Columbia District,1801.

A defendant is never to be called upon to

STEPHEN BROWN against LEWIS COLLINS.

MOTION to set aside a nonsuit.

This was a case from Camden, on a summary process, admit or de- in which the defendant had been called upon by Mr. Mathis,

ny a debt on

summary pro

oath upon a the plaintiff's attorney, to declare on oath, whether he owed cess, nor has the debt in question, or not. And resting on what he supthe plaintiff a

to

equitable

principles,

where he has

a plain reme

right to resort posed to be the rule under the authority of Dillon and M'Cue's case, (ante, p. 280.) was not prepared with any other kind of evidence to support his demand. Upon which, the presiding Judge (JOHNSON) ordered the plaintiff to be nonsuited. This was therefore a motion to set aside this nonsuit.

dy at common law.

Sed per Curiam, unanimously, the plaintiff's attorney has mistaken the authority of the case of Dillon and McCue entirely. In that case it was determined, that if the defendant wanted the benefit of the plaintiff's oath, (if he had no other testimony to support his defence,) he might call upon the plaintiff to answer on oath, in nature of a cross-bill in equity, to any necessary point, upon a regular notice in writing for that purpose, and stating the points he meant to examine him upon; but it was never contemplated by that decision, that a plaintiff had a right to call upon a defendant in the first instance, to acknowledge or deny a debt or demand against him; it would be contrary to every rule of the common law; and it is a well known maxim, that equitable principles are not to be resorted to, where a party has his plain remedy at common law.

Let the rule for setting aside the nonsuit be discharged, and the decision of the presiding judge stand confirmed.

All the Judges present.

3

SETH STRANGE against WILLIAM EVANS.

CASE from Union district.

Motion to reverse the decision of the circuit court.

Columbia, 1801.

An imparlance, or leave to plead at a second court,

lowed in a case on a sum

as a matter of

This was a case upon a summary process, in which de- is not to be alfendant had regularly entered an appearance, and claimed an imparlance to the second court, but the presiding judge (GRIMKE) refused to allow it. Plaintiff then went on, proved his case, and got judgment; and this was a motion to reverse the decision of the circuit court at Union district.

mary process, course, upon entered, tho'

an appearance

upon reasonable grounds either party may have

pone a cause.

In support of the motion, it was urged, that under the leave to postfourth clause of the circuit court act of 1789, the plaintiff was entitled to it as a matter of right. This clause declares, "that all process issuing from said circuit courts shall be "returnable to the next court, and that all proceedings should "be made up thereon and ready for trial at the next court "after;" and that it had been the practice of the circuit courts to allow imparlances in all cases where appearances had been regularly entered, under the authority of the above clause, which is general in its nature, and not confined to any particular class of proceedings in our courts of judicature, and extended to cases on summary process, as well as to cases on mesne process.

To this it was replied, on behalf of the plaintiff, that the above recited clause only extended to and meant cases on mesne process, which were generally cases of importance, and where all the proceedings were in writing, and the pleadings in due form of law. In all such cases, the act allowed an imparlance in order to give the parties an opportunity of drawing up and preparing their pleadings, and filing them within the rules of court, and in many cases of intricacy and doubt, justice could not be done without such indulgence.

Strange

V.

Evans.

But in cases on summary process, which were generally for small sums, and determined by the court without the intervention of a jury, and where all the pleadings were ore tenus, and where parties were heard on both sides, without reducing them to legal form, this indulgence was not necessary; and so far from being in furtherance of justice, it would only amount to a delay of justice. That as to the practice of the circuit courts on the construction of the above clause, some judges had conceived themselves bound by the law to allow the imparlance, while others again refused it, so that it had really been fluctuating and uncertain; but the best rule was, to give the clause such a construction as would rather expedite than delay justice.

