done in it from 1812 to 1827. This circumstance would undoubtedly make the court more astute in the examination of the testimony, still as the statute makes no provision as to the time within which the order shall be made, we cannot say that this circumstance of itself would be sufficient to render the order, when made, illegal.

It has been urged in argument, that the deed thus to be made, should be made by the immediate successor of the officer making sale. But is this a fair construction of the statutes on the subject? To the court it would seem that it is not. It is true, that all the statutes "regulating executions" up to the year 1822, speak of "the successor" as the person who shall make the deed, in case the officer making the sale shall be unable to make it. The definite article "the" being made use of, perhaps a strict grammatical construction would confine the power of making deeds, to the immediate successor of the ofcer making the sale. Courts, however, do not seek principally for grammatical construction in ascertaining the meaning of statutes. It is their duty to carry into effect the intention of the enacting power, although, in so doing, the rules of grammar may be violated. To arrive at this intention, perhaps there is no rule of more general application than this: to "consider the old law, the mischief, and the remedy." Suppose we apply this rule to the statute of January 19, 1822. I speak of this statute, because it is the first in our statute books which authorizes "the successor" to make deeds where his predecessor had made sales, and because since that time there has been no change upon the subject, certainly not before 1822. What then was the old law when this statute was enacted? The offi. cer who made the sale, must make the deed. What was the mischief? The officer who made the sale might "abscond, or be rendered unable by death or otherwise" to make the deed, consequently the purchaser must lose the benefit of the purchase, and if the purchase money had been paid, must also lose the purchase money. What is the remedy? In case of the inability of the officer who made the sale to make the deed, any individual who may subsequently hold the same office, may, under the direction of the court from which the execution issued, make the necessary deed and conveyance, which shall have the same effect "to all intents" as if made by the officer making the sale. Adopt the construction contended for by the plaintiff's counsel, and the mischief resulting from the old law would be but partially remedied. The immediate "successor" of the officer making the sale, might, as well as his predecessor be "rendered unable by death or otherwise," to make a deed. He might, in fact, vacate his office before a term of the court from which the execution issued, should intervene, in which the necessary order could be made. The intention of the legis lature must have been to secure to the purchaser the benefit of his purchase, and this intention could not, in every case, be carried into effect, were the construction insisted upon by the counsel for the plaintiff to prevail. However it might have been under the laws previous to 1822, the act of the 1st February of that year, "regulating judgments and executions," places the question beyond a doubt. The thirteenth section of that act provides, that if the officer making the sale, shall be incapable of making a deed, then "it shall be lawful for any succeeding sheriff or other officer to do it." 20 Stat. Laws, 74. The same phraseology is used in the statute of February 4th, 1824, (22 Stat. Laws,'113,) under which statute the deed in the present case was ordered.

It has been further urged, that the vendi. and the proceedings under the same, were irregular, inasmuch as there was no endorsement of nulla bona upon the writ of fi. fa. Had this been the fact, a difficult question might have been. presented. But we are satisfied from a careful examination of the record in this case, no question is presented as to the necessity of such endorsement. Counsel have been led into an error, by confounding the case of Fouble v. Walker, decided at the present special session, with this case. In that case, it is true, it was proposed to show that there was no endorsement of nulla bona, but the Court of Common Pleas rejected the evidence as coming in at too late a period. In the present case, it does not appear whether such endorsement was or was not made.

Upon the whole, we are not prepared to say that there is any thing erroneous in the decision of the Court of Common Pleas; the same must, therefore, be affirmed.

FOWBLE v. WALKER.

Where a party is in court when an order is made affecting his interest, and he makes no objection, he cannot, of right, be heard upon a motion to rescind such order.

This case came before the court in Hamilton county, and was adjourned for decision at this special session. The record discloses the following facts:-On the 21st of September, 1808, Rayberg and Taylor recovered judgment against Fowble for one thousand one hundred and fifty-five dollars fifty-three cents, damages; eight dollars seventy-one cents costs, in the Court of Common Pleas, and eleven dollars twenty-nine cents costs in the Supreme Court. On the 21st of October, 1808, a writ of fi. fa. issued to the sheriff of Hamilton county, returnable to December term of the same year. On this execution the sheriff, Aaron Goforth, returned:-"I have levied on one hundred and six and one-third acres of land in N. E. corner of section twenty-five, township three, and second fractional range. Also, tynine-four and three-fourth acres in lot twentyfive, township three, second fractional range, which remains unsold." On the first of May, 1809, a vendi. issued, upon which the sheriff made the following return: "I have held inquiry, and property of the annual rent of four hundred and fifty-four dollars sixty-two and two-third cents, and of the value of four thousand four hundred and twenty-six dollars sixty-two and two-third cents was appraised by inquisition hereto annexed."

