
    Samuel N. Robb vs. John Halsey et al.
    Equity will not interfere, where a defence might have been made at law, to set aside a judgment, except under peculiar circumstances, nor will it grant a new trial in a case free from fraud in the rendition of the judgment, unless the party has been deprived of his defence by means beyond his control, without negligence on his part.
    The defence of infancy is equally available at law as in equity; the judgment at law against an infant may be reversed by a writ of error coram nobis, and this seems to be the proper remedy.
    In a bill for a new trial at law, the excuse alleged for failure to make defence there, was, that the complainant was sick at the time of the court; that the witnesses had been directed to be summoned by his counsel; but the subpcena was issued so late, that the sheriff could not execute it, and the complainant, by reason of his sickness, could not be present to file an affidavit for a continuance ; held, that no reason was shown why the subpcena was not issued in due time, and as the complainant was not confined by sickness until the day before the court, no excuse was offered for the previous delay.
    Where a judgment was obtained at law upon a note executed by the maker when an infant, and the defendant afterwards, when nearly twenty-five years of age, gave a forthcoming bond in the case, which was forfeited ; it was held, that even though the defendant might have obtained relief against the original judgment, on the ground that he was prevented by good reasons from making his defence at law, he was estopped by the judgment on the bond.
    Nor would it make any difference that the judgment on the bond was irregular and erroneous; a court of equity would have no more power over it than over any other erroneous judgment.
    Usury is a defence available at law ; equity will not interfere after judgment, as the statutes of usury do not avoid judgments infected with usury.
    A note dated in this state, bearing ten per cent, interest upon its face, payable in New Orleans, is governed by the laws of Louisiana as to the rate of interest, and without proof that a conventional interest of ten per cent, is usurious in that state, the courts in this will not declare it so.
    If an error be committed in the amount of interest contained in an execution, subsequent to the judgment, the proper mode of correction is by application to the court from which it emanated.
    Where the principal in a note commits a fraud on the surety in procuring his signature to it, of which the payee has no knowledge, it seems that he will not be affected by it.
    On appeal from, the vice chancery-court at Natchez; Hon. James M. Smiley, vice-chancellor.
    Samuel N. Robb, the appellant, filed his bill in the court below, charging, that on the 28th March, 1839, when a mitior, the defendants, Henry & Hoyle, doing business at Rodney, in this state, with a full knowledge of his minority, represented to him their desire to make a note for $450-50, and for form’s sake merely, they desired another name beside their own, to obtain time on an account due a house in New York, for a balance on a bill of merchandise, which note they would promptly meet. Supposing that there would be no responsibility in complying and confiding in their representations, he did unite with them and sign his name to a note, dated at Rodney, on the day aforesaid, payable twelve months after date to defendants, Halsey & Haight, payable at the counting house of Samuel Wright, New Orleans, for the sum aforesaid, with interest after maturity of ten per cent, until paid, which note was left with Henry & Hoyle, and never delivered by him to any other person; that he did not know, and never saw Halsey & Haight; the note was signed without any consideration on his part. In March, 1842, a suit was commenced in the circuit court of Jefferson county on the note, in the name of Halsey & Haight, against Henry & Hoyle and himself. At the November term of that year, the plaintiffs obtained a judgment for the sum of $544-50, beside costs. Being aggrieved thereby, and the same being erroneous, he, with Henry & Hoyle, prosecuted a writ of error to the high court of errors and appeals, which, at the January term, 1846, reversed the judgment; thereupon, without affording complainant an opportunity to set up any defence to the same, the high court proceeded to pronounce judgment, and thereupon rendered judgment against them for the sum aforesaid, with costs, &c.; which being afterwards filed in the circuit court, an execution was issued thereon, and returnable to the October term, 1846, being the third Monday; which being placed in the hands of the sheriff, he, on the 14th day of October, 1846, five days only before the return day of said execution, levied the same on a negro slave of complainant, who, being unwilling to part with the services of the slave, and believing himself entitled to an available equity against the judgment, entered into bond, with securities in the proper penalty, conditioned for the forthcoming of the slave on the day for the sale thereof, as required by law; on the execution of which bond the sheriff re-delivered to him the slave; and knowing he could not by law be sold under ten days, he did within that time consult with his counsel, and direct him to file a bill to enjoin the further proceedings upon the judgment, when, to the surprise of complainant, he-found the sheriff had returned the bond ‘ forfeited,’ on the first day of the October term, 1846, which was on the 19th of that month, only five days after its date. Since which time an execution had issued on the forfeited bond, and would be enforced unless restrained, &c.; a copy of the proceedings is made part of the bill. He further shows, that at the time of signing the note, Henry & Hoyle were in failing circumstances, which was then wholly unknown to him, and which they knowingly and fraudulently suppressed from him, and made the false statement that his signature was desired for form’s sake merely; that he never agreed with Halsey & Haight, or any other person for them, to become security in any other manner.
