validity of this order of injunction, and which might properly have been raised on a motion to dissolve, but which might also properly have been considered by the court on the hearing, and that is the fact that this injunction was granted by the deputy clerk of the Barren circuit court. The order is signed "Jas. B.

Martin, C. B. C. C., by J. H. Bohannon, D. C."

765 Has a deputy clerk power to grant such an order? The clerk certainly has this power, under certain circumstances, as it is provided in section 273 of the Civil Code of Practice, that "the injunction may be granted at the commencement of the action, or at any time before judgment, by the court, or by any circuit judge, or by the clerk of the court, or the county judge, if the judge of the court be absent from the county; or by two justices of the peace, if the judge and the clerk of the court and the county judge be absent from the county." And, if the exercise of this power to grant injunctions were merely ministerial in its character, it would be conceded that the power thus conferred on the clerk might be exercised by his deputy. By section 678 of the Civil Code of Practice, it is provided that "any duty enjoined by this code upon a ministerial officer, and any act permitted to be done by him, may be performed by his lawful deputy." But this language, in our opinion, in referring to duties to be performed, and acts permitted to be done, by a ministerial officer, is intended to include only duties and acts which are ministerial only in character and such as are to be performed and done by the officer in his ministerial capacity. When, however, a ministerial officer, or one whose general duties are of that character, is clothed, in special cases, as may be done, with the power to perform acts in their nature judicial or quasi judicial, we do not think it was the purpose or intention of the legislature, by this section of the code, to authorize the performance of such acts by a deputy. The clerk of a court is, strictly speaking, a ministerial officer, but that this power of granting injunctions, conferred upon him by the section referred to is, in its nature, not purely ministerial, but is judicial or quasi judicial, seems to us manifest, and that it cannot be delegated, either by him or any of the other officers upon whom it is conferred, either to a special 766 or a regular deputy, seems equally manifest. It is not analogous to the power conferred upon him to issue attachments, which may be done by a deputy. There he is required to see that an affidavit in a special form, prescribed by law, is filed. But here, where an immediate order of injunction is asked for without notice, as was done in the case before us, it is expressly provided by

section 276 of the code, that it shall not be granted "unless the court or officer, to whom the application is made, shall be satisfied, by the affidavit of the applicant or by other evidence, that irreparable injury will result to the applicant if the injunction be not immediately granted." This requirement clearly demands investigation and consideration judicial in its character. He is to consider and determine, as a quasi judicial officer at least, the sufficiency of the application, in law and in fact, under the evidence presented, before granting the order.

In defining judicial power this court has said: "We regard it as an indisputable proposition that where the inquiry to be made involves questions of law as well as fact, where it affects a legal right, and where the decision may result in terminating or destroying that right, the powers to be exercised and the duties to be discharged are essentially judicial": Commonwealth v. Jones, 10 Bush, 749.

All the elements entering into this definition of judicial powers seem to us to exist in this power of granting injunctions. But the language of the section conferring this power, as well as the fact that it is conferred on no others except those whose functions and duties are strictly judicial, seems to us conclusive that this power is intrusted to the clerk personally, that it is in its nature. judicial, and is one that cannot be delegated. By the language of the provision itself, the power is given to the clerk, and not to his 767 deputy; it certainly involves the exercise of discretion. and judgment, and, under the general rule governing such powers, the person to whom they are delegated, and in whom the trust is reposed, cannot delegate or intrust their exercise to the judgment and discretion of another. In a certain contingency, the clerk may grant an injunction, and, if the judge, the clerk, and the county judge be absent from the county, then two justices of the peace may grant the injunction. If it had been contemplated that the deputy clerk, in any state of case, should have this power, the law would have conferred it, in the event of the absence of the clerk from the county, as it must be presumed that the clerk would leave a deputy in charge of his office, and would have said that, if the judge and the county judge and the clerk and all his deputies are absent from the county, then the two justices may act.

We cannot believe that it was ever intended to intrust so important a function, involving, as it necessarily does, the exercise of judicial discretion, to every deputy clerk in this commonwealth, many of whom are wholly without experience, and who, under

H

the laws of this state, may even be under the age of twenty-one years, and we think, therefore, that the injunction issued in this action was invalid, and should have been dissolved, for the additional reason that it was issued by a deputy clerk.

We are of the opinion that the court below properly dissolved appellant's injunction and dismissed the petition with damages and costs, and that judgment is affirmed.