On the 5th of September, an alias vendi. issued, directed to Aaron Goforth, late sheriff of the county of Hamilton, on which the sheriff made return that he had sold the property to Christopher Walker on the 8th day of December, 1810, for two thousand nine hundred and seventy-six dollars. This return was signed by "Aaron Goforth, late sheriff." Goforth died soon after, and before any dced was made. At the December term, 1812, of the Court of Common Pleas, on the application of William Corry, one of the administrators of the late sheriff Goforth, it was ordered that the return made on the 8th of December, 1810, should be amended, and it was accordingly amended to read as follows:-"Property on hand for want of bidders." Subsequent to this, another vendi. was

issued, but no return made. Here the matter rested, until December term of the same court, 1827, when a motion was made by Walker, for an order to the present sheriff, to execute a deed on the return made by the late sheriff Goforth, upon the execution of the 5th September, 1810, and also to vacate the order and amended return, made at the instigation of the administrator of Goforth, at the December term, 1812. This motion was continued to the February term, 1828; and at that time, to wit: on the 26th day of February, it being proven that the purchase money had been paid, the Court, upon examination of the whole case, made the following order:

"William Rayberg and William W. Taylor, v. Jacob Fowble, executor, No. 59, to December term, 1810, on judgment as follows:-Damages, one thousand one hundred and fifty-five dollars fifty-three cents; cost, C. P. eight dollars seventy-one cents, S. C. eleven dollars twenty-nine cents. Interest from 21st September, 1808. On motion, the Court set aside the amended return made on the above execution, by the administrators of Aaron Goforth, deceased, and reinstate the former one, and order the said amended return to be held for nought, and that all the subsequent proceedings had by reasons of said amended return, be also set aside and held for nought. Jacob Burnet sworn and examined.

The Court having carefully examined the proceedings of Aaron Goforth, Esq. late sheriff of Hamilton county, on the above execution, order it to be entered of record; they are satisfied that the sale of the property therein described, on the 8th December, 1810, to Christopher Walker, for the sum of two thousand nine hundred and seventy-six dollars, has been, in all respects, in conformity with the statute. It is therefore ordered by the Court, that John C. Avery, Esq. sheriff of Hamilton county, make and execute a deed to the purchaser accordingly; and from testimony exhibited, Court are satisfied that the proceeds of the sale haye been regularly paid over."

On the following day, to wit, the 27th day of February, 1828, Fowble made a motion in the same court, to set aside and vacate this order, which motion was continued over to the 6th day of March and then over-ruled, the Court refusing to sustain the motion, on the ground, that opportunity had been offered to show cause why the order should not have been granted, but that none had been shown.

When the motion was over-ruled, Fowble, by his counsel, tendered a bill of exceptions, which was sealed by the Court. The bill of exceptions, discloses among others, most of the foregoing facts. It also shows, that while the mo. tion of Walker was pending, Fowble was in court, that Goforth, when the sale was made, had ceased to be sheriff, that other judgments were recovered against Fowble, executions upon which were in the hands of the sheriff at the same time with the execution in favor of Rayberg and Taylor, that it did not appear, that there was an endorsement of nulla bona, upon any of the writs of fi. fa. &c.

The case now comes before the court, on a writ of certiorari, to reverse the decision of the Court of Common Pleas, on the motion submitted by Fowble.Various errors are assigned, but it is deemed unnecessary to state them specifically.

Caswell and Starr, for plaintiff. Wade, for defendant.

Opinion of the Court, by Judge HITCHCOCK.

