
    George A. Thompson, Phebe Pitts, and Isaac Thompson vs. Jordan Williams.
    To entitle a party to a new trial, on the ground of surprise, he must show merits, and the surprise must be of such a character as care and prudence could not provide against; the slightest negligence will defeat the application for a new trial, or occasion the imposition of the most rigorous terms.
    Where a suit was instituted against several defendants, in May, 1841, and a trial had, and judgment rendered against them all, in November, 1843, and there was nothing in the record, showing that the verdict and judgment were incorrect; and one of the defendants filed an affidavit as the foundation of a motion for a new trial, stating that, on the day before the trial, it was agreed between the plaintiff and himself, that the case should not be tried until they could make an effort to compromise it, and he, relying upon that agreement, went home, and returned the next day and found the case in the progress of trial before the jury; and that the disposition manifested to compromise the suit, and the agreement to let the case stand,"prevented him from asking leave of the court to put in a defence which had arisen since the commencement of the suit, namely, his discharge under the bankrupt law ; and the motion for a new trial was overruled : Held, that the defence offered by the defendant went merely to his personal discharge, and not to the merits of the action; and that he had moreover been guilty of negligence in not making application to put in his defence at the first term of the court after his discharge occurred, for which no excuse was offered, and the court did right in overruling the motion for a new trial.
    The issue on a plea of nul tiel record is to the court, and where the judgment, or order to which it was interposed, was read to the jury upon the trial, without exception, the inference is plain, either that the plea was disposed of or waived by the party.
    Error, from the circuit court of Yalabusha county; Hon. Benjamin F. Caruthers, judge.
    This was an action of debt, brought by Jordan Williams against George A. Thompson, Phebe Pitts, and Isaac Thompson, to the May term, 1841, of the circuit court of Yalabusha county. The declaration was founded on an injunction-bond, and in the usual form. At the return term the defendant, Phebe Pitts, pleaded, under oath, two separate pleas. 1st. That she signed the bond sued on in blank, and it was afterwards filled up without her knowledge or consent. 2d. That she signed her name to the paper when it was blank, and handed it to George A. Thompson, to be filled up as a forthcoming bond, and it was filled up as an injunction bond, without her knowledge or consent. On both of which pleas issue was joined. At the May term, 1842, the defendants filed two joint pleas. 1st. That the injunction had not been dissolved ; and 2d. A plea of mil tiel record. Issue was also joined on these two pleas. After two continuances were granted, on the application of the defendants, the case was tried at the November term, 1843, when the jury-returned a verdict in favor of the plaintiff, for twenty-three hundred and twenty-eight dollars and seventeen cents, and the court rendered judgment accordingly. The defendants made a motion for a new trial. 1st. Because they were taken by surprise. 2d. Because the verdict was against the evidence. And 3d. Because the damages were excessive. The court overruled the motion, and the defendants excepted. The bill of exceptions shows the following facts, to wit: Upon the trial the plaintiff proved the hand-writing of the several obligors to the bond sued on, and that the bond was not blank .when it was signed, and then read the bond sued on. Plaintiff also read to the jury a transcript of the record of the proceedings of the superior court of chancery, in the case, in which said injunction bond was executed, and the order and decree of the chancery court, dissolving the injunction granted therein. The defendants then offered to read the execution, with the indorsements thereon, which had been stayed by the injunction, for the purpose of proving a satisfaction of the execution, to the extent of the value of the property which had been levied on; which, being objected to by the plaintiff, was ruled out by the court, and the defendants excepted. Which being all the evidence introduced the jury found for the plaintiff, as above stated. The bill of exceptions further shows that, in support of the motion for a new trial, the defendants read an affidavit of George A. Thompson, filed on the 25th day of November, 1843, which states that on the day before the trial the plaintiff proposed to him to compromise the suit, to which he assented, and told the plaintiff, as soon as he got through with another case he was then endeavoring to compromise, he would attend to the matter ; that it was. then agreed between the plaintiff and himself, that the case should not be tried until they could make an effort to compromise it; thatj relying upon that agreement, he went home, and was greatly surprised when he returned to the court-house the next morning, and found the trial progressing before the jury; that he immediately called on the plaintiff, and the plaintiff said he was still willing to compromise; that the case had been called and the trial brought on by his, plaintiff’s counsel, before he arrived in town that morning. The affidavit further stated, that the disposition manifested to compromise the suit, and the agreement to let the case stand, prevented affiant from asking leave of the court to put in a defence which had arisen since the commencement of the suit, namely, his discharge under the bankrupt law.
    The defendant brought the case to this court, by writ of error.
    Acee, for plaintiffs in error.
    The record in this cause exhibits the following errors:
    1. The jury found only one issue in favor of the plaintiff below, when three were presented for their consideration and decision.
    2. No disposition was made of the plea of mil tiel record, which presented a question for the adjudication of the court.
    3. The-court erred in refusing to grant a new trial.
    1st. Because the affidavit filed in support of the motion for a new trial, shows that the plaintiff below used fraudulent means to obtain the judgment, which is a sufficient cause of itself to secure the interposition of this court.
    2d. Because the defence upon which, one of the defendants (George A. Thompson) intended to rely, to wit, his discharge in bankruptcy, was meritorious in its character, and, if sustained by evidence, would have released him altogether from the judgment rendered in this cause. Now the defendant in question can be released from the judgment, neither in a court of law or a court of equity. Ex parte Goodwin, 2 Vern. 696.
    
