delivered the opinion of this court.

The bill in this case was filed in the circuit court for Frederick county, on the 30th of January 1854, by John A. Castle, (the appellee,) against William Tabler, of Lewis, (the appellant.) It is, in form, a creditor’s bill; and states that Peter Tabler, late of Frederick county, in his life time, was indebted to the complainant in the sum of eight hundred and forty-three, dollars and thirteen cents, and interest thereon, in virtue of a single bill, bearing date the 1st of March 1843, which is filed, *149and marked exhibit No. 1. The bill also states that the said Peter Tabler was seized and possessed of considerable real estate, and, on the 16th of March 1850, made and executed his last will and testament, and thereby devised all his estate, real and personal, after the payment of his debts, to William Tabler, of Lewis, of Frederick county, and thereby constituted the said William Tabler, of Lewis} his executor. That on or about the 10th day of April 1852} the said Peter Tabler departed this life, leaving his said last will and testament unaltered and unrevoked, and, on the 27th of April 1852, the same was duly admitted to probate in the Orphans (court of Frederick county, and letters testamentary thereoh, weré granted to the said William Tabler, of Lewis, who possessed himself of the personal estate of the testator, left at the time of his decease, which personal estate was very inconsiderable, and wholly insufficient to pay the debts due by Peter Tabler, at the time of his decease. And the bill prays that the real estate of the said testator, or so much thereof as may be necessary for the payment of the complainant’s claim, and the claims of other unsatisfied creditors, may be sold; and for such further and other relief as may be equitable.

A summons was issued, returnable on the 2nd Monday of February 1854, and the defendant was then returned summoned.

The defendant having failed to appear, the court passed an interlocutory decree, on the 28th of August 1854, ordering a commission to issue, to take testimony to support the allegations of the bill. The commission was issued the same day, but not having been executed as late as the 16th of February 1855, the court revoked that commission and ordered another,which, being issued on that day, was subsequently executed, and the commissioner returned the same on the 19th of February 1855. The defendant not having appeared, on tile 20th of August 1855, the court passed a decree for the sale of the real estate which belonged to Peter Tabler, in his life-time, in the bill and proceedings mentioned, or so much thereof as might be necessary, for the payment of the debt due to the complainant mentioned in the bill and proceedings, and interest *150thereon, and for payment of other creditors of said Peter Tabler, and costs of the proceedings.

During the term in which this decree was passed, William Tabler (of Lewis) filed a petition, stating that the decree was obtained by some mistake and surprise, which was not discovered until a few days previous to the filing of the petition; that the first notice he had in any way of the decree, and of the proceedings upon which it was passed, was by an advertisement of the sale of the real estate in question, by the trustee appointed in the case. The petitioner states positively that there has been some mistake in the supposed service of the summons issued in the case, but hoW that mistake originated, he is unable to state; but he does state positively that if said summons was ever mentioned to him, he utterly misunderstood that matter, for if he had understood that he had been summoned to appear and answer the bill of-complaint of John A. Castle, for any case, he should, without delay, have applied to his counsel to appear to the case and defend the same, as the pretended claim of John A. Castle, which he seeks to enforce, is not justly due and owing to him, but the same has been fully settled and satisfied. That the failure of the petitioner to appear in court, according to the summons, was attributable to the mistake in relation to the service thereof, and not with an intention to delay the complainant in the prosecution of his suit. That the petitioner does not intend to deny that the deputy of the sheriff may have spoken to him, at some place in the county, in relation to said summons, but if he did, the petitioner did not understand its purport, and by reason of said mistake and the obtaining said decree, he has been taken by surprise, and greatly injured by the decree.

The petitioner also states he is advised that he has a good and competent defence to the pretended claim of Castle, if he can be permitted to appear to the case and file his answer, setting forth facts in defence.

