
    Garrett Keirn vs. Samuel Carson.
    In this case a bill was, filed to have a judgment at law against the complainant set aside, on the ground, that though the writ was returned executed, yet in point of fact it was not executed ; and on the farther ground, that the attorney who filed a plea for him did it without authority, and was insolvent. The chancellor decreed in favor of complainant; but the high court of errors and appeals review the facts, and arrive at the conclusion that the attorney who filed the plea was duly retained to do so by the complainant; and that his bill must be dismissed.
    On appeal fr,om the superior court of chancery; Hon. Stephen Cocke, chancellor.
    Samuel Carson states in his bill, that he and one Peirce Griffin about March 17, 1834, sold certain negro slaves, .of which they were owners, to Garrett Keirn, for a bill of exchange, which was paid at maturity. In March, 1835, Keirn brought suit in Adams county circuit court, for breach of the warranty of soundness of two of the slaves, Harry and Ann. Bail was required, the writ was served on Griffin, who gave bail; but the writ, although returned generally “executed,” by the deputy sheriff, never was executed on complainant, who was not then in this state; the return was either by mistake or in fraud. F. Huston, Esq. was employed by Griffin to defend' him (Griffin) ; Huston soon after left the state, and a “ counsel substituted by Huston or otherwise, unknown to said complainant,” afterwards gave what attention was given. Complainant, because he was not served and “had no knowledge of said suit,” did not deem it necessary to inquire into the nature of the defence and pleading; he knew that depositions were taken on behalf of the defence, and that the negroes were proven sound; he did not hear from the cause until since 1842; supposed Keirn had abandoned or failed in it; was informed in April, 1842, that judgment had. been recovered by Keirn in said circuit court against complainant and Griffin for $1650 damages, $5612 costs; Keirn is now suing complainant on this judgment, in Shelby county, Kentucky; he has just discovered that Rawlings & Annat filed a plea for him and Griffin; complainant never employed them or any attorney, defence was without his knowledge, authority, or consent; no general partnership existed with Griffin, but they were jointly interested in buying and selling said, slaves. The evidence showed soundness, and there was no evidence in the cause showing that the slaves were unsound; the damages were excessive, and the judgment was obtained by fraud. That Huston is insolvent; and that Keirn had bragged that he had kept silent, until limitation of writs of error expired. The bill prays that Keirn and Griffin be made parties, for an injunction against prosecuting further on such judgment to be granted without release of errors at law, for a new trial at law, and that Keirn be perpetually enjoined, until he consents to a new trial at law.
    The record' of judgment, made exhibit, shows the following service of the writ: “ Executed March 19, 1835, bail John G. Taylor, H. Gridley, Sheriff, by S. B. Withers, Dep. S.” Bail bond runs thus : “ We, Samuel Carson and Peirce Griffin, and John G. Taylor of Adams county, state of Mississippi, are held,” &c. Signed by “Peirce Griffin and John G. Taylor.” Plea of non-assumpsit. “ And the said defendants come,” &c. Signed Rawlings & Armat, defendants’ attorneys.
    Abraham Dilto, Obadiah Wilhite, and other witnesses, residing in Kentucky, testify, that these two slaves were purchased by Carson and Griffin in the winter of 1833 and 1834; they appeared to be sound and healthy, or were sound and healthy. These depositions are stated in the captions to be taken. “ in a suit at law depending in the circuit court of Adams county, in the state of Mississippi, wherein. Garrett Keirn is plaintiff, and Samuel Carson and Peirce Griffin, defendants.”
    Dr. Yallandingham, on the part of Keirn, deposed in said suit, that he saw the two negroes, Harry and Ann, bought from Carson and Griffin; is of opinion, upon a post-mortem examination, that they were diseased when Keirn purchased them; saw them on April 29, 1S34; Harry was twenty-five or thirty, Ann about thirty; she was in a fit of mental derangement when witness saw her; examined them after death; Harry was laboring under pulmonary disease, lungs full of pus, right lobe a diseased mass; supposed the boy diseased for several years; Ann presented traces of disease of long standing; witness found, upon cutting up the muscles of the abdomen, that they had been ruptured to a considerable extent, so as to admit the bowels to pass in a manner that formed ventral hernia; is a regular practising physician, and a graduate of Transylvania University ; Harry died the morning of 29th April, 1834, and Ann on the night of the 29th; Harry was dead when witness arrived.
    Upon this bill and exhibit, an injunction was granted.
    Peirce Griffin, in his answer, admits joint possession and sale of the slaves; says he alone employed Huston; no partnership between him and Carson, save in said slaves; had no power to employ counsel for' Carson; the negroes were brought here as merchandise, in violation of the constitution of the state; believes judgment was recovered by fraud, &c.
    Garrett Keirn, in his answer, admits partnership, sale, payment, recovery of judgment; requires proof to rebut presumption from return of service; denies the suit was unfounded; alleges the negroes were unsound when sold to him; jury rendered their verdict after full defence; Carson had notice of the pen-dency of the suit, of service of writ on his co-partner, and of the taking of depositions for the defence, and was liable to repay one half Keirn might recover from Griffin. Carson united with Griffin in preparing the defence, and introduced every particle of testimony, which he could or would have done, had process been served. It is not true, that Carson was ignorant of the result of the cause until since 1842, because in a bill fried by Carson in Kentucky to enjoin the judgment recovered there ■ on the judgment here, he states he was informed of the judgment here in 1839.
    Respondent pleads his judgment, obtained after return of writ, plea died for- both defendants by a regular attorney, and full defence and introduction of proof, and notice in fact to Carson in bar of any relief; requires proof that Rawlings & Armat had no authority to defend the suit, and that Griffin had no authority to employ counsel for both; alleges that Carson and Griffin were co-partners in this trade, and each liable to the other for pro rata of recovery; denies fraud, &c. Admits the suit and judgment in Kentucky against Carson and Griffin, which is in full force, and a bar to any relief here; said judgment was rendered in Kentucky after withdrawal by Carson of pleas of nul tiel record and payment pleaded by him, and so respondent pleads this recovery in Kentucky. Sheriff’s return “ executed” on the writ, respondent insists, is conclusive against complainant Carson, and cannot be impeached by him.
    T. P. Wilson proves, that Carson was with him in March, 1835, in Woodford county, Kentucky, does not know whether he was absent from the state during that year.
    R. Minter states, that he worked as a bricklayer for Carson in 1835. Carson was at home March 16th of that year ; does not think Carson went down the river during that year.
    Peirce Griffin, (whose deposition the chancellor had ordered should be taken, subject toall just exceptions,) states, that Carson was not in Natchez-when writ was, served on witness; thinks he was in New Orleans or Kentucky at the time; writ was served upon witness alone, who gave bail.
    On being cross-examined, he stated that the writ was founded on a joint contract between Carson and witness and Keirn; he returned to Kentucky in the spring of 1835, arid as soon as he saw Carson, informed him that Keirn' had brought suit against them; does not recollect whether this had been previously done by letter. Saw Carson the day of witness’s return; the 'writ issued the 17th of March, 1835, returnable to the third Monday in June, 1835. Carson took part in preparing the defence in the suit in Adams circuit court; took depositions in Kentucky; occasionally attending in person, and always paying his proportion of the expenses incurred thereby. He proves a letter, marked A. from Carson to Rawlings, dated Shelbyville, Kentucky, July 28, 1835, as signed and written by Carson.
    Re-examined. — He states the negroes were brought into this state as merchandise; Huston first agreed to defend him) after-wards advised him to'employ Rawlings, and he did; does not recollect whether he employed Rawlings to defend any one but himself; never heard from Rawlings after he employed him.
    The following is an extract from the letter of Carson, exhibit A, to Griffin’s deposition. ; -
    “ The other business that we wrote 'you about we have not heard from, that is, G. Keirn against Carson and Griffin in the Natchez court that Griffin employed -you in. We still trade in negroes. Write me, when you do any thing, to this place.”
    
