delivered the opinion of the court. William F. Walker, Samuel M. Puckett, and John Lang, filed their bill against Robbins and others, praying a perpetual inijunction against a judgment at Gw recovered in the Circuit Court of the Mississippi District, alleging, among other grounds of relief, that William F. Walker, one of the complainants, was hot served with notice to appear and defend the suit at law.

The deputy marshal returned the original writ, “ Executed ~on William F. Walker, 6th of April, 1840, personally.” More than ten years afterwards the deposition of the' deputy (Cook) was taken in Texas, when he testified that his return was false; that he did not notify Walker, but indorsed the writ executed, intending to execute it after the indorsement was made, and therefore he let it stand, although he never did notify Walker.

Assuming the fact to be that Walker was not served with process, and that the marshal’s return is false,_ can the bill, in this event, be maintained ? The respondents did no act that can connect them with the false return; it- was the sole act of the marshal, through .his deputy, for which he was responsible to tire .'complainant, Walker, for any damages that were sustained by him in consequence of the fajjse return. This is free .from controversy;. still the marshal’s responsibility does not settle the question made -by the bill, wjhich is, in genera! terms, whether a court of equity'has jurisdiction to regulate,proceedings, and to afford relief at law, where there has been abuse, in the various details arising on execution of process, original, *585 mesne, and final. If a court of chancery can be called on to correct one abuse, so it may be to correct another; and in effect, to vacate judgments, where .the tribunal rendering the same would refuse relief} either on motion, or on a proceeding by audita querela, where this inode of redress is in use. .

In cases of false returns affecting the defendant, where the plaintiff at 1'aw is not in fault, redress can only be had in- the court of law where the record was made, and if relief cannot be had there, the party injured must seek his remedy against the marshal.

. We are of the opinion, however, that the return was not false; but if it was, «hat Walker waived the want of notice by pleading to the action. The suit was against W alker, Puckett and Lang. The latter employed David Shelton as his attorney to defend the suit. Lang told Shelton to put in pleas for all the defendants who had been served with process. Upon examination, Shelton found that process had been served on Walker, Lang, and Puckett, and he put in a joint plea for them. After-wards, Shelton, the attorney, met both Walker and Lang in Jackson, where the court sat, and spoke to them in each other’s presence, about the defence of the case; and a conversation was held with them, in which they promised Mr. Shelton that another attor. y William Seiger, should be associated with him in defending the suit. The questions likely to arise in the. case were stated by Lang and Walker, and they were especially anxious to know from Shelton whether Mr. Shields, the principal to the note sued on, would be -competent as .a witness on their behalf. The cause was tried at a subsequent term, on the issue made by the plea put in 'by Shelton, and a .verdict and judgment rendered.

No defence was nade on the trial at law,- impeaching the consideration of the note sued on, either on the ground .that Green had not delivered the bank-notes, as' stipulated by him; nor on the ground that usury entered into the 'transaction because the notes were at a discount of from forty to fifty per cent. Neither was- any proof introduced on the hearing of this chancery suit in the Circuit Court, tending to show that Green failed to deliver the bank-notes, although the respondents put the fact in issue; and as the face of the note imported a .consideration, no further evidence to sustain it was required from the respondents.

They-admit that the bank-notes were at the rate'of discount stated in the bill, but insisted they were of equal value to Shields-as if they had been at par; and this the bill admits would have been the case, had Shields received them according to his agreement with'Green'; and there .being no proof to the contrary, we *586 must assume that they were duly received. But whether they were duly delivered ox not, is immaterial. The defendants in the suit at law had an opportunity to make their defence there, and having failed to make it, cannot be heard in a Court of Equity. ' By way of authority, we need only repeat, as the settled rule, what was- adjudged in the case of Creath v. Sims, (5 Howard, 204,) that whenever a competént defence shall have existed at law, the party who may have neglected to use it, will never be permitted to supply the omission and set it up by bill in chancery.

■ This, court has never departed from the foregoing rule, nor allowed the circuit courts to depart from it in cases brought here. Nor can we do so without violating the sixteenth section of ..the Judiciary Act of 1789, in its true sense. Apparent aberrations may be found, but they are only apparent.

We order that the decree below be affirmed.

Order.

■This cause came on to -be heard1 on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was' argued by counsel.. On consideration whereof, it is now here ordered, adjudged, and decreed by this court', that the decree of the said Circuit Court in this causé be<¡ and the same is hereby, affirmed, with costs.