have sought the ordinary and legal remedies, by application to the courts which revise the proceedings before magistrates.

No counsel appeared for either party.

Gaston, Judge,

having stated the case as above, proceeded : — No evidence of any kind, is offered on the part of the plaintiff, to support his allegation, of his having directed an application of his payments. There is no ground on which he can have relief against Fortune, and the bill must be dismissed as to him, with costs.

If we were satisfied of our right to grant relief, against the other defendant, we might hold that the plaintiff’s allegation of having paid the judgments of Statton, to or through Whitehead, is true; for Statton testifies that he sold the judgments to Whitehead, and that thereupon, the latter remarked, that the plaintiff had already paid him the amount of them.

There is no evidence to support the allegation of the defendant, that he bought these judgments in consequence of the plaintiff’s admission,' that he was bound to pay them; and there is evidence which renders it at least probable, that he was aware of the plaintiff’s claim, that the original judgments had been paid off in Whitehead’s lifetime. At all events, as the judgments were not assignable at law, the defendant, by his purchase, took the judgments liable to any equities subsisting against them.

*454But we are unable to perceive any satisfactory ground on which a court of equity ought in this case to interpose for the relief of the plaintiff. The alleged payment should have been pleaded when the plaintiff was cited to show cause why executions should not issue. The payment, if made, was sufficient cause against the ordering of the executions; and he had notice and opportunity to show it. He has not proved that he requested a postponement of the trial; or réceived any assurance, direct or indirect, that it would be postponed. Reese, the officer.examined for that purpose, testifies that he “ cited the plaintiff to attend at the widow Whitehead’s, but that he failed to attend, alleging that he had to attend Haywood court; and saying also, that he had paid the claims.” It does not appear that the plaintiff was deceived by any promise to postpone the trial, on the citation; and he has not proved his inability to attend; the question of payment must be considered as having been regularly passed upon by the judgment rendered on the citation. Besides, he has alleged no excuse for not endeavouring to have a new trial, or appeal, or remedy by recordair; has alleged no efforts on his part, to ascertain what had been done on the citation; and no steps taken to correct the injustice of this adjudication, for many months after it was rendered.

We feel ourselves constrained to hold, that under these circumstances, he is not entitled to the extraordinary aid which he asks for. The bill must therefore be dismissed as to Smith, also; but in this respect, it is dismissed without costs.

Pee. CuRIam. Bill dismissed.