author: Huston; J. Gitson C. J.

text:
    CAMPBELL against KENT.
    A judgment confessed by an attorney at law, by authority of a. Warrant from tbs' wife of an absent debtor, is void as to subsequent judgment-creditors, even though such judgment were ratified and confirmed by the debtor, after other judgments were entered against him.
    Whatever may be done upon application to the court, by a party, to be relieved from a void or voidable judgment, the same result may be obtained upon the ap; plication of a Itma fids creditor of such party.
    Writ of error to the Common Pléíis of Green coimt}'.
    This was an amicable action, in which Benjamin Campbell Was plaintiff, and Jesse Kent, Uriah B. Eagen, and Reuben Mickle, were defendants: the issue joined was upon the fact, whe-: ther a certain judgment in the Common Pleas of Green county, at the suit of the present defendants against Samiiel Mickle, was a good and valid judgment or otherwise. Jesse Kent) Uriah B. Ea-gen, and Reuben Mickle, were the endorsers to the Bank of Browns* ville, of a note of Samuel Mickle for three hundred dollars. Jesse Kent and Mr. Buchanan, an attorney at law, went tothehouse of Samuel Mickle', who had been absent six or seven days, to get his Wife to authorize Mr. Buchanan to confess a judgment against her husband, in favor of Kent) Eagen, and R. Mickle, his endorsers; Mr. Buchanan told her- to consult her brothers about itj which she did: they replied, that they Would not undertake to advise her* but supposed Mi*; Buchanan would not desire her to do wrong; She then signed the following paper:

      To JLndreio Buchanan) Esquire:

    My husband, Samuel Míetele, is indebted tirito Jesse Kent* Uriah B. Eagen, and Reuben Mickle, as his security for money for which they are bound. You will therefore please to adopt any Such means aá you may deem advantageous to my said husband* and secure his friends above named; either by confessing judgment hgainst him in their favor, Or otherwise, as may seem to you to Save costs, and be most for the interest of my Said husband. The surtí for which they are bound, is three hundred dollars.
    March 20th, 1830;
    In pursuance of this authority; JLndreio Buchanan) Esquire* bn the 20th of March, 1830, appeared and confessed a judgment in favor of the present defendants, for three hundred dollars, witli interest from the 9th of March, 1830, against Samuel Mickle. On the 20th of March, 1830, the plaintiff in this suit, Benjamin Campbell, filed a transcript of a judgment which he had obtained against Samuel Mickle, before a justice. There were other judgments against him, all of which would be postponed, if that of Kent sind others was a valid judgment. The defendants gave in evidence, also; the following paper, which was signed by Samuel Mickle; but when, it did not appear, as it was without date.

      ieAndrew Buchanan, Esquire:

    As I am about to leave Gréené county for some time, and having & strong desire to indemnify my sureties for money'borrowed fro'm the bank, I hereby authorize you to appear as my attorney, and confess judgment against me for the amOunt of the bank debt, of any thing else which may be deemed expedient by you for indemnifying my said sureties; and whatever you may do, or have already done in the premises, I hereby ratify and confirm.”
    The court, [Baird president,) in answer to certain points piit by defendant’s counsel, thus charged the jury:
    1. The judgment entered in the docket in favor of the defendants, by confession of A. Buchanan, Esquire, is prima facia a valid judgment, and cannot be set ¿side unless there was fr’aüd or Collusion. The authority of Buchanan will be presumed until the facts impeach it on the grounds I have suggested. But it is not indispensable that actual or moral fraud should be shown; in order to' impeach the judgment as respects creditors. If the authority was Obtained .from the wife of Mickle, by the solicitation and influence of the defendants, they knowing that she was not the special or general agent of her husband, it would amount to a legal fraud, an illegal act; prejudicial to the rights of others, and may therefore be avoided as respects them.
    2. The paper in evidence, signed by S. Mickle, if truly what it purports to be; an antecedent authority to Mr. BucKanhn to confess judgment to the defendants, puts an fend to the question. It is proved by the defendant’s witnesses that Mickle left the country some days before the judgment to Kent and others was confessed. The paper states, “that he is about to leave the county,” &c. If, howévfer, you believe, from all the facts in evidence,'that it was not executed until after the plaintiff’s judgment was docketed, it will not affect him. It can have no retrospective operation to the prejudice of intervening creditors. As to Mickle himself it may be good. If the act of Mr. Buchanan, therefore, was without Authority, and obtained by the means suggested, the ratification of that act by S. Mickle, subsequently to the judgment of the plaintiff, will not' be good, (so far as respects the plaintiff,) from the date of the entry, notwithstanding the claim of the defendant, was honest and bona fide.

    To this opinion exception was taken by défendarits, which, in this court, was relied upon.

      McKennan for plaintiff in error.
    The authority of the attorney who confessed the judgment, cannot he questioned or impugned by third persons. 1 Salk. 86. 1
      Bacon, 291. 1. Strange, 693. $ Mod.' 295. 6 Mod. 16, 40, 41. 6 Johns. 36, 296, 3ÍS. 1 Bin. 214, 469.
    It was not questioned but that the debt for which the judgment was confessed, was a meritorious one; and Mickle having ratified and confirmed what the attorney had done, like all other acts of confirmation had relation back to the lime when the thing to be confirmed was done.

      M’Giffen for defendant in error,
    Insisted upon the evils which would result from the doctrine, that the acts of an attorney at law are so conclusive as that a judgment confessed by him without authority, will be binding under all circumstances. A resort to an attorney, would in many case3 be a, very ineffectual remedy, and although the remark is not applicable to this Case, yet it is to the principle of it. The fact of Mickle being at the time an absconding debtor, distinguishes this from all the Cases cited.
   The opinion of the court was delivered by

Huston; J.

The opinion of the court beíow' has been attacked' solely on the ground of authority, and we are told if it be supported, we will overturn a long list of authorities.' I shall consider some of them briefly. Two cases from our'own books were cited; I Bin. 2'l4; in this case the writ was against two, served on one only, and an appearance for both; the cause was referred, and are-port made against both, upon which judgment was entered, and a fieri facias issued, which was levied on a mill and farm, of the defendant on whom the writ had been served. An inquisition was held, which found that the rents, issues and profits would pay the incumbrances within seven years. The plaintiff’s attorney then entered a discontinuance to his fi. fa., took out an ah. fi. fa., and levied on a tract of land, the property of that defendant, on whom the writ had not been served, which was condemned and sold-. The defendants were brothers, and it was scarcely possible that both should not have heard of the reference and of the first fi.fa., and inquisition. The application to the court was not founded on an affidavit of Robert, on whom the lorit was not served, that he never employed the attorney; never knew that he had appeared for both, &e.; it was solely on the ground, that he had nó' right to appear for a defendant on whom no writ was served, and who had not directed him to appear. The court having determined to set aside the second fi. fa. vend. exps. and sale, because the plaintiff would not relinquish his first fi. fa., &c., and to compel the plaintiff to proceed against him on whom the process had been served, do not appear to have considered this matter much: all that is said on this part of the case is in these words: <sth» judgment below must be affirmed, because it sufficiently appears that the attorney appeared for both defendants;” and they might have added, it does not appear that he was not authorized to appear for both. It must be admitted, however, we have several cases where such an appearance by an attorney for a defendant, on whom the writ was not served, and judgment on it, has been held valid; but I believe no one in which such defendant swore that he never knew of the suit or of the appearance; that he never employed the attorney, or authorized any person to employ him, and never heard of or suspected an appearance for himself, until shortly before his application to the court. And it has not yet been decided in this state, that on such a state of facts, uncontradicted, a judgment would stand.

The next case cited, 1 Bin. 469, has no application to this. An attorney regularly retained by the defendant, had, by rules, to declare, obtained a nonpros. A year afterwards he agreed that this non pros, should be taken off, and a declaration filed, which was done.

The decision was, that by the practice in this state, an attorney had authority to take off a nonpros. — that the authority of an attorney here is not limited in the same manner that it is in England —for a payment to plaintiff’s attorney, long after judgment, and without execution, had been held good.

Many authorities from the English books were cited, to which I observe that the last case, and some other cases, decide, that the law is not the same in this state, as to the authority of an attorney, as it is in England, and I shall not cite them, because all that were here cited, and many more, are collected in 6 Johns. 296. On that case the defendants principally relied; but even that case will not support this proceeding; for first, it was conceded that no usage, nor no case, justified an attorney in appearing in vacation, where no writ had issued, and confessing a judgment. There are cases in which the attorney appeared after a writ issued, and before service; but none where an attorney, without any writ or suit, and without Warrant, appeared and confessed judgment; and no case of the kind can be shown, I believe, where such judgment has been sustained. And secondly, that case is expressly put on the ground that the plaintiffs and their attorney were as innocent as the defendant. “If,” says Chief Justice Kent, “there hadjieen any collusion between the plaintiff’s and defendant’s attorney, it would have altered the case; but there is none shown or pretended, and my whole opinion proceeds on the ground, that the plaintiffs have acted with good faith.” And again, he speaks of the plaintiff being entitled to protection; but what court ever held itself bound to protect a party who had assumed, or prevailed on another to assume, for their benefit, a character or authority to which he had no right, and whose conduct was equally contrary to rules of court, and to morality?

The majority of the court there admit, that the practice in England is not correct, reasoning from principles, {page 304;) and they departed from the English practice by opening the judgment, and letting the party appear antj plead. The dissenting judge has shown, that the law was not originally s.p in England, and is not now so; and to his opinion, and tire cases he cites, I refer. I will add, that in the next case in the same book, 318, that court decided that a judgment for costs, against a plaintiff, in whose name a suit; had been brought without his authority, was held void as to him, and he discharged from attachment, on which he was brought into court, for not paying those costs.

