author: By the Court. Oakley, Ch. J.

text:
    Goelet v. Cowdrey.
    (Before Oaklet, Ch. J., and Sandford, J.)
    June 25;
    June 26, 1852.
    Ia pleading the statute of frauds, an express reference to the statute by its title or otherwise is not necessary. It is sufficient to set forth the facts which render its provisions applicable.
    The words “ at the time of sale,” in § 4 tit. 2 of the statute of frauds, must be strictly construed, and mean that the memorandum which is required to be made by an auctioneer shall be made eo instanti that the sale is completed.
    In this case, the price of the goods (a pair of horses) sold at auction exceeded $50, and the memorandum of the auctioneer was not completed by the entry of the name of the person on whose account the sale was made until some hours after the sale. Held that, from the want of a sufficient memorandum or note in writing, the contract was void.

      Held also, that there was no evidence of such a delivery as could render the contract binding without a memorandum or note in writing.
    Judgment at special term for defendant affirmed, with costs.
    This was an appeal from a judgment rendered at special term upon a report of the referee in favor of the defendant.
    The action was brought to recover the difference between the price for which a pair of horses belonging to the plaintiff, it was alleged, had been sold at auction to the defendant, and the price for which they were resold on his account in consequence of his refusal to accept them. The defence rested mainly on the statute of frauds.
    That the points raised by the counsel and the decision of the court may he properly understood, it is deemed necessary to give the pleadings and the material parts of the evidence before the referee.
    The complaint and answer are as follow—•
    The complaint of the plaintiff, Robert Goelet, shows to this court, that on or about the 26th day of April, 1851, he sold, by his agent, Henry H. Leeds, to the defendant at public auction, a pair of horses, and that then and there the defendant purchased the same, and agreed to pay for the same the sum of two hundred and seven dollars and fifty cents. That the said sale was for cash, and that the plaintiff, on the day of sale and subsequently, offered to deliver the said horses to the defendant wherever and whenever he should direct the same to he delivered, and requested the defendant to accept the same, and pay for the same as aforesaid. That the defendant neglected and refused to accept or pay for the same ; that on the fifth day of May, 1851, the plaintiff gave the defendant notice that unless the defendant paid for the said horses before twelve o’clock on Wednesday then next ensuing, May 7th, they would be sold on his account at the auction store o Mr. Leeds, at the said hour, and in the meantime would be advertised for sale ; that the defendant would be credited the amount they would bring, and would be charged the amount he originally bid for them and the expenses of the delay and resale. That the defendant still persisted in his refusal to pay for the said horses, and that on the said 7th day of May, at 12 o’clock, in pursuance of such notice, they were sold at public auction for the sum of one hundred and five dollars, that being the highest sum bid for the same. That there was a deficiency on such resale of one hundred and two dollars and fifty cents, over and above the expenses of such resale, which amounted to ten dollars and fifty cents. That the plaintiff has since such resale requested defendant to pay such deficiency and expenses, but the defendant has refused so to do. Wherefore the plaintiff demands judgment against the defendant for the sum of one hundred and thirteen dollars, with interest from May 7th, 1851, and the costs of this action.
    The defendant, Edward M. Cowdrey, for answer to the complaint of the above-named plaintiff, says, that the plaintiff ought not to have his action against him, because he says that there never was any note or memorandum in writing of any such contract of sale as in the said complaint stated, made at the time of such sale, specifying the terms of the said sale, the name of the purchaser, and the name of the person on whose account such sale was made.
    And this defendant further saith, that the said plaintiff ought not to maintain his said action against this defendant, because, he saith, that on the day when the said supposed sale is alleged to have been made, and very shortly thereafter, this defendant called at the office of the auctioneer, in the said complaint stated, and .inquired of the clerk charged with the business of the said sale for the said horses, and informed him that he was then ready to pay for the same, and when and where this defendant was ready to receive and pay for the said horses the sum of two hundred atid seven dollars and fifty cents, and the said defendant then and there demanded the delivery of the said horses to him; and this defendant could not then and there obtain the said horses, and was informed by the said clerk that he did not know where the said horses were, nor to whom they belonged, and that if this defendant would pay for the said horses, they would be sent according to the directions of this defendant, after four o’clock of that afternoon; and thereupon, this defendant informed the said clerk, that he, this defendant, wanted the horses then, and as he could not obtain them, he should decline to have anything more to do with them. And this defendant saith, that the said horses were not ready for delivery to him when he called to pay for the same, as aforesaid, and have not at any time since been ready for delivery at the place of said pretended sale. And he further saith, that the said horses have not at any time been tendered to this defendant.
    And this defendant further, saith, that he has not sufficient knowledge to form a belief as to the matters in the complaint stated, relating to the resale of the said horses.
    Wherefore, this defendant demands judgment against the said plaintiff for his costs and charges in this suit.
    The reply took issue upon the same matter in the answer.
    By the consent of the parties, Michael Ulshoeffer, Esq., was appointed the referee, to hear and determine the issues made by the pleadings.
    On the hearing before him, M. R. Fmm, a witness for the plaintiff, testified:
    That the books he then produced, were the sales books of Henry H. Leeds & Co. That there was a memorandum entered in one of the sales books, April 26th, 1851, in the words and figures following:
    Goelet, 2 horses, Cowdrey, 207 50.
    -That the memorandum was in his handwriting, that he made it when the horses were sold. That there was written across the memorandum these words: “ Sold for H. H. Leeds & Co. by ' W. Irving.” That this was in Hr. Irving’s handwriting, and that Mr. Irving is salesman in Mr. Leeds’s office.
    That in the second book there was a memorandum under the date of May the 6th and 7th, 1851, as follows:
    Goelet, 1 pair horses. . J. Eoosevelt, 105.
    That there was no stable or place for horses to stand at the auction room. That lie could not remember whether Cowdrey gave his first name, but always enters the name of the purchaser as given. That the horses were at the first sale sold from a memorandum.
    Being cross-examined for the defendant, he further testified:
    That he is entry and delivery clerk; did not know the defendant at that time; that the word Goelet in the first memorandum is not in his handwriting, but in that of F. W. Leeds.
    The sale was made at about 12 or 12J o’clock in the front of the auction room; that he stood by the door when he took down the memorandum. A carriage was sold at about the same time; previous and subsequent sales were made inside the door; cannot recollect that Irving made the other sales. Before the sale of the carriage and horses, they were selling goods inside the store by catalogue, and stopped the sale of those to sell the carriage and horses; after they were sold, they proceeded to finish the sale inside by catalogue, during all which time the sales book was not out of my possession.
    That he had the sales book in his custody till six other sales were made after the horses. That goods are sold by a catalogue or manuscript. F. W. Leeds is a clerk in the store, who makes entries of goods sent for sale, and account sales for the owners; his usual place is in the counting-room in the back part of the store, but facing the street. That he did not know where F. W. Leeds was when the horses were being sold. That after he "had finished with the book he placed it on the desk of. the cashier, who makes out bills for the purchasers; keeps a book in which he enters the goods sent to the store; did not receive or enter the horses, and cannot say whether he knew the owner’s name when they were sold.
    F. W. Leeds, another witness for the plaintiff, testified that the first column of the columns of entry in the sales book is appropriated to the owners’ names, the next to the numbers on the catalogue or manuscript, the next to a description of the article sold, the next to the name of the purchaser as given, and the next to the price. That the name Goelet was in his handwriting, and he had a strong impression he wrote it the same day; he copied it írom a memorandum sent to him by Hr. Irving. That the second sale is in the handwriting of Hr. .French, who has left the store; that he recollected Hr. Roosevelt’s name being called at the sale, but does not remember the price he paid.
    On cross-examination he testified as follows: That he thought and had a strong impression that he entered the name Goelet, the evening of the-,sale; could not enter it sooner, as the cashier had to have the book to make out bills; that he entered it from a memorandum handed him by some one that he does not remember, but in Hr. Irving’s handwriting; that he did not enter the date of the sale, and could not state, irrespective of the book, what day of the month the entry was made.
    -- Bbegh, a witness for the defendant, testified, That he purchased the carriage that was sold at the same time, with the horses; that after the purchase he ascertained Hr. Cowdrey, the defendant, had purchased the horses, and asked him to allow his horses to take witness’s carriage up town; on his consenting, witness said to the coachman that he could drive before Trinity church, out of the way, and wait till the accounts were settled; instead of waiting he drove off; that Hr. Cowdrey and witness then went to the back office, and asked the cashier for bills, and whether the horses could be delivered at once; that his reply to us both was, they could not, for he did not know the owner’s name, nor where they were, and that owner did not wish his name known, and that they could not be delivered before four o’clock; the carriage, at that time, had been driven away; that witness and Hr. Cowdrey were informed that Hr. Miner, who was then selling in Broome street, might know the owner’s name; that the horses would be delivered wherever required, after four o’clock that evening; defendant also asked for the horses, but said he was not prepared to pay for them just then; that defendant then left to get a check, and was gone fifteen or twenty minutes; on his return witness and defendant went to Trinity church, but could not find the horses or . carriage; that then they went to Broome street, hut could not find Mr. Miner, and returned to the auction store, when witness was told Mr. Goelet’s name; that he thought defendant had left before this information was obtained; defendant said he was ready to take them at that time, and gave the parties clearly to understand he wanted the horses; the defendant expressed dissatisfaction both before and after going to Broome street, that he could not ascertain where the horses were.
    The referee made his report in favor of the defendant, upon the grounds that the contract of sale by the auctioneer was invalid, neither the terms of the sale, nor the name of the purchaser, nor that of the person upon whose account the sale was made, being sufficiently specified in the memorandum; and that under the pleadings the defendant had a right to insist upon these objections.

