Wardell v. Eden

Both services cannot be good: wherever there is an attorney retained, the service must be on him; therefore the service on Eden himself, was' irregular, but the service on the attorney’s brother, being in his office, was good.

Lansing, Ch. J. and Lewis, J. were of opinion, that the attorney in this case, being constituted only an attorney to confess judgment, his authority expired with the act, and therefore he could no longer be considered as attorney in the suit, but they both agreed that the service on Eden was well made.

Some further affidavits were read on both sides.

Hamilton and Harison, then contended, that in- this tran

The Attorney General and B. Livingston, contra. This is a novel way of bringing up such a question, when really neither of the parties to the suit are in court.

1. It was perfectly regular for the party to enter up the satisfaction himself, and it is neither the province nor the duty of the attorney to do it. The very form of his warrant shows this : for being merely to prosecute and defend, the entering up satisfaction of the judgment could not be considered as being comprised within his powers. (1 Sell. Prac. 14 ; Sayer, 217 ; 2 H. Bl. 608 ; 1 Bac. Abr. Attorney, 299.)

By the practice of courts, warrants of attorney are in force for one year and a day, for the sole purpose of enabling the attorney to sue out execution.

The general warrant of attorney only extends to judgment and execution, and there ought to be a special warrant made out for the purpose of authorizing an attorney to enter satisfaction, which may be made to the attorney who has con

*The doctine contended for on the other side, that [*124] all acts relating to a suit, after it is instituted, must be done by the attorney, cannot be true, as it is settled law, that a retraxit must be always entered by the party himself, and can never be done by attorney. (2 Sell. 338 ; 3 Salk. 245 ; 8 Mod. 58.)

2. Though courts of law will take notice of the rights of assignees, yet this can only be done sub modo ; for choses in action are only assignable, by way of covenant. They might, perhaps, form a consideration for an assumpsit, but then the original instrument is gone, the demand becomes a personal one, and the action must be brought upon the promise ; otherwise, the plaintiff must always resort to a court of equity. (2 Bl. Rep. 621; 4 Term Rep. 341, 640.) At any rate, this is not the proper method for the plaintiff to obtain a remedy, by vacating the judgment, on motion. The law, in such case, will oblige a party, paying money after notice, to pay it over again, and the demand, therefore, from the time of the notice, is a personal one. (Doug. 338 ; 6 Term Rep. 361.)

3. Courts of law never vacate a judgment for fraud, but only for irregularity, or in cases of legal disability, such as of an infant,feme covert, or any person under duress, where the instrument is avoidable. (1 Sellon, 377.) At common law, the remedy is by an action of deceit, and if it happens subsequent to judgment, by an audita querela. In cases of fraud, or other controverted facts; an issue is always to be directed. (Cowp. 727.)

If an entry should be made, vacating the judgment, on the ground of fraud, and, afterwards, a jury, whose exclusive province it is to judge of matters of fact, should find the fact differently, then the record would be at variance with itself. But it would be improper in this court to direct an issue. The court of chancery is the proper forum, and there the bank may seek their remedy. The plaintiffs may, perhaps, proceed by scire facias, on the judgment, in the name of

As to the notice of the assignment, so much relied, on, the furthest the court could go in regard to notice to assignees, would be to put them on the same footing with indorsers of bills of exchange, in regard to which it is not only necessary to give notice, but to add that the indorser is looked to for payment.

Hamilton and Harison, in reply, said that this was the only way that the plaintiffs had to secure the property from being placed entirely beyond their reach ; and that although a scire facias should be brought, as suggested on the other side, yet that they could have no security for the satisfaction of their judgment, in the event of their recovering one. That as to the instance of a retraxit which had been cited, it did not apply, for the attorney is’to prosecute the suit for the end of obtaining satisfaction, but a retraxit is not a prosecution for such an end; it is entering a bar to the suit without having received satisfaction. It is important that attorneys should make the entry of satisfaction, as it would guard the court against fraud, for the court can always know its own officers, but cannot be supposed to know the party.

Courts of law, as to their power to vacate judgments, are not confined to cases of irregularity only. In the case of the Quare impedit, in Viner, a judgment was vacated on the ground of fraud, not, it is true, by motion ; but that depended on the extension of this form of practice, of late years. As to sending the plaintiffs to a court of chancery, it was objectionable : 1. Because, although a court of chancery will not interfere where the party has a remedy at law, yet the converse of the proposition is not true. 2. Because it would ’ turn a legal lien, which the plaintiffs have, into a mere equitable lien. 3. Because, if there is a remedy at law, chancery will refuse to relieve.

On the facts appearing in this case, we think there is probable cause to conclude, that there was a collusion between Wardell and Eden, to defraud the bank.