We hare two decisions, which have not been cited, which bear P,n this question. Some lawyers were in .the habit of confessing judgment ip several coqnties bn the same bond and warrant.; and afte¡p judgment confessed in one county, all subsequent judgments were held to be void; so much so, ns. that the court was bound to vacate them, on motion. 6 Serg. & Rawle, 296, Martin v. Rex, 14 Serg. & Rawle, 166, Neff v. Barr; and this, although the warrant authorizes the attorney to enter judgments in the plural. 3 Wash. C. C. Rep. 558. In the two first cases, it. is intimated that a sale, under such second judgment, wo.uld give a good title; no such matter, was before the court. I admit there may be cases in which such might be the result; but I can also conceive of cases in which such sale would not give any title; e. g. where the plaintiff, whose debt was thus fraudulently made a judgment., became himself the purchaser; and. pertainiy, if he had before collected his debt in another county.. ' . .

These cases decido, that a judgment confessed by an, attorney, without a warrant, may be vacated on motion. Iff such judgment was not void, it could not be easy to find either reason or authority for disposing of it in that manner. This one has less color to support it than existed in those.cases.

Having no Courtof Chancery in which to obtain an injunction, we. attain the result by opening the judgment, and letting theparty into a defence, or permitting creditors to interplead; and whatever may be done on application of the party, may be on application o,f a bona fide creditor; this, practice is of long standing, sanctioned by many decisions, and at least one act of assembly. The right of the ere-, (litors to. interfere was. not denied in this case.

In one of the cases, cited, 1 Salk. 88, and in the argument here, much stress was laid on the fact that the attorney was of good character, and responsible in point of property. How can that -alter-the case? how long will an attorney be responsible in property Yfho adopts such a practice? When is his responsibility to Ire test-pd or how? A man procures a title for land under a power of attorney forged by his procurement, or alleged by him to exist, when he knows it does not exist; will any one say his title is good because the person who acted as attorney is reputed rich? Judgment and execution is a mode of transferring titles to lands. On what principle shall or can it be said, that a fraud of one kind is totally void, and another good and effectual, unless I had some notice and by my silence or laches, occasioned an innocent man to lay out his money, confiding that what was done in form of law, was fairly done, as against the fraudulent party himself, it is no protection, that he has shrouded his conduct in the garb of legal proceedings.

If this conduct is sanctioned, there is an end of all distinction 'between bonds with warrant to confess judgment, and common bonds, nay every common demand.' No man can, however careful and methodical, know how to arrange his business or when to look for an execution. The statute against fraudulent conveyances to defraud or hinder creditors, will no longer be of any avail- The debtor may determine to give no preference to any creditor, but anjr creditor without the debtor’s knowledge can get a preference, if he can find an attorney who will do what he is asked to do oi’ paid for doing, either without reflection, as I suppose was the case here, or without principle, if he. does reflect — as may be the next pase which will be presented. The court is therefore of opinion that the judgment be affirmed.

Gitson C. J.

In contemplation of law, every judgment is an act of the court. It is called by Lord Coke “ Judicium quasi ju-t ris dictum, the very voice of law and right; and therefore judici-. nm semper pro veritale accipilur.’> It is the sentence of the law, says Blackstone, pronounced by the court on the record of the facts, 3 Com. 395-6; and it is surely immaterial to its essence whether those be ascertained by the cognovit of the party or the verdict of a jury. Viewing it as such, it is easy to comprehend how a-security by judgment may be good though erroneous, while a security by act of the party may be void in the first' instance when executed without authority in his name. In the one case, • the effect emanates, if at all, from his own power, and in the other, from a power superior to him. On this principle, a judgment confessed by an attorney, though without warrant, is good till it is reversed. By the common law the default of a warrant of attorney is an error, but one that has been cured, except in particular circumstances, by statute. Still a judgment rendered without a semblance of authority, may be set aside on motion and due consideration of the circumstances; but the interposition of the court, being of favor and not of right, is to he invoked only in the last report; as where the attorney is not of sufficient estate to answer the consequences in an action. “The course of the court is,” said Lord Holt, “where an attorney takes upon him to appear, the court looks no further, but proceeds as if the attorney had sufficient authority, and leaves the party to his action against him.” Anon. 1 Salk. 86. And again: If “the attorney be able and responsible, we will not get aside the judgment; the reason is, because the judgment is regular and the plaintiff ought not to suffer; but if the attorney be not responsible but suspicious (in his circumstances) we will set aside the judgment, for otherwise the defendant would have no remedy, and any one might be undone by that means.” Anon. Salk. 88. The same rule was followed in Allely v. Colley, Cro. Jac. 695. Lorymer v. Hollister, 1 Stra. 685, and many other cases which it is unnecessary to notice, the authorities on the subject having been arranged by Chief Justice Kent, in Denton v. Noyes, 6 Johns. 296. In that case, the defendant was permitted to plead to the merits, while the judgment was suffered to stand as a security — a practice conformable to our own in cases of fraud, and preferable in my opinion to that of the English courts, as it gives the defendant, without jeoparding the rights of the plaintiff, every fair advantage to be had from an entire vacation of the judgment. I have cited the preceding authorities for a principle that has never been denied, even by Mr. Justice Van Ness, in dissenting from the judgment in Denton v. Noyes, thatan actual appearance to the court is sufficient in the first instance. From the time of Cole v. Law, Roll. Ab. 741, to the decisions of our own court in M’Collough v. Guefner, 1 Binney, 214, and Reinhold v. Albertie, id. 469, a judgment de facto has ever been treated as but voidable. In Martin v. Rex, 6 Serg. & Rawle, 296, the very point made here was directly decided. It was there determined that a judgment confessed by virtue of a warrant which, having been exhausted by the confession of a previous judgment, was no warrant at all, was nevertheless not void, though clearly irregular, insomuch that a purchaser under it would have had a title; and that the remedy of the party injured, was by action against the attorney, yet at the entry of the judgment, the last spark of authority emanating from the warrant that became extinct. The determination of the case at bar, has been put on the ground, either, that the judgment is void already, or that it is tainted with such fraud, as lays it open to avoidance by creditors in a collateral proceeding. That it is not void, the authorities abundantly prove: and that it is not fraudulent, appears from the interpretation of the word in the books.

It is an undoubted rule, that a judgment may be collaterally impeached for collusion: but I dissent from the conclusion of the majority that there was any thing in the transaction from which collusion could be inferred. It is not only a material but a vital part of the case, that the responsibility which the judgment was intended to secure, had been actually incurred, and in seeking indemnity for a loss impending from it, the plaintiffs might, not only lawfully but honorably, obtain a preference to the disadvantage of the other creditors. With whom could they collude? Not with the defendant; for to have obtained his participation, would have put •the validity of the act beyond the reach of controversy. In no case ezxiper fraudem be replied to the plea of a judgment suffered, unless there was collusion with him who suffered it; at least I have looked in vain for a precedent of it in any other case. In two precedents in 3 Chitty Pl. 1166, the judgment is alleged to have been acknowledged with an intent to defraud by the instrumentality of a fictitious debt; and the whole is charged tobe the fraud of the defendant. Such too was the form of the replication in Trethewy v. Ackland, 2 Saund. 49. But putting the attorney in the place of the defendant and with the same capacity to collude, the difficulty that there was an actual bona fide duty to be secured is insurmountable. In Veale v. Gatisdon, Sir W. Jones, 91, it was resolved that a judgment acknowledged for a true debt, though for the avowed purpose of defeating other creditors, cannot be avoided; and the same principle was held in Waring v. Danvers, 1 P. Wms. 295, and Morice v. The Bank of England, Ca. Temp. Talb. 225. Here the liability for which the plaintiffs were to be indemnified, was an actual and an honest one,* and it is proper to remark that there was nothing in the transaction to reflect on the honor of the attorney or any one else. He appears to have been consulted by all parties to effect the performance of a moral duty by the defendant in his absence; and by the brother of the defendant’s wife who was examined on the part of the creditors, he was called her counsel. But to. treat him as having been retained by the plaintiffs exclusively, would produce exactly the same results. Allely v. Colley was the very case of •a judgment confessed by an attorney retained by the plaintiff withr out the defendant’s knowledge; yet it was held good even on audita querela, and if good against the defendant, it would surely be so against his creditors.