      R. B. Rosevelt, for the plaintiff,
    now moved to set aside the report and the judgment thereon, and insisted upon the following points.—
    I. No evidence of a memorandum in writing is necessary. 1. The contract as laid, is admitted by the answer, and need not be proved. (Vaupel v. Woodward, 2 Sand. Ch. 143, 2 Paige, 177.) 2. The Statute of Frauds is not properly pleaded; no reference is made to its title, and the substance of only one branch is stated (2 R. S., 3 Ed. 195). 3. The second paragraph in the answer is inconsistent with the first, and admits the obligation (5 How. Pr. R. 15).
    H The memorandum, as proved, is sufficient. 1. It contains the “ substance of the statute.” (Welford v. Beasely, 3 Atkyn, 503; Pugh v. Chesseldine, 11 Ohio, 109; 13 Ves. Ch. 471.) 2. The law implies the terms to be cash. (Cammeyer v. The United German Lutheran Churches, 2 Sand. Ch. 240 & 243; 7 Leigh, 165.) 3. The law takes no notice of parts of a day (3 Cow. 19; 4 Coms. 418).
    HI. If not a sufficient memorandum, it will however still work as a note signed by the parties to it, through their agent, the auctioneer. 1. An auctioneer’s clerk’s signature is sufficient. (Frost v. Hill, 3 Wend. 386; Coles v. Trecothick, 9 Ves. Jr. 234.) 2. It need not "be signed, the insertion of the names being a sufficient subscribing. (James v. Patten, 8 Barbour Sup. 344; McComb v. Wright, 4 J. Ch. 659.)
    IY. The defendant, by ordering the horses away, virtually took them into his possession and rendered the delivery perfect, thus obviating all necessity for a written memorandum, and making the subsequent demand of delivery a mockery. (Vincent v. Germond, 11 J. R. 283.)

