
    T. B. Bona vs. W. H. Smith, et al.
    It is not necessary that a suggestion to set aside a judgment, should he verified by'affidavit.
    The Judge to whom application for leave to file such suggestion is made, decides u'pon i'ts merits in the first instance, on hearing the affidavits of the parties or other persons ; and if leave is granted, a second verification by oath is wholly unnecessary.
    BEFORE EVANS, J., AT BEAUFORT, FALL TERM, 1837.
    This was a suggestion alleging that certain judgments against Bona were void for fraud, and on account of his infancy.
    An application had been made at a former Court before Judge Butler, for leave to file’ a suggestion alleging these facts, which was granted. At this term an application was made before Judge Evans, to set aside the filing of the suggestion, because it was not sworn to. He refused the motion, as the fact had been sworn at the time the issue was ordered; nothing remained for him to do, but to try the issue which had been already ordered.
    From this decision, the defendant gave notice of appeal, on the ground that it was contrary to law.
    
      McCarthy, for the motion.
    
      Rhett, contra.
   Evans, J.,

delivered the opinion of the Court.

The facts of this' case so far as it is necessary to state them, in order to decide the only question submitted to this Court, are these: There' were several judgments and executions against the plaintiff, Bona, which he sought to set aside as void, because they were fraudulent and confessed, or rendered whilst he was an infant. An application was made to Judge Butler at a former Court for leave to file a suggestion to try the issue whether these judgments were void for the reasons above stated. On hearing the application and the affidavits accompanying it, the motion to file the suggestion was granted. It was accordingly filed' and the opposite party served with notice according to the practice of the Court, as laid down in Underwood vs. Posey, 2 Hill. At the last Court at Coosawbatcbie, a motion was made before me to set aside the filing of the suggestion because the plaintiff bad not sworn to it. The motion was refused. The defendants appealed, and I am directed to deliver the judgment of the court. I am unable to discover any difficulty in the case. The practice is well settled and the reasons of it are obvious. The Judge to whom an application for an issue is made, decides on its merits; both parties are beard and the facts are verified by the oaths of the parties .or other persons. If the application be meritorious, it is granted; if not, it is refused. If granted, the issue is made up according to the practice of the court and put upon the docket for trial. A subsequent Judge cannot inquire into the merits of the application. The facts have been once sworn to, and a second verification by oath is wholly unnecessary. The motion is dismissed.  