      Sheppard, for defendant in error.
    The court below did not err in disallowing the motion for new trial.
    Three causes were assigned for the motion. 1st. Surprise. 2d. That the verdict was against the evidence. 3d. Excessive damages.
    The affidavit of Thompson, which seems to have been relied on, will not sustain the first cause. It states, that on the day before the trial it was agreed between himself and the plaintiff * that the case should stand open until an eifort was made to compromise it; and that thereby he was induced to delay making application to the court for leave to file a plea of bankruptcy, which had arisen since the commencement of the suit. The action had been commenced to the May term, 1841, and from term to term had been continued until November, 1843. And the affidavit should have shown some cause for the delay and neglect to file such plea until the day just before the trial. The court cannot disturb the verdict, if the injustice of the judgment is the result of the inattention of the party. Green v. Robinson, 3 How. R. 105.
    2. The affidavit should have shown that, if the application had been made for leave to file the plea on the day before the trial, that there would have been good cause for the court to have allowed it; and, for aught that appears, the plea might have been filed, at the first term.
    3. It does not state that he had obtained his discharge, nor is the certificate of his discharge shown.
    The second and third causes are equally untenable. All of the pleas are special, in avoidance, and the burden of proof rested on the defendants. The only witnesses examined were called by the plaintiff, and their evidence fully contradicts the pleas.
    
      The court did not err in refusing to allow the defendants to read the return on the ji. fa. as proof of payment, no plea of payment or performance having been filed.
    
      A. C. Baine, on the same side.
    
      Waul, for plaintiifs in error.
    The court erred in not granting a new trial.
    1. Because the defendants were taken by surprise on the trial.
    2. Because the verdict is contrary to law and evidence.
    3. Because the verdict was excessive.
    4. Because the plea of nul tiel record was not disposed of by the court.
    By the levy of the execution upon the negroes Jim, Joe, Anthony, and Nance, the judgment was satisfied to their value.
    A levy on personal property being a satisfaction, as by the levy the property was changed. Ward v. Wass, 7 Leigh, 143; 5 How. 237, 483, 629.
    For although the sale was enjoined, yet the sheriff retained the property, and was not required to deliver it to defendant below, until the act of 1842.
    And after the dissolution of the injunction, it was thé duty of the plaintiff below to have a venditioni exponas issued, to sell the property remaining in the hands of the sheriff.
    The conduct of the defendant, George A. Thompson, as shown by his affidavit for a new trial, evinces surprise, through the deceit practised on him by Williams, and prevented his making a full, legal, and adequate defence, his certificate of discharge, which would have released him from the debt.
    The plea of nul tiel record was not decided by the court, and the jury had no more authority-to try it by inspection, than they would have to decide the causes of demurrer. Indeed, there is no judgment whatever on the plea of nul tiel record.
    
   Mr. Justice Clayton

delivered the opinion of the court.

This was an action in the circuit court of Yalabusha county, upon an injunction bond. Several pleas were interposed, all of which were found against the defendants, the now plaintiffs in error. Giving to the verdict its proper weight, we see nothing in the record to show that the finding of the jury was incorrect.

George A. Thompson filed an affidavit, as the foundation of an application for a new trial. This states, that on the day before the trial was had, it was agreed between affiant and the plaintiff, that the case should not be tried until they could make an effort to compromise it. It farther states that he, affiant, went home, relying on this agreement, and when he returned the next day he found the case in the progress of trial, before the jury. It also states, “ that the disposition manifested to compromise the suit, and the agreement to let the case stand, prevented the affiant from asking leave of the court to put in a defence which had arisen since the commencement of the suit, namely, his discharge under the bankrupt law.”

This affidavit was filed 25th November, 1843; the cause had been pending in court, since April, 1841, and had been continued on several occasions. The bankrupt law was repealed in March, 1843, so that the alleged discharge of the defendant must have occurred more than one term of the court before this application. This delay is not accounted for. There is no act on the part of the plaintiff which prevented the filing of the plea. The application ought to have been made at the first court after the discharge took place, and the defence put in as a plea since the last continuance.

The court is now asked to grant a new trial, not to let in evidence applicable to the present state of the pleadings, but to permit the party to make a new case, and to go to trial upon that. The rule is, that “ to entitle the party to relief there must be merits, and the surprise must be such as care and prudence could not provide against. The slightest negligence will defeat the application, or occasion the imposition of rigorous terms.” Graham on New Trials, 174. The party here is not, by the terms of this rule, entitled to relief. He has been guilty of negligence, and offers no excuse for it. The defence which he offers goes merely to his personal discharge, and not to the merits of the action. The judgment is against two other defendants ; the discharge of the affiant does not make them the less liable; and yet we are asked to set aside the judgment as to them, in order that this defendant may have an opportunity to set up his personal discharge. The circuit court did not err in refusing the application.

It is objected, thp.t the plea of nul tiel record was not disposed pf. That was an issue to the court. The judgment or order to which it was interposed, was read to the jury upon the trial, without exception; the inference is plain, either that the plea was disposed of, or waived by the party.

The other objections need not be minutely answered.

The judgment is affirmed.  