1. I am inclined to think that neither the complainant nor the counsel employed by him, are justly chargeable with neglect in not having resisted a judgment in the circuit court. The suit could not have been regularly tried at the term to which the scire facias was returned, if the complainant objected; all that was necessary for him to do, was upon being made a party, to claim a continuance. He retained an attorney, and instructed him to take this course. The cause was never regularly reached, so that, according to the order of proceeding, no judgment by default should have been rendered. This being known to the attorney, he was not, in my opinion, at fault in being temporarily absent from the court, or in not having examined its minutes to ascertain if the cause was disposed of, and moving to set aside the judgment. If the opposite conclusion deprived the complainant of relief in equity, then he would be utterly reme-diless; though he had taken the usual steps to obtain a continuance, and make defence, should the assets of the estate he represented require it. The estate being insolvent, he could not obtain full indemnification from that source; and his attorney, not being chargeable with gross negligence, could not be called on to repair the loss. But this is only my view: my brethren think the jurisdiction of chancery may be supported without inquiring whether the circumstances considered, would, in general, relieve a case from the want of diligence, in making defence at law, and decline an expression of opinion on the point.
2. Placing out of view every thing that is alleged in respect to the employment of counsel, &c., the case presents itself in the same predicament in which it would if the complainant had made no effort to prevent a judgment. Regarding it in that posture, we address ourselves to its consideration. Mr. Justice Story, in his Commentaries on Equity, says, “relief will be *323granted where the defence could not, at the time, or under the circumstances, be made available at law, without any laches of the party. Thus, for instance, if a party should recover a judgment at law for a debt, and the defendant should afterwards find a receipt under the plaintiff’s owii hand for the very money in question, the defendant (where there was no laches on his part) would be relieved by a perpetual injunction in equity. So, if a fact, material to the merits, should be discovered after a trial, which could not by ordinary diligence have been ascertained before, the like relief will be granted.” [2 vol. 179 — 180.]
Relief has been granted to an executor who had confessed judgments in suits brought against him by the creditor of the testator, under the belief that the assets of the estate were amply sufficient to pay all claims against it; the amount of assets proving afterwards inadequate, in consequence of an unexpected depreciation of property. The executor it was considered, under the circumstances, should not be answerable out of his own estate, in default of the testator’s assets, for the debts on which the recoveries had been had; which were all charged by the testator’s will upon his whole real and personal estate. [Miller v. Rice, 1 Rand. Rep. 438; 2 Lomax’s ex’rs, &c., 395.] In that case, it was thought the confession of judgments, under the circumstances, did not place the executor in a worse situation than a false plea would under the equity of the Virginia statute, which exempted him from liability beyond the assets, in consequence of any false pleading, mispleading or non-pleading.
Viewing the case in a.light most unfavorable for the complainant, he can only be considered as having pretermitted all defence in the circuit court — in fact, that at the time the judgment was rendered, he knew of no defence that would have availed to defeat a recovery. True, he might have obtained a continuance had he intimated such a wish to the court, and this would have been a prudential course; yet as he was not informed of the condition of the estate, it is believed that he is not concluded in equity. If the complainant has not wasted the assets, and they are insufficient to pay the demands upon the intestate’s estate, the defendant has no claim in moral justice to charge him individually. The facts, that he is a trustee, and has acted, so far as the record shows anything upon the point, in good faith, and that the *324insolvency has developed itself since the judgment was obtained, it is believed entitle him to relief.
My brethren rest their opinion exclusively upon the second point considered. While I will not gainsay their conclusion, I must be permitted to say, that I place my concurrence in the result, mainly upon the sufficiency of the reasons stated in the bill, to repel the inference of neglect, in not defending at law.
It remains but to add, that the decree is reversed, and the cause remanded.