
    Daniel O. Mitchell, vs. John Humphries & Elijah Dawkins.
    
      After the adjournment oj the court, at which the verdict was obtain* cd, it is too late for the defendant to obtain the order of court for submitting the condition of a penal bond to a-jury.
    
    The plaintiff had sued on a penal bond, conditioned for the delivery of negroes to him as sheriff of Union district.
    The defendants had only pleaded non est factum, and issue was found against them: this was at spring court, 1824. Plaint tiff entered up his judgment 12th April, 1824, for penalty of bond? execution lodged with the sheriff 13th April, 1824, apd levied on the defendant’s land the 12th of May, 1824. Execution was-also issued for the penalty of bond, on tlie 19th' May, 1824r at chambers, Mr. Justice Johnson granted an order that all further proceedings on the above execution should be staid,, until the plaintiff submit the condition of the bond on which the action was brought to a jury.-
    - The plaintiff moved to- reyerse that order on the following' grounds:
    1st. Because the defendants ought to have obtained a rule of court, to compel the plaintiff to submit the condition of the bond to a jury, before the plaintiff had taken out his execution.
    2d. Because as the plaintiff had entered up his judgment, and issued his execution, and levied on defendant’s land, it was: then.too late to apply for an order to submit the condition of the bond to a jury.
    3d. Because a judge at chambers has no power to grant such orders in vacation.
    
      William's, for motion.
    
      Herndon, contra»
   The opinion of the court was delivered by

Mr. Justich Colcoclc.

This case is decided by the case of Durkey, vs. Hammond, 2 Con. Rep. 151: after execution, the defendant must seek his remedy in equity. If he would not avail himself of the provisions of the act made to relieve him from the .expense and trouble of an equity suit, he can now have no claim for 'the assistance of this court. He should have obtained the order of court, to compel the plaintiff to submit the condition of the bond, at all events, before the court adjourned at which the verdict was obtained.

The motion is granted.

Huger and Gantt, Justices, concurred.  