Negligence as a Bar in Equity to Relief against Judgments. There is no doubt of the general acceptance of the doctrine of the principal case, that one who has been negligent in the defense or prosecution of an action or suit which has resulted in a judgment against him, from which he seeks relief in equity, will be left without redress, if it be shown that, by proper diligence, he might have prevented the rendition of such judgment. The rule, in our opinion, has been too rigidly applied. It is true all litigants ought to be diligent, and their negligence, or that of their attorneys or other agents, should not be encouraged, and perhaps some penalty might justly be imposed therefor, but the penalty, if any, ought to be proportionate to the fault; and it ought not to be a sufficient answer in all cases to a claim for relief, based upon the most perfect equity, that the applicant has himself been guilty of a mere lack of diligence. In truth, there are instances in which persons against whom suit is brought, from their knowledge that there is no sort of claim against them, are not able to understand the necessity for defense, and therefore fail to appear in court at the proper time, and suffer default to be entered against them; and, while there are statutes in force in most of the states permitting them to apply to the court on motion to be relieved from judgments entered against them through their mistake, inadvertence, or excusable neglect, there are instances in which such statutes are not adequate for their protection. In this, and perhaps in other cases, where the equity of the party seeking to escape from the judgment is unquestionable, courts might, we think, create some exception to the general rule denying relief in all cases where the applicant is chargeable with negligence in not having properly presented his case to the consideration of the court in which the original judgment was rendered.

It is the duty of every litigant to enter his appearance in the court having jurisdiction of his cause within the time and in the manner prescribed by law, to present his cause of action or of defense by appropriate pleadings, to inform himself of the time and place of trial, to prepare for that trial by ascertaining the evidence in existence necessary to support his contention, and to rebut that of his adversary, to take proper measures to enable him to produce that evidence at the trial, to obtain continuances if from any cause he is unable to proceed to trial at the time appointed, to so conduct the trial that his cause shall be fully presented to the court, and, if he is denied the right to so present it, to take such exceptions as will permit his seeking a remedy by appeal, and, finally, if the cause is decided against him, and a right of appeal exists, to take, within the time and in the manner prescribed by law, the measures necessary for the full presentation of his cause upon such appeal.

General Rule.-It sometimes happens that a judgment is rendered against a litigant which is clearly inequitable and unconscionable. Accident, mistake, fraud, or other wrongful conduct of his adversary may have contributed to this result, and the circumstances may be such that he cannot obtain relief except in equity, and his equities may be of so persuasive a character that the courts would be anxious to afford him redress, had he been diligent on his part, but, if he has allowed himself to be put in an unfortunate position through his negligence or inattention with respect to any of his duties to which we have referred, equity will not interpose in his behalf: Waldron v. Waldron, 76 Ala. 285; Tillis v. Prestwood, 107 Ala. 618; Champion V. Woods, 79 Cal. 17; 12 Am. St. Rep. 126; Stroup v. Sullivan, 2 Ga. 275; 46 Am. Dec. 389; Bellamy v. Woodson, 4 Ga. 175; 48 Am. Dec. 221; Ames v. Snider, 55 Ill. 498; Cairo etc. Ry. Co. v. Holbrook, 92 Ill. 297; Ratliff v. Stretch, 130 Ind. 282; English v. Aldrich, 132 Ind. 500; 32 Am. St. Rep. 270; Hollinger v. Reeme, 138 Ind. 363; 46 Am. St. Rep. 402; Landrum v. Farmer, 7 Bush, 46; Casey v. Gregory, 13 B. Mon. 505; 56 Am. Dec. 581; Amherst College v. Allen, 165 Mass. 178; Kelleher v. Boden, 55 Mich. 295; Yarborough v. Thompson, 3 Smedes & M. 291; 41 Am. Dec. 626; Jordan v. Thomas, 34 Miss. 72; 69 Am. Dec. 387; Ross v. Holloway, 60 Miss. 553; Norwegian etc. Co. v. Bollman, 47 Neb. 187; Parker v. Jones, 5 Jones Eq. 276; 75 Am. Dec. 441; Brenner v. Alexander, 16 Or. 349; 8 Am. St. Rep. 301; Prater v. Robinson, 11 Heisk, 391; Tompkins v. Drennen, 56 Fed. Rep. 694; Hendrickson v. Hinckley, 17 How. 443; Crim v. Handley, 94 U. S. 652; Freeman on Judgments, secs. 486, 502, 503.