The rule that a judgment cannot be reversed by a collateral proceeding, except for fraud, is an undoubted one; but it seems to admit of this further exception, that strangers to whom it is immediately injurious, may reverse it by plea; because, standing in no privity to the parties, they are not precluded from an averment against it, and because they would otherwise be without remedy. This distinction was made in Godfrey’s case, 11 Co. 44; and in Randal’s case, 2 Mod. 308, it was taken arguendo and apparently recognised by the court. In Winter v. Perry, Cro. Eliz. 199, a plea to a scire facias z^pmet bail, that the defendant in the original action was dead at the rendition of the judgment, Was at first deemed inadmissible as going to avoid the judgment, which, it was said,could be done only by writ of error; but it seems to' have been subsequently received, thoiigh another report of the case in 1 Le. 101, pl. 125, leaves the principle of the decision in doubt. Perhaps the true ground of both that and Randal’s case, is, that the judgment Was not only injurious but void, having been rendered against a party notin existence, and therefore requiring no reversal to ren-5' der it a nullity. The decisions in our own court have generally been between parties who being bound by the judgment as an estoppel, might have reversed it by writ of error; and to whom the"general rule was consequently held applicable. Thus, Nace v. Hollenback, 1 Serg. & Rawle, 348; Colley v. Latimer, 5 Serg. & Rawle, 211; Allison v. Rankin, 7 Serg. & Rawle, 269; and Blythe v. Richards, 10 Serg. & Rawle, 269, were cases in which a mortgagor was precluded from alleging the existence of error in proceedings on the mortgage, in an ejectment against the purchaser at the sheriffs sale; and in Porter’s Executors v. Neff 11 Serg. & Rawle, 208, a broad intimation was given that an erroneous judgment could not be reversed in an action between the plaintiff in it and an alienee of the defendant’s land. On the other hand,' it was held in Stump v. Findlay, 2 Rawle, 168, that a common recovery may be abated by entry and plea; and so far all has been in accordance with the rüle or its exceptions, as already stated.But a difficulty arises when wc come to determine the relation which creditors bear to the parties. An application by them to open thejudgment in order to try a question of fraud, will undoubtedly be entertained, or a collateral issue ordered, as in Kellog v. Krauser, 14 Serg. & Rawle, 307, and Whiting v. Johnson, 11 Serg. & Rawle, 328. But can they be admitted to destroy the security of the lien, and that too for a mere error in process, or any other part of the proceeding? We have but one decision on the point, and it merits, for that reason, a particular consideration. I refer to Lewis v. Smith, 2 Serg. & Rawle, 142, which was an action for the proceeds of an execution from the Circuit Court of .the United States, claimed by virtue of a prior execution from the Supreme Court of Pennsylvania, which had been levied on the same goods. The' marshal having taken defence on the title of the subsequent execution creditor, excepted to the regularity of the judgment on which the prior execution had been issued; so that the contest was there as it is here, between creditors. The objection to the judgment was that it had not been entered accbrding to the terms of the confession. The agreement was without date, but it bore that judgment should be entered of December term, 1799, whereas the paper Was not filed till the 20th of March, 1800. “It does not clearly appear from a view of the docket,” said Chief Justice Tilghman “whether the judgment was really entered of December or March term, but I will suppose it to be March; still 1 think thejudgment may be supported; nobody was injured by it. To Fitzsimmons (the defendant,) if it made any difference, it was rather an advantage, for he gained something on the score of interest, as on the entry of judgment on the scire facias, the interest due on the original judgment would become principal. He never complained, though it was always in his power to have had thejudgment opened, if he considered it as a violation of his agreement. At any bate, it CANNOT BE SAID THAT THE JUDGMENT WAS VOID; IT WAS ENTERED BY THE PROTHONOTARY, AND NEVER HAVING BEEN REVERSED, THE COURT CANNOT IN THIS COLLATERAL WAY CONSIDER IT AS void.” Mr. Jicslice Yeates was of opinion thejudgment was entered of December term, 1799. “Should I however be mistaken,” he subjoined, “I have no hesitation in saying this judgment remains in full force. It cannot be annulled collaterally in another suit between other parties. Mr. Fitzsimmons never complained; of it in his life-time, nor can I discover, if such error existed, how itcould possibly be injurious to him.” Is notthat essentially the case at bar? Although a judgment entered against the terms of an agreement, is no better than if there had been no agreement, it was held that whoever else might complain, the creditors could not. The difference'in other respects is, that here the lien is on land and there it was on goods; that here it proceeds from a judgment, and there it proceeded from an execution; but one to the validity of which a valid judgment was as essential as it is to the existence of a lien in the case before us. There the defendant in the judgment never complained of it, nor has the defendant complained of it here; and that it was not injurious to him, is proved by his subsequent confirmation of it. As regards himself, this confirmation is admitted to be equivalent to a precedent authority, but not as regards intervening judgment-creditors. This assumption that there were intervening'judgment-creditors, is founded on another, that there was a moment when thejudgment ceased to bind. If, however, it was but voidable, there never was that moment. The argument would be unanswerable if the judgment had received its vitality from the act of confirmation, and not from what is in legal estimation the act of the court; but the authorities, without an exception, bear the other way. What then is the right of the creditors to object? When the judgment was rendered, they had no interest in the land further than to be protected from gratuitous incumbrances or a fraudulent transfer of it; and this judgment was neither. In no other way could they be injured. If the defendant might have authorized such ajudgnient, the confession of it by another without his authsrity, was an abuse of his rights, not theirs, which entitled him, and not them, to call for redress, if tbeir right to object is'an independent one aud paramount to hisy they must have an interest to be affected which is also paramount to his; and that they have not, is proved by the fact that he was competent to give an incontestable preference by a mere exercise of his will. According, to all the authorities, the judgment bound him from the entry of it, and as there was then no opposing interests, it also bound his land. When did it cease to do so? If il was ipso facto annulled by the rendition of subsequent judgments, these' must have had the effect of avoiding what was only voidable before, and it seems to me the indirect reversal of one judgment by another, where the party to be affected had • no day in court, is a thing unknown in the law'. A subsequent judgment bond is only the resulting interest of the debtor,, and how it 'can displace a preceding one which was valid against him, without attaching itself to an estate- or interest paramount, is what I am unable to comprehend.- If such a judgment as this binds the debtor’s person, it necessarily binds his land in exclusionmf subsequent liens. And» why should creditors be allowed to destroy a lien for a defect in. the judgment, which was no prejudice to them? No one will say that a writ of error would be allowed to enable them to reverse a judgment on warrant of attorney, for a defect in setting out the cause of action, unless it affected the certainty of the judgment itself. The most they could claim in a case of mere error like the present, would be (according to what is the practice of the courts in New York, and ought to be so elsewhere,) the benefit of a defenceon the merits, without sweeping away the lien in the first instance. For these reasons, it appears to me, there was error in the trial of the issue, for which the judgment on the verdiet ought to be reversed.'

Kennedy, J concurred with Gibson, C. J.

Judgment affirmed,

       In McCormick et al v. Miller, (post) determined at the ensuing term for tire ¡southern circuit, an erroneous judgment by default was sustained against creditors, though surreptitiously obtained, to gain a preference over a domestic attachment then in train. The summons was illegal, the day of appearance being less than five days from the date — the period allowed by the act of Assembly; and though the defendant might by possibility have been served, though proved to have been an absconding debtor, yet the service of a void writ, being in legal estimation, no service at all, gave the justice no more authority to sign judgment, than does the office of an attorney without warrant.-


source: Caselaw Access Project

author: Rogers, J.

license: Public Domain

text:
    M’CLURG Against LECKY.
    A debtor cannot in an assignment, make a reservation, at the expense ofhis credititors, of any part of his income or property, for his o ven .benefit, nor can he stipulate for any advantage either to himself or family.
    Such assignment is not only fraudulent and void, as regards the property reserved for the use of the debtor or his family, but is so in foto.

    When the assignment istainted with either moral or legal fraud, the property does not pass, but remains in the debtor, liable to the execution of those creditors who have not assented te'the assignment.
    Writ of error to the Common Pleas of Allegheny county.
    This was an action of trespass brought by Alexander M> Clurg, Sturly Cuthbert, James Cuddy, James Ekin, and George Led-lie against William Lecky, Esq. Sheriff of Allegheny county, for taking and carrying away eertain goods and chattels, which the plaintiffs alleged were theirs, and which the defendant had levied and sold as the property of Morris B. Belknap, by the authority of a fieri facias at the suit of Robert T. Stewart

