
    Joslin, Appellant, v. Coffin.
    When the regular term of the court failed, and the defendant being out of the county, had no notice of a special term at which his cause was tried, and in consequence thereof, failed to make his defence; the chancellor on bill and allegation of merits awarded a new trial.
    APPEAL from Chancery.
    The complainant, who is the appellee in this court, filed his bill in the circuit court of Holmes county, in which he alledges that the appellant had recovered a judgment against him in that court for the sum of three hundred and fifty-six dollars and seventy-five cents. Judgment was obtained at a special term in January, 1838. The suit was commenced and stood for trial at the regular term, in October preceding, but was not then tried in consequence of the death of the clerk, which caused a failure of that term.
    The bill alledges, that the judgment is unjust and unconscionable. That complainant does not owe the appellant one cent, and can so make it appear to the satisfaction of the court, if he can have an opportunity to be heard. He states as a reason for making no defence to the suit at law, that he had no notice of the order for a special term, nor the slightest intimation of such term until some time after the judgment was rendered.
    
      That in consequence of the death of the clerk, and the consequent failure of the regular term, he did not attend at the time the court was to be holden in October; and not anticipating a special term, he had left the county, and was engaged in putting up the engine and machinery of a saw mill, near Middleton, more than forty-five miles from Lexington. That he intended in proper time to employ counsel and have the suit defended; but that much -to his surprise, he heard, some time in February, that the special term was holden, and his cause tried as an undefended one in his absence.
    Fol’ these causes, he asks that the judgment may be set aside, and a venire de novo awarded; and prays an injunction, &c. The defendant was regularly served with process, but refused to answer; whereupon the court entered a decree pro confesso, and awarded a new trial at law.
    D. S. Jennings, for appellee.
    1st. If the subject matter of the bill is one of which a court of equity has concurrent jurisdiction with a court of law, (as a matter of account and mutual indebtedness,) the bill should have prayed for an account; and a decree pronounced before an account was ordered and taken is erroneous.
    2d. But if it is not considered a case in which an account was necessary to be taken, but as a case properly cognizable at law, and in which courts of equity would exercise jurisdiction ancillary to the courts of law, not concurrent with them, then the reasons assigned for not defending at law are not sufficient. The party is bound to use all the means in his power to defend himself at law, 6 J. C. Rep. 479. Had he, instead of speculating as to the probability of a regular as well as a special term, engaged counsel to defend his case within a reasonable time after the service of the writ, his attorney could, and most probably would have advised him of the special term, which, by the way, the law supposes him to have been apprised of.
    3d. The court could not, under the prayer of the bill, pronounce such a decree as they have. It is only where the particular relief prayed for cannot be given, that the court will assist the complainant under the general prayer. Even then the relief given must be consistent with that prayed for. 2 Mad. Ch. 171.
   Mr. Justice Trottee

delivered the opinion of the court.

It is believed to be a universal principle that no man ought to be bound by a judgment where he has had no notice of the proceedings, or any opportunity to defend himself. To hold otherwise, would be contrary, as we conceive, to every maxim of justice. Express notice is not necessary in all cases, and the law sometimes suffers constructive notice to be quite as effectual. Thus, under the statute law of this state, which makes the service of .a capias ad resp. good, if left at the residence of the defendant in his absence, permits that to bind as good constructive notice. And yet in a case where the defendant was at the time of this kind of service actually out of the state, and continued so until after judgment had been rendered against him, there can be no doubt that a court of chancery has power to relieve him, upon a sufficient showing of merits, and that the judgment is unjust. The order of the judge in vacation for a special term is a fact which cannot be presumed to come to the knowledge of all the suitors in the court, and in a case like the present, where the party was distant near fifty miles from the seat of the court, and in another county, it would be highly unjust to hold him bound at all events to know a fact of which he might or not be apprised, according to circumstances. He might well be taken by surprise, as he has stated in the bill. Had the cause been tried at a regular term, the case would be different. We are clearly of opinion, therefore, that the reasons offered in the bill for not defending the suit at law are sufficient to entitle the complainant to a new trial. 2 Atkyns, 378, 330.

This is all that the bill prays, and we therefore think that the decree was proper. No account was prayed. The bill simply asks, and the decree only grants a new trial of the suit at law.

The decree was properly made final, on the taking of the pro confesso order. This power seems to be explicitly conferred upon the chancellor by the statute of the state. And when the subject is of a character which renders no account necessary, the decree may be final, as in this case. There was no necessity of taking proof of the allegations of the bill; the pro confesso admitted them. 1 Littell, 97. Let the decree be affirmed.  