6 Ga. 172 | Ga. | 1849
By the Court.
delivering the opinion.
The error assigned to the judgment of the Court below, is the dismissal of the complainants’ bill at the trial term of the cause on the appeal, for want of equity.
"What are the facts in this case, and are they sufficient to aü'thorize a Court of Equity to grant a new trial? The suit was pending'in the Inferior Court of Talbot County, to recover thó amount -of a promissory note, made by Booth, the defendant* The defence made by the defendant’s plea was, that the note was given for a gaming consideration. At the trial term, it being inconvenient for the defendant and his agent, Raines, to attend ‘the Court, a proposition was made to the plaintiff’s attornies, to transfer the cause to the appeal docket of the Superior Court, by consent, which was agreed should be'done; whereupon Raines, the agent of the defendant, instructed his counsel to discharge thé Witness who was in attendance upon the Court, and the defendant and his agent went home, a distance of about sixteen miles, Under the full belief that the case would not be tried. "When the ■cause was called in its order upon the docket for trial, the counsel of the plaintiff denied the agreement, and insisted upon a trial* The witness and client both being absent, the counsel for the defendant was forced to confess judgment to the plaintiff, for the 'amount of the note, with interest. Owing to the distance of the •defendant’s residence Rom the Court, he did not -know that his 'cause had been forced to trial Until after the adjournment of the Court; too late to instruct his counsel to have moved for a neW trial, even had the Court the power to grant it. The affidavit of the witness who was discharged from his attendance upon the Court, in consequence of the agreement, is also attached to thó complainant’s bill, as an exhibit, in which he identifies the note* Was present when it was executed, and states that the consideration for which the note was given, was money won of the defendant at the game of “ faro.”
It appears that the defendant had a good and valid defence to the note; that he was present at the Court, with his Witness, to establish that defence ; that confiding in the agreement made with the counsel of the plaintiff, to have the case transferred to the appeal docket of the Superior Court, by consent, he left the Court
The defendant has evidently been entrapped by the course pursued by the plaintiff’s counsel, and deprived of his defence, by the act of Ms adversary, without fault on his part, so far as the record discloses.
The conduct of the counsel for the plaintiff operated, to use the mildest term, as a surprise upon the defendant, and has enabled him to obtain an unconscientious advantage over him, which a Court of Equity will not permit him to retain. For the reasons already stated, the Common Law Court, in which the case was pending, could not afford the complainant adequate relief, and, in our judgment, the facts of this case afford strong grounds for the exercise of the equitable jurisdiction of a Court of Chancery, to grant a new trial, so as to place the parties back in the same position they were before the judgment was rendered against the defendant in the Inferior Court. Let the judgment of the Court below be reversed, and the cause reinstated.