
    Richmond.
    Griffith v. Thompson.
    1847. October Term.
    
    An action is brought in 1835, and tried in 1839, upon an issue made up on the plea of non assumpsit, and there is a judgment for plaintiff. Defendant then applies for an injunction to the judgment, on the ground that he had offsets which he had intended to plead; but that owing to the sickness of his family at the time when the Court sat, and for some time before, he was not able to attend the Court or prepare for trial, and that his counsel to whom he had communicated his defence was also absent. It appeared that offsets were neither pleaded or filed, and though one of defendant’s counsel was present, no application for a continuance was made, nor was any affidavit filed upon which such an application could have been based. Held : There was no cause for an injunction and new trial.
    
      In October 1839, Tyree D. Thompson obtained from the Circuit Court of Franklin county, an injunction to a judgment obtained against him in that Court by Chisholm Griffith. In his bill, he stated that he had been emPloyed for several years by Griffith to manage his store in the county of Tazewell, and that Griffith was indebted to him for his salary of 120 dollars a year, and other expenses incurred for him, in the sum of 402 dollars 37£ cents. That Griffith had brought an action against him in the Circuit Court of Franklin, on an account for 329 dollars 12| cents. That when the cause was called for trial, he was absent, owing to the severe illness of several members of his family. That his wife and two of his children were dangerously ill at the time of the trial, and had been so for some weeks previous. That his counsel with whom he had consulted, and who was apprised of his defence, was also absent. That he had intended to set up his claim against Griffith, as a set off, but was prevented by his absence from the Court. He therefore prayed for an injunction to the judgment, and for a new trial of the cause.
    
      Griffith answered the bill. He admitted the employment by him of the plaintiff, but denied that there was anything due him on that account. He said that the plaintiff had failed to render any account of his agency, as he was bound by his contract to do. That he had kept his accounts so badly, as to be unintelligible to the defendant, who had been compelled to bring a suit in chancery to have the account settled, which suit was still pending. That he had brought his action at law against the plaintiff in 1835; that no appearance or-plea was entered until the May term 1838. That the cause was tried at the May term 1839, up to which time no offsets had been filed, nor had any witnesses been summoned by the defendant in the action. That though one of the counsel for the defendant in the action at law was absent, another, the partner of the absent counsel, was present; that a continuance of the cause was not asked, nor had any affidavit been made with a view thereto. That as to the illness of plaintiff’s family, defendant knows nothing and calls for proof. And he objects to the jurisdiction of the Court.
    A copy of the record of the action of law is filed, from which it appears that the issue was made up on the plea of non assumpsit; and there was no plea of set off, nor were any offsets filed. The plaintiff proved by one witness that his wife was very unwell in April, and about the first of May 1839; and that it would not have been prudent for the plaintiff to leave her; and that one of his children was very unwell.
    At the October term of the Court for 1840, the defendant moved the Court to dissolve the injunction, but the Court overruled the motion, and directed a new trial of the cause. From this decree, the defendant applied to this Court for an appeal, which was allowed.
    
      The Attorney General, for the appellant.
    
      Cooke, for the appellee.
   Bv the Court.

The Court is of opinion, that the decree be reversed and annulled. And this Court proceeding to pronounce such decree as the said Circuit Superior Court ought to have pronounced, it is further decreed and ordered that the injunction awarded the appellee in the cause bo dissolved and his bill dismissed; and also that the said appellee do pay unto the appellant his costs about his defence in the said Circuit Superior Court expended; which is ordered to be certified.  