      Morris B. Belknap was the owner of a tract of land, upon which the “Pine Creek factory” was erected, and for which on the 8th March, 1837, he executed a deed of conveyance to the plaintiffs: the consideration mentioned in the deed was five thousand dollars. On the same day Belknap executed an assignment to the plaintiffs of all the engines, machinery, horses, wagons and other goods and chattels which were upon the premises, and which were enumerated in a schedule annexed to said assignment; and the following agreement was then entered into between them:
    “Whereas Morris B. Belknap, by indenture bearing even date herewith, hath sold, released, enfeoffed and confirmed unto the said M’ Clurg and Co. and Ekin and Ledlie, all that certain piece of land situate in Indiana township, on which are situate the buildings commonly called the Pine Creek Factory: and whereas, by a eertain other writing, commonly called a bill of sale, also bearing even date herewith, the said Morris B. Belknap, hath sold and assigned unto the said M’Clurg 8¡' Co. and Ekin and Ledlie, all and singular, the engines, machinery and other articles whatsoever, in and belonging to the said “Bine Creek Factory:” and whereas also the said M’Clurg <$• Co. and Ekin 8?Ledlie, havea greed to stock the said factory, and to work and earry on the same. Now these articles of agreement witness, that the said M’ Clurg Co and Ekin 8? Ledlie, have agreed to employ; and hereby do employ, the said Morris B. Belknap, as agent, to superintend and conduct the business at the said “Pine Creek Factory and the said Morris B. Belknap doth hereby promise and agree, to and with the said M’ Clurg fy Co, and Ekin 4' J^edfie. that he the said Belknap shall and will well and faithfully superintend and conduct the works, business, and operations, of’ said factory, and shall and will devote and give his labors and attention exclusively thereto; and whereas the said Morris B. Belknap is indebted to the said Ml Clurg 8f Co. and Ekin 8¡' Ledlie in divers large sums of money; and whereas he, the said Belknap, is also indebted to sundry other individuals in large sums of money, for some of which judgments are now of record in the court of Common Pleas of Mlegheny county, against said Belknap', and whereas the said Morris B. Belknap is unable to pay and satisfy said judgments and debts, and is also unable to stock and carry on the business of the said “Pine Creek Factory,” and therefore sold and assigned the same, as aforesaid, to the said M’Clurg <§’ Co. and Ekin § Ledlie. Now these articles of agreernent further witness, that the said- M’ Clurg <§' Co. and Ekin Ledlie, are to have two thirds, to wit, each of the said firms ono third, of the annual profits of the business that shall be done at the said Factory, and of the rents and profits that shall annually arise, and grow out of the said one hundred acres of land and the houses and improvements thereon lying and being, and the remaining third part of the said annual profits, the said Morris B. Belknap is to have, and the said one third of the annual profits is to be appropriated to the maintenance and support of the said Morris B. Belknap and his family, and to the payment and extinguishment of the aforesaid debts and judgments, and in the payment of the said debts,'those due by said Belknap to said M’Clurg ¿y Co. and Ekin 8r Ledlie, ar,e to have n.o priority or precedence, but after payment of the installments due on the aforesaid judgments, the balance of the said,one-third of the annual profits which shall not be needed and required, as aforesaid, for the maintenance and support of the said Belknap and his family, is to be paid in just proportions, to and among the other creditors,'until their debts shall be fully paid and satisfied; and these articles of agreement do further witness, that the said M’Clurg Co. and the said Ekin .fy J^edlie, their heirs or assigns, shall and will re-convey to the said Belknap 'ibis heirs or assignes, the said one hundred acres of land, with the appurtenances, and shall and will surrender and yield up to the said Belknap, jiis heirs, executors or assigns, the property sold to said M’Clurg Co. and Ekin 8¡' Ledlie, by the aforesaid bill of ¡sale, &Q soon as the judgments and debts aforesaid, shall be fully paid and satisfied, and so soon as the debts, responsibilities, expenses and obligations, which the said M’ Clurg 8,' Co. and Ekin fy Ledlie, shall have incurred .on account of said factory, and of ¡this agreement shall be paid and satisfied; provided that in no event ¡shall the s,a.t4 MClurg k Co ,apd Ekin 4* Ledlie be required to surrender and re-feonvey the aforesaid premises, and to terminate the arrangement by this agreement until the termination of five years after the date hereof, thence, and from thenceforth, the agreement hereby made, shall cease, determine and be void, and these articles of agreement do therefore witness, that in case of the death of the said Belknap, or in case sickness or other good cause shall prevent him, the said Belknap, from managing and superintending said factory, according to the true intent and meaning of these articles, then and in such case the said M’Clurg Co. and Ekin §• Ledlie shall employ another individual as agent and superintendent of the said factory, who shall be paid a reasonable salary out of the said one third part of the anual profits allowed said Belknap for the use of his creditors and support of his family. And whereas there are now due to the hands or workmen at said factory about twenty-three hundred dollars by said Belknap which said M! Clurg §* Co. and Ekin 8? Ijedlie have agreed to pay and satisfy. And whereas there are now in bank certain notes of said M. B. Belknap, on which said Ekin 8? Ledlie are endorsers, and which it is expected they will have to pay. Now these articles further witness, that the said money to be paid to said hands and workmen, and the money which shall or may be paid on account of said notes by said Ekin 8,’ Ledlie shall be paid and satisfied to said M’Clurg 8,’ Co. and E-Mn <§’ Ledlie, out of the said one third of the profits allowed as aforesaid to the said Belknap, and all further and other advances which said M’Clurg Co. and Ekin 8r Ledlie shall or may make to pay and satisfy the debts due by said Belknap, shall also have priority and preference to all other debts and demands due by said Belknap In witness,” &c
    The deed, assignment and agreement were all recorded on the £4th May 1827. One of the subscribing witnesses to the papers, by whom they were all drawn, gave evidence that there was no secret trust, and none but what appeared upon the face of the papers. It also appeared, that the plaintiffs took possession of the works and personal property immediately upon the execution of the deed, as■signment and agreement; employed different clerks, and were con ducting tbe same, when the sheriff made his levy and sale, as hereafter mentioned.
    On the 24th-March, 1827, a capias was issued against Morris B. Belknap at the suit of Robert T. Stewart, requiring bail .in six «thousand dollars: on the same day the defendant was taken and confessed ajudgment without stay of execution for three thousand five 'hundred and forty dollars and eighty cents, upon which ay?, fa. -was immediately issued, and levied upon tbe personal property at ■the “Pine Creek Factory,” which was afterwards sold by the defenditfd for tw& thousand two hundred gnd ninety.-jtwo dollars and twenty cents. Evidence was given, shewing that Belknap owed debts at the time of his arrangement with the plaintiffs, exceeding i.n amount thirty thousand dollars, and that he had no other properly than that transferred, excepting some household furniture.
    The court below submitted to the jury, whether the object the parties had in view was fraudulent and dishonest in point of fact; instructing them also, that the transaction was not so per se, in point of law.
    The plaintiff assigned the following Errors.
    1st.' The court erred, in charging the jury, that the whole of the instruments of writing, bearing date the 8th day of March, 1827, were to be considered as forming hut one deed.
    2d. The court erred in charging the jury that there was no secret trust in the case, for the benefit of Belknap.

    3d. In charging the jurg, that the provision made for Belknap and his family by the articles of agreement, was a fair, lawful and valid one as against his creditors, and was not such a resulting trust for the benefit of Belknap, who was in failing circumstances, as would avoid the assignment as to his creditors.
    4. In charging the jury, that the assignment made by Belknap of his personal property, was not calculated to delay, hinder or defraud creditors; and that the delivery of the possession thereof in the manner it was done, was sufficient to transfer and pass the right of property as against his creditors, and that the deed of assignment was good against them.
    5. That by the record it appears that the judgment was given for the plaintiffs below, against the defendant; whereas by the law of the land, the judgment ought to have been given for the said defendant below, against the said plaintiff.

      Selden and Wilkins for plaintiff in error,
    cited Clots v. Woods, S Serg. 4" Razole275. Cunninghams. Neville, 10Serg. fy Razóle, 201. Babb. s. Clempson ib. 419. M’Mlister s. Marshall, 6 Bin. 338. 5 Cowen 566. 20 Johns. 442. 2 Kent’s Com. 420-2-3, Pasmores. Eldridge, 12 Serg. 4’ Razóle 198. Bzird. s. Smith, 4 Dal. 87. Cow den v. Brady, 8 Serg. 4’ Rawle 510. Dean v, Patton, 13 Serg. 4' Razóle 345. Will s. Franklin, 1 Bin. 502. 2 Pick. 129. 1 Hop. 373. 5 Cozoen 547. Martin s. Mathiot 14 Serg, and Rawle 214. Cameron s. Mozilgomery 13 Serg. 4’ Razóle 131. 1 Gallis. 419. 2 Kent’s Com. 414.