This rule is not restricted to the original parties to the action, but applies to such other persons as, during the progress of a cause, are brought before the court for any purpose which may result in a determination against them. Hence, if a person is garnished, and it becomes necessary for him to answer the process of garnishment, and to make some disclosure respecting his obligations to one of the parties, and through his negligence or inattention, either in making an Imperfect or incorrect disclosure, or in failing to appear at all, he causes a judgment to be entered against him for a sum greater than that due, or, when nothing whatever is due, he will not be relieved in equity: Stroup v. Sullivan, 2 Ga. 275; 46 Am. Dec. 390; Paynter v. Evans, 7 B. Mon. 420; Yarborough v. Thompson, 3 Smedes & M. 291; 41 Am. Dec. 626; Field v. McKinney, 60 Miss. 763; Freeman v. Miller, 53 Tex. 372; Anderson v. Oldham, 82 Tex. 228; Tillis v. Prestwood, 107 Ala. 618.

Negligence in Suffering a Default.-The first step toward the diligence required of litigants is appearing before the court at the time and place designated in the process, and in such a manner as will prevent the entry of judgments against them by default. If, through negligence or inattention, this duty is omitted, and a judgment follows as a consequence thereof, though of an unconscionable character, no relief can be had against it in equity: Hoey v. Jackson, 31 Fla. 541. The duty of appearing in response to the process cannot be avoided through forgetfulness or misapprehension. There are many cases in which the failure to appear, if negligent at all, seemed to be excusable, if negligence admits of any excuse, and in which relief was denied in equity. Relief, therefore, will be denied if the

failure to appear was due to the not reading of the summons, and the belief that it was for a sum which the defendant admitted to be owing from him to the plaintiff, whereas it was for a much larger sum: Slappey v. Hodge, 99 Ala. 300; or to the sickness of counsel, the client knowing of the sickness, and taking no measures to procure other counsel to enter a proper plea: Clark v. Ewing, 93 Ill. 572; or to the failure of defendant to recollect that the process had been served on him: Cullum v. Casey, 1 Ala. 351; or to a reliance upon the promise of the officer who served the process to ascertain and inform defendant whether it was meant for him or for some other person of the same name: Higgins v. Bullock, 73 Ill. 205; or, to the fact that the defendant did not believe that any court would be held at that term, owing to the excitement in the country respecting the war: George v. Tutt, 36 Mo. 141; or to the failure of an attorney employed by the defendant to read the writ, and to his thereby being left in the belief that the cause was pending in another court: Ayres v. Morehead, 77 Va. 586; or to some misapprehension as to the employment of counsel, as where an attorney has been written or spoken to about attending to the case, but no effort had been made to ascertain whether he was doing so or not, and he had not been given such information as to the facts as would have enabled him to give the case proper attention: Griffith v. Thompson, 4 Gratt. 147; Hill v. Bowyer, 18 Gratt. 364; Cabell v. Roberts, 6 Rand, 580; Shields v. McClung, 6 W. Va. 79; Barnhorst v. Armstrong, 42 Fed. Rep. 2.

Negligence in Pleading.-Either at the time of appearing, or at some subsequent time fixed by law, by stipulation, or by an order of court, it is necessary for the defendant to file some pleading either denying the allegations of the plaintiff's complaint, or challenging their suffieiency, or alleging some matter in avoidance. A judgment resulting from a neglect to plead at all, or from the neglect to plead any known cause of action or matter of defense, will not be enjoined: Bellamy v. Woodson, 4 Ga. 175; 48 Am. Dec. 221; Platt v. Sheffield, 63 Ga. 627; Ames v. Snider, 55 Ill. 498; Jordan v. Thomas, 32 Miss. 72; 69 Am. Dec. 387; Vilas v. Jones, 1 N. Y. 274.

Neglect in Preparation for Trial.-The pleadings being in, the next duty of every litigant is to prepare for trial, and that preparation may consist: 1. Where he is not already fully informed upon the subject, of such examination and inquiry as will disclose all the facts pertinent to the litigation, and will discover the witnesses and other means of proof; and 2. Of the taking of the measures necessary to procure the attendance of witnesses or the production in court of such documentary and other evidence as may be material and competent. After a judgment has been entered against him, an unsuccessful litigant may seek relief therefrom in equity on the ground of evidence which he has discovered since the trial, or which, though known to him before the trial, could not have been produced thereat, or because he could not procure the attendance of witnesses who, if present, would have proved his cause of action or of defense. Either of these matters, in connection with circumstances showing the judgment recovered to be unjust and unconscionable, may entitle the plaintiff to relief, but as it was his duty to inform himself before the trial of all material facts respecting the litigation, and to take such measures as might enable him to prove those facts at the trial, any