      Horace Gridley testified, that he was sheriff of Adams county; at the execution of the bail bond gave the .writ to his deputy; thinks Carson was not in the state at the time writ was so given; thinks he saw him a month or so previously; has not seen him since.
    John G. Taylor states his impression, that Carson was not in the county of Adams or state of Mississippi, at the time bail bond was executed. He had been in Natchez during the fall of 1834 and winter of 1834-35 ; thinks he left the state about a month before suit was instituted; believes Rawlings insolvent from general rumor; witness does not recollect that he has ever stated or written to Griffin or Carson, that Keirn would compromise for a few hundred dollars.
    Thomas Armat states, that he has no distinct recollection of the suit in Adams or of its trial. There is a plea of non-assumpsit for defendants (Carson and Griffin) in the handwriting of Rawlings, filed in the cause; thinks Rawlings was employed before partnership of Rawlings & Armat commenced; all papers in Rawlings’s writing. From examination of papers and correspondence has no doubt Rawlings was engaged by Carson and Griffin to defend them in said Suit, and that Rawlings attended to said defence, taking testimony, &c.; letter book of Rawlings & Armat contains copies of two letters, written by Rawlings, and signed Rawlings &, Armat, concerning this suit, Rawlings habitually signed the firm name, in his previous business after the partnership was formed.
    C. Rawlings states, that he was employed by P. Griffin as counsel for the defence in the suit at law in Adams circuit court, entitled G. Keirn v. P. Griffin and Samuel Carson. May have seen Carson once; if so, it was after institution of suit. Impression of witness, after reading the correspondence,' is, that Carson came to Natchez and saw witness after suit was instituted; witness describes his appearance. Don’t think Carson employed him by seeing him personally at commencement of suit ; proves letter of Carson marked “ A.”
    Cross-examined by counsel for Keirn. — When employed by Griffin, understood him to say the suit was on joint contract of Carson and Griffin; took it for granted that be was employed to defend both, and did defend them both throughout the suit. Should consider Carson’s letter A, independent of his employment by Griffin for the defence of both, sufficient authority for him to. appear for Carson; attended the trial of the cause, as counsel for both defendants, before the jury in Adams circuit court.
    A copy of Carson’s bill, filed for an injunction in the circuit court of Shelby county, Kentucky, is also filed, but it need not be farther noticed.
    At the December term, 1847, of the chancery court, on this state of facts and pleadings, it was decreed that complainant (Carson) was entitled to the relief prayed for, and all proceedings on the judgments were perpetually enjoined. From this decree the defendant (Keirn) appealed.
    
