
    Stanard v. Rogers.
    Spring Vacation,
    1809.
    Equity Practice — Failure to Defend at Law — Effect— Case at Bar.--A parly who might have pleaded non est factum in an action at law, and who merely wrote to counsel to defend him, Is guilty of such neglect as will preclude him from relief inequity.
    This was a motion for an injunction to be-relieved against a judgment upon a forthcoming bond, obtained under these circumstances : that the father of the plaintiff' ^directed the deputy-sheriff to sign the plaintiff’s name to the bond; that when he received notice upon the bond, he wrote to counsel to defend him, but his. letter got to hand too late, and a judgment passed against him; since which he had replevied the debt, and in a short time the replevin bond will be due.
    
      
      Equity Practice — Relief against Judgment. — Equity will not relieve against a judgment at law. because the complainant was deprived of the benefit of a defence, pleaded by him in the action at law, in consequence of another plea subsequently filed by his counsel. Shields v. McClung, 6 W. Va. 94, citing Stanard v. Hovers, 4 Hen. d: M. 438.
    
   By the Chancellor.

The plaintiff had a day in Court, of which he should have availed himself, or he should state some satisfactory reason why he did not, for it is not sufficient that he merely wrote to counsel, but he should have gone in person, or have sent his plea of non est factum;. but if from any circumstances, not imputable to himself, he could not have gone, or his plea had miscarried, and he had made his motion for an injunction, without standing by and acquiescing in the progress of legal proceedings against himself, this Court mig-ht interpose: but the defence-of the plaintiff was lost by his own neglect, and his after acquiescence until an execution, and then replevying the debt, and waiting until the time of the replevin is nearly out; and more especially, since his father, who, it is said, directed his name to be signed to the bond, is since dead. This Court cannot, under all these circumstances, interpose.

Motion denied.  