#### JOHN WATTS vs. JOHN McC. BOYLE & AL.

An allegation that a party had a good defence at law, which he lost without his fault but by the fault of the other party, will not entitle him to a certio-rari. If the other party insists on an unconscientious advantage at law, the proper remedy is to be sought in a Court of Equity.

Any objection to a bond, given by an insolvent debtor arrested under a ca. sa , must be made at the Court to which the bond is returnable and before judgment is rendered on it.

The cases of Setts v Franklin, 4 Dev. & Bat. 464, and Dobbin v Gastar, 4 Ired. 71, Cited and approved.

Appeal from an interlocutory order of the Superior Court of Law of Martin County at Spring Term 1844, his Hon- or Judge Pearson presiding.

This was the case of a certiorari. At July Term, 1843, of Martin County Court, Watts recovered a judgment against Boyle in an action of debt, for $394 61 principal money and $9 07 for damages and costs of suit. From that term he sued out a writ intended to be a ca. sa., but which, instead of being “ to satisfy,” used the words u then and there to render to the said Watts ” the sums recovered as aforesaid. Being arrested thereon, Boyle, with Hoffman and Pettijohn as his sureties, entered into bond, before the Sheriff, to the plaintiff Watts, dated the 14th of September, 1843, in which it was recited, that Boyle was then under an arrest under a capias ad satisfaciendum at the suit of Walts for the sums recovered in the suit, with a condition in the usual form for the appearance of Boyle at the next County Court to be held for Martin County, at the Court-House in Williamston, on the *332second Monday of October next following, then and there to standto and abide by such proceedings as may be had in relation to his taking the benefit of the Act passed by the General Assembly in the year 1822, for the relief of insolvent debtors. At October Term the sheriff returned the writ and bond; and, Boyle being solemnly called and failing to appear, judgment was, on the motion of the plaintiff, rendered on the bond against Boyle and his sureties, to be discharged on the payment of the former sums recovered, interest and costs, and execution issued therefor against those three persons.

On the 8th of November following, Boyle and his sureties obtained a certiorari, upon a petition and affidavit, stating that he, Boyle, did attend Martin County Court at October Term, on Monday and Tuesday, in this case and in another at the instance of one Hyman, and Avas ready then to prove that he had given notice to his creditors and-to take the oath of insolvency; that Hyman and a gentleman of the bar, who, as Boyle understood, was the counsel for the plaintiff in both cases, informed him that it was their intention to take an issue of fraud, which co'uld not be tried at that term, and therefore that he might then leave the Court and return at the next term; and that he accordingly went to another place, to which he was necessarily called, and after his departure, the plaintiff, Watts, had him called, and, upon his failure to appear, took judgment on the bond. Upon the cer-tiorari the record of the County Court was brought up to the Superior Court, where, upon affidavits and counter affidavits, it appeared to the satisfaction of his HoNok, that the counsel for Hyman did have the alleged communication with Boyle and assented to his leaving Court, forasmuch as his client took an issue on his concealment of property; and that Boyle was under the impression that the same gentleman avus counsel for both Hyman and Watts, but that the fact Avas that Boyle was mistaken in that respect, for Hy-man and Watts had each his oavii counsel and attorney, Avho were different persons, and neither Watts nor any person authorized by him gave any consent to Boyle’s leaving the *333Court. Upon this opinion being given by the Court, the counsel for the plaintiffs in the certiorari then moved to quash or reverse the judgment of the County Court, upon the ground that the writ, issued as a ca. sa,, was irregular and null, and gave the sheriff no authority to take the bond, and made the judgment thereon rendered erroneous. At the same time the counsel for Watts moved to dismiss the cer-tiorari and to have judgment for his debt against the plaintiffs therein and their sureties. His Honor, being of opinion that Boyle departed the Court under a mistake as to Watt’s consent to his doing so, and, therefore, that his default did not imply any waiver of any defects in the proceedings, and accounted for his not appealing; and being also of opinion that the judgment of the County Court was erroneous because the ca. sa. was defective, and this Avas a proper method to correct that error, refused the motion in behalf of Watts, and ordered the case to be transferred to the trial docket.

From this decision of his Hoitor, Watts prayed an appeal, which Avas allowed.

Biggs for the plaintiff.

No counsel in this Court for the defendants.

RtjffiN, C. J.

As far as this application is founded on surprise, we think it cannot be sustained for two reasons. One is upon a matter of law, as laid do\Vn in Betts v Franklin, 4 Dev. & Bat. 464, which is, that from the nature of the defence it must be made in the County Court, and if not made there, it is gone at laAV. There is no new trial to take place in the Superior Court, nor any question in the Superi- or Court, of the sufficiency in law of any defence made in the County Court. But the whole rests upon an allegation, that the party had a good defence at law, which he has 'lost without his fault and by the fault of the other party, and asks that the other party shall not be allowed to insist upon his advantage.

Now, that prayer it is not the province of an appellate Court *334of Law or Court of Errors to grant, but that of a Court of ~Equity, which relieves against accident, mistake or surprise, and restrains one from an unconscientious advantage. But, secondly, there was no surprise in this case, or any ground, on which even a Court of Equity could assist the party. We agree with his Honor as to the effect of the affidavits, that Watts had given Boyle no reason to think, he might leave Court, and that the mistake of the latter arose out of his own folly and carelessness in not making enquiry from the creditor himself or his attorney. Upon the remaining question we think the opinion of his Honor erroneous. We do not stop to enquire, whether a certiorari is or is not the proper proceeding for annulling an erroneous judgment of the county court in such cases as this. We presume it is a mere clerical error, that “ the case was transferred to the trial docket; ” since there is nothing to try, and the judgment should at once have been, that the judgment of the county court was quashed or reversed, and the parties left to begin again. But assuming this to be a proper proceeding to correct the error of the County Court, any, we think the motion of Watts should have been allowed, because that judgment is not erroneous.

We held in Dobbin v Gaster, 4 Ired. 71, that where the bond was in due form, according to the statute, and the debtor would not appear and take objections to the previous proceedings (if open to him there) the Court was not bound to look out of the bond, and go back, more than it would be bound to require the plaintiff to prove his declaration in debt, when the defendant did not deny it by plea. The debtor mid his sureties must take care to make an appearance and defence in due time; and ought not to be heard after judgment, to take exceptions, as to matter of fact which they omitted to present, when the case was regularly before the Court. Our opinion, therefore, is that the judgment must be reversed, and that judgment be given against Boyle and his sureties, Hoffman and Pettijohn, and also the sureties for the certiora-ri, for the debt, interest and costs formerly recovered, and *335the costs of the Superior Court and of this Court.

Per Curiam, Judgment accordingly.