I concur in the conclusion reached by Judge Brown. There is no question in my mind but that, philosophically considered, that determination of the question presented by the record in this case is sound; but I had entertained the opinion that the case of Henley v. Chabert, 65 South. 995, was in the way of such a holding on our part, as we are required by statute to conforto our holdings to those of the Supreme Court, (See opinion of the Court, per THOMAS, J., on the original consideration of this case, based on the holding in Henley v. Chabert, supra.)
I have, on this application, again carefully examined the case of Henley v. Chabert. That case is distinguishable from the case in hand, in the first place, because the Supreme Court, in that case, was applying a stricter and more inflexible rule than is applicable here. In the Henley-Chabert Case the Supreme Court was considering whether the bill in equity, as framed in that case, was sufficient, or without equity, in its allegations seeking to enjoin a judgment recovered against the complainants in a court of law. In passing upon that question, due regard and consideration were given to the rule of “great strictness and inflexibility” against a judgment recovered in a court of law being supplanted by a proceeding in chancery. I think it fairly inferable, from the opinion read as a whole, that a different rule might have been made to apply to the subject-matter under consideration if the case presented there, as here, had been under the “four months statute” (Code, § 5372), where the parties are shown to have exercised due diligence in making application to the law court for relief, rather than, after long delay, seeking the aid of a court of chancery, as were the facts disclosed by the record in the Henley-Chabert Case and pointedly referred to in the opinion in that case, and which entered into the consideration of the conclusion reached in that case.
The case in hand is also distinguishable from the case referred to, as above cited, in that the facts set up in the petition (which are to be taken as admitted on demurrer) aver that the petitioner *619relied upon a universal custom of long standing, and well known and acquiesced in by all parties concerned, for attorneys practicing in the courts of Birmingham to depend for information of the setting of cases upon the printed list, or docket, furnished the attorneys for that purpose by the clerk, because of the impracticability of the attorneys examining the various original dockets where such a very large number of cases were pending in the courts of that jurisdiction. If it was the “universal custom,” as alleged by petitioner, for attorneys to rely upon, these printed dockets periodically issued by the clerk for this purpose, and this custom was of long standing, recognized, known, and acquiesced in for the good and sufficient reasons set out in the petition by the officers of the court, attorneys, parties, and, in fact, all persons concerned, it does not seem to me that the petitioner’s attorneys should be charged with negligence for having recognized the universally prevailing custom and relied upon the printed docket to furnish the information as to the setting of cases, impracticable to be otherwise. ascertained. The consideration of an established custom and the attorneys’ reliance upon such a custom in no way entered into the consideration of the case of Henley v. Chabert, supra.