
    John B. Pass vs. John W. Dykes and Mary A. Love, Administrators of the Estate of T. O. Love, deceased.
    P. filed a bill to enjoin perpetually a judgment recovered against him by D. & L., as surety on a bond to try the right of property in two slaves, levied on under an execution, which issued on a judgment in favor of D. & L.; the bill alleged, that there was not a full and fair trial of the right of property, in consequence of unavoidable accident, and that the complainant could establish by papers made exhibits to'his bill, that the slaves were not subject to the execution of D. & L., having been conveyed away by deed of trust before the rendition of the judgment, in satisfaction of which they were taken; upon the bill an injunction was granted; the answer of D. & L. denied the identity of one of the slaves named in the deed of trust, with that taken under the execution, and there was no proof in the cause; the vice-chancellor dissolved the injunction to the extent of the value of that particular slave ; held, that under the circumstances, the vice-chancellor could not possibly have done less, and the decree must be affirmed.
    Appeal from the district chancery court at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    On the 16th day of June, 1845, John B. Pass filed a bill in the district chancery court at Carrollton, against John W. Dykes, administrator, and Mary A. Love, administratrix of T. O. Love, deceased, charging, that, on the 16th day of October, 1839, the defendants recovered a judgment in the circuit court of Carroll county, against Lindsey Hendrick, Jeremiah Hendrick and James Sims, for about $1372; upon which a fi. fa. was issued, directed to the sheriff of Yallabusha county, and levied by him about the 9th day of April, 1840, on two negroes, named Reuben and Polly commonly called Mary; that John Hendrick claimed the negroes, and gave a bond with complainant as surety thereon, to try the right of property; that the trial of the right of property came on in April, 1843, in the circuit court of Carroll county, and in consequence of the absence of one or more witnesses on the part of the claimant, judgment was rendered in favor of the plaintiffs in the execution; that John Hen-drick intended to prove, and would have proved on the trial, that the negroes were never subject to the judgment under which they were levied on; but the witness or witnesses, by whom he would and could have made such proof, were prevented from attending court when the trial took place in consequence of high waters; and the trial could not be postponed, nor a new trial granted in consequence of the absence of John Hen-drick, who was then in a sister state on business, and necessarily detained there until after court adjourned. Complainant further charged, that the defendants instituted suit in the circuit court of Yalabusha county, on the bond given for the trial of the right of property; and on or about the 19th day of November, 1844, they recovered- a judgment against him thereon, for the sum of §1320 debt, and §172 damages, besides costs of suit; upon which judgment an execution was issued, and was then in the hands of the sheriff of Yalabusha county, who was then about to levy on the property of complainant to satisfy the same. That before the judgment against Lindsey Hendrick, Jeremiah Hendrick and James Sims was rendered, and long before the levy of the execution upon the negroes Reuben and Polly, to wit, on the 22d day of August, 1839, Jeremiah Hen-drick, who was the owner of the negroes, conveyed them by a deed of trust for the purposes therein mentioned, to William G. Kendal], and a copy of the deed of trust was made exhibit B to the bill; that the negroes Reuben and Mary, mentioned in the deed of trust, were the identical negroes levied on as above-mentioned ; that the deed of trust, as he was informed and believed, was made in good faith to secure the payment of a debt justly due to Coffman, as stated in the deed; that the negroes were sold under and by virtue of the trust, long before the trial of the right of property; and immediately after the sale they were taken by one Whitfield, and that neither John Hendrick nor the complainant was therefore able to deliver them up. Complainant further charged, that both at the time of the execution of the bond for the trial of the right of property, and at the time of the trial, John Hendrick and himself were wholly ignorant of the existence of the deed of trust, and of course neither of them then knew anything about the sale of the negroes under the deed of trust to Whitfield, and the removal of them by him to parts unknown. Complainant further charged, that the negroes Reuben and Polly or Mary, from the time the deed of trust was executed till they were sold under the same to Whitfield, resided in the county of Yalabusha, and that John W. Dykes and Mary A. Love never filed for record in the circuit court of Yalabusha county, an abstract of the judgment against Lindsey Hendrick, Jeremiah Hendrick and James Sims, in accordance with the provisions of the statute in such case made and provided. The prayer was, that the judgment against complainant should be perpetually enjoined, &c. An injunction was granted by the Hon. Hendley S. Bennett, on the 25th day of April, 1845. John W. Dykes and Mary A. Love filed their answer, admitting the recovery of the several judgments, and issuance of the several executions at the times and for the amounts specified in the bill; they stated that they did not know what John Hendrick intended or expected to prove at the trial of the right of property; but they did know, and they averred the fact so to be, that, during the pendency of the issue to try the right of property, from 1840 until the trial in 1843, John Hendrick never had a single witness summoned on his behalf, and they therefore supposed he did not expect to prove anything which would support the issue on his part. Respondents stated that they learned from the bill, and the copy of the deed of trust filed with it, that Jeremiah Hendrick did, on the 22d day of August, 1839, execute a deed of trust to William G. Kendall, upon two negroes, named Reuben and Mary; that they knew nothing about the deed of trust, and had never heard of it until the bill was filed; that they did not know the fact, but supposed the man named Reuben, mentioned in the deed of trust, was the same levied on under the judgment in their favor, but they denied that the Mary mentioned in the deed, was the identical Polly levied on under the judgment; they denied that Polly was embraced in the deed of trust; they stated that Hendrick had a negro named Mary, and also one named Polly. Respondents admitted that the negroes mentioned in the deed of trust were in Yalabusha county at the time it was executed, and remained there; and they also admitted they had never filed an abstract of their judgment for record in Yalabusha county; they said they did not know whether complainant was apprized of the existence of the deed of trust, at the time he signed the bond to try the right of property or not, but from the best information they could obtain, they believed Hendrick knew all about it. It is not deemed necessary to notice further the pleadings in the cause, as they did not enter into the consideration of the court. No proof was offered on either side. The vice-chancellor retained the injunction as to the value of the slave Reuben, and dissolved it as to the residue of the judgment, and the complainant appealed to this court.
    