      E. S. Van Winkle, for the defendant,
    made and argued the following points—
    I. The contract of sale was not binding—because it was a contract for the sale of goods and chattels for upwards of fifty dollars, &c., and'there was no sufficient note or memorandum of the contract, without which every such contract of sale is void (2 Rev. St. 136, § 3, 4). 1. The auctioneer did not make the memorandum. An auctioneer is a public officer, his office is one of trust. He cannot delegate any fiduciary power (4 Cow. & Hill’s Ph. Ev. 85). 2. The memorandum given in evidence was not made at the time of the sale. (Tins means eo instanti—simultaneous. The object being to prevent frauds and peijury.) (Hicks v. Whitmore, 12 Wind. 554.) 3. The memorandum made did not specify the terms of sale. Ho presumption that the sale was for cash can be raised, nor if raised, can it be judicially inserted in the contract. One object of the statute was to prevent such points being left to inference, presumption, or even parol testimony. (Bailey et al. v. Ogden, 3 Johns. R. 399; First Baptist Church of Ithaca v. Bigelow, 16 Wend. 28.) 4. The memorandum did not specify the name of the purchaser and the name of the person on whtise account the sale was made. Goelet and Cowdrey are not distinctive names. It appears, by the evidence, that the parties did not know, and by the memorandum had no means of ascertaining who Goelet was—Goelet’s name was not inserted until afterwards, until after Goelet had neglected to complete the sale, folio 32. The auctioneer’s agency had then ended, and he would not bind either party by any act of his own. (Seton v. Slade, 7 Ves. p. 276.)
    n. That defendant’s agreeing that the horses might draw the carriage which had been purchased by Hr. Bergh, before he had paid for the horses, was not an acceptance or receipt of the horses, so as to take the case out of the statute. (Phillips v. Bistolli, 2 Barn. & Cress. 511.) It was no acceptance, because they were never offered to him; it was no receipt, for he never had them, and his consent that Bergh might use the horses was in law and in fact a nullity.
   By the Court. Oakley, Ch. J.

There is no force in the objection, that the answer of the defendant does not expressly refer to the statute of frauds. In all cases, more especially since the code where the provisions of a public statute are relied on, as creating a right of action or a valid defence, it is sufficient for the party to set forth the facts which, he is advised, bring his case within the statutory provisions, leaving the court to determine whether they apply or not, either upon a demurrer, or upon the trial. In pleadings under the code, in which facts alone, as distinguished from conclusions of law, are proper to be stated, it may be doubted whether an express reference to a statute of which the court is bound to take notice, might not be struck out as redundant.

Nor can we say that the defendant, by the terms of his answer, is precluded from setting up the statute of frauds as a defence. The answer begins with a positive allegation that no such memorandum was made by the auctioneer, as the statute requires; and we do not think that this allegation is contradicted, or waived by the averments that follow. At any rate, as the plaintiff has taken issue upon the defence, it is too late for him now to raise the objection. Where two inconsistent defences are set up, one of them may be struck out upon motion; but when no such motion is made, the defendant may make his election upon the trial. .

We pass then without further remarks to the question, whether the defence founded upon the statute of frauds is sustained by the evidence. It is not necessary to advert at all to the several defects that are alleged to exist in the auctioneer’s memorandum of the sale; for, admitting that the memorandum contains all the particulars which the statute calls for, and is perfect in its form, there remains an objection to its validity, which we are constrained to believe, and must therefore say, is unanswerable and fatal.

The second section of the second title of the statute declares that the memorandum of the auctioneer shall be made by the proper entries in his sales book “at the time of the sale,” and these words the Supreme Court has decided in Hicks v. Whitmore (12 Wend. 554), must be strictly construed and strictly complied with. The construction which the court then adopted is, that the memorandum must be completed by the proper entries in the proper book, as soon as the goods are struck down to the purchaser, and before the auctioneer enters upon any other business or transaction whatever. This construction may seem to be rigid, but the observations of Chief Justice Savage go far to show that it corresponds with the policy of the law, and was probably necessary to carry into effect the intention of the Legislature. The Legislature did not mean that the memorandum should be in any degree an act of memory. They meant it to be an immediate record of the facts as they occurred. Had we even entertained serious doubts p as to the propriety of this decision of the Supreme Court, it has remained unquestioned for so long a term of years, that we should have held ourselves bound to follow it.

In this case a partial memorandum was made at the time of the sale, but the name “ Goelet,” as that of the person upon whose account the sale was made, was not then entered, and until this entry was made there was no such memorandum as the statute required. The testimony leaves it doubtful whether this necessary entry was made on the same or on a subsequent day, but if "made on the day of sale, it is certain that it was not .until some hours after the sale was over. The memorandum produced, we are therefore forced to say, is not such a note in writing as was necessary to be proved to give validity to the contract.

It was said, however, that although the memorandum, for the reason given, or any other, may be deemed an insufficient compliance with the provisions of the statute, it may still be received as evidence of a contract binding upon the parties, and that its reception as such evidence is not forbidden by the statute. The law (we were told) is settled that an auctioneer is the- agent of both the parties, and it therefore follows that any memorandum or note in writing made by him is just as valid as if signed by the parties themselves. It is not necessary to deny that the memorandum produced, if signed by the parties, would be sufficient evidence of a contract, but the conclusion that it is therefore sufficient to bind them in its actual state, we cannot hesitate to reject. It is drawn from false premises. The auctioneer, by virtue of his office, is not the agent of the parties, unless in the discharge of his duties, he follows the directions of the statute. He has no authority whatever to bind them by any other course of proceeding than that which the statute prescribes. The English decisions relative to the implied powers of an auctioneer as the agent of the parties, and those in our own courts, before the Revised Statutes were in force, have no application. The fourth section, upon the construction of which the question turns, is a new provision, and the precise directions which it gives, were meant to redeem the law from the uncertainty in which it was previously involved. The meaning of the statute, reading the third and fourth sections in their necessary connexion, evidently is, that every sale of goods at public auction where the price is fifty dollars or more, shall be wholly void, unless the goods are then paid for or dehvered in whole or in part, or the exact memorandum which the statute describes is then made. By deciding that a defective memorandum, or one not made at the time, may be received as evidence of a valid sale, we should, so far as our own power extends, repeal the law.

The supposition that there was in this case such a virtual delivery of the horses, as, without any memorandum or note in writing, was alone sufficient to bind the contract, is plainly inconsistent with the complaint, and, we think, is contradicted by the proof. The complaint admits that there was no such delivery, and the proof shows that the admission was proper and necessary.

The motion to set aside the report of the referee is denied, and the judgment appealed from affirmed with costs.

         The twenty-sixth section of the statute regulating sales by auctioneers (1 R. S. pp. 628, 632), which was not cited upon the argument, makes it the duty of the auctioneer, when the bargain of sale is not immediately executed, to enter on his sales book the same memorandum which the statute of frauds describes, but m this section the words “ at the time of the sale ” are omitted, and it is this omission that has probably led to an erroneous practice. It does not seem, however, to furnish any reason for varying the construction of the words in the section in which they are found.—Reporter.


source: Caselaw Access Project

author: By the Court. Duer, J.

license: Public Domain

text:
    Dobson v. Pearce.
    (Before Duer, Campbell, and Paine, J.J.)
    May 16;

    June 26.
    Although before the Code a judgment' could not be impeached in an action at law upon the ground that it had been obtained by fraud, yet it was liable upon that ground to be impeached and set aside in a Court of Equity, and since the Code, the same facts that would formerly have entitled a defendant to be relieved in equity, may be set up in his answer as a full defence, the distinction between legal and equitable defences being wholly and wisely abolished.

