Delancey v. Brownell

Kent, Ch. J. delivered the opinion of the court. An application for a mandamus, is an application to the discretion of the court, who are bound to grant, or refuse it, according to the exigency and justice of the case. The court below set aside upon terms, a regular judgment by default upon a bail-bond. It appears by the affidavits, upon which the rule of the court below setting aside the judgment was obtained, that the judgment was set aside on the ground of surprise ; and the affidavits conclusively establish that fact, as respects the bail. There are peculiar and strong circumstances, arising out of this case, to induce this court to look with a favourable eye upon the exercise of the power below. It was a case of bail, who are always tenderly regarded by the courts, and it was in a bail-bond suit, in which the court had an equitable jurisdiction given them by statute; for in such suits they are authorised to give such relief to the bail, as is agreeable to justice, and every rule giving relief, is to have the nature and effect of a defeasance to the bond. With respect to the facts disclosed to the court below, I cannot divest my mind of the impression, after a careful examination of the affidavits oh both sides, that there is colour to [139] infer that the bail, and the defendant in the original action, were intentionally lulled to sleep by the • plaintiff, until a judgment by default was obtained. Another feature in the case is, that the application below for relief, was made at the first opportunity, after the discovery of the judgment; and I cannot but think that this court would have exercised a similar power, in granting relief under the like circumstances. It is, however, contended, that the court of common pleas had no power to set aside a regular judgment by default. It would be cause of regret, if no such power existed, for without it, there would often be a manifest failure of justice. But independent of the equitable jurisdiction, given in these suits upon bail-bonds, the courts of common pleas have such power. They cannot, in general, set aside a verdict, except for irregularity; but that restriction does not apply to judgments by default. In the case of Bayly v. Boorne, (Str. 392.) the court of K. B. said, that whether an inferior court should be allowed to exercise their discretion, in setting aside judgments, where the plaintiff was regular, was a question which deserved consideration ; but they expressly admitted, that the court might set aside the judgment, if there was evidence of fraud or surprise. Lord Mansfield, afterwards, (1 Burr. 571.) in speaking of the words, used by the court in that case, viz: “ that it was a question that deserved consideration,” said, that there was no precedent, or authority, to the contrary of their having such a power; and that it was a power necessary to the exercise of judicature, and very different from the case of setting aside verdicts ; and the court then unanimously declared, that an inferior court, had power to set aside a regular interlocutory judgment, in order to let in the merits. The case then before the court, was a case of an interlocutory judgment, but there is no distinction taken, nor any ground for a distinction, between a judgment by default, in a case sounding in damages, and a judgment by default in an action of debt. The only restriction imposed upon the inferior courts, on this subject, respects the verdicts of juries. [140] We are accordingly of opinion, that the court below pa(j pOWer t0 set-aside the judgment in question, and that under the particular circumstances of the case, that power was not unduly exercised. The motion for a mandamus is therefore denied. Motion denied*