Smih VS VanBibber

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Smih VS VanBibber - Although the payments may have been...
Although the payments may have been fraudulently concealed at the rendering of the judgment in the Circuit Court, the fact that complainants did not, upon its discovery, avail themselves of it, is necli gence in them, and a Court of Chancery cannot now relieve them. Thi3 holding is not m conflict with the case of Smith vs. Vanbibber, 1 Swan, 110. In that case judgment was rendered on motion, by this court, against a She; iff, for failing to return an execution issued from this court, the judgment was for the en tire amount of costs of the Circuit and Supreme Courts, the Sheriff had no notice of the motion, and there had been, before it, payments made to the parties entitled to a considerable amount, lor wmch payments the Sheriff was not credited in the judgment. The fraud, in the conceal ment ot payments from the court, was practiced in this court. In the opinion in this case, Judge Totten says: "when the execution proceeds from the Supreme Court, it having no original jurisdiction after the judgment on motion to hear and determine the facts in question, the Sheriff should have relief by injunction to the extent of payments actually made." In that case, the bUeriff could not have availed himself of the payments to which ho was entitled as credits, but was pre vented by fraud, unmixed by fault or negligence, on his part. In this case, the judgment did not pro ceed from the Supreme Court, and the grounds of relief existing in Smith vs. Vanbibber are not here. This is not, as insisted in argument, a case of a right, without remedy unless the parties are relieved in this suit. 'Ihey have still a right of action at law against the parties to whom they may have paid money on account of the note, and which was not applied. Tho decree of the Chancellor is reversed, the demurrer allowed and the bill dismissed. v. 'Iurkey, Judge. A true copy, Test: J. F. Deaderick, Clerk.

Clipped from
  1. Nashville Union and American,
  2. 27 Nov 1870, Sun,
  3. Page 3

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