      Held, that the facts set forth in the defendant’s answer, if established by proof, were evidence that the judgment that was sought to be enforced had been obtained by fraud. <

      Held also, that the question whether these facts were true was directly at issue between the parties in the proceedings in Connecticut, and its determination necessarily involved in the judgment or decree which was then pronounced.
    Also, that the Supreme Court of Connecticut, acting as a Court of Equity, had the same jurisdiction, under the Constitution of the United States, to enjoin a suit upon the judgment, as the Court of Chancery in this State. And,
    Lastly, that the record of the proceedings in Connecticut being properly authenticated, ought to have been admitted as conclusive evidence of the truth of the facts upon which the judgment of the Court was founded.
    This was an action of debt on a judgment of this court, ren- ’ dered onthe 17th' day of April, 1847, for $612 93, in favor of James N. Olney against the defendant, and on the 11th day of September, 1850, assigned to the plaintiff. The complaint sets forth^the recovery of the judgment and the assignment to plaintiff. The answer sets up as a defence, that the judgment was obtained by fraud, and without any knowledge on the part of the defendant, or any opportunity to make a defence, he being a resident of the State of Connecticut, and for an alleged cause of action, utterly groundless. That on the 8th of November, 1848, 'said Olney commenced an action of debt on the same judgment, in the Superior Court of Connecticut, against Pearce. That Pearce, that action being pending, commenced a suit in chancery in the same court, against Olney, who appeared and answered, charging that said judgment was obtained by fraud, and praying an injunction against the prosecution of said action of debt. That by the finding, and final decree in said chancery suit, said judgment was found and decreed to be fraudulent, and an injunction granted. That after that decree, Olney assigned the judgment to the plaintiff, who commenced this suit.
    The reply denied every allegation in the answer. »
    The cause came on for trial before the Hon. Elijah Paine, one of the justices of this court, and a jury, on the 19th day of June, 1851. The plaintiff’s counsel offered and read in evidence, a judgment record of the Superior Court in favor of James H. Olney against the defendant, on a judgment rendered therein on the 11th April, 1846, for the sum of $612 93. By this record, it appeared that the capias by' which the suit was commenced was personally served on the defendant. The plaintiff’s counsel read in evidence an assignment of the said judgment by James H. Olney to the plaintiff, dated September 11th, 1850, and there rested his case. The defendant then offered in evidence an exemplified copy of the record of the proceedings in the chancery suit in Connecticut. The petition upon which the suit in chancery was founded, did not aver, as alleged in the answer, that the judgment upon which the present action was brought, was wrongfully and fraudulently proved to be entered up without the knowledge of the defendant, and which he was prevented from defending, by the deceitful practices of Olney; but the only allegations in the petition in which fraud was mentioned, were stated in language as follows:—“ That Olney, by mistake or contriving, or intending to harass and defraud said petitioner, commenced suit against him,” &c. “ That Olney, in further pursuance of said mistake or design to defraud, caused the capias in said suit to be served on the petitioner.” “ That Olney, in further pursuance of said mistake or design to defraud, caused said suit to be returned to said court, and there further prosecuted.” And at the end of .these allegations was this summary:—“ And so said petitioner was by mistake or design, and without any'fault on his part, deprived of all opportunity to make his defence in said suit.” The court'in Connecticut did not, as the answer alleges, find the facts to be true, as they are stated in the answer, but they found them to be true as they were set forth in the petition. And finally, the court in Connecticut did not, as is alleged in the answer, “ adjudge, order and decree that the judgment was fraudulent.” Their whole judgment was, that “ this court do now, in accordance with the advice of the Supreme Court of Errors, find the facts set forth in said petition to be true, and do therefore enjoin the said Olney, that he do for ever desist from prosecuting his said action upon said judgment, under the penalty of 1000 dollars.”
    The plaintiff’s counsel objected to the said record as inadmissible, and the court excluded it; to which ruling, the defendant’s counsel excepfed. Ho other evidence being offered on the part of the defendant, the court directed the jury to find a verdict for the plaintiff, with interest, to which the defendant excepted. The jury accordingly found a verdict for the plaintiff, for 834 dollars Y6 cents.

      Asa Child, for the defendant,
    argued the following points—
    I. It was competent for the defendant to allege what in his answer he has alleged, that the record of the judgment on which this action was founded was entered up fraudulently, and without his knowlege or suspicion, and such fraud was a valid defence to this action. 1. The proposition does not involve the inquiry, whether a fraud practised upon the court at the trial when both parties were present, and upon a matter which was passed upon by the court, could be thus alleged. 2. Hor the inquiry whether a fraud practised upon the defendant, by which at such trial he was deceived as to his defence, and which influenced the decision, could be thus alleged. 3. But it involves the position that the fraudulent entering up of a record of a judgment by the plaintiff in the absence and without the knowledge or suspicion of the defendant upon a ground of action false and fraudulent, can be alleged in answer to an action on such judgment, and is a valid defence to it (Shumway v. Stilman, 4 Cow. 292; Andrews v. Montgomery, 19 John. 162; Harrod v. Barret, 1 Hall, 155; Borden v. Fitch, 15 John. 145; 17 Conn. Rep. 530).