      Burke, with whom was W. Forward, for defendant in error.
    The assignment, under which the plaintiffs below claim the property in dispute is, by the finding of the jury, divested of the imputation of fraud, in fact. The St at. 13 Eliz, in terms, annuls only such conveyances as are made with intent to defraud creditors. Vide, section 2d, of said statute, 2 Rziff. 588 — 9. By the 3d section, it is an indictable offence; therefore there must be designed fraud. 1 Bin. 502. 1 Jlttk. 167. Pr. Ch. 2S5. So of the Stat. 27 Eliz. 2 Ruff. 636, sections 2 & 3, where deeds, &c. are made to defraud purchasers. The terms of the act do not embrace such as are bona fide, and for a valuable consideration. 3 Crunch, 88 — 9, 4 Wheat. 507. 11 Wheat. 205. They are expressly excluded from the effect of the statutes. Vide section 6, Stat. 13 Eliz. and section 4, Stat. 27 Eliz. On this part of the case, the only question was as to intentional fraud, or fraud in fact, which was fairly left to the jury. Here there was a good and valuable consideration for the deed. It was bona fide; it was what it purported to be on the face of the papers. 7 Wheat. 579. It covers no object not avowed} there was no secret agreement, contrary to what is expressed in writing. If there was any such concealed agreement, then, the deed is embraced in the 3d section, Stat. 13 Eliz. Tf there was none, it is embraced in the 6th section, and the deed is good. So the court charged the jury, leaving them to decide on the fact of a secret trust; and declaring that if they found affirmatively, it would avoid the deed. The jury have negatived it.
    The only question, then, can be, is the deed fraudulent in law? In order to decide this question, it will be proper to inquire what were Belknap’s rights over this property, at the time that he made the deed in question; and what rights of his creditors were defeated by it. The plaintiffs below were creditors of Belknap to a large amount. They had endorsed for him, and rendered him many favors. He might lawfully have preferred them to all other creditors; and he might have given such preference by judgment, mortgage or deed. He might have defeated all his existing creditors, by giving a deed, or other sufficient security, for future advances. 1 Burr. 474. 2 Johns. Ch. 314 — 15. 7 Crunch, 34, 50. 2 Johns, Ch. 306 — 7. An insolvent debtor may honestly place his property in such a situation as to prevent its being taken by process, for the purpose of prefering a creditor, or causing a just distribution. 14 Johns. Rep. 464. That a debtor may prefer, has been repeatedly de cided; 7 Wheat. 577.; and a creditor may be a party to the fraud, in order to avoid the deed. Ibid. 5S0. 11 Wheat. 79. If, then, Belknap had conveyed all his property to the plaintiffs, the deed'would have been good. The debts due them at the time would have been a good consideration; and thus Stewart, and all the other creditors, would have been cut out. By the deed in question they have not been injured; for the arrangement made furnished the only hope of his future ability to pay his debts. Why, then, should creditors complain?
    But the deed is alleged to be bad, because of the reservation of an interest in Belknap. No case has been cited, and none can be found in the books, where a reservation, (if such it can be Galled-,) like the one in question, was held fraudulent. Pie reserved ncr part of the property conveyed. It was only of part of the profits of the new establishment; and these profits to be created, not from what he owned at the time of the assignment; but from the advances and capital of the plaintiffs. His only interest was the su pport of himself add family, for which he was to devote his whole time. He was an artisan of uncommon skill. It was in full proof that his services were an ample consideration; they were of immense-value to the concern. It has been shown that a general assignment to the plaintiffs, absolutely, would have been good. They might-have stopped the works, and the creditors would then have been cut out. The continuing the works by new advances was the only hope of profits ever arising. The creditors had no right to the new creations and machinery. They had no right to the old, which Belknap might not have defeated by mortgage or absolute sale. What right, then, had creditors to the profits or proceeds of property, when they had none to the fund out of which they were to arise? And upon what principle can a reservation out of such profits, for an ample consideration in services to be rendered by the debtor, be held void?
    But though there were a trust in favor of the debtor, the deed would not thereby be rendered void in toto. It would be void only quo ad the reservation. A court of equity will take the part reserved to the debtor. 2 Johns. Ch. 307. 4 Johns, Ch. 457. 6 Bin, 338. The last mentioned case has been referred to by the counsel for the plaintiff in error, for the purpose of showing, that a reservation in favor of the debtor renders the deed void in toto. We rely upon it to show that, in Pennsylvania, where the transaction is morally .fail’, the deed is void only as to the reservation. Compensation may be allowed to a debtor out of his estate. 15 Johns, Rep. 589. 20 Johns. Rep. 447. 4 John. Ch. 457. Parties may judge of it. 2 John. Ch. 316. But there must be no power of revocation, or future control over the property, inconsistent with the face of the deed. In this case none is pretended. 15 Johns. Rep, 583. 8 Serg. <5f* Ramie, 450. 14 Johns. Rep. 483. Though an assignment be suspicious, it is not void. Chancery would set it aside only on payment of money due. 1 John. Ch. 483. A debtor may mortgage goods, and reserve a surplus to himself. 5 B. §>. E. 420. 2 John. Ch. 807. Mortgage is good; creditors may attach the surplus. 6 Mass. R.ep. 343. Debtor may retain the use of property mortgaged. 3 Cowan, 138. In England the rule upon the subject of a resulting trust in favor of the debtor or his family is this: If the reservation is by covin, secret, and with design to defraud, the deed is void. If it is not covinous, but open and faij*, the deed is good at law, and the whole legal estate is in the trustee. 5 D. fy E. 420. 1 Anst, 881. The remedy of a-creditor is in equity; to peach the part reserved; because an execution at law will not reach an equitable interest. 2 Johns. Ch. 312; and the cases cited by the Chancellor, AJohiis. Ch. 453. An assignmentof a chose in action has never been held to be fraudulent, because no process in law or equity could touch it. Rob. on Fr. Con. 421-2. Apply these principles to the present case. The profits to accrue were not property. No creditor could take them. No profits had accrued at the time of the levy, and of course no creditor was or could be hindered, delayed or defrauded. In the case in 5 D. Cy E. 420, the reservation was of profits, and held fraudülent, neither in law or equity; In this case there iá no covin. If the reservation makes the dood void, it is on principles of common law, and not by statute. It is a mere legal implied fraud, as against the policy •bf law or principles of equity. In such cases, a deed is voidable only so far as policy and reason go; and the residue is valid. 3 Fes'. J>\ 2S3. 11 Wheat. 89, 90; and cases cited; When deed is void by statute, it is void ift toto. This is the true distinction. All the cases where deeds are avoided, on account of resulting trusts; are cases where there was nd consideration passing from the debtor! Here there was á valuable and honest consideration.
    , In Pennsylvania there is nó reason why a reservation for the benefit of the debtor should avoid a deed which is free from tnpral turpitude; Here all interest in property, real or personal, legal or ¿quitáble, except choses in action, can be taken in execution. A direct reservation of a trust, expressed in the deed, leaves the property open to legal process, and a creditor cannot be defrauded. He cannot even be delayed, for he is not compelled to resort to a court of equity; he can take the property by ejectment dr execution. When the deed embraces notes, book account!, or choses in action, ■and contains a trust in favor of the debtor, a creditor is -riot injured. His execution would not touch them; he could secure them only in case there ivas a bankrupt law applicable. They were as much out pf his power before the assignment as after. The only remedy of the creditor in either case; WPuld be a cu: sa: ■ The debtor would not be released from imprisonment, until he should procure a reassignment for the use of His creditor's. There is no case which, annuls an assignment, because it embraces choses in action, or other-property, Which a creditor could ndt take by legal process, and reserves them in trust for the debtor or his family. The Stat. Eliz. ■or the common law, never extended to such a case. If the present deed should be defeated, it would be subversive of the principle settled in 6 Bin. 338; and of a number of decisions in N'ew-York, and in the Supreme Court of the United States. If the pláintifls have been deceived and misdirected by these oracles of the law, they have been peculiarly unfortunate.
    The next error assigned is, the charge of the coiirt on the subject of the retcnsion of the personal property by Belknap. Upon’ this subject the court below adopted the principle laid down in thei case of Clow v. Wood, 5 Serg. fy Razóle, 275; and unless this court are now determined to over-rule that decision, the charge' must be sustained. The retension of possession by the vendor is not fraudulent, when it is accounted for apd is consistent with the face of the deed. 3 Cranch, 88 — 9. Pr. Ch. 285. 10 Serg. fy Rawle, 419--28. 1 Jolms.Ch. 484. 1 Peters. Sup. Ct. Rep. 438, 449. So where the purpose is fair andhonest, and appears on the face of the deed. 1 Wash. Va. Rep. 184. 12 Serg. fy Razóle, 201. 2 Bos. fy Pull. 59. Where it is according to the usual course of bu^ siness; and where immediate possession cannot be given. 1 Yeaies; 3. 1 JLttk. 170 — 5. 7 D. fy E. 71, 234. Or where all the possession is given, which the nature of the Case admits of; or where possession is to be after the performance of some condition. 1 Crunch; 317. 2 H. Black. 501. 1 JLttk. 158, 232. Ready furnished lodgings, Cozip. 234. So goods of a friend purchased at sheriff’s sale/ 2 Bos* fy Pull. 59. Possession by a banker or factor not fraudu»' lent. 1 Bos. fy.Pull. 84. 2 Mass. Rep. 398 — 400. 5 D. fy E. 226-7. Where no false credit is held out, possession not fraudulent. 1 Johns. Rep. 156. As where an executor or bankrupt remains in possession; or a husband, of property settled under marriage articles. 3 Burr. 1369. 1 JLttk. 101, 158. Coup. 432, 434, note.So goods left with another to sell, or for safe keeping. 3 JLitk. 44/ In order to make possession of a debtor fraudulent, he must have' possession in his own right. 8 D. fy E. 82. 1 JLtth. 158. If pos-r session is as agent, manager or trustee, not fraudulent. 7 D. fy Ei 67. 3 D. fy E. 316. The true distinction is between absolute and conditional sales. When sale is absolute, want of possession is fraud per se. 1 Cranch, 316; but only in such cases. 3 Cranch; 89. 11 Wheat. 81 to 99, and note. The rule is weíl laid down in Clow fy Woods; and this case comes within it. Here the object of the parties is disclosed in the agreement; it was fair and honest: the retension of possession by assignor was part of the agreement:' it ivas highly useful to the establishment that he should do so. Appearances agreed with the real state of things — the manager — the plaintiffs; owners, providers, buyers and sellers. Plaintiffs gave public notice of the transfer to the hands. Belknap had or claimed no possession in his own right. His possession was, according to the agreement, a fiduciary one; and no one act was done by either him or' the plaintiffs, holding him out to the world, in any other character than that which the agreement gave him. There is no case in England, which calls these principles into question, where it turns on either of the Slat, of Eliz. or the rules of the common law* Cases of this kind must be carefully discriminated from those •which arise under the statute of bankruptcy. 21 Jas. chap. 19, sec. 11. 3 Ruff. 105 — 7; which makes special provision for the case of •a bankrupt, who is in possession of goods by the compact of the owner, and is the reputed owner thereof. This section applies only to cases of bankruptcy in England. It is no part of the common law; but a .mere statutory provision not in force in this, country. The same remark applies to the cases quoted from Massachusetts, •arising .under their attachment laws, which are in the nature of bankrupt laws. 6 Mass. 342. 2 Pide. 135. So as to our domestic attachment laws. The English cases, and those under attachment laws, therefore, in which it may have been determined, that there •was a reputed ownership, and therefore the property might be disposed of, according to the bankrupt or attachment laws, furnish no authority that they are cases of fraud under the statutes of Eliz.

    But where courts in England have decided that any case is not one of reputed ownership under their laws of bankruptcy, it is conclusive that it cannot be a case of fraud. Such cases are the highest ¿authority in fayor of the plaintiffs.
   The opinion of the court was delivered by

Rogers, J.

An insolvent debtor may, by a bona fide assignment of his estate, in trust, prefer one creditor to another, when there is no bankrupt, or other law, prohibiting such preference, so as not to interfere with any legal lien, binding on the property assigned. A debtor may also insert a condition in the assignment, that the creditors shall not be entitled to their order of preference; ,or he may exclude their claim altogether, unless within a given and ¡reasonable time, they execute a release to the debtor. 1 Bin. 502, Welt and Franklin. 2 Bin. 174, Lippencott v. Barker. 6 Bin. 338, McCallister v. Marshall.

Wo s.pe pot without repeated efforts to extend the principle still further. In McCallister v. Marshall, 6 Bin. 344, the assignor made a reservation in favor of his family; but this attempt the court .(although perfectly satisfied of the entire honesty of the transaction in other respects,) unanimously decided, avoided the assignment. The same point is ruled in Passmore v. Eldridge, 12 Serg. & Rawle, 201; in Adlum v. Yard, 1 Rawle, 163; and in Johnson’s Heirs v. Harvey, 2 Penn. Rep. 92. In McCallister v. Marshall, a tacit agreement, to vest a part of the property in trustees for the benefit of the family, was held to avoid the conveyance, as to creditors, who had not assented to the arrangement. The statute of 13 Elizabeth, which avoids conveyances, with intent to delay,, hinder or defraud creditors, would be of little service, if a debtor might put his estate beyond the reach of his creditors, and still derive an advantage from it. The rule, clearly deducible from the cases, is, that no debtor can, in an assignment, make a reservation at tlje expense of his creditors, of any part of his income op property, for his own benefit; nor can he stipulate, for any advantage, either to himself or family. This restriction seems to meso, necessary to set bounds to this species of transfer, that, I am unwilling to countenance any arrangement which,, in the smallest degree, interferes with' it,' We. have, then, to inquire, whether the deeds, (for I take'tliem all as an assignment,), contain a stipulation for the, benefit of J^dknap and family? and qn this part of the case, I cannot b/ing my mind, to, doubt. It is part of the contract, that Belknap shall be employed as manager, qr agent, for a compensation (of which he in the first instance is a judge,) syfficjent to cover the-expenses of himself and family, Nor does the agreement stop here. It is agreed, that on the, death of Belknap, or in case he shall be prevented, either by sickness or, other, good cause, from managing or superintending the factory, then it is made the duly of. Cltyrg. 8?. Cjq. and Ekinfy-Ledlie, to employ another agent, who shall be paid, a reasonable salary, out pf the one-third part of fb.q annus) profits allowed Bdknap, for thy purposes expressed in, the assignment,. ' ■

