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Hill v. Jones

Supreme Court of North Carolina
Dec 1, 1831
17 N.C. 101 (N.C. 1831)

Opinion

(December Term, 1831.)

1. Where a judgment on a bond was obtained, and, after a return of not satisfied, became dormant, and ten years afterwards was revived, when the defendant, having discovered evidence that the bond had been paid, obtained a verdict establishing that fact, upon an issue directed for the purpose, it was held (RUFFIN, J., dissentiente), that as the evidence was satisfactory to a jury, the lapse of time was not a bar to the relief.

2. PER RUFFIN, J. A court of equity requires active diligence as well as a just cause, because of the difficulty of ascertaining the truth in stale cases.

3. The rule prescribes no particular time; but where the statute of limitations bars at law, it bars also in equity.

4. Where the relief is sought against a judgment at law, to let in a legal defense unknown at the trial, the bill should be filed with the least possible delay.

5. This is in analogy to the rule at law on application for continuances for newly discovered testimony.

6. And also where a verdict is sought to be set aside by appeal or certiorari.

7. At any rate, the plaintiff should be held, in analogy to the act of 1800 (Rev. ch. 551), prohibiting the granting of injunctions upon judgments obtained at law more than four months after the trial, to file his bill within that time after the discovery of the evidence.

8. A judgment ought not to be set aside for testimony discovered after the time allowed the defendant to bring error.

9. Much more ought a bill to set aside a judgment for after-discovered testimony be dismissed, where, if it sought to reverse a decree, it would be barred by lapse of time.

THIS bill was filed in September, 1828. It charged that the plaintiff gave his bond to James Jones, the defendant's testator, for £ 44 3 6, in December, 1811, payable in ten days; that at three several days he made payments, the last of which Jones acknowledged to be in full, but excused himself from then delivering up the bond by saying that he was too busy and was going from home, so that he could not look for it, but would surrender it whenever called for. The bill then charged Jones's death, and that he appointed executors, of whom the defendant was the survivor, who, finding the bond uncredited and uncanceled, brought suit on it and recovered judgment in August, 1818, and issued an execution, which was returned "Not satisfied," by their consent; that the plaintiff informed the executors, while the suit was pending or before, that he had paid the debt, and they declared they had no doubt of it, but that, being executors, they were compelled to sue, and leave him to his defense; that the plaintiff employed an attorney to defend the suit, who pleaded to it, but he could not support his defense, because one (102) John Sessoms, the only witness within his knowledge who could prove the payments, died either before or immediately after the suit was brought, and in consequence thereof his pleas were withdrawn, and judgment by default entered; that only one execution ever issued, and the judgment became dormant. The bill then charged that some time after the judgment, and upon the circumstances becoming known in the neighborhood and much talked about, one Matthews told the plaintiff that he heard the testator, a short time before his death say to him (the plaintiff) that the bond was paid, and that he would give it up when convenient. The plaintiff then charged that from the execution not being issued again, he entertained the belief that the executors were convinced the claim was unjust, and had abandoned it; and, furthermore, that he was advised by persons in whom he had confidence that there was no danger of the claim ever coming against him, and that he was ignorant in such matters, and rested satisfied therewith — especially as he thought, if it ever should be revived, he could defend himself upon the testimony of Matthews.

Gaston for plaintiff.

Hogg for defendant.


It is then charged that a sci. fa. to revive was brought, and judgment obtained in May, 1828. Upon the trial the plaintiff offered Matthews as a witness, who was rejected as incompetent to prove a payment made before the former judgment.

The defendant in his answer stated that the bond was found among the testator's valuable papers, and that there was nothing to show that any part of it had been paid. He admitted that the plaintiff always said to the executors that he had paid it, but denied that they told him they had no doubt of the fact, or intimated to him that they would not enforce the collection. On the contrary, he alleged that although they did not, out of common courtesy, flatly contradict his positive assertion, they gave him distinctly to understand that nothing could be done in the matter, but in due course of law; and as to the defendant's own knowledge or belief, he said that he knew nothing, and that he believed that most probably the debt was not paid, for he was altogether ignorant that the plaintiff was able to make payment. He further (103) averred that the execution was not suffered to lie either from motives of compassion or a belief that the debt had been paid, but solely because the plaintiff was unable to satisfy it until just before the last suit was brought.

The plaintiff filed the deposition of Matthews, who swore that he heard the testator at his own house, a few weeks before his death, tell the plaintiff that the bond was fully paid, and that he would give it to him if he would apply in a few days. He also deposed that he gave this information to the plaintiff just before the last judgment was taken. The testator died in 1816.

Upon this case and this evidence, the court below submitted the following issue to a jury: whether or not the bond was paid to the testator; who found that it was. And thereupon, Daniel, J., decreed a perpetual injunction, and the defendant appealed.


I think the decree made by the Superior Court ought to be affirmed. The argument of most strength against it is the length of time that elapsed after the first judgment was obtained upon the plaintiff's bond, in 1818, until the filing of this bill. However, I do not consider that sufficient. The plaintiff, it is true, has not informed us of the time when he first discovered the testimony of Matthews, which he ought to have done. If the discovery was made shortly after the judgment was obtained, it was to be expected that an earlier application would have been made to this Court for relief against it. This (104) may have been omitted through ignorance, or from a belief that the plaintiffs at law would not proceed further upon it, after being made acquainted with Matthew's testimony. Be those things as they may, the time that has run since the judgment was obtained until this bill was filed does not, of itself, form a bar to the relief prayed for by the plaintiff. And it is further from it, as the defendants issued no execution upon the judgment obtained by them at law, but remained still until they issued process upon it, and obtained judgment thereon in 1828. When this latter judgment was obtained, the plaintiff states that he offered to prove the payment of the debt by Matthews, to which the plaintiffs at law objected, as they had a legal right to do. It therefore appears that the defendant was slow in asserting his claim at law, and the plaintiff was backward in his application to this Court, perhaps on that account. But the question was submitted to a jury in the Superior Court, whether the debt was paid to the defendant's testator in his lifetime. They have responded that it was so paid. I therefore think that the decree of the Superior Court upon that finding should be affirmed, and that the defendant pay the costs of this Court, but the plaintiff must pay the costs at law and the costs in equity incurred in the Superior Court.


Summaries of

Hill v. Jones

Supreme Court of North Carolina
Dec 1, 1831
17 N.C. 101 (N.C. 1831)
Case details for

Hill v. Jones

Case Details

Full title:JAMES HILL v. JAMES S. JONES

Court:Supreme Court of North Carolina

Date published: Dec 1, 1831

Citations

17 N.C. 101 (N.C. 1831)