      II. The Superior Court of Connecticut had jurisdiction of the action brought and tried there, and of the parties to it, concurrent with this court, and had a right to make the finding and judgment then made. 1. The plaintiff went into that state voluntarily, and by commencing his action, submitted to the jurisdiction of that court. 2. In the suit in chancery brought in the same court in defence of his action, the plaintiff appeared and pleaded, and submitted to the jurisdiction of the court, and was fully heard as to all the matters involved in it, and was bound by that judgment (Wheeler v. Raymond, 4 Cow. 311; Andrews v. Herriot, in Notes, 4 Cow. 520 (where the cases are collected); Matthews v. Flatcher, 6 Wheaton, 129; Wells v. Duryee, 7 Cranch, 481, 1 Sand. p. 116.)
    HI. The matter in issue in this cause is the precise matter which was in issue, and was submitted to the Superior Court of Connecticut, and is by the decision of that court res adjudícala, and the finding and judgment of that court was conclusive upon these parties as to the matter in issue, and the record should have been received and the complaint dismissed on that ground. It was conclusive as an estoppel; but if not, it was admissible as evidence to prove the issue (Sampson v. Hart, 1 John. Ch. R. 91; Burt v. Sternberg, 4 Cow. 559; Gardner v. Bugbee, 3 Cow. 120; 1 Stark Ev., part 2, p. 185; 1 do. do., § 59, p. 190; 1 do. do., § 66, p. 205; 1 Phil. Ev., p. 13, 212; Conflict of Laws, 538.)
    IV. The plaintiff who took the assignment from Olney after the trial and decision in Connecticut, is bound by the judgment in this action in the same manner and to the same extent as if Olney was the plaintiff (1 Stark, part 2, p. 192,193, 194 ; 2 Phillips Ev., p. 6, 7; Conflict of Laws, § 1299-1309, 3 Wheat. 334.)

      E. Terry, for the plaintiff,
    argued the following points—
    I. The justice on the trial properly rejected the evidence offered by the defendant as proof of the allegations set up in his answer, and in defence to the action, because—1. The decree in Connecticut offered in evidence, was by its terms only intended to operate upon a suit then pending in the state of Connecticut. 2. The said decree was not intended to operate upon any other suit then pending, or upon any suit to he commenced in Connecticut, and the decree • could have no greater force or effect in this state than it would have in the state where rendered. 3. Ho injunction was granted by the said decree in Connecticut, which was intended to prevent the prosecution of a suit in the state of Hew York. 4. It would be incompetent for the Court of Chancery of another state to enjoin against the enforcement in this state of a judgment regularly rendered by a court of competent jurisdiction of this state, on the verdict of a jury, where the defendant was personally served (Mills v. Duryee, 7 Cranch, 481; Hammond v. Baker, Code Rep. vol. 1, No. 3, p. 105; Burrows v. Miller, 5 Pr. Rep. 51.) 5. It does not appear whether the decree rendered in Connecticut was upon the verdict of a jury, or whether or not it was upon the defendant’s own oath, or upon any oath at all (Bill of Rights, Constitution N. Y. 1846, Art. 1, § 2; 1 Gil. Ev. p. 32 ; 1 Greenl. Ev. § 551.)
    H. The plaintiff was entitled to a verdict, and the motion for a new trial should be denied.
   By the Court. Duer, J.

with whom Campbell, J., concurred, delivered orally his opinion that a new trial ought to be granted. The grounds of this decision are those stated in the preliminary abstract.

Paine, J., dissented, and.delivered the following opinion:— On the trial of this cause, I certainly entertained and expressed a very decided opinion that the decree in Connecticut could not be used as a defence to this action. It struck me that a judgment of this court could not be impaired by anything done by a court sitting out of this state; and that to admit the decree from Connecticut as an estoppel, would be, in effect, to assent to a judgment of this court’s being vacated or set aside by the courts of that state. The views- which I took on the trial have not been at all changed, but rather confirmed, by the argument on appeal, and subsequent examination.

There are three objections to this Connecticut decree’s being admitted as an estoppel, or indeed as evidence at all. 1st. The defence which it is offered to sustain, cannot be set up to this action. 2d. It furnishes no proof of the defence for which it is offered; and 3d. The decree in Connecticut is void, because it was pronounced in violation of the constitution of the United States. I will consider these objections in their order.

First: The answer sets up, that the judgment sued upon was obtained by fraudulent practices of the attorney and his client, in the course of the suit in which it was recovered, upon a claim in itself fraudulent and unfounded. The answer, therefore, would seem to impeach the judgment upon the merits, as well as upon the. ground of fraudulent practice in the suit in which it was recovered. But the counsel for the defendant seemed to think that there was a distinction between a plea impeaching it upon the merits or for fraud on the trial, and a plea impeaching it for fraudulent practice in its recovery ; and defended the answer as being a plea of the latter kind; and although I know of no such distinction for this purpose, either at law or in equity, yet I shall consider his case in the light in which he contended that it was maintainable.

The alleged fraud in the recovery of the judgment is, that the plaintiff’s attorney, after his arrest, promised the defendant, who resided in Connecticut, and was here transiently, that he would not proceed with the suit without giving him notice; that the defendant, relying upon this, made no defence; but that the attorney, without giving him any notice, proceeded to take an inquest by default against him, and entered judgment. The question, therefore, is, whether this fraud can be set up by way of plea or answer, as a bar to an action on the judgment.

, Courts of law have always upon motion exercised the most unlimited equitable powers over their own practice and proceedings. To set aside judgments or other proceedings upon motion, as irregular or fraudulent, is of such frequent occurrence, as to form a very considerable part of their business. A know-, ledge of their own rules and practice, and of the proceedings immediately before them, enables them to correct any irregularity or malpractice, with much greater advantage and justice, than could be done by any other tribunal, even within the same jurisdiction. It has, therefore, become an established rule, that courts within the same jurisdiction have no power, in this respect, over each other’s proceedings. It is true that courts of equity of the same state do"exercise a jurisdiction, on the' ground. of fraud, with respect to judgments recovered in courts of common law; but this is not done in the way of correcting, vacating, or impairing the judgment, but by arresting a party through his conscience, and' restraining him from committing further fraud by any attempt to-enforce the judgment.

This has always been the law of this state, and of every country living under the system of the common law. And it is still the law, unless the law, in this respect, has been changed by the alterations lately made in our courts and practice, by the constitution and Code.

The constitution has abolished courts of equity, and vested their powers in the courts of common law. But I do not imagine that it has thereby confounded the established distinctions between legal and equitable proceedings. Much less do I suppose that it has enabled courts of law, with their newly conferred equitable powers, to do what courts of equity before never did, or that it has in any manner changed in courts of law, the mode of exercising those equitable powers, which they were before in the daily habit of exercising.