Athough the agreement is not ver}' explicit as regards what may be agood cause for withholding his'services from the' creditors-; or ■who are to'jud-.ge bfitbe amount of his compensation, hfmself, or the Trustees, yet 'W.e cannot fail to observe, the pnxip,us care which i$ takgrt to seguro employment for himself, ¡¡md subsistence to those, vyhoSlq Welfare he had-so mpcli at heart. The import pf the agreement, obviously is, that the fairdjy of Belknap, §hquld at all event#; receive support, even inf'the contingency of any of the, events, happening, which may make if'necessary to employ anq-; •¡.her agent. The payment of .the salary is to bp .entirely at the expense of the creditors; they are only entitled to the residue of the one third of the profits, after these necessary and indispensable expenses are paid. When we take into, view, that at th.o time of thé. assignment, Bdknap \yas insolvent," in' connection with thq fact, of the nu.rfiljér, ¡yid amoupt pf his debts, and that he, by the arrangeihent, secured to Kina self, I may say,' a, perpetual employment/ ‘together wRh,'a comfortable subsistences for himself -and thq. principal objects o'f his solicitude and care, even upon tije contingency of 'his sickness or death, we' cannot be ata loss to. discover the reason'of this extraordinary agreement. Extraordinary, I say, for without the pressure of these powerful and all prevailing motives, it is difficult to imagine, any satisfactory reason, which could induce Belknap 'la make "a contract, which is in every respect, so advantageous to’the assignees.' We cannot but suspect that the stipulations ini’ favor of the debtor wci/e the moving, cause, the s.i)\e qüa npn, of the contract. Witjhout these, to him’ indispensable;" stipulations, who can say that this contract would, ever havie been ■ made? Is not the probability altogether on the, side of the plaintiffs in error, who maintain that these considerations, were the main springs of the assignment. If this arrangement be sustained, then, a powerful inducement will be afforded to such unjust, because unequal, preferences in future, introducing jn its train, as I verily b.elieve, a fruitful source of litigation and, fraud. The cases which have been cited would seem to cover the, whole ground, differing, merely, in the supcradded circumstance, that the debtor agree.s to giyehis services to the assignees asa, consideration for the benefit secured in the assignment. On this the defendant in error relies, but the agreement loses all itq plausibility, when we remember, that- the same compensation continues, although Belknap may. be unable from any of the causes enumerated in the assignment, to afford the services, for which these benefits are said to. fie the equivalent. It is another device, and ingenuity will furnish many such, if we yield to this', to elude, $he statute which prohibits coyin and-fraud. I shall not dwell on the argument, that Belknap constitutes himself his qjvn trustee, aq perhaps there maji be some doubt, whether this be the fair construction of the agppement. It may be entitled to some weight, that the compensation is left uncertain and undetermined,. The creditors might reasonably expect something, more definite, which •\vould serve as a guard against any- combination between the. trustees and the insolvent. If this assignment should be sustained, we have reason to fear that those creditors will fie preferred, who will give the most facilities to the debtor, and- when it is re, collected that friends are usualty selected, we oannot but, perceive, fiow much the interest of creditors are endangered. It is not uncharitable to suspect liberality exercised at the expense of others, But it is said that the jury haV.e negatived all idea of actual fraud; and this is true; but the answer readily suggests itself; that such arrangements are prohibited, because they are conceived to be against the policy of the law, wlyich discountenances all assignments containing, any such reservations, whether in the. shape of ¡employment or otherwise. These rules have, been adopted, and I am glad to say, have been strictly adhered to in Pennsylvania, to, prevent the temptation to fraud. However innocent the partícula? transaction may be (and I am bound to believe, that this was a case of that description, after the verdict of the jury) jmt it is dangerous in its consequences to society, and woydd furnish a precedent, a prolific parent of numberless attempts to elude the operations of the statute. In vain, will you attempt to set bounds io the enjoyment which an insolvent and fraudulent debtor may -derive, from the wreck of his fortune, if, after he is irretrievably ruined, he may effect an arrangement, which secures to himself a lucrative employment, attended, as it is here, with a comfortable provision for tho,se who are most dear to him, insured, against acc?dent; and this so dexterously managed, as to be proof against any molestation either by execution against his property or his person. It is no answer, I say, that the jury may apply the corrective, where there is actual fraud. Those who are conversant with the proceedings of a court of justice know full well, ho\y difficult it is to prove fraud. We are all well aware how reluctant juries are, even where there is strong circumstantial proof, to infer the fraudu-, jent intent in the ease of an unfortunate, and in some respects, meritorious debtor. If the feelings and sympathies of juries can be enlisted on the side of misfortune, it presents an almost impassable barrier to a correct and proper decision. I would not wish to be understood to say that the policy pf the law forbids the pmploymgnt of the debtor; for this may not Qnly be an act of humanity, but in some cases, may be almost indispensable, to the proper management of the estate. I mean simply to object to its be¿.ng made a condition of the assignment, it should b„e left, as in ¿he case pf others, to tire sound discretion of the trustees, who will pf course be answerable to the creditors for any abuse of the tyust Jf this attempt should succeed, the creditors are without remedy! for as was justly observed in Johnson’s heirs v. Harvey, the or¿dinary consideration of an estate may be subjected to execution ¡specifically, or wrested from the debtor’s grasp by execution qf his body; but the reservation, of so much of the profits as was necessary fqr' fhe maintenance of Belknap, and his family, would be so inseparable from his person and the services he was to render, as that it could not be made liable in satisfaction in either of those ways, orpass by an assignment under the insolvent laws. And ¡this would be a sufficient answbr, if there were none other, to another point made by the defendant in error. That even if the assign* paent h§ fraudulent, it ayoids the deed only so far as to enable fhe creditor- to take into execution the fund specifically applied to ,the benefit of the debtor. But, although such a reservation in th.e absence of moral fraud, has, in some of the earlier cases, been supposed, not to affect the r.esidue of th.e property conveyed by the, assignment, yet later, and more wholesome decisions, have extended the principle still further, by rendering fraudulent and void the whole assignment, so as to prevent thp preferred creditor from availing himself of any advantage over other creditors. 1 Hop. 373, Marlin v. Cairns. Harris v. Summar, 5 Cowen, 547, 2 Pick. 120, and Passmore v. Eldridge, 12 Serg. & Rawle, 198. When the assignment is tainted with either moral or legal fraud, the property does not pass, but remains in the debtor, liable to the execution of those creditors who have not assented to the assignment. These positions I consider it necessary to uphold, as af-. fording the only check to the debtor’s power of assignment, which has already, in my judgment, been earried too far; for as was justly remarked in Riggs v. Murray, if an insolvent debtor may make sweeping dispositions of his property, to select and favorite creditors, yet loaded with durable and beneficláí provisions for the benefit of himself, and incumbered with oneroüs and arbitrary conditions and penalties, it would be impossible for courts of justice to uphold credit, or to exact the punctual performance of Contracts.

The opinion of the ciourt 'makes it unnecessary to Consider the Second point made by the plaintiff in' errdf.

Judgment reversed*


author: Per Curiam.

text:
    MILES against TANNER.
    it is not error that the Court of Common Pleas refused to grant a second' rule to' amend an appeal, and quashed it because it was defective.
    Error to Warren county.
    In this suit, which originated before S justice of the peace, the' jfláintiff in error was the plaintiff below. , The justice rendered á jüdgment upon a re'po'rt of referees in fat'or of the defendant/ from which the plaintiff appealed. The appeal having been fféféetive, the court granted a rule to show cause' why it should nót bes Quashed; and also granted leave' to the plaintiff to file an amended transcript. When the rule caihe on to be argued, the amended transcript was still defective; and the plaintiff asked for a sec’ond rule to amend, which the court refused, and quashed the appeal*
    This was assigned as error.

      Babbit for plaintiff in error.

      Btruthers, contra.

   Per Curiam.

The court ’.Vas bound to receive nothing under the rifle to amend, but an amended transcript properly certified; and the plaintiff, having neglected to perfect his transcript when an op-" portunity was afforded, co’iild claim no further'indulgence.

Judgment- affirmed;-


text:
    WHITE against REYNOLDS.

      X verdict and judgment in an action on the case, for not performing a contract, is. conclusive evidence in an action on a bond between the same parties, as to the facts passed upon in the first suit.
    Whether a contract was rescinded by the acts of the parties, is a matter of fact for the jury.
    In an action on a bond, given in consideration that a certain quantity of boards will be delivered at a certain time and place, which were delivered according to contract, but not received by the obligoi;, hut. afterwards sold by the persons deliver-! ing them, the measure of damages which the obligee is entitled to recover on the bofidj ¡$ the diffei'eiice Between the contract price and that at which the boards were sold.
    Error to Cranford county.
    This was an action on a bond given by White to Reynolds, conditioned for the payment of $1500, on the 1st of April, 1821; the. consideration of which was one hundred and fifty thousand feet of boards, to be delivered by Reynolds and Crary to White, part at' Maysville and part at Cincinnatti. Previously to the institution of this suit, White had brought an action, on the case against Reynolds ánd Crary, for not delivering the boards according to their contract, in which a verdict and. judgment were rendered for the' defendants. , ... ,
    The defendant’s counsel requested the Court to charge the jury on the following points:
    1. That, if there was a misrepresentation made to the defendant by the plaintiff and Crary, or either of them, as to the quantity^ or quality of the boards at Maysville, which induced him to enter into the contract, the plaintiff cannot recqver.
    2. That if the boards at Maysville or Cincinnatti, or either of those places, were refused to the defendant by the agents, and not delivered, or offered to be delivered, according to the true meaning and ¡spirit of the contract, the plaintiff cannot recover.
    3. That the plaintiff, and his partner Crary, taking possession of the boards afterwards, exercising acts of ownership over them, and disposing of them, was a recision of the, contract on the part of fhe plaintiff, and he cannot now enforce the bond, or any part of it; against the defendant.
    4. That if on the aforesaid points, the facts do not warrant the defendant’s conclusions, yet plaintiff can only recover the difference between the contract price and the actual sales.
    5‘. ThaCrary, the partner of the plaintiff, having received and' disposed of his share of the boards, as appears by his own evidence,' and he claims no interest in this suit, the plaintiff, on the princi-' pies contained in the last point, can only recover the difference in price for one-half of the boards. .
    To the first and second points the court answered, that the ver~ diet and judgment in the former suit, between the same parties, were conclusive of the facts then tried, that Reynolds and Crary had not violated their contract. To the third point: that the evidence did not support it. The fourth point was answered affirmatively. And the fifth point thus: “Crary and Reynolds agreed that the whole price of these boards should be made payable to Mr. Reynolds; and this bond was so taken. Mr. Crary having given the orders for the delivery of the boards, and never having interfered or refused to detain them, his interest is immaterial, and this point untenable. The settlement of the partnership accounts between Crary and Reynolds, it appears, has been made, and there is no reason for bringing in those matters into the suit on this bond. ’

      Galbreath for plaintiff in emir.

