
    John McDonald, Administrator de bonis non of Elias Ford, vs. Isaac A. Myles.
    It seems that it is not sufficient ground for a court of chancery to grant a new trial at law, that the complainant, who was served with process in the suit at law in a different county from that in which the suit at law was instituted, was too feeble to attend the court; it not being at the same time shown that the defence to be made was,of a kind that required his personal attention and presence; or could not have been made by agent or attorney; or at least that there was an application made for delay.
    
      Where a bill in chancery is filed for the purpose of procuring- a new trial at law ; and the defence set up is based upon the peculiar law of a neighboring state; and the case is submitted for final hearing, without evidence being adduced of the nature of those laws, the omission will be fatal to the complainant’s right to relief; and cannot be remedied, after the dismissal of the bill in the court below, in the high court of errors and appeals.
    On appeal from the southern vice-chancery court, held at Monticello; Hon. James M. Smiley, vice-chancellor.
    John McDonald, administrator de bonis non of Elias Ford, deceased, states in his bill, that in the year 1844, diking the life of James McDonald, who was administrator in chief of Elias Ford, suit was commenced against said James as administrator in the circuit court of Marion county, in this state, by the defendant, Isaac A. Myles, founded on a judgment obtained in Louisiana by Myles, as the tutor of Mary Ann Kiziah, John and Pamela Carman, on the 27th day of March, 1827, for $924-50, with interest at ten per cent, from 1821.
    That process issued to Copiah county, where James McDonald then lived, returnable to the October term of the Marion circuit court, and was duly served on complainant; that a judgment by default was rendered at said term, against the said James, on the 16th of October, 1844, as such administrator, for $1485-S7£ principal, and $ 1622-22 damages.
    That at the time of the service of process, James McDonald was seriously and dangerously ill, and so continued until the next December, when he died; that said James was so disabled by disease, as to be wholly unable to attend the court at Marion county, or to contest the action, or take any' steps for that purpose.
    That Myles filed, with his declaration, a transcript from the records of the district court of Louisiana, for the parish of Washington, purporting to be the transcript of the record of a judgment rendered therein, in favor of said Myles against Elias Ford; by which it appeared that judgment was rendered in favor of Myles as curator, and not as tutor.
    That the office of curator in Louisiana is the same as administrator in this state; that the minors, for whose use the suit was brought, were of full age at the time of its commencement, and that defendant had ceased, by reason of their majority, to be such tutor. The original claim was a promissory note, made by the said Elias and one Ebenezer Ford, and Elias was security thereon.
    That in the year 1841, the records of the district court of Washington Parish were burned, amongst which was the record of a judgment in favor of defendant against said Ebenezer Ford, for $ 946, which judgment was rendered 23d Sept. 1822, with stay of execution for one year, by said Ebenezer giving approved security; that said Ebenezer died afterwards, and the defendant in 1824 became curator of his estate, which consisted of real and personal property, sufficient to pay off all debts against it of equal dignity with said judgment; that defendant received from said estate funds sufficient to satisfy the judgment against Eben-ezer, or that, if he did not, it was owing to his own laches; that the judgment against Ebenezer was for the same cause of action sued on against Elias Ford. The bill prays discovery as to all these facts, perpetual injunction, or that the judgment by default be set aside, and complainant be allowed to make defence to said action in the circuit court of Marion county, and for general relief.
    The defendant states in his answer, that he knows nothing of the death of James McDonald, nor of the grant of letters de bonis non to complainant; suit was commenced as stated; the action was founded on a judgment obtained by him in the district court of Louisiana, in a suit commenced by him as tutor of Mary Ann Kiziah, John and Pamela Carman, against Elias Ford, for the sum charged; that judgment by default was rendered against James McDonald, on the 16th October, 1844, in the circuit court of Marion, as the administrator of Ford. The capias may have been directed to Copiah county; but James was a resident of Marion county a short time before the writ issued.
    The answer proceeds to deny the allegations of the bill as to the nature of the defence sought to be interposed at law. It is not necessary to set it out in detail.
    
      John Campbell proved that he was acquainted with James McDonald; he lived in Copiah county, and from 4th October, 1844, to December of that year, he was sick nearly all the time; and died early in December, 1844. From 4th October, 1844, to his death, he was not in a condition, on account of his health, to have performed a journey, or to attend to business.
    William McDonald proved, that James McDonald lived at his house; his health was bad; he died 3d December, 1844; from 4th October, to his death, his health was such as would not admit of his performing a journey, or attending to business affairs.
    John C. Wade proved, that James McDonald lived in Copiah county on the 29th of August, 1844? to the best of his knowledge; he was in feeble health from 4th October to his death; does not know that McDonald’s health was such as to render him incapable of making a journey or attending to business. He served the writ on him; at that,time his health was very feeble.
    There was no other evidence.
    The chancellor dismissed the bill, and the complainant appealed.
    Foute, for appellant,
    Cited Acts of Lim. 1844, sec. 12, p. 107; H. & H. 571, sec. 100, and insisted, that the presumption of payment was complete ; and the excuse for not defending at law made out.
    
