
    Syme and Others v. Montague.
    Monday, October 9, 1809.
    I, Equity Jurisdiction— Effect Where Defendant at Law !s Forced to Trial in Absence of Witnesses. — If a defendant at law be ruled into a trial in the absence of some of his witnesses, to whose materiality he has made affidavit, he may except to the opinion of the Court, and proceed to obtain relief in a superior Court of Common Law, but not in Chancery.
    35, Same — Forthcoming Bonds — Ownership of Property.  —It is no ground for relieving in equity either the principal or the sureties in a forthcoming bond, that the principal was not the owner of the property specified therein, or had only a qualified interest.
    ’ The only points which the Court deemed it necessary to consider in this cause, were, 1st. Whether, after a trial and verdict at law, a Court of Chancery could interpose, on the ground that the defendant was ruled into a trial, in the absence of some of his witnesses, to whose materiality he had made affidavit; and,
    *2dly, Whether, if a defendant in an execution gives a forthcoming bond for property which does not belong to him, or in which he has but a qualified interest, his securities in such forthcoming bonds can be relieved in Chancery, on that account.
    Montague recovered a judgment against Syme, for work and labour performed as a carpenter. An execution issued, which was levied on some uegroes, and Syme and others, his sureties, entered into a forthcoming bond for their delivery to the sheriff, at the time and place of sale. Syme and his sureties then obtained an injunction from the Chancellor of the Richmond District, (the late Mr. Wythe,) stating, among other things, that Syme had been ruled into a trial of the action at law, although he had made affidavit of the absence of some of his witnesses, and of their materiality ; in consequence of which a judgment for much too large a sum had been rendered against him; and that the negroes taken in execution were, in fact, not his property, but had been settled in a marriage contract upon two of his daughters. The Chancellor dissolved the injunction, and finally dismissed the bill. Syme and his sureties appealed to this Court.
    After argument by Warden and Randolph, for the appellants, and by the Attorney General, for the appellee, JUDGES TUCKER and DEEMING (JUDGE ROANE declining to sit in the cause) delivered the following opinions.
    
      
      Equity Jurisdiction — Cause Fully Heard at Law.— On this question the principal case is cited in footnote to Terrell v. Dick, 1 Call 546; Tapp v. Rankin, 9 Leigh 481; Kincaid v. Cunningham, 2 Munf. 7; Penwick v. McMurdo, 2 Munf. 253; West v. Logwood, 6 Munf. 496, 498, 499; Henry v. Davis, 13 W. Va. 255
    
    
      
      Forthcoming Bonds — Right of Obligors to Dispute Title of Execution-Debtor. — In Adler v. Green, 18 W. Va. 211, It is said: “It is claimed by counsel for defendants in error, that the obligors in a forthcoming bond cannot dispute the title of the execution-debtor to the property levied on. This is true. Syme v. Montague, 4 Hen. & M. 180.
      See monographic note on “Statutory Bonds” appended to Goolsby v. Strother. 21 Gratt. 107.
    
   JUDGE TUCKER.

This case, stript of all the unimportant allegations and evidence contained in the record, appears to be simply an application to the Court of Chancery to set aside, and reverse the proceedings and. trial at law, for errors alleged to have been committed there. The reasons assigned by the Chancellor in his decree, for dissolving the injunction and dismissing'the complainant’s bill, “that if the Court, before which the verdict was found, in the action at common law, erred in rejecting the motion for a ^continuance, the Court of Chancery for that reason awarding a new-trial, would usurp jurisdiction impertinently and “that if the verdict were contrary to evidence, or were found upon insufficient evidence, application, which ought to have been to the Court where the trial was had, was with like impropriety addressed to the Court of Chancery for such other trial,” are conclusive as to John Syme, the defendant in that suit. As to the other defendants, how friendly soever their motives might have been for becoming John Syme’s security in the forthcoming bond, to prevent the sale of property taken to satisfy an execution against him, though belonging wholly or in part to other persons, neither law nor equity can, I conceive, regard them in any other light than as securities for a debtor, who hy giving a bond, reciting (as is the usual formj that the execution was levied on certain slaves, the property of the debtor, are, as well as the debtor, estopped from setting up any title adversary to that of the debtor. Their becoming his security, with any view to defeat the plaintiff’s lien on the slaves taken as his property, would be such an in-tromission into the cause, as would not be permitted, in any Court, in favour of persons who did not claim the property as their own. They do not pretend any right to it themselves. They undertake for the production of it, as the property of the debtor on the day of sale. Whether the property were worth little or much, and whether Syme’s interest therein were entire, or merely temporary, the not producing it according to-the condition of the obligation subjected them to the payment of the whole debt. Nor do I conceive it competent to a Court of Equity to make any inquiry either of the actual value of the slaves, nor whether Syme had an absolute, or merely a qualified and temporary property therein. For those reasons I am of opinion the decree ought to be affirmed.

JUDGE FLEMING.

I have perused and considered this lengthy record with great attention, and can discover no *error in the decree. The reasons of the Chancellor for not meddling with the trial, and judgment at law between Montague and Syme, are cogent and satisfactory. As to the other plaintiffs, who were securities in the forthcoming bond, (the judgment on which they have sought to be relieved against,) Mr. Randolph contended, that they are entitled to relief, in consideration of the qualified interest Syme had in the negroes taken in execution; and took a distinction between a case where the insufficiency of the property to satisfy an execution, might arise from the qualified interest the debtor had in the property, and a case where the property itself might be insufficient for the purpose ; but to me it seems a distinction without a difference: and, of whatever value the property might be, the bond taken for its forthcoming at the day and place of sale, became forfeited, if there was a failure in its delivery ; and the securities became liable for the amount of the debt. I therefore concur in the opinion that the decree be affirmed.  