Beard v. Hubble , 9 Gill 420 ( 1850 )

Magruder, J.,

delivered the opinion of this court.

In a case like this the court may not be certain that a complainant is not entitled to any portion of the relief which he asks, and yet may be bound to dismiss his bill. The evidence on which he relies must be satisfactory, indeed, that the mistake which he charges was committed.

More than seven years before the bill was filed, the original complainant gave to the intestate of one of the defendants his note, and shortly afterwards confessed judgment for the amount due on said note. As late as the year 1846, this judgment being en-ed satisfied, a second judgment was confessed for the sum then due.

The language of Lord Thurlow, 1st Brown's Chy. Reports, 93, may be too strong, but in all such attempts as this it has been required of the party seeking to be relieved upon the ground of mistake, to produce, if not quite, almost incontrovertible proof, or to use the language of a distinguished chancellor, “proof clear and overwhelming.” It cannot be believed that the testimony of Mrs. McRea or Huyett, is of this description. Both of them tell us that the creditor insisted upon the justice of his claim, though they probably misunderstood, or have forgotten what he said when stating how it originated.

In all such cases as this, it is required that the party, who is injured by a mistake, should take steps promptly to get relief. But the complainant himself says, that when he signed the note he was “not satisfied that he owed the money to said Brewer, but he has always entertained misgivings in relation to it,” &c. Surely then he has been guilty of great laches, and cannot complain if by reason thereof he is a sufferer.

The person, moreover, of whom relief is sought, is not the original creditor, but the individual to whom thejudgment was assigned, we must suppose for a valuable consideration. The note and original judgment were given in 1840. Asecondjudgmentwas confessed in 1845. In 1846 this judgment was assigned to Snyder for whose use it was entered. The year following a considerable payment was made to the administrator of Snyder, who after all this assigned the judgment to Hubble one of the defendants. Is Hubble to be deprived of his remedy by execution at law? We cannot think so. Surely these assignees have a superior equity to any that the complainant has been able to show. See Kemps Exc’x vs. McPherson, and the cases there cited, 7 H. & Johnson, 320.

We think that the learned judge in the court below, has conclusively shown that no relief can be given in this case.

DECREE. AFFIRMED-WITH COSTS.