Notwithstanding the variety of facts which are spread upon the record in this case, and the variety of errors assigned, it seems to the Court, that the principles upon which it must be decided, are confined to a very narrow com. pass. Had the plaintiff shown cause against the motion which resulted in the order of the 26th February, 1828, while that motion was pending, had the Court of Common Pleas adjudged the causes thus shown insufficient, and had the plaintiff tendered a bill of exceptions, spreading the same facts upon the record, as they appear upon the decision of his own motion of the 27th Febru. ary, the question presented would have been different, and probably of more difficult solution. We should then have been under the necessity of inquiring into the validity of that order. The arguments of counsel, as well as the as. signment of errors, seem to be predicated upon such a state of case. An examination of the record shows an entirely different case. It is the proceedings and decision upon the motion of the 27th February, made by Fowble himself, and not upon the motion made by Walker, at the November term, 1827, of the Court of Common Pleas, which is said to be erroneous. Fowble, although in court, did not show cause against the motion first above referred to, he made no objection to the order, he lay back until the order was made, and subsequently submitted his own motion to the court, to set aside or vacate this order. The only question which can now be examined is, whether the court erred in refusing to sustain this motion.

Motions of this description, or those somewhat similar in their nature, are frequently made, and are always addressed to the sound discretion of the court. By sound discretion, I do not mean an arbitrary discretion, but such a discre tion as may be exercised without the violation of any principle of law. Par. ties, not unfrequently, in the progress of a cause, lose advantages in consequence of their own negligence or laches, to which they may or may not be restored on motion, at the discretion of the court. If restored, it must be upon such terms as the court think proper to impose. Motions to set aside nonsuits or defaults, for new trials, to amend pleadings, &c. are within every day practice, and it is discretionary with the court to grant or refuse them. Where, how. ever, an advantage has been lost to a party in consequence of sheer negligence, it is rare indeed, that a court will on motion grant relief. For instance, a defendant neglects to plead, and suffers judgment to go by default. It must be an extraordinary case, that will induce the court to set aside the default, unless the defendant offers some plausible excuse at least, for his neglect.

The motion of Fowble is not so far dissimilar to those referred to, but that the same principle ought to govern in the settlement of it. Had he had no day in court, he would have appeared under more favorable circumstances. But he had a day in court, and it was owing to his own laches that he was deprived of a full investigation. He neglected to shew any cause against the motion of Walker, until that motion was disposed of by making the order of 26th Februa. ry. He made no excuse for this neglect, and on account of this neglect, the

court not only refused to sustain, but over-ruled his motion of the 27th February. It was within the discretion of the court to grant or refuse it, and we are not prepared to say, that in the exercise of that discretion, any principle of law was violated, that any error was committed.

The decision of the Court of Common Pleas is affirmed.

BUSTARD v. DABNEY, ET AL.

Equity will not aid a creditor to subject the real estate of an intestate, where the heirs and representatives are non-residents, and where no letters of administration have been taken out in this

state.

The creditor has a complete remedy at law.

This was a suit in chancery adjourned here for decision from the county of Clermont. The bill charges that Oliver Fowler died indebted to complainant: that he left a will, which was duly proven and recorded in the state of Virginia, where he died: that administration with the will annexed, was granted to John B. Dabney, who assumed the execution of said trust: that complainant brought suit against him in the County Court of Campbell county, Virginia, and at the November term of said court, in the year 1825, recovered a judgment against him for two thousand and seventy-six dollars seventy-four cents, and six per cent. per annum interest on two thousand dollars of said sum, from July 11th, 1821, and on seventy-one dollars ninety-one cents, from April 27th, 1822, and costs of suit. The bill further alleges, that no part of said judgment has been raid, and that the administrator has no assets in his hands out of which to pay it. The bill then charges, that the decedent or testator died seized of certain tracts of land in the county of Clermont, describing them, and which are par ticularly described by the survey. The bill makes the administrator, widow, and heirs, parties, and prays that the lands may be sold to pay this debt and costs. The defendants are all non-residents. The infant heirs who are de. fendants, have filed their answer by Thomas Morris, their guardian, ad litem. All the other defendants have failed to answer, and are in default.

Benham, for complainant.

Opinion of the Court by Judge HITCHCOCK.

In all cases where application is made for the extraordinary interposition of a Court of Chancery, in granting relief, the first enquiry which presents itself is, whether the complainant has plain, complete and adequate remedy at law. If he has such remedy, he must seek it through the courts of law. It is not suffi. cient for him to shew that he is entitled to redress, he must show that he is en titled to it, in the manner and in the court in which he seeks to obtain it.

Our laws are different from those of England, and some of our sister states, on the subject of the settlement of estates. The only privileged debts with us, are those contracted in the last sickness of a decedent, and for funeral charges. All others are to be paid in equal proportion. To adopt any course of proceed