
    Philip J. Messervey, Trustee, vs. Thomas Hillier.
    
      Practice — Execution of Writ of Inquiry set aside.
    
    The Circuit Judge has the power, during the term at which a verdict has been rendered, to set aside the order for judgment and execution of a writ of inquiry thereon, and give the defendant leave to plead, and his action should not be disturbed by the Court of Appeals, except for gross abuse of discretion.
    The facts of the case considered, and an order of the Circuit Judge, setting aside an order for judgment and the execution of a writ of inquiry thereon, sustained.
    BEFORE MUNRO, J., AT CHARLESTON, JANUARY TERM, 1859.
    The report of his Honor, the presiding Judge, is as follows:
    “This was a motion in behalf of the defendant to set aside a verdict which had been rendered against him at the present term of the Court on the Inquiry Docket; also, to set aside the order for judgment and for leave to appear and plead to the declaration.
    “ It seems' indispensable to a proper understanding of the case, that I should give a brief history of it from its commencement.
    
      “ It appears that the defendant had been arrested on a bail writ, and while in the custody of the sheriff, by some means unexplained, succeeded in effecting his escape, and eventually removed into the State of Georgia. No appearance having been entered for the defendant, upon the plaintiff’s filing his declaration, an order for judgment was indorsed upon the record, and the case placed upon the Inquiry Docket. Upon the call of that docket, at an early day of the term, (15th January,) Mr. Campbell moved to transfer, it to the Country Docket, but as I deemed tbe showing to be insufficient, tbe motion was refused. He then moved to continue tbe case until tbe defendant could be beard from, and in tbe course of bis remarks, wbat I understood bim to say was this: That although be bad been spoken to by tbe defendant, to defend tbe case, be bad, however, since tbe defendant’s removal into Georgia, written to inform bim that be bad declined to have anything more to do with it; but as yet bad received no answer. He furthermore stated wbat, in substance, is stated in bis affidavit of tbe 25th January : " That arrangements of compromise were, or bad been, in progress.” It is quite probable, however, that, in tbe course of bis remarks, be may also have used tbe language attributed to bim in tbe second ground of appeal. Of this, however, I have no distinct recollection, nor is it at all important; for, notwithstanding all be did say, or may have said, upon that occasion, I did not consider tbe showing sufficient, and therefore ruled tbe case on for trial:
    " It appears that tbe plaintiff sues as trustee for one Mrs-Eliza Messervey, a feme covert, and said to be tbe proprietor of Eantowle’s Bridge, and claims to recover tbe sum of six thousand three hundred and thirty-two dollars and twenty cents, which amount, as will be seen by reference to tbe bill of particulars, is made up of tbe following items : “ Amount of tolls for Eantowle’s Bridge received by you from sundry persons passing and repassing on said bridge, from 20th November, 1855, to 20th May, 1858, five thousand dollars ; rent of bouse and grounds at tbe bridge during tbe same time, one thousand two hundred and fifty dollars;” and another item of eighty-two dollars and twenty cents for lumber sold — making in tbe whole tbe amount above stated.
    “Tbe only proof adduced in support of these demands was furnished by tbe testimony of J. W. Girardeau, who testified that he was the toll-heeper at the bridge during the time the defendant resided there; that tbe annual income from tolls was two thousand dollars ; all of which he had paid over to the defendant. The other items — the rent of the premises, and the bill for lumber — was also proved by this witness. This was all the testimony adduced. By whose authority this witness paid over to the defendant the entire income of the bridge during the two years and a half that he occupied the premises, or in what capacity the latter received it, whether as lessee of the premises or as agent for the plaintiff, there was not a tittle of proof. If the defendant acted in the capacity of agent, his agency must have been purely gratuitous, for no allowance was made for his services.
    
      “ The proof, however, seems to have been satisfactory to the jury, as appears by their verdict, which is for sis thousand eight hundred and forty-nine dollars and twenty-four’ cents.
    
      “ I now come to the motion to set aside the verdict. It was-made towards the close of the term, and fonnded upon affidavits of J. B. Campbell, P. H. Waring, and R. A. Alston, Esquires; also, an informal document purporting to be an affidavit made by the defendant, Hillier, before a justice of the peace, in Glynn County, Georgia.
    