      J. Banks and Wallace, contra.

   Per Curiam.

Theverdict between the sanie parties, and on the same evidence, was conclusive of the fact found, that the plaintiff had been in no default in executing the contract. Nor is there error in the remaining points. Taking possession of the boards, and exercising acts of ownership over them, was not necessarily a reeision of the contract, which depended on circumstances that do not sufficiently appear; and taking it not to have been rescinded, the rule of damages laid down, is the true one. Neither could the plaintiff be debarred from recovering the whole cause of action on the bond, without regard to the partnership account between him and Crary, with which the defendant had nothing to do. All the points are too plain for illustration; and in respect to none of them did the court commit an error.

Judgment affirmed.


text:
    WALKER against LYON.
    A transcript of a judgment filed in pursuance of the act of assembly, is in its legal elf'ect a judgment of the court of Common Pleas, and may be so called- in a writ of scire facias to revive the same.
    When a judgment is rendered by a justice for a sum exceeding his jurisdiction, a transcript whereof is filed, the remedy to correct the error, is by motion to have it struck off, qr.by writ of error.
    A judgment of a justice, for a sum exceeding his jurisdiction, having been docketed, ■ it cannot be treated asa nullity; and even if it could, its validity can only be questioned, in a scire fácias to revive it, by the plea of nul liel record.

    Error to the court of Common Pleas of Mercer county.

      Joseph I^yon brought a suit against the .executors of John Walker before a justice of the peace which was . there referred to arbitrators, who made an award for the plaintiff -for one hundred and sixty eight dollars: upon which the justice.entered a judgment; a transcript whereof was filed in the court of Common Pleas in 1821. Pi scire facias P. P: et I). was issued to févivé this judgment, to which the defendants appeared and plead payment toith leave, fyc. Replication Non solvit. Issue. Upon the trial of this cause the defendants objected to the admission of thé record of the1 transcript and judgment in evidence; the objection, was over-ruled, and the court charged the jury that the plaintiff was entitled to recover.

      J. Bankas for plaintiff in error,
    Contended, that the justice had no jurisdiction of the original cause of action, it being above o-ne hundred dollars. The scire fa* cias recited a judgment of the court of Common Pleas, whereas the oné offered in evidence was an illegal judgment of a justice of the peace. Cited Brenneman v. Greneioalt, 1 Serg. .and, Rawle, 30. M’Kellip v. M’Kellip, 2 Serg. fy Rawle, 490. Hinds v. Wills, 13 Serg. 4’ Rawle, 214. 2 Stark. Ev. 801, p. 4.

      Holstein contra.
   Per Curiam.

The defendants, having admitted by their plea, the,existence of the judgment set out, and put their .defence on the fact of payment, could not resist the production-of the record or controvert its effect. But in its legal effect, it was what it was recited to 'be, the practice being universal to treat it, for the purpose of execution; as a judgment of the court. Nor could want of jurisdiction in the justice be urged in this proceeding, the remedy being a motion to have the judgment struck off, or perhaps reversed on a writ of error. Having been received and docketed as a judgment of the court,’it could not be treated as a nullity; and even if it could, its validity ought to have been put- in issue by the plea of nul tiel record.

Judgment affirmed.


author: Huston, J.

text:
    ANDREWS against LEE.
    The parties to an action in court referred it to three referees, and agreed that their award should be final, and that no exceptions should be filed to it. Held, that 41 writ of i;rror would not be sustained to reversea judgment upon the award.
    In such a.ease, the court would interfere to set aside the award, only on the ground of bribery or corruption.
    Writ of error to the Common Pleas of Crawford county.
    In this action on the case, Nathaniel B. Lee was plaintiff, and John Andrews defendant. Andrews sold to William Lee a tract of land, in consideration of a certain sum, payable in yearly' instalments, some of which were paid, when William Lee sold to the plaintiff Nathaniel B. Lee, in consideration of a certain sum, and that he would pay the balance due to Andrews, by whom they agreed the deed should be made to, Nathaniel B. 'Lee, who upon the allegation that the purchase money was all paid, brought this suit against Andrews, which was pending, when the following agreement was entered into:
    ‘¡It is agreed that the matters in variance in this ease between the parties, be referred to Jared Shattock, Samuel Torbett and David Dick; if any of these refuse to act, and the. parties cannot agree on others in their place, the two or one agreeing to act to appoint other one or two without consulting the-parties. The award of two to be sufficient, and their award final and'no exceptions to be filed, — report into office* and judgment — exparte rule on six days’ notice — Nov. 14, 1827, referred under act of 1705.”
    The referees made the following award, to which no exceptions were filed in the court below.:

    “That John Andrews, the defendant in the .above case, shall, on or before the first of April, 1829, make to the plaintiff Nathaniel B. Lee, and to his heirs and assigns, a good and sufficient deed to, and of the fifty acres of land agreed to be conveyed by defendant to William Lee, by an article of agreement bearing date 19th January, 1S21, between John Andrews and William Lee; and on the delivery of the said deed to the said plaintiff, his heirs or assigns, be or they shall pay to the said John Andrews, his heirs or assigns, the sum of sixty dollars; and on failure of the said John Andrews to make to the said plaintiff the deed aforesaid, within the term aforesaid mentioned, he shall pay to the said plaintiff the sum of three hundred and fifty dollars; as well for a reimbursement of the sum by the said plaintiff paid to the said defendant on account of the said land, as for the damages he shall also have sustained, by the failure of the said defendant to make the said deed aforesaid for the said fifty acres of land. The costs.that have accrued to be paid equally by the parties to the suit. December 3,1337.”

      Errors assigned — 1. The plaintiff below could not support this action in his own name against the defendant, on the article set forth in his declaration; there is therefore no cause of action set forth in the plaintiff’s declaration.
    2. There is error in that part of the award which states, that the plaintiff should in a certain event, pay to the defendant a certain sum of money, and defendant should make title.
    3. There is error in finding by their award, that the defendant should pay back the money he had received.
    4. There is error in finding damages for plaintiff, which might • accrue after the date of the award, for failure to comply with the .award.

      Pearson and J. Banks for plaintiff in error,
    To support the writ of error, cited Mussina v, Hertzog, 5 Bin, 389. Moyer SyKerby, 14 Serg. ¿r Raiole, 164. Russell v. Gray, 6 Serg. <§’ Raiole, 146.

      Galbreath and Wallace for defendant in error,
    Cited, Cahill v, Ben, 6 Binn. 59. Galbreath v. Colt, 4 Yeqles, 551.
   The opinion pf the court was delivered by

Huston, J.

To understand the first exception on looking into the declaration, it states, that John Jlndreios had contracted by articles of .agreement, to sell to WilliqmLee a tract of land, and specified the terms; that William Lee had sold the said land to N. B, Lee, the plaintiff, and authorised him to receive the deed, on payment of the purchase money: — that N. B. Lee had paid, &e. The other two errors are to the award,

A preliminary. question was made, whether a writ of error qould be sustained — or whether the agreement did not estop the parties and prevent the court from inquiring into the matter. In 5 Bin. 389, an agreement that an award shall be final and concluí sive, was decided to be open to exceptions, but it is algo stated, that if the agreement had been, that no exceptions should be filed to it, none could have been heard. I had occasion while in the Commot? Pleas to examine this matter in a case, (Benner v. Cambridg,) where I was satisfied injustice to a large amount had been done; and then found so many cases in our own reports, in which the court had assumed this matter to be settled, that I considered myself bound, and gave an opinion to that effect; and stated, that but for those cases I would have interfered, and I did this to bring the matter to the consideration of the Supreme Court. A writ of error was taken, and judgment affirmed; as I knew by seeing the record remitted to me to be carried into effect. I have not now had leisure to examine .the cases fully, but I find in 6 Bin. 99, areference of a matter of law to a particular counsel enforced and no inquiries into it on a writ of error — and in 4 Yeates, 551, a case stated for the opinion of .the Circuit Court whose opinion if was agreed should be conclusive, an appeal was not sustained, though the law expressly gives an appeal from the decision of the Circuit Court on a case stated. And thejfee were circumstances in the case favorable to the appeal; although it was respecting costs in the Quarter Sessions, which never could have come before that court, except in a case stated by consent. This case goes far to answer the objection tQ the form of this action; which, it is ptended should be in the name of William Lee for the use of N. B. Lee, and 1 would observe,! that before the reference, the party had in some measure waived this illegality, if it be one, by pleading to the merits, instead of demurring to the declaration. It is purely a technical objection.

There would seem to be something unequal and therefore unfair in admitting this exception at this time. If the report had been, for .the defendant, the plaintiff could not have made it: the defendant ought not then to be permitted to go before the arbitrators on the terms of this agreement, with a secret determination to let it remain conclusive on his opponent, but of no avail .against himself.

I admit that bribei’y or corruption would vacate an award made under any submission; so if the award was in terms which could not be enforced, &c. &c. but nothing of the kind appears here. It is not alleged even that it is. unjust, every objection is to some supposed technical irregularity.