It is further stated, in the petition, that Peter Tabler, at the time of his death, did not owe to Castle the sum of money, or any part thereof, specified in the said single bill filed with the bill of complaint, but that the same had been settled and satis*151fied during the life of Peter Tabler, as fully appears by the disposition of an action instituted in Frederick county court, as a court of law, on the same cause of action, in which John A. Castle was plaintiff, and Peter Tabler defendant, which stood for trial on the docket of said court at the February term of the court, and on the 3rd day of March 1846, during said term, that case was entered settled. That the note or single bill on which said suit was instituted, being the same note or single bill now in dispute, remained on file in the clerk’s office, in the said case or action, until after the death of Peter Tabler, and until the 5th day of August 1852, when the same note or single bill was taken from the files of the said case, under and by virtue of an order of the judge of the court, without stating the cause for which it was wanted. All which, the petition states tffully appears from an extract of said case, the entry settled, the order of the Hon. M. Nelson, of the 5th of August 1852, and a copy of said note or single bill, &c., under the seal of the clerk of the circuit court for Frederick county, here exhibited, marked A, to this petition, which your petitioner prays may be taken and considered as a part of this petition.

The petitioner further states, he is advised that if, under the circumstances, the decree of the 20th of August 1854, is permitted to stand unreseinded, and the enrollment unopened, by the tenor and effect of said decree, the complainant therein has established the right to the receipt and collection of the whole amount of the eight hundred and forty-three dollars and thirteen cents, specified in said note or single bill, and the interest thereon, when, in truth and in fact, not one cent is due, and when the decree was obtained by mistake, and when the said John A. Castle, on the 5th of August 1852, admitted, by his affidavit on the back of said note, that the whole sum specified in the note was not all due, but that certain credits, the amount^' of which was not known, ought to be allowed.

It is also stated by the petitioner, that he' has fully paid all the debts and claims which have been presented to him in due form of law, due and owing by the said Peter Tabler, at the time of his death, and the petitioner verily believes that no *152person has any claim against him, as executor of said Peter Tabler, except the pretended claim of John A. Oastle, and if there be any just claim not paid, the petitioner says he is ready and willing to pay said claim or claims whenever they shall be presented, properly authenticated.

The petition prays the court to crder and direct “that the enrollment and decree in this case, passed on the 20th day of August 1855, be opened, and the said decree vacated, and the said defendant let in to answer said bill upon equitable terms,. unless good cause to the contrary be shown; and that the court will order and direct the trustee appointed by the decree, to surcease from all further proceedings in the case as trustee, until the further order of the court in the premises.” 'There is also a prayer for general relief.

The petition was sworn to and filed on the 4th of October 1855, and on the same day the court passed an order requiring John A. Castle, by his solicitor, to appear before the court on the 10th of the same month, and show cause why the enrollment and decree should not be opened and the decree vacated, as prayed; and further requiring the trustee in the case to surcease from all further proceedings as such trustee, until the further order of the court.

A few days after the passage of this order, John A. Castle, by his solicitor, filed his answer. JSe says it is not true, as stated in the petition, that the decree of the 20th of August 1855, was obtained by mistake or surprise on said petitioner. The respondent also states that- the bill of complaint in said cause was filed on the 3Qth of January 1854, that the summons was issued the same day, and delivered to the sheriff, and on or before the 4th day of the ensuing month, it was served upon the petitioner, William Table]-, of Lewis, by Joseph M. Ebbeps, a duly qualified deputy of the sheriff, by distinctly reading the summons to the said petitioner, and thereby informing him of the contents, and object, and command thereof, us will appear from an affidavit of the said deputy sheriff, herewith filed, and marked exhibit A.

The respondent further states, that the interlocutory decree in the said cause was not qppiiefi fo)- and obtained until the *15326th of August 1854, and that a final decree was not applied for and obtained until the 20th of August 1855, so that the petitioner had about eighteen months given him, within which to appear to the bill and file his answer, if he desired to do so, and therefore this respondent cannot, be justly charged with an attempt to surprise the petitioner, as a final decree was not obtained with anything like the expedition which the rules of law and of the court would lia.ve warranted.

The answer denies that Peter Tabler, in his life time, paid to the respondent, or to any one for his use, “the sum of money mentioned in said single bill filed with said bill of complaint, or any part thereof, or that the same was settled and satisfied in any manner whatsoever, and he states that at the death of Peter Tabler, the same was due to this respondent,.” He further states, that since the death of Peter Tabler, this respondent instituted an action at law in the circuit court for Frederick county, on said single bill, against the said petitioner, who is the executor of Peter Tabler, and also devisee under his will, and on the 22nd of February 1854, the respondent obtained judgment in said court for the full amount of the principal and interest of said single bill, as will appear from a copy of said judgment herewith filed, marked exhibit B.