How, although courts of equity have laid hold of the consciences of parties and restrained them from enforcing fraudulent judgments, when their aid has been directly invoked for that purpose upon a suitable case presented to them, yet I am not aware that they have ever allowed a judgment to be impeached upon the ground of fraud, when their aid has been sought to enforce it. To take the familiar case of a creditor’s bill, brought to have execution of a judgment, has a defence ever been allowed to such a bill, that the judgment was obtained by fraud ? I think it never has been, and that, upon principle, it never could be done.

Whatever equitable powers, then, the constitution has conferred upon courts of law, it has not made that a defence, which would not before have been a defence in a court of equity. For it has merely transferred to the -former the powers and jurisdiction of the latter. I think it will hardly be contended, that the constitution, by making this transfer, has in any respect changed the systems of equity and common law, as they before existed, or the modes of proceeding.

The changes introduced by the Code, hosvever, are of a different character. By abolishing all distinctions between actions at law and suits in equity, and the forms of all such actions and suits, and all the forms of pleading heretofore existing, it has caused not a little trouble and perplexity among the profession, on the subject of pleading. This has been still further increased by that provision which directs, that issues of fact, in actions for the recovery of money only, or of specific real or personal property, shall be tried by a jury, and all other issues by the court. Formerly, all issues in equity were tried by the court, unless the court ordered a trial by jury; but by our present practice many of those issues must be tried by a jury. A still greater difficulty occurs in actions for the recovery of money, or specific real or personal property, where a defence is set up which was formerly of exclusively equitable cognisance; for the Code has made no special provision for such a case. But it may be doubted whether rights, which were formerly of exclusively equitable cognisance, and which now, if attempted to be asserted by action, must be tried by the.court, can, if set up as matters of defence, be tried by a jury.

It is to this state of doubt and uncertainty, consequent upon so entire a change, that we are probably indebted for the defence set up in this action. Such a defence, before the Code, would never have been thought of by the learned counsel who drew the answer in this action. It is not strange, that after the destruction of all our old guides in practice and pleading, such a defence should be attempted; but unless we are to consider the established principles, as well as the forms of law, as having been subverted by.the Code, I cannot think that such a defence can be maintained.

Before the Code, the only defence which could have been pleaded in this action, would have been nul tiel record. Nil debet, or any defence upon the merits, or which went to question the conclusiveness of the record, would have been entirely inadmissible. The only issue to be tried, the issue of mil tiel record, would have been tried by the court. The record being in this court, the court would have tried it by inspection, and no other evidence on the part of the plaintiff or defendant could have been offered.

These were the rules of pleading and trial before the Code, and I am not aware that the Code has altered them. The Code has abolished the forms of pleading, but it has not abolished all the rules of pleading, nor the principles of law; nor has it made that a defence, which before would not have been a defence, either at law or in "equity. It has not abolished the principles, that rights secured by a judgment cannot be contested; that the evidence furnished by the record of such judgment cannot be controverted; and that on producing the record the plaintiff is entitled to judgment. FTor has it abolished or altered the rule of pleading, that in an action on such judgment nothing can be pleaded except nul tiel record, or that there is no such record. For this rule is only a corollary from the legal principles I have just referred to. The judgment being final and conclusive, it necessarily follows that the law will allow the defendant only to deny its existence, but not to question its force or resist its operation.

If the defendant wished to impeach this judgment for the alleged fraud, his obviously proper course was, to apply to the court, by motion, to have it set aside. There has never been any other mode of doing it, and there can, in the nature of things, be no other mode now. If the judgment was recovered by fraud, it should be set aside, and the subject matter of it should be tried over again; if it was not recovered by fraud, it should remain undisturbed, and a new trial ought not to be had. Before a second trial, therefore^ this question of fraud must be settled.

Suppose it were otherwise, and that the defendant is right in attempting, as he does, to bring all these matters, both the question of fraud and the rights of the parties upon the merits of the case itself, to trial before a jury at the same time, what would be the state of things presented on the trial? If the judgment was recovered unfairly, the whole matter should be fried over again by evidence independent of the judgment, and the judgment should not be used as evidence. If recovered fairly, then no other evidence than the judgment should be admitted. And this view is not affected by the fact that in this case there is a judgment record which is, as is alleged, conclusive evidence of the fraud, and therefore the fraud is established; for in other cases the same defence of unfairly recovering the judgment may be set up, without a record to furnish conclusive evidence of it. And then, is the plaintiff to use his judgment as evidence, or not ? How is this to be determined? There are two things'to be tried; the fairness of the recovery of the judgment, and whether the judgment is right in itself. If the first should be determined in favor of the plaintiff, then all he has to do is to produce his judgment to prove his title to recover, and the defendant could not controvert it. But, if determined against him, he must resort to other evidence subject to be contradicted by, the defendant. Now, how is it to be ascertained which course is to be taken? Is the jury to go out and pass upon the question of fraud, and then come back and try the case upon the merits ? Such an arrangement would certainly betoken progress enough to satisfy any one.

If this trial had taken place, the attitude of the parties towards each other would have illustrated the inconsistency of the whole proceeding, and the utter confusion of ideas involved in it. The parties would have been armed with estoppels point to point—estoppel against estoppel. The defendant would have said, my estoppel shows that your judgment was fraudulently recovered. The plaintiff would have replied, that is no matter; my estoppel shows that you owe me the debt; that it is all right upon the merits; and to try the cause over again could do you no good, for in any event the court must render judgment in my favor. My judgment imports absolute verity as well as yours. What, then is the state of the proof? That a righteous judgment has been recovered by unfair means. Would, it be worthy the serious occupation of a court of justice to allow such a trial to proceed further ?

Secondly: none of the allegations of the answer are supported or proved by the record offered in evidence. The answer sets up fraud in the recovery of the judgment, and that only as a defence. It says nothing about its having been recovered through any mistake. It also alleges that the petition in chancery presented to the court in Connecticut stated the judgment to have been fraudulently recovered, and that the court found the facts stated in the petition to be true, as alleged in the answer, and adjudged and decreed that said judgment was fraudulently recovered. How, so far from this being true, the petition stated no such thing, and the court neither found nor decreed anything of the Mnd. The only statements of the kind in the petition are, that Olney by mistake, or contriving and intending to harass and defraud the defendant, commenced his suit in this court; that in further pursuance of said mistake or design to defraud, he caused the capias to be issued; and that in further pursuance of said mistake or design to defraud he caused the suit to be returned to this court, and farther prosecuted;—and that so said defendant was, by mistake or design, deprived of all opportunity to make his defence.

