Sam: Chancery Cause, Augusta County (Part 1 of 2)
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writ was served the plff. called on your respondent's counsel & expresses his regret that the suit had been brought - made a full statement of his past kindness to your respondent & of his future benevolent intentions in his behalf & insisting that he owes your respondent nothing, proposed an arbitration - Your respondents counsel stated to the plff. that he had no authority to refer the matters in issue but expressed his conviction that it would be best for both parties to have the subject settled speedily & with as little cost as possible, by arbitration, the more especially as your respondent was a very old, a very infirm & a very poor man - The name of W. N. C. Kinney was mentioned as a suitable person to make the settlement on fair principles, & your respondents counsel agreed that if he should have an opportunity of seeing your respondent, who lived on Plffs. land, near ten miles from Staunton, he would recommend to him to refer the matter to Mr. Kinney as arbitrator - But the counsel always disclaimed not only all purpose, but all authority to make a submission without seeing his client - Your respondent did not come to Staunton afterwards before the judgment was obtained & therefore did not see his counsel, or hear anything of what occurred, & his counsel informs him that no farther communication was had with him on the subject though many months elapsed after the conversation with Mr. Johnson, & he therefore took it for granted that all idea of an arbitration had been abandoned. Your respondent also understands from his counsel that about the middle of the last term of your Hon: Court after considerable progress had been made in the docket, he spoke to Mr. J. P. Effinger the counsel of the plff & called his attention to the fact that no affidavit of defence had been filed in the case, & informed him that unless it was filed, he would insist on a judgment - Mr. Effinger stated that was going to Mr Johnson house in a day or two, & he would there see him on the subject & asked that it might be open in the meantime - This proposition was asserted to, & when Mr. Effinger returned from Mr. Johnson's his attention was again called to the subject by your respondent' counsel who stated that he would be obliged to leave Staunton before the close of the court - & he wished the matter attended to before he left - The reply of Mr. E. is not distinctly remembered, but there was nothing in it referring in the [remotest?] manner to an arbitration - Your respondents counsel shortly afterwards left Staunton on business which called him out of the State, & in disposing of the docket, there being no affidavit of defence the judgment was entered as a matter of course . Whether the conduct of the plff. exhibits that degree of diligence which entitles him to favour, or whether the circumstances above detailed as arising out of the interview between him & your respondents counsel, shew a case for relief, must be determined by this Hon Court -