delivered the opinion of the court.
This cause was originally commenced in the Circuit Court of Clarke county, at the October term, 1855, to recover of the defendants damages for the trover and conversion of a large number of cattle and stock specified in the complaint. Judgment was rendered against the defendants at the April term, 1857. A writ of error was sued out to the High Court to the October term, 1857; and at that term it was dismissed for want of prosecution.
On the 15th day of May, 1858, a motion was made in the High Court to reinstate said cause, on the affidavits of defendant and his counsel, bearing date the 15th day of March, 1858, and filed on the 15th day of May. The motion to reinstate was refused on the *21731st May, 1858. On the 23d August, 1858, defendant Horne filed his bill in the Chancery Court of Clarke county, praying an injunction, and for a new trial at law. The Chancery Court allowed the injunction, and on final hearing upon bill, answer, and proofs, decreed a new trial at law. From which decree this appeal is now prosecuted here.
The gravamen of the complaint is, that upon the original writ of error brought to this court to reverse the judgment of the Circuit Court, the defendant' was entitled to such reversal, of which, by accident, and without fault on his part, he was deprived, and the cause dismissed in the High Court.
Waiving the consideration of the question of diligence, which is by no means clear or satisfactory, it will be sufficient to say, that the originál judgment appears, from the record, to have been well sustained by the evidence, and nothing is perceived, in other respects, upon which a reversal of that judgment could have been ordered here.
The claim of the defendants below, was based upon the title of Horne, to the property in dispute. That title was attempted to be supported by a bill of sale executed to said Horne, by Covington, the intestate of plaintiffs in error, on the 9th April, 1855, when in his last illness, and only three days before his death. The weight of evidence tended strongly to establish the fact, that at the time of the execution of that bill of sale, the said Covington was incapable mentally, of contracting. While several physicians, his attendants and others, were examined to prove mental incapacity at the time of the execution of the bill of sale, and for several days previous, it is remarkable that, although one of the subscribing witnesses was examined, not one word is asked by counsel for defendants, in relation to the mental capacity of the vendor at the time of the execution of the bill of sale. We think on this point the jury were, therefore, well warranted in their verdict.
The defendants next attempted to derive title to the property in dispute, under a purchase at execution sale, after the death of the defendant Covington. But in this they wholly failed, as the record shows that the judgment under which the sale took place, was obtained against the said Covington after his death, a few days, and without revivor, and was, for that reason, void.
*218There being, then, no error in the original judgment, a new trial should not have been granted, even if all diligence had been used to procure a hearing and reversal on writ of error in the High Court, about which we are by no means satisfied.
Let the decree be reversed, and bill dismissed, and judgment here rendered against the defendant for costs.