      “ If this informal instrument had been authenticated in a manner that would have entitled it to be received and treated as an affidavit; or- if, in the order which I made, in addition to the condition which is therein imposed upon the defendant, I had imposed the further condition which is suggested in the second ground of appeal — whatever may have been the defendant’s demerits in escaping from the sheriff — I can hardly suppose that the propriety of granting the motion could have been questioned. As regards this informal instrument, I would here take leave to state that I paid no attention to it whatever, and, in considering the question submitted to me, I looked to nothing beyond the facts deposed to in those affidavits, that were strictly formal; and conceding all of those affiants to be of counsel in this case, I am at a loss to understand how such relation can either .affect their competency, or detract from their credibility. In the conclusion at which I have arrived, I was mainly, if not entirely influenced by the facts deposed to in the affidavits of Messrs. Waring and Alston: namely, the declarations or acknowledgments of Mrs. Messervey, the cestui que trust, and the only party really interested in retaining the verdict, that she ' had received full satisfaction from tolls and demands arising from, tenancy at Eantowle’s bridge by Thos. Hillier.’ With the proof before me of such an acknowledgment, made, too, as I before remarked, by the only party interested in retaining the verdict, I felt it to be due alike to the parties interested in this litigation, to the proper administration of justice, and to the vindication of the tribunal before which the verdict was rendered, to grant the motion upon the terms stated in the order I made in this case; which order, together with the other documents that were before me, and the grounds of appeal, accompany this report.”
    
    
      Tbe plaintiff appealed on tbe grounds:
    1. Because it should also baye been made one of tbe conditions on wbicb tbe judgment and yerdict shall be set aside, and tbe defendant allowed to plead, that he shall make an affidavit before some person in this State authorized to administer an oath of the facts set forth in his affidavit, made in Georgia, and file the same with the clerk of the court.
    
      2. Because the defendant was represented by his counsel on the execution of the writ of inquiry, and might have reduced the damages by evidence, if any he had; it is therefore submitted that the judgment, being regular, it will be unjust to the plaintiffs to permit the defendant to come in now upon the affidavit of his counsel, especially as it was stated by his counsel on the execution of said writ of inquiry, that he had made repeated applications to the defendant for his defence without success.
    3. Because there was no affidavit before the Court, which his Honor ought to have noticed, except the affidavit of counsel. The affidavit of Hillier, made in Georgia, where he now is, and was then, ought not to have been received.
    
      De Treville, for appellant,
    cited Savage vs. Mitchell, 2 Tread. 629; Lazo vs. Duncan, 2 Brev. 263; Williamson vs. Oummings, 2 McC. 250 ; Wilkie vs. Walton, 2 Sp. 479 ; Salinas vs. Glausen, MSS.
    e Bail writ issued 21st May, 1858. “ Copy delivered personally,” same day.
    Declaration filed 21st August, 1858. “ Ordered for judgment by default, same day.” ■ .
    
      Ramsay, contra.
    It was within the discretion of the presiding Judge to set aside the order for judgment. Sargentys. Wilson, 2 McC. 513. “ The Court may, at its discretion, under particular circumstances, permit the defendant’s attorney to enter an appearance, and move to set aside a judgment by default, after the second day of the next term.”
    
      Williamson vs. Cummings, 2 McC. 250; Starkeys. Woodward, 1 N. & McCord, 259; Mooney vs. Welsh, 1 Mill. 183. “ The Court of Common Pleas, under all its modifications, has always exercised the power of looking into its records, and, on motion, affording that remedy after judgment has been entered, which is obtained by writ of error in the English court,” &c.
    The discretion was properly exercised. The defendant was undefended; he swears that he employed counsel, and had a defence; the person claiming the verdict was nominal, and the beneficiary thereof was satisfied. That Mrs. Messervey is the beneficiary, see A. A., 1855, p. 473. “That Eantowle’s bridge, over Stone river, in St. Paul’s Parish, Colleton District, be, and the same is hereby rechartered, and vested in Philip J. Messervey and his heirs, in trust, for the sole and separate use of Elizabeth S. Messervey and the heirs of her body, wife of Lawrence J. Messervey, not to be subject or liable in any manner to the debt's, contracts or engagements of her said husband, for the term of fourteen years, with the same rate of tolls heretofore allowed by law.”
    
