
    A. C. H. Claussen vs. A. J. Salinas.
    
      Practice — Appearance.
    After verdict on the inquiry docket, leave to defendant to appear and plead refused, it being admitted that he knew of the suit, and it not appearing that he had instructed an attorney to appear for him, although he stated on oath that he was fully under the impression and firmly believed he had done so.
    BEFORE GLOVER, J., AT CHARLESTON, FALL TERM, 1858.
    The report of his Honor, the presiding Judge, is -as follows:
    “ The plaintiff sued in assumpsit to recover the value' of Ned, a slave purchased of the defendant, and alleged to have been unsound at the sale, and who died a few weeks after. The proof was that Ned, if sound, would have been worth eight or nine hundred dollars. Dr. Fitch who saw him and made a post-mortem examination, stated, that he died of the softening of the brain, and that the disease had existed at and before the sale.. The case was on the inquiry docket, and the jury gave a verdict for the plaintiff for eight hundred dollars. The next day an affidavit was submitted, and a motion made to set aside the verdict and to permit the defendant to appear and plead; which was refused. If the attorney had been instructed and had failed to enter an appearance, I would have granted the motion; but it was urged entirely on the neglect and forgetfulness of the defendant, and, if granted on that ground, it seemed to me, might prove dangerous in practice.”
    The affidavits are as follows:
    “Personally appeared before me, A. J. Salinas, and made oath: That sometime in June last he was served with a copy writ, bearing date the fifth day of June, 1858, in the above case, returnable to the third Monday in June. That he was fully under the impression and firmly believed that he had instructed his counsel, John Phillips, to appear for him. That on the twenty-fifth day of June he left Charleston, ' being in very bad health and unable to attend to business, and having a child who was very sick, intending to return as soon as possible. But unfortunately he did not and could not return to the city at any time during the summer, without great risk and against the positive orders of his physician. He did not return until the day before yesterday, and was this morning, greatly to his surprise and astonishment, informed that a verdict had been rendered against him in the case of A. C. H. Claussen, for eight hundred dollars. Deponent swears that he has a substantial defence, and he notified Mr. Simons, the plaintiff’s attorney, after the writ was served, that he had a good defence and would defend the suit.
    A. J. SALINAS.”
    “ Before me, personally appeared Thomas Y. Simons, who maketh oath and saith: That shortly after the death of the slave, Ned, who had been sold by A. J. Salinas to A. C. H. Claussen, with a warranty of soundness, he wrote a letter to the said A. J. Salinas, informing him of the death of the said slave from unsoundness anterior to the sale, and requesting him to make some arrangements relative thereto.
    “ That the said A. J. Salinas called and stated to this deponent that he would see about it, or make inquiry as to the matter.
    “ That at the approach of the June Term, not having heard from the said Salinas, he issued a writ, and judgment was obtained against him in due course of law.
    “ That this deponent never heard from the said Salinas, except as heretofore stated, until this morning, when the said Salinas called on this deponent and requested him to open the said case. Deponent asked him upon what grounds? when he replied that he had intended, but forgot, to employ Col. Phillips in tbe case. Deponent replied that he could not waive any legal rights without the consent of his client.
    THOS. Y. SIMONS, Jr.”
    The defendant appealed, on the grounds:.
    1. That the defendant’s affidavit set forth, that there was a mistake between himself and his attorney, and that he had a substantial defence, and the motion to enter his plea and make his defence, should have been allowed.
    2. That the sickness of the defendant and his family, and the epidemic which prevailed, rendering him unable to visit the city sooner than he did, was a misfortune which entitled him to have his motion granted.
    
      Phillips, for appellant.
    The Court had the power, and under the particular and extraordinary circumstances with which the defendant was embarrassed, should, as a matter of justice, have set aside the verdict and permitted the defendant to make his defence in the ease. Hayne & Beclc vs. Qoodwyne, 2 Bay, 523; Barns, et al., vs. Branch, et al., 3 McO. 19; Mooney vs. Welsh, 1 Mill, 133; JSvcms ads. Parr, 1 McO. 283; Serjeant vs. Wilson, 2 McC. 512; Williamson vs. Cummings, 2 McO. 250.
    
      Martin, contra.
   The opinion of the Court was delivered by

Withers, J.

Notwithstanding the misfortune to which the defendant refers in his affidavit, and which led him to depart the city and remain absent until after judgment was rendered against Mm on a writ of inquiry, it is undenied, that he knew, before the writ was issued, that without adjustment of the cause of action' he was to be sued — that he was here when the writ was served, and that he had a conversation with his attorney about this very cause of action, for so his attorney admits. The defendant swears he thought he had directed an appearance and defence, but his attorney, with a candor and sense of propriety altogether becoming and creditable, avers that he did not so understand the language and purpose of the defendant. This statement reduces this case to that numerous class wherein a defendant neglects to do, (what is so easy to be done,) viz., simply to hand a copy writ to an attorney and direct an appearance and defence. The Act of 1791, authorizes a defendant to plead only when he shall have entered an appearance with the clerk during the sitting of the Court to which the writ is-returnable, and this he should do (Savage vs. Mitchell, 2 Const. R., Treadway, 629,) even if the Judge does not attend.

None of the cases cited for the defendant maintain this motion. Those which relate to setting aside judgments proceed on a different ground. In Hayne, et al., vs. Goodwyne, 2 Bay, 521, the defendant had regularly appeared, for the rule to plead had been posted, a thing wholly unnecessary and never done where there^ has been default. The English rule was relaxed as to payment of costs of interlocutory judgment, and for a reason not so stringent now as it was then.

The case of Williamson and Cummings, 2 McC. 250, speaks of a mistake between the defendant and his attorney and of misfortune, as grounds on which appearance and defence will be allowed at an irregular time; but Evans ads. Parr, 1 McC. 283, is cited as authority, and that case rested on the ground, that the defendant was detained at home by the death of a negro, supposed to be murdered, on Monday, and on Tuesday Tie was allowed to open a decree on sum.pro., appear and defend.

We have cases resting upon other circumstances, where a defendant has been indulged, and they are cited in Barnes, Bateman & Ruderow vs. Bell, 11 Rich. 20; but the present instance comes up to none of them. It is the neglect of this defendant, and that alone, which has led to his motion.

It would be in conflict with our constant and uniform practice, and of evil tendency, to let him in: a full defence is agreeable to all ideas of justice, and this disposition of the Court, as well as the rules of our practice, combine to facilitate and encourage it. But rights on both sides are to be adjusted: judgments ought to be stable, that there may be an end of litigation; and finding no authority in the books or in daily practice to maintain this motion, we are constrained to refuse it, and accordingly it is so ordered.

O’Neall, Wardlaw, Whither and G-loyer, JJ., concnrred.

Motion dismissed.  