      Sheppard, for appellees.
    The answer fully denies all the charges of the bill in reference to the title to the slave Mary, and as a matter of course the injunction should have been dissolved to the extent directed by the chancellor.
    The surety is concluded by judgment regularly obtained against the principal. Foster v. Wood, 6 Johns. Ch. R. 90.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill of injunction filed by the appellant to enjoin perpetually a judgment obtained against him by the appellees, in their representative character. It seems that he became a surety in a bond to try the right of property to two slaves, which had been levied upon under an execution in favor of the appel-lees. The grounds principally relied on for the injunction, are that, upon the trial of the issue as to the right of property in the slaves, the claimant was accidentally and unavoidably prevented from substantiating his claim; and that at the trial against himself in a suit upon thehond, to which he was surety, he was ignorant of the facts which, as he alleges, entitle him to relief. These facts were, that there was no full and fair trial of the right of property in the first cause, in consequence of unavoidable accident; and that he can establish by the papers made exhibits to his bill, that the slaves were not subject to the execution of the appellees, having been conveyed away by deed of trust before the rendition of the judgment, in satisfaction of which they are taken. The answer denies the identity of one of the slaves in the deed of trust, with that taken under the execution, and there is no proof in the cause. The vice-chancellor dissolved the injunction to the extent of the value of that particular slave, and retained it as to the residue until final hearing. From this order an appeal was taken. This is the only part of the case before us, as no decision has been made as to the residue, and no appeal has been taken from the refusal to dissolve for the whole amount.

The court could not, under the circumstances, have possibly: done less. The only fact rvhich could at all have justified the retention of the injunction was denied, and was not proven. The order dissolving to that extent was clearly right.

. The answer moreover denies the existence of any accidental or unavoidable circumstances, which took away a fair trial at law, and avers that no witnesses had been summoned, nor any steps taken to prepare for trial. If its statements be true, and there is no proof to the contrary, there seems to be no ground for equitable interposition. But as only the order dissolving the injunction in part, was appealed from, and that by the complainant, we can do no more than affirm the decree, which is accordingly directed.

Decree affirmed.  