      
      
         The following are copies of the affidavits and order referred to :
      Personally appears and makes oath — ¿Fames B. Campbell, Esq., that he was employed by one Thomas Hillier, to defend a suit instituted against said Hillier by one Philip J. Messervey; that he knows said defendant had a substantial defence to said action; that arrangements of compromise acceded to by plaintiff were in progress ; that deponent neglected to enter an appearance at the regular term of the Court, and that said default was of his and not of defendant.
      JAS. B. CAMPBELL.
      Sworn to before me, this 25th
      January, 1859.
      David Ramsay,
      
        Magistrate.
      
      STATE OP SOUTH CAROLINA, j Affidavit of P. H. Waring. Chablestoh Distbict. ) u J a
      
      Personally appears and makes oath — P. H. Waring, Esq., that- Mrs. Elizabeth Messervey declared to him that she had received full satisfaction for tolls and demands arising from tenancy of Rantowle’s Bridge, by Thos. H. Hillier, up to the time of his surrender of said bridge, and that a certain judgment, entitled P. X Messervey vs. T. Hillier, was for the use and benefit of said Mrs. Messervey; and that if the same was recovered for tolls and receipts of said bridge, that it was illusory and unfounded. Deponent further says, that said Mrs. Messervey was willing to sign an affidavit to that effect, but was, to deponent’s knowledge, hindered and prevented by her husband.
      P. H. WARING, Ju.
      Sworn to before me, this 3d February, 1859.
      David Ramsay,
      
        Magistrate.
      
      STATE OF SOUTH CAROLINA, Charleston District. - Affidavit of R. A. Alston.
      
      Personally appears and makes oath — R. A. Alston, that Mrs. Elizabeth S. Messervey has acknowledged to him that she has received full satisfaction of claims for tolls and demands arising from tenancy of Rantowle’s Bridge by Thos. Hillier. Deponent believes that said Mrs. Messervey has no claim against said Thos. Hillier.
      R. A. ALSTON.
      Sworn to before me, this 3d Feb., 1859.
      David Ramsay,
      
        Magistrate.
      
      STATE OF GEORGIA, ) Glynn County. )
      Personally appears, Thomas Hillier, and makes oath and says, that he employed James B. Campbell, Esq., to appear for him in a certain case, entitled Philip J. Messervey, Trustee, vs. Thomas Hillier, that deponent being defendant in above case, and having a substantial defence, expected his said Attorney, the said James B. Campbell, to take proper steps in the conduct of the said case, and left the State of South Carolina in full confidence that due attention would be paid, and diligence exercised by his said attorney ; that deponent has not, since he employed the said Jas. B Campbell, received any information in relation to the said case, and was taken by surprise when he learned that judgment had been taken by default against him.
      THOMAS HILLIER.
      Sworn to before me, this 31st January, 1859.
      Luthek H. Gkeenleae,
      
        J . P.
      
      STATE OE GEORGIA, ) Glynn County )
      I, Edgar C. P. Dart, Clerk of the Inferior Court in and for the County and State aforesaid, do hereby certify that Luther H. Greenleaf, before whom the above deposition of Thomas Hillier was taken, is and was at the time of the said attestation of the aforesaid deposition a Justice of the Peace, duly qualified by law to take such a deposition ; that I am well acquainted with the said Luther H. Greenleaf; that his signature to the said deposition is genuine, and entitled to full faith and credit.
      In witness whereof I have hereunto set my hand and seal of office, this 31st day of January, Anno Domini, one thousand eight hundred and fifty-nine, and in the eighty-third year of the sovereignty and independence of the United States.
      (Signed,; EDGAR C. P. DART,
      [Seal.] Clerk J. C., G. C.
      
      
        No Judge’s Certificate.
      