In his answer.the respondent further states, that the entry in a suit, of which exhibit A, filed with said petition, is a copy, was not made or intended as an entry, that said single bill had been settled or satisfied, but was made alone by way of withdrawing said single bill from suit at that time, which this respondent was induced to consent to by the earnest importunity of the said Peter Tabler, who was his uncle, and who promised that said single bill should be paid within a short time thereafter, icall which this respondent was ready to prove at the trial of said cause, in which the said judgment was obtained, on the 22nd day of February 1854.”

This answer was sworn to on the 6lh of October 1855; and the affidavit of Joseph M. Ebberts, filed with the answer as exhibit A, is dated the same day, in which it appears that the affiant was a deputy sheriff on the 30th of January 1854, and so continued to he until hk affidavit was taken, that the sum*154mons referred to in the petition and answer thereto, was, on or about the 30th of January 1854, regularly delivered to the affiant, and he says, that between that day and the 4th day of February then next ensuing, he served the said summons on the said William Tabler, of Lewis, “by reading the same to the said William Tabler, of Lewis, and by distinctly informing him of the contents and object of said subpoena, and that to the best of his recollection and belief, the said William Tabler, of Lewis, remarked, in reply to the explanation by this affiant of the contents and object of said subpoena, £Very well, 1 will attend to it,’ or, £I will see about it,’ which form of expression was used this affiant does not clearly recollect.”

The exhibit B, filed with the answer of Castle to the petition, is a short copy of the judgment of the 22nd of February 1854, referred to in the answer; and the short copy shows the judgment was obtained against William Tabler, of Lewis, as executor of Peter Tabler, and to bind assetls quando acci~ derint.

To the admissibility of this exhibit as evidence, exceptions have been filed by the petitioner, upon the ground that such a judgment is not evidence in this controversy relating to a decree for the sale of the real estate formerly owned by Peter Tabler, and devised by him to the appellant.

The parties filed the following agreement:'

“John A. Castle vs. William Tabler, of Lewis. No. 2539. Equity. In the circuit court for Frederick county, sitting as a court of equity. We, the solicitors for complainant and defendant, agree that the short copy of the within case or action at law, No. 3T trials, Frederick county court, of the February term 1846, shall be taken and considered the same, and to have the same effect as if a full, record of said case was made and exhibited under the seal of said circuit court, certified,” &c.

This agreement relates to the exhibit referred to in the petition, and therewith filed, marked exhibit A; which exhibit shows the entry of settled, on the 3rd of March 1846, in the action at law instituted by John A. Castle vs. Peter Tabler, in Frederick county court, upon the said single bill for $843.13, also the order of the court in the same case, dated the 5th of *155August 1852, directing the clerk to deliver the note to the ‘plaintiff, retaining a copy of the saíne; which exhibit A, also shows a copy of the note or single bill retained by the clerk, 'which copy is as follows:

“$843.13. Twelve months after date, I promise to pay John A. Castle, or order, eight hundred and forty-three dollars and thirteen cents,'for value of him received, with interest from date. Witness my hand and seal, this first, day of March, one thousand eight hundred and forty-three.

Witness — S. It. Waters. Peter. Tablee, (Seal.)”

A replication was filed by tbs petitioner, but no commission to take testimony was issued.

On the 13th of October 1855, the petitioner filed a further petition, reciting some of the previous proceedings, and praying that a commission might be issued to take testimony to prove the allegations in his petition, to show that he has a good and complete defence to said bill upon the merits, or to authorize the petitioner to take affidavits before a justice of the peace, to be filed, to strengthen and fortify his affidavit as to the mistake and surprise in obtaining the said decree, and that he might be allowed to prove all such facts and circumstances as would tend to show that the decree of the 20th of August, 1855, was obtained by some mistake or surprise.

Without ordering proof to be taken in either of the modes asked for by the petitioner, the court passed an order, on the 3rd of March 1857, dismissing both of the petitions filed by William Tabler, of Lewis. From this order he appealed.