      John M. Duffield, for appellant,
    ■ Reviewed at length the testimony, and cited 3 S. & M. 421'; 5 How. (Miss.) 74; 1 lb. 107; 3 lb, 39; 5 S. & M. 573; Hughes v. Evans, 4 S. & M. 737; 4 How. (Miss.) 345; 5 lb. 536; 1 lb. 522; 4 lb. 27; Miller v. Ewing, 8 S. & M. 421; Harris v. Gwin, 10 lb. 566; 1 How. (Miss.) 530.
    
      Sanders, for defendant in error,
    Commented on the testimony, and cited Hughes v. Evans, 4 S. & M. 737; Wharton & Wife v. Tilly & Wife, 2 Tern. Ch. Rep. 419; Colyer v. Langford, 1 A. K. Marsh. (Ky.) Rep. 237; Graham, New Trials, 573.
   Mr. Justice Thachee.

delivered the opinion of the court.

Carson filed his bill in the superior court of chancery. He charges therein that Keirn instituted a suit against him and Peirce Griffin, in the circuit court of Adams county, in March, 1835, for a breach of warranty of the soundness of two slaves sold by them to Keirn, and recovered a judgment in said suit at the April term of said court, 1838. He charges that the writ in said suit was returned executed as to him, together with his co-defendant therein, when in point of fact the writ was not executed upon him; and that C. Rawlings, an attorney, filed his appearance in said suit without his wish and authority; and that Rawlings is insolvent. Since the judgment in the Adams county circuit court, suit has been instituted thereon in the courts of Kentucky, and judgment there also recovered.

From all the testimony, it is most probable that Carson was not within the reach of the process of the Adams circuit court at the time it was returned as executed upon him; and admitting this to have been so, it is next to be inquired whether the want of notice was cured and supplied by the appearance of the attorney’s plea for him. This will be the case if the attorney were authorized by Carson to enter the appearance or to defend the suit; and as to this, it is a matter of fact to be ascertained from the proof.

It is proved by Griffin, that, in the spring of 1835, he informed Carson, in Kentucky, of the pendency of the suit against them in the Adams circuit court, and that Carson aided in taking depositions in the suit, attending to them in person, and paying his proportion of the expense. There is also introduced a letter from Carson, addressed to Rawlings the attorney, dated July 28,1835, in which he says, The other business that we wrote you aboiU we have not heard from, that is, G. Keirn against Carson and Griffin in the Natchez court, that Griffin employed you in. We still trade in negroes. Write me, when you do any thing, to this place.”

The testimony of Griffin shows that Carson was informed of the pendency of the suit, and that he took'an interest in it, at least for Griffin, and probably on his own account. But in the letter to the attorney, Carson recognizes him as such in the particular case, and desires him to communicate to him any thing which he did in respect to it.

Rawlings, the attorney, testifies, that when employed by Griffin to defend the suit, he understood he was employed to defend Carson also, and entertained no doubt of it after receiving Carson’s letter. He likewise testifies that he made a full defence, and that there was a full and fair trial.

Thomas Aimat, a partner of Rawlings in legal business subsequently to the suit, testifies that, from examination of papers and correspondence of Rawlings, he has no doubt that Rawlings was engaged by Carson and Griffin to defend them in the suit, and that Rawlings did attend to the same.

There is no attempt made in the record to show that the appearance was procured by fraud,.or that the judgment was improperly obtained without a full trial and hearing. The'bill is based entirely upon the ground that Carson did not engage the services of Rawlings to defend' him in the suit, or authorize his appearance for him. In this we think the proof strongly points to the contrary, and most certainly does not sustain the bill.

Decree reversed, and bill dismissed.  