      
        The following Order was made by Ms Honor:
      
      THOS. HILLIER, ads. PHILIP J. MESSERVEY, Trustee. Order.
      Upon hearing the affidavits submitted in this case, and the arguments of counsel, it is ordered, that if the defendant Hillier, shall, within one month from the date of this order, surrender himself into the custody of the sheriff of Charleston District, under the bail process issued in this case, then is his motion to set aside the order for, judgment, and the verdict rendered thereon, and leave to plead upon the usual terms, granted; but in the event that he shall fail to surrender himself to the said sheriff within the time above specified, then is the motion dismissed.
      ("Signed,) R. MUNRO.
      February 14th, 1859.
    
   The opinion of the Court was delivered by

Wardlaw, J.

It is the opinion of this Court, that the presiding Judge had the discretion, during the same term of the Court, to set aside an order for judgment, and the execution of a writ of inquiry thereon, and that his action should not be disturbed in the Court of Appeals, unless for gross abuse of discretion.

In Sargent vs. Wilson, 2 McC. 513, it is held, that “ the Court may, at its discretion, under particular circumstances, permit tbe defendant’s attorney to enter an appearance, and move to set aside a judgment by default, after tbe second day of tbe next term.”

To tbe same effect are Williamson vs. Cummings, 2 McC. 250, and Starke vs. Woodward, 1 N. & McC. 259. A judgment obtained on tbe assessment of damages by a jury on a writ of inquiry, remains during that term as much interlocutory as an order for judgment entered on tbe declaration by tbe clerk, for lack of defendant’s plea ; and, strictly, no judgment is final until, after tbe term, it is regularly signed in conformity to tbe Statute of Frauds. Tbe rules of practice are intended to furnish a general chart for the procedure of parties in Court, but not to binder tbe ends of justice, nor absolutely to limit tbe power of tbe judge; and may be moulded according to tbe exigencies of particular cases. Meek vs. Richardson, 4 Rich. Eq. 88. Tbe same doctrine prevails as to final judgments. In Mooney vs. Welsh, 1 Mill. 188, it is said, “tbe Court of Common Pleas, under all its modifications, has always exercised tbe power of looking into its records, and, on motion, affording that remedy after judgment has been entered, which is obtained by writ of error in tbe English court,” &c.

It may be, that in this case tbe Judge should not have founded tbe exercise of bis discretion solely on a foreign affidavit, insufficiently authenticated, by tbe defendant, that be bad employed counsel who neglected to appear and make defence. Tbe informality of this affidavit is complained of by tbe first ground of appeal. But tbe Judge reports that be paid no attention to it whatever, and tbe facts stated in it are substantially supported by tbe affidavit of Mr. Campbell.

Tbe facts that tbe suit was instituted by bail process, and that tbe defendant after arrest escaped from tbe custody of tbe sheriff, seem to have been allowed all tbe weight in tbe condition imposed by tbe Judge on the defendant, that be render himself within a month, to which these facts are fairly entitled. We. suppose that this condition has been complied with, and that the plaintiff, if he has just claim, may now have double remedy for satisfaction against the sheriff and the defendant.

The principal fact of the second ground of appeal, that defendant’s counsel was allowed to appear at the execution of the writ of inquiry, is not a matter entitled to much consideration ; for the burden of defendant’s clamor is, not that he was refused leave to reduce the damages on concession of his liability, Tout that he was not permitted to prove the fact of payment or other matter in bar of his liability.

The plaintiff in this case was a nominal trustee, and Mrs. Messervey was' the person beneficially entitled, under the° charter of Rantowle’s Bridge, by the Act of 1855, 12 Stat. 478 ; and she acknowledged to two affiants that she had been satisfied of her just demands. The Judge reports that he was mainly, if not entirely influenced in his judgment by the statements of these two affiants; and plainly we cannot say that this exhibits gross abuse of discretion.

The third ground of appeal complains that these affiants were of defendant’s counsel; but we know of no principle nor authority which excludes the affidavits of counsel or of defendant himself in such case. Such instruments of evidence will not serve to establish the facts on a regulad trial of the issues of the case, but may afford ample justification for the exercise of the judge’s control over the practice of the Court.

It is ordered that the appeal be dismissed.

O’Neall, 0. J., and Johnston, J., concurred.

Appeal dismissed.  