It will.be seen that the petition seeking to have the decree opened, was filed during the same term in which it was passed. Although such is the fact, with the affidavit of the deputy sheriff before us, in regard to the service of the summons, we should not deem it proper to open the decree simply upon the allegations set forth in the petition, in reference to some defect in the service of the summons, and that the decree was passed in consequence of some mistake or surprise. But, in our opinion, there is evidence tending strongly to show there was misapprehension on the part of the petitioner, which prevented ‘him from appearing and filing an answer to the bill of com*156plaint; and that his failure to appear and answer was not the result of wilful negligence, or intentional disobedience to the command of the process.

The bill of complaint was filed upon the same single bill on which a suit at law had been instituted in Frederick county court, by John A. Castle, against Peter Tabler, which suit was entered “settled” on the 3rd of March 1846. The defendant in that suit was then living. According to the statement in the bill, he died on or about the 10th of April 1852, which statement is corroborated by a witness examined on the 19th of February 1855, under the commission, who then thought the death was about three years before.

For six years, during Peter Tabler’s life, after the action at law had been entered settled, the single bill remained on file in that case; and not until some months after his decease was it withdrawn; when, at the instance of Castle, it was delivered to him by the clerk, under an order of the court. Why or for what purpose it was ordered to be delivered, is not disclosed by any- thing appearing in that case.

In view of (he entry “settled,” and the circumstances under which the cause of action was withdrawn, we think the appellant is entitled to relief. And we think so, even conceding (without, however, so deciding) that the judgment stated in the appellee’s exhibit B, is admissible as evidence. It was only a judgment to bind future assets; and, inasmuch as the administration account previously passed by the Orphans court* showed that the executor had overpaid the personal estate upwards of $600, the aggregate amount of that estate being only $225, it might readily be supposed there Was very little, if any* prospect that the executor would ever have ahy future personal assets, which he would be required to apply to Castle’s judgment. This being so, with a view of avoiding the expense and trouble of a contested trial at law, the executor might have consented to give a judgment to bind assets quandb acciderint* without designing to acknowledge, or supposing he was thereby confessing, and, in fact, without believing, that the claim had not been fully settled, according to the entry, in the former suit.

Entertaining these views, it becomes unnecessary to decide whether the appellant’s exceptions to the admissibility of the evidence should or should not be sustained.

Each party shall pay his own costs in this court, in any event. And before the decree shall be opened, the appellant shall pay to the appellee, or to his solicitor, or deposit in the court below, to be paid to the appellee, all his costs which accrued in the said court before the filing of the appellant’s first petition; the said costs to be taxed by the clerk of that court. And if such costs in the court below shall not be paid as above directed, before or within the first four days of the first October term after this cause shall be transmitted or sent down by the clerk of this court to the court below, the said decree shall stand unaffected by any proceedings under the present appeal.

In the event of such payment of costs as will authorize the decree to be opened, then all the costs, from and after the filing of the appellant’s first petition, which have accrued or may accrue in the court below, are to await the final result, or such future order or decree as may be passed in relation thereto#

Although the first petition of the appellant was filed during the same term at which the decree was passed, still the petition asks to have the enrollment opened, and other proceedings speak of, or refer to, the enrollment of the decree. It may, therefore, be proper to remark, that according to the chancery practice in this State, a decree is not considered as enrolled until the end of the term in which it has been passed.

Order reversed and cause remanded for further proceedings,

dissented.

I may say in this, as was said by Mr. Justice Thompson, in the case of Wheaton vs. Peters, “It is a matter of regret with me, at any time, to dissent from an opinion pronounced by a majority of this court. And when my mind is left balancing, after a full examination of the case, my habitual respect for the opinions of my brethren may justify a surrender of my *158own. But where no such apology is left to rest upon, it becomes a duty to adhere to my own opinion.7’ I can discover no equity whatever in the application of the appellant. The evidence of the deputy sheriff is positive, that he made known to him the nature of the summons, and, if any thing' be infer-able from his reply to the office]', it must be, that he understood what was expected of him. He not only did not comply with tbe requisition of the summons, but allowed eighteen months to elapse before final decree, without the slightest action on his part, if this be not disobedience to the court, I know not what constitutes it. I think the decree should stand, and am therefore of opinion the action of the circuit court ought to be affirmed.