#### DAVID LUNCEFORD vs. DUNCAN McPHERSON et al.

Whore, in a petition for a certiorari, it is alleged that defendant has good reason to believe, and does believe, that the debt on which he is sued had been paid, and shows facts and circumstances that make this probable; and further shows that ho did not attend at the trial, of the cause in the County Court, because he was told by plaintiff’s counsel that it would be dismissed at the ensuing Court, at the plaintiff’s cost, but nevertheless, a judgment by default was taken against him, a certiorari will be granted to bring the cause to the Superior Court, where it will be heard de novo.

Petition for a Oertiorari heard before his Honor, Judge Dick, at the Pall Term, 1855, of Johnston Superior Court.

The petition sets forth, “ that on 26 th of November, 1853, the petitioner, as the surety of one Joseph W. Price, executed ■with him, a bond for $196, payable to one John. P. Cooke, duo four mouths after date, with interest from date ; that this bond was subsequently endorsed by the obligee, Cooke, to K. M. O. Williamson and A. D. Northam, without recourse, who endorsed the same, after it had become due to the plaintiff, Da*175vid Lunceford; that about the time of the maturity of the said bond, Price married the daughter of Lunceford, and being about to visit some of the northern cities, he deposited with the petitioner a quantity of valuable silks and other goods, as collateral security to indemnify him against his liability on this bond, directing him to hold the same subject to the order and disposal of the said Lunceford. Petitioner alleges further, that he informed Lunceford of this deposit and its object, and he was directed by him to take care of the goods and all would be right; that when Price returned, he applied to the petitioner for the goods, and carried them to Lunceford, stating that they were to be taken by him in satisfaction of the debt; and he verily believes, and so alleges, that these goods were received by Lunceford, and either used, or sold by him in satisfaction and discharge of this bond; that after this, Price frequently told the petitioner that the bond had been settled, and that all was right between him and his father-in-law; that Lunceford was a man of ample inpans to provide for his children, and that he did so provide, in a considerable degree, for his son-in-law, Price, by settling him on a tract of land, and assisting him in building on it, and in other ways ; and that a good understanding has always existed between Price and Lunceford.

“ Notwithstanding this satisfaction of the bond, Lunceford brought suit against petitioner and the endorsers, Williamson and Northam, returnable to the November term of Johnston County Court. Upon the writs being served on the petitioner, he applied to Price to know why he had been sued, to which he replied that there was a mistake about the matter ; that he would seo his Ather-in-law and have it adjusted. The petitioner further alleges, that he applied to the attorney who brought the suit, (S. B. Smith,) stating the facts, and remonstrating against the injustice of the proceeding, when he 'was assured by said attorney, that the suit would be dismissed at the next Court, (which was the return term,) at the plaintiff’s cost, and that such was the understanding between his client and Price. Confiding in these promises and assurances, the *176petitioner says he gave himself no further concern about the matter ; but, to his astonishment, at the next term of the Court, in the absence of petitioner, and without his knowledge or consent, a judgment by default was taken against him and the endorsers. He avers that he is advised, and believes, that he has a good defense to the said claim, and that upon a fair trial, he can make it appear; that if he had had any doubt as to the good faith and integrity of the plaintiff in the premises, he would have employed counsel to defend the suit, and if it had gone against him, would have appealed.”

No answer is put in to this petition, and no proofs filed.

On the defendants’ motion to transfer the cause to the trial docket for a trial de novo, the plaintiff moved to dismiss the petition, and upon hearing these several motions, his Honor, being of opinion that the allegations in the petition were not sufficient, ordered the same to be dismissed. Erom this order defendant appealed.

Fowle, for plaintiff.

Miller and Winston, Sen., for defendant.

Battle, J\

If a party to a suit in the County Court be deprived, by the fraud of his opponent, of a defense which can be made in that Court only, he can have no other mode of redress, than by application to a Court of Equity, whose peculiar province it is to relieve against mistake, accident, surprise, or fraud. Watts v. Boyle, 4 Ire. Rep. 331. The same mode of redress is the only one open to him, against whom an unconscientious judgment has been obtained in the Superior Court, because, if there be no error apparent on the record, there is no appellate tribunal which can give relief. But if the defense, which, but for the fraud, might have been availed of in the County Court, be of a kind which, upon an appeal to the Superior Court, is equally cognizable there, then, the latter Court will, when the appeal has been lost without any default of the party, afford relief by means of the writ of certiorari. And, if the judgment were taken by default, it *177•will be set aside, and tbe party allowed to plead so as to have a trial upon the merits. Dyer v. Rich, 2 Car. Law Repos. 610; Hunter v. Kirk, 4 Hawks’ Rep. 277; Dougan v. Arnold, 4 Dev. Rep. 99. These eases fully warranted this Court iu saying, in Betts v. Franklin, 4 Dev. and Bat. Rep. 465, and again, in Kelsey v. Jervis, 8 Ire. Rep. 451, that “ it is true, a certiorari has been allowed, and properly, where the judgment in the County Court was by default; and upon it the judgment has been set aside, and the defendant allowed to plead.” The Court then goes on to say that this “ can never be done, unless the party show two things : first, an excuse for the laches in not pleading, and secondly, a good defense.” The defendant in the present case, then, is entitled to the relief which he- seeks, if he has shown what we have thus seen it is necessary for hinvto do. The allegations contained in his petition are not denied, and we must, therefore, take them to be true. His excuse for not pleading to the suit in the County Court is, that the plaintiff’s attorney told him that the suit would be dismissed at the plaintiff’s cost, and that such was the understanding-between him and Price, the principal debt- or. Surely a better excuse for the defendant’s laches could not well be rendered. His defense is, that his principal debt- or deposited with him as collateral security, certain goods which he has reason to believe, and does believe, went into the hands of the plaintiff, and were- applied by him, in some way, in discharge of the debt, and he believes that if an opportunity be allowed, he can prove it. The plaintiff’s counsel objects that this is not stated with sufficient certainty; but we cannot sec how it could properly be stated in any other manner. The defendant does not profess to have a personal knowledge of the matter, and it would be very hard to deprive him of a defense which he could establish by the testimony of others, merely because he did not happen to know it himself. Our conclusion is, that the Judge in the Court below erred iu making the order to dismiss the writ of certiorari: therefore the order must be reversed, and this must be *178certified, to tbe end that tbe parties may proceed with tbe cause.

Pee Curiam.

Judgment reversed.