The entire difference between the statements of the petition as set forth in the answer, and the statements actually made by the petition, is too obvious to require comment. The petition does not allege fraud, but either mistake or fraud; and the court finds nothing except that the facts set forth in the petition are frue—certainly this is no finding of fraud. If it is a finding of anything, it is a finding of mistake or fraud. It is therefore impossible to tell which of the two the court intended to find. The plaintiff has as much right to say that it is a finding only of mistake, as the defendant has to say it is a finding of fraud.

Finally, the court did not decree that the judgment was fraudulent, but simply decreed an injunction restraining the plaintiff from prosecuting his action upon it. The record, therefore, introduced by the defendant on the trial to prove his plea, failed to prove it in every particular.

Thirdly: The decree in Connecticut was pronounced in violation of the Constitution of the United States, and of the Act of Congress in pursuance made of it.

The Constitution provides that “ full faith and credit shall be given in each state to the public acts, records, and judicial proceedings of every other state; ” and authorizes Congress to “ prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.” The Act of Congress of 26th of May, 1790 (Oh. 11), after providing for the mode of authenticating the acts, records, and judicial proceedings of the states, declares, that “ the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them, in every court within the United States, as they have by law or usage in the courts of the state from whence the said records are or shall be taken.”

In several particulars, these provisions of the Constitution and Act of Congress have been much contested in various states of the Union. The principal question has been whether a judgment recovered in a court having no jurisdiction of the person by the service of process was within these provisions. In discussing this question in the earlier cases, the just distinction between foreign judgments and judgments of states of the Union was by no means as clearly understood as it is now; and the courts manifested a disinclination to make any such distinction, and when compelled to do so, retraced their steps with reluctance (Starbuch v. Murray, 5 Wend. 155).

Anterior to and contemporaneously with this discussion, the question whether the merits of foreign judgments could be inquired into was much agitated in England, and a variety of opinions were entertained about it. Some of the earlier cases denied, while others maintained, that they could be. Some of the judges thought that such judgments were only prima, fade evidence, and that the defendant could show them to be wrong upon any ground; while others contended that they should be allowed to be impeached upon two grounds only—viz. a want of ' j urisdiction, and fraud—and not generally upon the merits. This last view, after a long discussion and opposite opinions, seems to have been adopted by the courts of England as the correct one. The light of this discussion, which in truth does not reach the subject as it exists under our constitution, seems to have guided our courts when the subject of state judgments came first under their consideration; and although a case never arose or has since arisen in any court where a state judgment was attempted to be impeached for fraud, yet when the legitimate ground of a want of jurisdiction was set up in .some few of the earlier cases, the courts threw out dicta, entirely obiter, that such judgments might be impeached for want of jurisdiction, or fraud; thus adopting and applying to state'judgments the rule then urged and since applied in England, as the true rule in relation to merely foreign judgments.

The true constitutional rule having become better understood, and the courts generally having got over their reluctance to adopt it, where such reluctance existed, the later and better considered cases will be searched in vain for any such dicta. Hot a word about fraud is to be found in the following cases, but only about a want of jurisdiction: Aldrich v. Kinney, 4 Conn. R. 380; Wood v. Watkinson, 17 Conn. R. 500; Bissel v. Briggs, 9 Mass. R. 462; Jacobs v. Hull, 12 Mass. R. 25; Kilburn v. Woodworth, 5 J. R. 41; Robinson v. Ward, 8 J. R. 86; Dennison v. Hyde, 6 Conn. R. 508; M'Rae v. Mattoon, 13 Pick. R. 53; Moren v. Killibrew, 2 Yerg. R. 376; Gleason v. Dodd, 4 Metcalf, R. 333; Hall v. Williams, 6 Pick. R. 239; Read v. Pratt, 2 Hill, R. 64; Starbuch v. Murray, 5 Wend. R. 158; Shumway v. Stillman, 6 Wend. R. 447.

As I understand the rule now established in relation to state judgments, it is this: If there ,is a judgment, it cannot be, inquired into for any cause whatever; and, although there may have been fraud in its recovery, it is still a judgment', and not void. But if the court rendering it had no jurisdiction of the person, then there is no judgment, and the constitution of the United States does not apply. In my opinion, not an adjudged case, except the one we are considering from Connecticut, can be found against this rule as I have stated it; while many of the very highest authority can be cited in its favor.

Chief Justice Parsons, of Massachusetts, has the merit of having laid down the'rule correctly, even before it was settled by the Supreme Court of the United States. In Bissel v. Briggs (9 Mass. R. 462), he enters into a most elaborate consideration of the whole subject, discusses in its fullest extent the difference between foreign and state judgments, and concludes-by saying: “ Such judgments, so far as the court rendering them had jurisdiction, are to have in our courts full faith and credit.” “ The defendant Briggs must be considered as a party to a judgment rendered against him by a court which had jurisdiction of the cause, and of the parties to it. He cannot therefore, in my opinion, be admitted by evidence to impeach that judg__ ment, or to deny it, or in any manner to derogate from the full faith and credit to which it is entitled.”

In Starbuch v. Murray (5 Wend. 158), the court say, “ If the jurisdiction of the court is not impeached, it has the character of a record, and for all purposes should receive full faith and credit.”

In Moren v. Killibrew (2 Yerg. R. 376), the court of Tennessee presents the distinction which governs these cases in a very lucid manner. The action was on a judgment from Kentucky, and the court says: “We must advert to the distinction between void and voidable, between a judgment that is irregular or erroneous, and one that is void or a nullity. The one is valid to some extent; the other is valid to no extent. Irregular and erroneous judgments are valid and good until set aside or reversed on error. Void judgments, or such as are a nullity, have no operation whatever. If the judgment of the sister state now in question is of the first class, it is evident that the courts of this state cannot give relief to the defendant, as that relief is in its nature limited to the court where the judgment was rendered, or to the revising courts of the State of Kentucky. This court confines itself within that narrow limit of inquiry, incidental from necessity to all courts which are called upon to enforce and carry into effect the judgment of some other court. That limit is an inquiry into the jurisdiction of the court rendering the judgment sought to be enforced.”