      A. B. Baine, on same side,
    made these points.'
    1. The power of the court to grant a new trial, when by accident, mistake, or want of notice the complainant is prevented from setting up a valid defence, is undoubted. 5 S. & M. 464; Joslin v. Coffin, 5 How. 539 ; Herring v. Winans¡ S. & M. Ch. 466; Walker v. Gilbert, Freém.' 85.
    2. The power of the court to enjoin the collection of moneys improperly recovered, where there is no adequate remedy at law, is also unquestionable.
    3. It appears that the judgment rendered against James McDonald was by default.
    
      On this I remark, 1st. The debt in the declaration mentioned, was $924-50.
    2d. In action of debt, interest is no part of the debt, but damages for detention of it. Tidd, 922, (ed. 1828,) 573, 874, 880, in Buckley’s ed.
    3d. Interest cannot be recovered in an action on a foreign judgment. Tidd, 573, 874, 880, Buckley’s ed. 619, 632, ed. 1828.
    4. The damages in an action of debt are nominal in general. 1 Chit. PI. 114, 115, 374.
    5. It appears from pleadings and proofs, that respondent held two trusts, tutor of the infant Carmans, and curator of the succession of Ebenezer Ford.
    6. Exhibit B admitted to be the only evidence of debt upon which the damages were assessed, and judgment final entered up, was not a judgment in favor of respondent as tutor of the infant Carmans, although he declared upon such a judgment.
    7. Our statute, (H. & H. 594,) is in derogation of the common law, and is therefore to be strictly construed. The word “ writing,” there used, was not intended to include an irregular foreign judgment record.
    8. If this be denied, it cannot be pretended that exhibit B was described in the declaration, so that James McDonald could have been willing that judgment should go against him on that account. Exhibit B was not the “writing” mentioned in the declaration.
    9. The long time elapsed since the pretended rendition of the said judgment, renders it liable to suspicion of fraud.
    10. A writ of error cannot be sued out except by parties or privies. Tidd’s Prac. 1135.
    John McDonald was not a party to the suit in circuit court, and has not been made one by any subsequent procedure.
    He is not privy; he is not responsible for assets in the hands of James McDonald.
    Privies are defined in Bouvier’s Law Dictionary to'be “ Persons who are partakers, or have an interest in any action or thing, or any relation to another.”
    John McDonald, as administrator de bonis non administratis, had no interest in the goods administered by James McDonald, and execution cannot be levied properly on the goods and chattels in his hands upon a judgment against James McDonald. The judgment, though to be levied of the intestate’s goods, is against the person of James McDonald. He being dead, no execution can issue against him, and no such execution issues in rem ; it issues against the person, and is to be levied of goods in his hands; if he is dead he has no goods in his hands, but they may be in the hands of his personal representatives.
    An administrator de bonis non, has in his hands goods not administered upon by a former administrator. Respondent is trying to get satisfaction of his judgment, not of the goods in the hands of his judgment debtor, to be administered, but of the administrator de bonis non. This he has no right to do.
    11. Complainant has no remedy otherwise than here; he cannot sue out writ of error, as we have seen. No other course could be pursued than this. ' If he could supersede the execution, this course would only defeat an execution, and another might immediately issue afterwards, and he be constantly harassed in this way from term to term. In this court alone can he have adequate relief.
    Lamkin, and C. P. Smith,
    
    insisted,
    1. That no sufficient excuse had been shown for not defending at law; 2. That the answer denied all the merits set up in the bill, and there was no proof to sustain the defence.
   Mr. Justice ThacheR

delivered the opinion of the court.

This is a bill filed in the superior court of chancery, in which a decree of dismissal was ultimately made in the vice-chancery court of the southern district.

This bill was filed to obtain a new trial at law in an action instituted by Myles against James McDonald, since deceased, who was administrator of Elias Ford, upon a judgment recovered by Myles, as tutor of certain persons, in the courts of the state of Louisiana. The action was brought in the circuit court of Marion county, the writ was served upon the defendant James McDonald, in Copiah county, and a judgment by default of appearance entered against him.

The ground for a new trial was the alleged illness of James McDonald, and his inability to attend the trial.

Courts of chancery are reluctant to grant new trials unless upon the clearest showing that injustice has been done to a party, who has himself been in no fault. In the opinion of two witnessés, James McDonald was too feeble to have travelled to the court in Marion county, but these witnesses do not describe the reasons or facts upon which they formed this opinion, nor is it shown that the defence was of a kind that required the personal attention and presence of James McDonald, nor that he could not have made his defence by agent or attorney, or at least have made application for delay.

But, even with the admission that James McDonald was prevented by circumstances beyond his control from making his defence at law, is it shown that the defence now proposed in his behalf, is good and valid % In such an application, a complainant seeking a new trial at law, must establish to a high degree of certainty the validity and potency of his defence. All the objections charged in the bill to the legality of the judgment in Louisiana are answered in the replies of the defendant, and denied. They consist chiefly of matters dependent upon the laws of the state of Louisiana. As to this part of the bill, there was no evidence introduced, and the vice-chancery court was entirely unapprized of the law as to them. This was a fatal omission by the complainants, and cannot be now remedied in this court, and is not attempted. There was nothing left for the court below but to dismiss the bill as one in which the parties complaining had failed to make out a case, at least, in this essential particular.

Decree affirmed.  