
    Carter v. Cockrill and Rogers.
    Tuesday, November 19th, 1811.
    Equitable Relief — Appearance Bail — Failure to Defend at Law.  — In debt upon a bill penal. If, through a mistake of the clerk, the writ be issued for dollars when it should be pounds; and (the plaintiff’s declaration being filed, conformably with the bill penal) judgment by default be entered against the defendant and his appearance bail, for so many pounds; the bail being informed of the mistake before he signed the bail bond, and having made no defence at law, is not entitled to relief in equity.
    See the case of Chisholm v. Anthony, 3 H. & M. 13, decided on similar principles.
    In an action of debt, upon a bill penal, in the county court of Northumberland, John Carter v. George Morrison, the clerk by mistake issued the writ for the sum of two hundred dollars, when it ought to have been, according to the attorney’s direction, and the tenor of the obligation, two hundred pounds. John Cockrill and Joseph Rogers, being fully apprized of the mistake, from information given them by the sheriff who served the writ, anil from Morrison’s acknowledging, in their presence and hearing, that the debt he owed Carter was one hundred pounds, became, nevertheless, his appearance bail, and gave their bond (in the usual form) for dollars instead of pounds. On the evening of the same day, the sheriff informed Cockrill that the clerk had issued another writ, but that Morrison had gone off, and would not suffer it to be served. The plaintiff’s attorney filed his declaration conformably with the bill penal; and no defence being made, judgment was entered against the defendant and bail for two hundred pounds, (the penal sum,) to be discharged by the payment of one hundred pounds, with interest and costs.
    *Cockrill and Rogers, then applied to the county court, sitting in chan-eery, for an injunction to stay proceedings on so much of the judgment as exceeded one hundred dollars, with interest thereupon, and the costs at law; alleging in their bill that they were not informed that the claim was for more than that sum until the judgment had been obtained.
    The county court granted the injunction, and, afterwards, made it perpetual; notwithstanding the circumstances above mentioned were averred in the answer, and proved by the affidavit of the sheriff, which was read (by consent of parties) as a deposition.
    Upon an appeal to the superior court of chancery, holden at Williamsburg, this decree being affirmed, an appeal was taken to this court.
    Wickham, for the appellant.
    The ap-pellees are not entitled to relief in equity, having neglected to make defence at law. They might have moved the court to correct the error committed in the clerk’s office; or they might have been relieved upon an appeal or writ of error; for, the judgment having been entered by default, the capias and the bail bond were part of the record.  Besides, it does not appear that the plaintiff, or his attorney, knew of the error. It is in evidence that the defendant and the bail knew of it. If the objection had been made, the plaintiff might have had the mistake corrected, and the defendant held to other bail; or he might have made the clerk responsible in the first instance. The appellees were guilty of bad faith in not informing the plaintiff or his attorney. At any rate, they were guilty of gross neglect, and ought to have been left to their remedy at law.
    Wirt, contra.
    There was no neglect on the part of the bail. They were willing to pay the amount of their *bond, • and could not anticipate a judgment against them for more. Morrison was insolvent. The bail looked forward to a certain responsibility, to the extent of their bond. They thought it unnecessary, therefore, to make defence, supposing that no more was claimed of them. If there was any fraud, the plaintiff was guilty of it, in stealing a judgment for two hundred pounds, on a writ for two hundred dollars.
    Wickham, in reply.
    The insolvency of Morrison does not appear in the record; but would make no difference in the case. The plaintiff was guilty of no fraud ; for he knew nothing of the mistake; but there is direct evidence that the appellees knew of it before they signed the bond as bail.
    
      
      See generally, monographic note on “Judgments” appended to Smith v. Charlton, 7 Gratt. 425; mono-graphic note on “Jurisdiction” appended to Phippen v. Durham, 8 Gratt. 457.
      The principal case was cited in Mann v. Drewry, 5 Leigh 296.
    
    
      
       Shelton v. Pollock, 1 H. & M. 423.
    
   Thursday, November 21,

(in the absence of the president,)

JUDGE ROANE

pronounced the opinion of the court, “that the remedy of the appellees (if it existed) might have been asserted in a court of law; and this court not being satisfied, if this were not the case, that a court of equity ought to afford them relief, against the effect of an engagement entered into wi th a full knowledge of all the circumstances, reverses the decrees of both courts, dissolves the injunction, and dismisses the bill.”  