And the courts have gone so far as to hold, that even a mistake in making up the record could not be shown; so entirely obedient and unquestioning is the faith which is required by the constitutibn. In Hall v. Williams (6 Pick. R. 239), the court says: “ If it appear by the record of a judgment of a sister state, that the defendants had notice of the suit, we are inclined to think it cannot be gainsaid. For, as we are bound to give full faith and credit to the record, the facts stated in it must be taken to be true judicially; and if they should be untrue, by reason of mistake or otherwise, the aggrieved party must resort to the authorities where the judgment was rendered for redress.” A similar opinion was intimated in Reed v. Pratt (2 Hill R. 66), and Bicknell v. Field (8 Paige, 440); but this particular point can hardly be considered settled.

The case of M'Rae v. Matoon (13 Pick. R. 53) is directly in point for our purpose. In that case, under a plea of nil debet to an action on a judgment of a court of North Carolina, the defendant, on the trial, was permitted to show that the judgment was recovered by fraud; the plaintiff’s attorney having stated that the action had been discontinued; and upon this issue the jury found a verdict for the defendant. The court however set aside the verdict, saying: “ The question is in substance, whether the defendant may prove under this issue, that the judgment was obtained by fraud and misrepresentation. We are entirely satisfied, that while the judgment remains apparently in full force, the defence cannot be made against it. If this were not so, there would be no end of litigation. If the first judgment were thus to be rendered void, the second is liable to the same allegation, and the third, and so on. The law would become a game of fraud, in which the greatest rogue would become the most successful player. If any proceedings have taken place in the court in ¡North Carolina which would avoid the judgment obtained against the defendant, the application must be made to the judicial courts there. But so long as the judgment remains in full force the courts in Massachusetts cannot go behind it.” Clearly, either this case is not law, or the decree in Connecticut is unconstitutional. It will be observed, that no technical objection is set up on the ground that a court of law could not entertain the defence of fraud. The reasoning of the court is, that no court of a sister state can entertain it (and see Bicknell v. Field, 8 Paige’s R. 440).

But it is necessary that I should notice the grounds upon which the decree is sustained by the Court of Errors of Connecticut, as those grounds are stated in their opinion.

One ground is, that the proceeding in Connecticut was not “an attempt to impeach the ¡New York judgment.” And the court says: “In granting an injunction against proceedings at law, whether in a foreign or domestic court, there is no difference ; the court of equity does not presume to direct or control the court of law; but it considers the equities between the parties, and acts upon the person, and restrains him from instituting and prosecuting an action” (Pearce v. Olney, 20 Conn. R. 554).

I am unable to assent to this reasoning. In the first place, it assumes, that under the Constitution of the United States, there is no difference between a court of equity in ¡New York, restraining a party from proceeding in New York to enforce a judgment of a court of New York, and a court of equity in Connecticut restraining Mm from proceeding upon it in Connecticut. There is this difference at least, that the constitution cannot apply to the former case, while it may well be contended that it does apply expressly to the latter. TMs is-a naked assumption of the court, for which no reasons are given, and in support of which no authorities are cited. I shall endeavor to show that it cannot be supported either by reason or authority.

Both before and since the case of Mills v. Duryea, there has been a looseness in the language employed, in speaking of the effect to be given to judgment, under the constitution and act of Congress. It is sometimes said the courts of Massachusetts are bound to give the same effect to a New York judgment that the courts of New York would give to it. But this is not the language nor meamng of the constitution and act of Congress. Their language and meaning are, that it shall have the same effect as in the court where it was recovered; or to take the present case as an instance, that it shall have the same effect in Connecticut as it has in the Superior Court of New York, and notin a court of equity of the State of New York.

This is very clear from the language of the act. “ The said records and judicial proceedings shall have such faith and credit given, to them, in every court within the United States, as they have, by law or usage, in the courts of the states from whence the said records are or shall be taken.” In this sentence, the word “ taken,” at its close, does not relate to the antecedent word “ states,” but to the word, “ courts.” Records are said to be taken from courts, but could not with any propriety be said to be taken from a state." If the mere act of transportation had been meant, the word “ brought” would have been used. But a record cannot be taken from “ courts ” or from more than one court. The plural “ courts” was used merely because the plural “records” was used before and after; but the same meamng would have been expressed by the words, “as in the court of the state from whence said record is or shall be taken.”

The interpretation which I have put upon the act is fully sustained by the construction given to it in Mills v. Duryea (7 Cranch R. 481); which case must be regarded upon this subject as the supreme law of the land. In' that case, Mr. J. Story, in delivering the opinion of the court, immediately after quoting the act in Tima vería at length,,says:' “The act declares that the record, duly authenticated, shall have such . faith and credit as it has in the state court from whence it was taken.”

That this construction given to the act by the court was not a careless or unintentional one, is very clear from Mr. J. Story’s Commentaries on the Constitution (vol. 3, p. 183), one of the most carefully written of his works. There again, after quoting the whole act, he says: It has been settled upon solemn argument, that this enactment gives records the same faith and credit as they have in the state court from which they are taken.”

If this, be the true construction of the act, I suppose it disposes of the question; for it will hardly be contended that our court gives the same effect to one of its own judgments, that the court in Connecticut considered that they had given to it.

We have very high authority in our own state for saying that the proceeding in Connecticut was unconstitutional, and would not have been entertained by our own court of chancery. Considering the exclusive devotion of our court to chancery learning and practice, this may perhaps be considered as high authority as that of the court of errors of Connecticut upon such a subject. In Bicknell v. Field (8 Paige, 440), Chancellor Walworth, where an action was brought upon a judgment of a court of Massachusetts, in the Supreme Court of this state, and a bill was filed in the court of chancery to restrain the suit, declared that the provision of the Constitution was as binding upon the court of chancery as upon the Supreme Court. And he added; “ It is at least doubtful, however, whether any court- in this state has any right or power to inquire into the regularity of a judgment recovered in one of the superior courts of a sister state, after a personal service of the process upon the party against whom such judgment was obtained. And it certainly would not be giving full faith and credit to the record of a judgment in a sister state if the party against whom that judgment purported to have been obtained were permitted to allege and show, in the courts of another state, that no such judgment was in fact given, or authorized to be entered by the court; but that the judgment record was made up and filed fraudulently by the clerk of the court without authority.”

Upon the whole I am of opinion that the judgment for the plaintiff ought to be affirmed.