Foster v. Wood

6 Johns. Ch. 87 | New York Court of Chancery | 1822

The Chancellor.

The plaintiffs cannot be relieved upon the facts stated in the bill. The gravamen is, that after the defendant had recovered a judgment at law against the plaintiffs and Stillwell, the latter paid him 76 dollars, in part satisfaction of the judgment 3 and that in the subsequent suit at law upon that judgment, no credit was given or allowance made by the defendant for that payment. But why did not P. and S. .plead, or give in evidence, that payment ? They were both sued upon the judgment, but the bill omits to state whether both of them were taken and brought into Court. It only states, that the plaintiff, Foster, became special bail, in the suit on that judgment, for P., nor does the bill state whether or not P and S'., or either of them, pleaded to that suit on the judgment. I should infer, that both P. and S', appeared and pleaded, and went to trial in that suit, because the bill adds, that the payment of the 76 dollars was “ neglected to be proved by P. and S. in the suit upon the judgment against them.” Be that as it may, the payment of the 76 dollars was not proved, and the defendant recovered a second judgment against P. and S., and he then proceeded to a suit on the recognisance of bail .against the plaintiff, Foster, as special bail for P. and the plaintiff. Foster suffered the defendant to take judgment by default against him, “ confiding in the ability and integrity of P. to indemnify him.” - After all this neglect, can this Court now, at the instance of Foster, the special bail, or rather at the instance of the other two plaintiffs, who are purchasers from him of the land charged with the lien of that judgment, sustain an inquiry into the fact of the payment ? This would be contrary to the settled doctrine of the Court, founded on a series of adjudged cases. The rule is, that Chancery will not relieve against a judgment at law, on the ground of its being contrary to equity, unless the defendant in the judgment was ignorant of .the fact in question pending the suit, or it could not have been received as a defence, or unless lie was prevented from availing himself of the defence by fraud or accident, or the act of the opposite party, unmixed with negligence or fault on his part. (Lansing v. Eddy, 1 Johns. Ch. Rep. 51. Duncan v. Lyon, 3 Johns. Ch. Rep. 351.) And if P. and S., the parties to the judgment, could not now be permitted to overrule the judgment, their special bail, who was afterwards sued, and suffered judgment to pass against him, cannot be permitted to do it. He is concluded by the judgment regularly obtained against his principal, and the bill raises no charge of fraud or collusion between the defendant and P. and S. to injure and oppress the bail.

I am, accordingly, of opinion, that the demurrer ought to be allowed, and the bill dismissed, with costs.

Decree accordingly.