    That when sued as aforesaid, he employed counsel to defend the same, (Henry & Hoyle having become insolvent, and removed from the state, paid no attention to it,) and directed him to plead infancy in bar of the suit; that he would furnish the testimony of his age, there being a family bible in the neighborhood which contained it, and which he promised to furnish, and would have done so, but that he was during the preceding summer taken sick, and advised by his physician to travel through the northern states for the benefit of his health, which he did, returned in the fall, before court, but little improved; still feeling confident of his ability to attend court, with proof of his age: but so it was, that on the day before the sitting of the court, at November term, 1842,-he was taken much worse, and was from that day actually confined to his bed during the whole term of the court, and so afflicted as to be wholly unable to attend to the case; that owing to his ill health, he- had not at that time been able to find the bible belonging to his family, in which the register of his birth was and yet remains, although, so far as his ability allowed him, he made diligent search therefor. Notwithstanding his sickness, he wrote to his attorney on discovering his inability to attend court, to have a subpoena issued for Dr. John H. Savage and Mrs. Elizabeth Savage, who were acquainted with the time of his birth, and who had promised to go with him to the court to prove his age in the event he failed to find the bible; that his attorney did procure the subpoena for these witnesses, and placed it in the hands of the proper sheriff in time to have executed the same, several days before the cause could have been reached, so as to have had them there as witnesses before the calling of the cause, and urged him to execute it; but the sheriff failed to execute the summons without his consent or procurement, or that of any other person for him, the said sheriff having placed it in the hands of a deputy to execute, who failed to do so by some accident, by reason of which the witnesses, Savage and his wife, failed to attend, as he had since learned. That there were no other persons known to his attornéy or to himself, by whom he could have proven his age with sufficient accuracy, to have sustained his defence; that when the cause was reached, his attorney made a motion to the court for a continuance of the same, on the ground of complainant’s sickness, that he was in bed and unable to attend, that his witnesses were absent, and summons had not been executed by accident; that his attorney had not ever conversed with the witnesses, but had been informed by complainant that they knew his age, and could prove that he was not twenty-one years old at the date of the note, which information he believed true; that he could not safely go into trial in the absence of complainant, who could not come to court, which statement of his also was taken, as upon affidavit, by consent of plaintiff’s counsel; upon which the court overruled the motion, and refused to grant a continuance, stating that the sickness of a party was no cause for the continuance of a civil suit; all of which complainant had since been informed of and believed to be true, and thereupon the court rendered the judgment first mentioned.
    The bill further shows, that the execution which issued upon this judgment, claims eight per cent, interest, when by its terms it can ■ only carry six, if any whatever, because that was the legal rate of interest at the date of the judgment. He charges, that by reason of the reversal of the judgment, he is, as he is advised, restored to his original equity, and the judgment, from the circumstances of the case, is not a bar to the same., He also shows, that the note on its face is usurious, and that the judgment is corrupted with usury to the amount of near $ 100; that, the place of its execution being stated in the pleadings in the case, and being in the state of Mississippi, the same is usurious to that extent, and void.
    He further states, that he has found the bible, containing the registration of his birth, in the handwriting of his father, which he is ready to exhibit and show on the trial of the cause. He states he is informed by his attorney, that no new trial was asked by him in said cause, for the reason that the refusal of a continuance by a circuit judge, is not, by the rules of practice in this state, a ground of error upon which a cause could be reversed; and discovering an error in the record, that the judgment had only been entered against one defendant, he prosecuted the writ of error in the confident hope of the cause being remanded for a new trial, when he could avail himself of his defence, in which he was disappointed by the rendition of the judgment by the high court. He charges, that he was born on the 5th day of February, 1819, and he wanted nearly a year of being of age when the note was executed, at which time his estate was in the hands of his legal guardian, and was then administered by him.
    To this bill the defendants, Halsey & Haight, filed a general demurrer, which, upon hearing, was sustained by the vice-chancellor, and the bill dismissed, from which an appeal was prayed by consent, to this court.
    
