Windwart v. Allen

Tuck, J., delivered the opinion of this court. Courts of chancery do not lightly interfere with judgments at law, and relief will not be granted, if the party has had an opportunity of making his defences. Fowler vs. Lee, 10 G. & J., 358 . Prather vs. Prather, 11 G. & J., 110 .

Conceding that the complainant had a defence in bar of the attachment issued and laid in his hands, as a debtor of Seibert, we must inquire whether he had an opportunity of making that defence. Intendments will be made in support of the acts of ministerial officers, where they appear by the return of process to have discharged their duty, and the onus probandi rests on the party impeaching such acts. If Chariton’s testimony were excluded, as insisted by the appellant’s counsel, there would be no evidence to question the constable’s return, that could be safely relied on for that purpose. That his evidence must be deemed as properly before us, even, if incompetent, is shown by the act of 1833, ch. 302, sec. 5.

Jones vs. Hardesty, 10 G. & J., 414 . This witness states expressly, that he spoke to Windwart both in English and German, and was answered in both languages. It may be, as proved by the witnesses, that Windwart understands English very imperfectly, but they state that he understands it a little when spoken to. Blum’s evidence cannot be relied on with much confidence when relating what passed between Wind-wart and the officer; because he admits that he cannot speak English at all, and, having been examined through an inter- ²⁰¹ prefer, the probability is, that he understands it very imperfectly when others may be speaking in that language; and," yet he undertakes to narrate what Chariton said in English to' Windwart.

But as far as Volkmar and Blum testify, they corroborate Chariton. Volkmar says, that Windwart told him he had been inquired of by a man as to his indebtedness to Seibert, and cautioned not to pay the money to him; and Blum says, that the officer showed papers, and directed Windwart to write something on a slate which he did, and that he recollects the name of Alexander Allen, and the county sheriff’s office, as having been mentioned by Chariton to Windwart. Chariton’s evidence is direct and