Hill v. Jones , 17 N.C. 101 ( 1831 )

Hall, Judge.

I think the decree made by the Superior Court ought to be affirmed. The argument of most strength againstit is the length of time, thatelapsed after the first j udgment was obtained upon the plaintiff’s bond in the year 1818, until the filing of this bill. However, I do not consider that sufficient. The plaintiff, it is true, has not informed us of the time when he first discovered the testimony of Matthews, which he ought to have done. If the discovery was made shortly after the judgment was obtained, it was to be expected, that an earlier ap~ plication would have been made to this court for relief against it. This may have been omitted thro’ ignorance, or from a belief, that the plaintiffs at law would not proceed further upon it, after being made acquainted with Matthew’s testimony. Be those things as they may, the time that has run since the judgment was obtained, until this bill was filed, does not, of itself, form a bar to the relief prayed for by the plaintiff. And it is further from it, as the defendants issued no execution upon the judgment obtained by them at law, hut remained still, until they issued process upon it, and obtained judgment thereon in the year 1828. When this latter judgment was obtained, the plaintiff states, that he offered to prove the payment of the debt by Matthews, to which theplain-tiffs at law objected, as they had a legal right to do. It therefore appears,, that the defendant was slow in asserting his claim at law, and the plaintiff was backward in his application to this court, perhaps on that account. But the question was submitted to a jury in the Superior Court, whether the debt was paid to the defendant’s testator in his life-time. They have responded that it was so paid. I therefore think, that the decree of the Superior court upon that finding should be affirmed ; and that the defendant pay the costs of this court, but the plain*tiff must pay the costs at law, and the costs in equity incurred in the Superior Court.

Per Rt/Ei'iN,J. ■Á court of equity requires active diligence as well as a just cause, because of the difficulty of ascertaining the truth iji stale 'cases,