      Sanders and Haggin, in behalf of appellant,
    Argued in behalf of the bill, and cited Babcock v. Scott, 1 How. (Mi.) 100; Berry v. Hale, lb. 315 ; Brooks v. Whitson, 7 S. & M. 513; How. & Hutch. Dig. 56; Ford v. Ford, Walk. Rep. 505.
    
      George h. Potter, for appellee.
    There is no equity in the bill. Complainant does not show why he did not defend at law, or why he did not comply with the bond, or that he was a minor when he gave the bond.
    A court of chancery has no jurisdiction in such a case; the remedy is at law, by writ of error cor am, nobis.
    
    The pretence of fraud in Henry & Hoyle is futile.
    There is not a decent pretence even, shown for the relief sought.
    The decree below must be sustained.
   Mr. Justice Clayton

delivered the opinion of the court.

This was a bill filed in the vice-chancery court at Natchez, to obtain injunction of a judgment at law, and a new trial. There had been a forthcoming bond given, and forfeited in the case.

Infancy of the complainant at the time the note, on which the judgment is founded, yms executed, and usury in the original transaction, are the grounds relied on for equitable interposition and relief.

It has been settled by this court, that where a defence might have been made at law, equity cannot, unless under peculiar circumstances, interfere to set aside a judgment. Thomas v. Phillips, 4 S. & M. 358. Nor will a new trial be decreed by a court of equity, in a case free from fraud in the rendition of the .judgment, unless the party has been deprived of his defence by means beyond his control, and without negligence on his own part. Land v. Elliot, 1 S. & M. 608; Brooks v. Whitson, 7 S. & M. 513.

The defence of infancy is equally available at law, as in equity. A judgment at law against an infant, may be reversed at law, by writ of error coram nobis, and this seems to be the proper remedy. Cole v. Pennell, 1 Rob. Prac. 645; 2 Ran. 174; Arnold v. Sanford, 14 Johns. Rep. 422.

The excuse for failure to make defence at law is, that the complainant was sick at the time of the court; that the witnesses had been directed to be summoned by his counsel; but the subpoena was issued so late that the sheriff could not execute it ; and that the complainant, by reason of his sickness, could not be present to file an affidavit for a continuance.

It is doubtful whether this statement was sufficient to have authorized a continuance of the cause. No reason is shown why the subpoena was not issued in due time. The complainant was not confined by sickness until the day before court, and no sufficient excuse is offered for the previous delay.

There is-also the judgment upon the forthcoming bond. It appears affirmatively in the record, that the party was nearly twenty-five years of age, when this bond was given and forfeited. But the judgment on the forthcoming bond is said to be irregular and erroneous. If this were so, it would not follow that equity could interfere to set it aside. It would have no more power over it, than over any othef erroneous judgment.

Usury is a defence available at law. The statute in this state, does not avoid judgments infected with usury, as it does those infected with gaming. We must administer the law as it exists. Neither is the usury established. It is true the note bears date in this state, and bears ten per cent, interest upon its face, but it is payable in New Orleans, and is, consequently, governed by the laws of Louisiana. We have been furnished with no evidence, that a conventional interest of ten per cent, renders a contract usurious in that state, and without proof we cannot decide it to be so. Martin, Aiken et al. v. Martin, Pleasants & Co., 1 S. & M. 176.

If an error has been committed in the amount of interest contained in the execution subsequent to the judgment, the proper mode of correction is by application to the court from which it emanated.

In regard to the alleged fraud- in the execution of the note, it is not pretended that the appellees had any knowledge of it. They are, therefore, not to be affected by it, even if it exists. See Graves v. Tucker, 10 S. & M. 9.

On the whole, the decree of the vice-chancellor is correct, and the same is affirmed.

Decree affirmed.  