Reed v. Lawton , 2 Watts 50 ( 1833 )

The opinion of the Court was delivered by

Gibson, C. J.

Had the legislature provided a specific means of individual redress in cases like the present, it could alone be employed, however inconvenient or inefficient it might be found in practice. But it seems the object of the statutory remedy was to secure to the contesting creditors'the right of a trial by jury where legislative provision was supposed necessary for that purpose ; and if that be so, the provision is inapplicable t.o cases where a trial by jury is to be had in the regular course, because however these may seem to fall within the letter, they are not within the intent of the enactment. That such was the object appears by the nature of the jurisdiction created, and the incidents that would otherwise have attended it. Justices of the peace were empowered to take cognizance, with the consent of parties voluntarily appearing, of demands to an unlimited amount, and to give judgment without appeal; but it was not intended that the jurisdiction thus permitted should draw after it adverse and final jurisdiction of collateral matters, as it would perhaps have done in regard to the liability of a constable for having suffered goods levied by him to be taken by a subsequent execution on the allegation of a superior title, or by the allegation of fraud, and consequent want of all title under the judgment on which the execution in his hands was issued. An action for the proceeds of the goods sold under these circumstances, seems to be the proper remedy between conflicting creditors, as in Lewis v. Smith, 2 Serg. & Rawle 142; in which the validity of the judgment under which the plaintiff claims, may be put in issue, as it was here, by the plea of per fraudem. But this plea, it is said, can not be tried in the action in which it is pleaded, because the legislature has directed it to be tried in a collateral proceeding, to which alone the injured party can have recourse. What is this proceeding? A proper ground being laid, the justice is directed to send a transcript of the judgment to the common pleas, in order to found a final adjudication of the question of fraud by that court; “ and if, on the trial of the cause it shall be found that the sum for which judgment was confessed, was not actually due at the time, both parties, if both shall have been privy to the fraud, shall pay a fine equal to the amount of such fraudulent judgment, or in case of inability to pay such fine and costs, shall be imprisoned for any time not exceeding six months.” This, then, is not a remedy to compensate the injured, but to punish the guilty; the only consequence of the conviction in a civil view being, that it may perhaps be given in evidence in any subsequent proceeding or action as conclusive of the imputed fraud. But was it intended that no one should impeach such a judgment in a civil action who had not first prosecuted the perpetrator of the fraud to conviction ? The injustice of that in the case of a fraud discovered in the progress of a trial, in which it might be material to expose it, is too obvious to need remark. In such a case what would be done? It would scarce be thought to consist with convenience or despatch, to suspend the trial, and await the event of a collateral issue, for the determination of a matter which may just as well be determined in the action in which it has been put in issue by the pleadings. But suppose the trial to proceed and a recovery to be had from the creditor alleging the fraud, by reason of his being debarred from giving evidence of it—would a subsequent prosecution of the offending party to conviction bring him his money back? The judicious doubt of chief justice Eyre in Phillips v. Hunter’s Executors, 2 H. B. 414, in relation to the point decided in Moses v. M’Farlane, 2 Burr. 1005, seems to have ripened into universal conviction, that money recovered by the judgment of any court, whether competent to enter into the merits of the case or not, cannot be regained by action. As then the section in question gives the fair execution creditor no remedy, he is not to be prejudiced by it in relation to his redress at the common law. But the exact point is said to have been differently decided in M’Cormick v. Miller, 3 Penns. Rep. 230. It will be perceived, however, that the point there was not decided on the provisions of this section, which has regard to judgments but for an amount beyond the ordinary jurisdiction of the justice, and there the suit was originated by process. Besides, the judgment, though surreptitious, was not fraudulent, having been rendered for an actual debt; and though erroneous, it was good till reversed. It appears, therefore, that the evidence should have been received.

Judgment reversed and a venire de novo awarded.