The Judges had been aware of the uncertainty and doubt which had prevailed occasionally in our courts on this point of practice, and indeed of the contradictory decisions which had at different times been made upon it; and expressed their surprise, that some case had never been brought up before to the court of appeals to have it settled. They were, therefore, glad of an opportunity of putting this point at rest. Three judges, GRIMKE, JOHNSON and TREZEVANT, were of opinion, that no imparlance ought to be allowed as a matter of course in summary process cases, as the very nature and design of the clause in the act of 1789, giving the court this jurisdiction in small cases, intended that the determinations should be speedy, and that the parties should not be hung up or delayed in these summary causes; but that where justice required it, the courts would always allow either party to put off such a case, upon reasonable grounds shewn, as in cases at issue on mesne process.

Mr. Justice WATIES said, he had formerly been in the habit of allowing this imparlance, but, upon mature consi, deration, he thought the opinion of the majority of his brethren was the most correct one.

BAY, Justice, absent at the argument, but afterwards accorded with his brethren, although he also had been in the habit of allowing the imparlance, as he had known it frequently allowed while at the bar, before he came on the bench.

The rule for setting aside the decision of the circuit court was, therefore, discharged, and the judgment confirmed.

Strange

V.

Evans:

RICHARD ASHE and CATO ASHE, devisees of JOHN ASHE, deceased, against GEORGE DRENNIS.

Charleston District,1801.

TRESPASS to try title to a lot of land in King-street, An executor's

in which there was a verdict for defendant. Motion for a new trial.

a

The case was as follows. Daniel Ward, a creditor of the deceased John Ashe, brought his suit for the recovery of debt, and obtained judgment against the estate of the deceased, upon which an execution issued, and the lot in question was seized and sold by the sheriff of Charleston district, in satisfaction of this debt, at which sale the defendant was purchaser, who obtained regular titles from the sheriff, afterwards built and made considerable improvements the same.

refusal or Omission to file his plea of plene administravit, with a

view of sub

to sale for

of

jecting lands payment deprive judgment creditor of selling any part

debts, will not

a

the

of the lands

and

of the estate

which are

on

made chattels

for payment of debts in this country, nor

The plaintiffs were devisees under the will of John Ashe, will a purcha the testator, who had devised this lot specifically to them, ser's title be with other parts of his estate. It was on this specific devise such omission.

that this suit was founded.

On the trial of this cause, it was urged, that John Ashe, the acting executor, had not filed his plea of plene administravit, in the suit with Ward, by which it would have appeared that there were negroes and personal property enough,

by

Ashe

V.

Drennis.

and more than sufficient, to have paid off all the debts of the estate, and to have left a considerable overplus, by which means the lands, and in particular this specific devise, would not have been affected by this judgment and execution.

The judge (GRIMKE) who tried this cause, directed the jury to find a verdict for the defendant, on the ground that a bona fide purchaser at sheriff's sale, had nothing to de with the conduct or misconduct of an executor of an estate, who suffers a judgment to go against him. That it was his fault not to file a plea, in order to save the real estate from the effects of the execution, and to bring forward chattels or personal effects for that purpose. But whatever that misconduct might have been, a bona fide purchaser at a sheriff's sale, who purchases and pays his money, and who builds upon and improves the premises, ought not to be at all affected by the omissions or neglect of the executor. The jury found agreeably to the judge's charge; and this was a motion for a new trial, for misdirection, &c.

Mr. Baily, in support of this motion, relied on the old rule of court, requiring executors to file the account of their administration, with their plea of plene administravit annexed, by which it might appear, that all the personal assets of the estate of the deceased were expended, before lands were to be sold for payment of debts, and insisted, that unless this rule was strictly adhered to, heirs and devisees might be defrauded out of their estates devised to them by testators; and that in the present case, the personal estate of the deceased was large and ample, much more than sufficient to pay off all his debts, as would appear by the appraisement and return into the ordinary's office. That unless this rule was observed by executors, the mischiefs might be great and serious, and more especially to minors, who might be ruined by the neglects and omissions of executors, and it was much better that estates should make good all damages which might arise in a case like the present, than that de