I would not advise any counsel, however, to consent that his client should refer on such terms, unless he was satisfied that in law and justice he would lose the cause, and if parties will take their cause out of court and agree that it shall be decided in a way and on terms different from those prescribed by the law, I know of no reason why they should not be bound by such an agreement as much as any other. If they take .it out of court and compromise it, they are bound, unless there be some fraud or unfairness; although one of them may soon after discover that he would have gained his suit in cpurt.

Judgment affirmed.


text:
    KELLOGG against CARY.
    In an action of slander, it is competent to give evidence, in order to rebut the implication of malice, that the suspicions of others, with regard to the truth of the words spoken, were communicated to the defendant; but the abstract opinion of others, not thus communicated, cannot be given in evidence.
    Error to Venango county.
    This was an action of slander in which James Cary was plaintiff, and Isaac Kellogg defendant. The actionable words were, in substance, that Kellogg charged Cary with stealing a five dollar note. The defendant offered to prove that other persons in the neighbourhood spoke of'their suspicions of Cary, before the time when the alleged slanderous words were spoken by Kellogg. This evidence was objected to and over-ruled; the correctness of the opinion of the court, in this particular, was the only assignment of error insisted on here.

      Galbraith for plaintiffin error,
    cited Morris v. Duane, 1 Bin, 90.

      Pearson for defendant in error.,
   Per Curiam.

The assignment of error in respect to the amendment, is disposed of by the decision in Proper v. Luce, at the present term; and the evidence contained in the bill of exceptions, seems to have been properly rejected. Had the defendant offered to show that suspicions entertained by others, had been communicated to him before the speaking of the words, the evidence might have beenpi-oper to rebut the implication of malice, or to estimate the damages. But the abstract suspicions of third persons, of which he appears to have been ignorant, could form no apology for his accusation of an innocent man, who ought not to be further prejudiced by having his cause subjected, not to the evidence of facts, but the influence of popular impi’essions.

Judgment affirmed,


author: Gibson, C. J.

text:
    DEFORD against MILLER.
    Words which impute a crime arc actionable, not more because they espose the party charged to the danger of being convicted, than of being prosecuted.
    If the charge be not palpably unfounded on the face of it, the risk of a prosecution which it induces, shall be compensated in damages.
    It is not competent for a defendant to show by circumstances dehors the libel, that he was mistaken in the charge he made, and thereby avoid a liability for damages.
    Error to the Common Pleas of Fayette county.
    This was an action on the case for a libel, in which Jacob B. Miller was plaintiff, and John H. Deford was defendant. An action was pending between Mitchell and Snyder in which an award Of arbitrators had been made, .which there was a motion to set aside, on the ground of the misconduct of one of the arbitrators. To establish the fact, upon which it was sought to set aside this award, the deposition of Jacob B. Miller was taken, and sworn to before the prothonotary. It was this deposition which the defendant referred to in the alleged libel which was the.foundation of this action. It was in these words:
    “As the case above stated is one in which Miller and Todd have been concerned, I have thought proper to notice it. This I should not do, were nobody responsible for it but that profligate and lying creature, the editor of the Democrat. To his lies, after refuting the most infamous he could invent against me, I have already determined to pay no further attention. If I had not, I would publish his affidavit, which he filed in the court of this county, in the case of Snyder, and which has become a public record; to which affidavit there stands opposed the oaths of two respectable men; and then ask the people to name the offence of which,he is guilty. In law it would be called perjury.”
    The defence in the court below, which gave rise to the only question of law which was argued here Was, that the publication was not actionable, because it did not charge the plaintiff with a legal perjury, inasmuch as it appeared, that the affidavit referred to had been made before one who had no power to administer an oath; it was therefore extra-judicial. The court (Baird, president,) being of a different opinion, so instructed the jury; who found a verdict for the plaintiff

      W. Wilkins for plaintiff in error;
    In support of the position above stated, cited Holt on Libel, 1S8. Van Ranselaer v. Dole, 1 Johns. Ca. 279.

      W. Forward for defendant in error.
    The words written are the evidence, whether the libel is actionable or not. It is not competent for a defendant to give in evidence circumstances dehors, to show that he was mistaken in the charge he made. The only question is, how wa3 it understood by readers?" Eckart v. Wilson, 10 Serg. 4* Rawle, 44.
   The opinion of the court was delivered by

Gibson, C. J.

Though no satisfactory reason is any where given, why words rnay be. actionable when written, which are not so when spoken, it seems to be established, that wherever the public may punish by indictment, the individual may have redress by action. If, however, the words here impute an actual perjury, the1 exception to the manner ip which they are laid, as not affording an independent ground of action for written slander, is superseded* Giving them, then, the effect of words spoken, and no more, the substantial part of the publication is .an assertion that the plaintiff had made an affidavit in a particular cause, to which the defendant alleges, “there stands opposed the oaths of two respectable men;” and a remark that if the defendant had not determined to pay no further attention to the plaintiff, he would publish his affidavit, “and' then ask the people to name the offence of which he is guilty. In law,” he subjoins, “it would be called perjury.” Is not that apo1sitive accusation? He is guilty of an offence, says the defendant, and in law it would be called perjury. A charge thus made seems to be more affirmatively conveyed than by the words held actionable in Edie v. Brooks, Whart. Dig. 704, pl. 32, where the defendant said to the plaintiff, in reference to a supposed taking of his meal by the latter: “If I had served you so, you would have called it stealing. ” Divested of all other circumstances, then, the words here would be actionable in themselves; and did any thing accompany them .in the publication, which could have the effect of restraining the generality of the charge in the conclusion? The words are laid as having been published in reference to an affidavit sworn to in vacation before the prothonotary, in a matter not determinable by him; and let it be taken for granted, that the oath thus taken was extra-judicial; it will still be difficult to see what effect that could have had on the import of the accusation in the apprehension of those who heard or read it. In principle, the case seems to be precisely that of Eckart v. Wilson, 10 Serg. & Rawle, 44, in which aright of action for the words, “You have killed Bob Waters — you have poisoned him, and I can prove it,” was ineffectually attempted to be repelled, by the extrinsic fact that Bob Waters was still alive. In that case, the plaintiff had been charged with the murder of a living man; in this, he has been charged with perjury in an extra-judicial oath: in the one, the commission of the crime charged was rendered impossible by matter of fact; and ill the other, it is made so by matter of law; and if there is any further difference between them, I am unable to perceive it. That the difference, if any, is to be disregarded, appears from Charnel’s Case, Cro. Eliz. 279, in which to an action for saying: “My turtles are stolen, and Charnel hath stolen them;” it was objected, that as the speaker of the words was a feme covert, and without capacity to be the owner of the things said to have been stolen, it was impossible in law that the charge could be true; but the court refused to sustain the objection, “because,” as it wás said,- “she had charged him with stealing; and if one which hath no-horse,” it was added, “saith: ‘I. S. hath stolen my horse/ this is as great discredit as if he had one, for every' one knoweth not whether he Had a horse or not. ” In like manner, they who read the publication in the case before us, may-not have knoyvn- whether the oath in which the perjury is alleged to have been corstfmitted, were extra-judicial or not; nor Could they be expected to incur the trouble and expense of an inquiry into the fact, granting them competent to determine it on a view of the record. The reason given' for the decision in Charnel’s Case, is founded, not merely in good-sense, blit.the technical principles of the action'. Words which impute a Crime are actionable, not more because they expose the party Charged to the danger of being Convicted, than of being, prosecuted,Which e'ven to .the innocent; is a grievance; and in every instance' where the meaning of What wOuld otherwise have been an Unambiguous accusation, has been Controlled -by circumstances which showed it to be groundless, and thus rendered it harmless: the controlling circumstances wore so mingled with the accusation by the accuser himself, as to make the poison carry its-antidote along-with it. The decisions by which the doctrine of repugnancy was formerly carried to an extravagant length, have ceased to be precedents; and the ride now seems to be, that if the charge' b'e' not palpably Unfounded on the face of it, the risk of a prosecution which it induces, shall be compensated in damages'. Here the' charge might hdve been well founded, for aught that appeared in the publication by which it was promulgated; and the plaintiff inay have his action for the danger to which it exposed him. Hut it has been said, that whatever may be the right of action irt the abstract, yet it appeal’s by the plaintiff’s own showing in the pleadings, .that the oath to which the publication had reference, was n’flt- the subject of perjury. Were it indeed laid that the defendant himself had so discribed it in the offensive publication, the plaintiff would have shown himself to be without a cause of action. He has, however, set out the publication exactly as it was made, having stated as matter of inducement the nature of the affidavit to which it relates; but this matter of inducement may be struck out of the declaration, without prejudice to' the cause of action which is fully stated without it. A word Which does-not necessarily import criminality, .is, in pleading, rendered actionable only by reference to extrinsic facts, which show it to have been Used in an obnoxious sense: thus the word ‘forsworn’ becomes actionable when shown to have been predicated of one who had given testimony under the sanction of a judicial oath; and hence the necessity of a colloquium about the time, place, and circumstances. But when the charge is conveyed by a generic term, which unequivocally denotes the presence of every fact necessary to constitute the offence, a reference to extrinsic matters, in order to fix its meaning, is unnecessary. Here the plaintiff was accused, not of false swearing, but of perjury — a word which expresses with technical precision, every thing comprised in the offence — and consequently a reference to the particular oath, in order to show it to have been taken in a judicial proceeding, is surplusage. But giving it all the effect of which it is susceptible, it is but an admission that the plaintiff was not in actual danger of being convicted, which is entirely consistent with his having been exposed to the danger of a prosecution. Beside, I know not how words which are actionable in themselves, can be made otherwise by being laid according to the truth of the whole case. The words, of the publication, then, being actionable, there is nothing in the manner of laying them, or in the direction in respect to the proof" of them or their legal effect, which requires us to disturb the judgment.

Judgment affirmed.