Inhabitants of the County of Essex v. Beery

The opinion of the Court was delivered by Paddock, C. This bill in Chancery is brought by the inhabitants of the county of Essex against Joseph Berry, praying for an injunction and stay of proceedings upon a judgment and execution which Berry obtained against them in a suit before Justice Hale, of Newlury, on the 2d. day of June 1827, for $82 97 damages; alleging, that at the June term of the County Court in Essex county, 1823, seven informations were filed in said Court by the then State’s Attorney against sundry towns in the county,which were continued to December term, 1823. Previous to the sitting of which, Berry was appointed to the office of States Attorney for the county of Essex, and caused the informations to be continued to the June term, 1824, and again to December term following, when he entered a nolle prosequi in all of them; that his fees in those prosecutions, together with a charge for other services to the amount of $2 75, (acknowledged to'be due) and $10 70 interest [166] on the whole, was the claim for which the judgment was renderecL It is further stated in the bill, that at the June term of the Court, 1824, Berry intimated to the Court, that as the towns had not been cited to appear, he should not charge fees for that term, but did put into his judgment $14, therefor. Also, that the orators intended to have litigated the claim before the Justice, and to that end, wrote to an attorney in Newbury, giving him such instructions; but the letter was not received by him in season, and the orators were defaulted. It is further stated, that the orators have tendered to Berry $20, as a reasonable compensation for his services, and requested a discharge of the judgment, which was refused. The answer of the respondent does not materially vary the case other than the costs of June term, 1824, and the discontinuances of the prosecutions. To the former he says, there were proposals made by some of the towns for settling the suits, and he remarked to the Court that if the defendants settled during the term, he should not tax them the fees of it; but, they neither settled nor entered an appearance of record ; so that the prosecutions were again continued to cite in defendants. And as to the latter, he says, the discontinuances were entered by order of Court. Itis very evident that the Court cannot grant any relief in this case, for several reasons; and first, we are not convinced but that sub■stantial justice has been- done the orators, in the judgment rendered by Justice Hale. When Berry entered upon the duties of his office, which was December term, 1823, he found seven actions on the docket, commenced by his predecessor against towns of his county, and the towns had not been cited in to answer to them, and the actions were continued. At the June term, 1824, it was found that the Clerk (whose duty it was) had not issued his citations to the several towns, arid although there were agents from several of them present, yet the State’s Attorney could not proceed, unles such agents were willing to enter an appearance and taka a trial. It does not appear from the bill or answer that citations had issued previous to December term, 1824 ; but it is to be inferred that they had, as one of the actions was called for trial, and Berry was not prepared, as he stated, owing to the death of a material witness and the absence of an important paper in the case, which that witness had in his possession when living, and since his death it could not be found. The Court, unwilling to continue them again, directed him to proceed in the trial, or dispose of the action some other way, and ordered a nolle prosequi, which he entered, not only in that, but in the others, the same evi [167] dence being necessary in each. These being the facts, were they made to appear in a Court of law, it is very doubtful whether a jury would find that negligence on the part of Berry, which ought to defeat any portion of his fees. Ch. Marsh, for orators. Smith and Berry, for respondent. The fact of the late arrival of the letter sent by the orators to their attorney in Newbury, directing him to defend against Berry's suit, by means of which they were defaulted, affords them no grounds for relief here. Barker vs. Elkins, 1 Johns. Ch. Rep. 466. It was an accident, no doubt, that it did not arrive sooner, and just such an accident as common prudence would have guarded against, by sending an agent. It can claim but little kindred to those accidents against the evils of which equity will relieve; and the Court may well adopt in this instance, the language of Grose, J. in Marriot vs. Hampton, 7 D. and E. 269. “ It would tend to encourage the greatest negligence, if we were to open the door to parties to try their causes again, because they were not properly prepared the first time.” In Bateman vs. Willoe, 1 Sch. and Lef. Lord Redesdale said “a bill for a new trial was watched by equity with extreme jealousy ; and it must see that injustice has been done, not merely through the inattention of parties," Another objection to retaining the bill is, that the relief prayed for only goes to a reduction of the damages recovered ; for, by the tender, the orators admit $20 due to Berry, and the, cases of relief in equity against judgments at law, founded in fraud, are where the fraud goes to the whole judgment, and not merely to the excess, in a case properly sounding in damages, and where the fraud could not have been met and defeated at the trial. Smith vs. Lowry, 1 Johns. C. R. 323. A further objection is, the sum in controversy, which, upon the orators’ own shewing, certainly cannot exceed twenty dollars, less than the costs necessarily incurred by either party, and of which a Court of Chancery cannot take cognizance. Cooper's Equity, 165. — Mitford's Pleadings, 88, n. m. For these reasons the bill must be dismissed; but, as the respondent did not make his motion to that effect; but put in his answer, and a hearing has been had, he must take no costs. Bill dismissed,