The complainant filed a creditor's bill for the purpose of obtaining satisfaction of a judgment which he had recovered against John and Joseph Rowling. The suit in which the judgment was recovered was commenced in 1841, on several promissory notes made by the Rowlings in 1840. In December, 1842, John Rowling presented his petition to be discharged as a voluntary bankrupt. In May, 1843, judgment was rendered for the plaintiff; and in July following, Rowling obtained a discharge from all the "debts owing by him at the time of the presentation of his said petition," December, 1842. Joseph Rowling was also discharged as a bankrupt, under circumstances which make the same question as that which relates to John; and I shall hereafter make no distinction between the two cases. The Rowlings have set up their bankrupt discharges as a bar to the complainant's claim on the judgment. They insist that "they were fully and completely discharged, released and exonerated of and from the said judgment," and from the notes on which the judgment was entered; and that the discharges are "a full and complete bar to the filing of the complainant's bill as against them respectively;" and that they are under no legal or equitable obligation to pay the said judgment." The whole matter may be summed up and brought to a point in few words. The complainant sues to enforce a judgment recovered in May, 1843: to this the defendants answer, that the action is barred, because they have been discharged from all the debts which they owed in December, 1842 — five months before the judgment was rendered. To say that a discharge from debts owing in 1842, is a discharge *Page 226 from a judgment recovered the year afterwards, or a bar to a remedy on the judgment, is simply and absolutely absurd. The thing is so plain that it cannot be illustrated or made more clear by argument.
But it is said, that the notes on which the judgment was recovered were discharged. If that be granted, it does not advance a single step towards showing the judgment discharged. The judgment was a debt — or conclusive evidence of a debt — the moment it was entered, whether there was any consideration for it or not. It was a demand of the highest nature known to our law — a debt of record. A record imports absolute verity; and no averment in pleading is admissible against it. So far has this rule been carried, that where the court on motion has made an order setting aside a judgment for irregularity, the order is no answer to the judgment, until a vacatur has been enrolled or entered of record. (Croswell v. Byrnes, 9 John. 287.) Let it be granted that the notes were paid, released, discharged, or even annihilated, the day before the judgment was recovered, still the judgment, until vacated or set aside, would be conclusive evidence of a debt. In an action on the judgment the defendant could not plead to the consideration, nor set up as a bar that there should not have been a recovery. Where the court has jurisdiction, it matters not how irregularly or unjustly a judgment may have been entered; it is still a judgment, and can not be impeached in pleading. The irregularity or injustice can not be set up as an answer to an action on the judgment. No color for such a defence can be found in the books. It is a new thing in the law.
When the case is such that the defendant ought to have relief, his remedy is a direct proceeding to get rid of the judgment, either by setting it aside, or obtaining an order for a perpetual stay of proceedings. This relief is granted in a summary way, on motion, by the court in which the judgment was rendered; and upon such terms as the justice and equity of the case may require. If the judgment was irregularly entered, it will be set aside, and the defendant allowed to plead his defence. In cases where he has had no opportunity to plead, as where the original *Page 227 debt or demand was satisfied, released or discharged between the verdict and the judgment, the judgment will either be set aside, or a perpetual stay of proceedings will be ordered, as the circumstances of the case may require. And where some matter arises after judgment which should preclude the plaintiff from having execution, a perpetual stay of proceedings, or an acknowledgment of satisfaction will be ordered. Formerly the remedy in such cases was by writ of audita querela; but the courts began about two centuries ago to give a more cheap, expeditious and equally efficient remedy by motion; and the writ of audita querela has every where fallen into disuse. But whether the remedy is by audita querela or by motion, it is a direct and orderly proceeding either to vacate the judgment, or to restrain the plaintiff from using it. There is no authority for saying that the judgment may be attacked in any other way. Relief is granted by audita querela or on motion for the very reason that the party has no other remedy. If the case be such that he can plead in bar, that is a sufficient reason for refusing relief on motion. The books are full of cases where relief has been granted on motion, while there is not one case which holds that the defendant may in pleading go behind the judgment for the purpose of impeaching it.
On the argument of the cause, and in the opinion to which we are referred as containing the reasons of two of the judges of the supreme court for this decree, (Dresser v. Brooks, 3Barb. 440,) a good deal was said about some remarks of mine touching the doctrine of merger or extinguishment. It can not be necessary to cite authorities to prove the general doctrine that a claim for damages on account of a tort is extinguished by a judgment recovered for the wrong. Clearly there can not be a second action for the same injury. Nor did I suppose it would be denied, that if a creditor accept or obtain a security of a higher nature than he had before, it is an extinguishment of the first debt or security, except in cases where the second security is collateral to the first. (Higgen's case, 6 Co. 44;Goodwyn v. Goodwyn, Yelv. 39; Vin. Ab. Debt (Y.); Bac.Ab. Extinguishment, (D.); Andrews v. Smith, 9 Wend. 53;Davis v. *Page 228 Anable, 2 Hill, 339.) After the plaintiff in this case had sued and obtained a judgment on the notes, I supposed no lawyer would say that he could have another action on the same notes; and the reason why he could not is, that the notes were merged in, and extinguished by the judgment. Still it is undoubtedly true, that courts may sometimes look beyond the judgment to see for what cause it was recovered. This may be done for various purposes. The plaintiff may do it for the purpose of securing his rights as a creditor against a fraudulent conveyance by the debtor, or as an answer to an insolvent or exemption law passed after the contract was made on which the judgment was recovered. The defendant may do it for the purpose of showing an extinguishment of the original cause of action; and for other purposes not inconsistent with the validity of the judgment. Cases of this kind are cited by the supreme court. But neither party can go behind the judgment for the purpose of attacking or impeaching it by pleading in a collateral action. No case of the kind was found by the learned judge who delivered the opinion of the supreme court, and none has been found by the counsel for the defendants. I have carefully examined the long list of authorities cited by the court and the counsel, as well as many others; and with the exception of an obiter dictum of the chancellor in Johnson v. Fitzhugh, (3 Barb. Ch. R. 360,) there is no color of authority for saying, that the defendant may plead in bar of an action on a judgment the fact that there was or is a good answer to the cause of action on which the judgment was recovered. Cases are cited, and many more might be added, which show that the defendant may sometimes have relief on motion, or by audita querela, where he had no opportunity to plead the defense on which he relies; but none which show that he can have relief in any other way.
I ought perhaps to notice more particularly the case ofBlandford v. Foote, (Cowp. 138,) because it has been put forward as a "direct and conclusive decision on the very point in dispute," and as "one which ought to be decisive of the question; sustained as it is by the great authority of Lord Mansfield's name, and having survived a period of 70 years without ever having *Page 229 been questioned or doubted." Now without derogating in the least from the high respect which is claimed for that decision, two remarks upon it will be sufficient for the present purpose. In the first place, the case arose and was decided on a provision in the English bankrupt act, (12 Geo. 3, ch. 47, § 2,) which is not contained in our bankrupt law; and consequently no such case either has, or can arise in this country. And secondly, the relief which was given to the defendant in that case he got on motion, and could not have been obtained in any other way. So much for the case in point.
It has been said, that the judgment was provable under the bankrupt act; and that a discharge may extend to all debts which are provable. To this I answer, first, that there is nothing in the bankrupt act which makes a judgment provable under it which was recovered after the petition was presented. And secondly, it is not important to inquire what the discharges might have been, for we must be governed by what they are; and they are respectively discharges from the "debts owing by him [the bankrupt] at the time of the presentation of his petition;" and from no other. This judgment did not then exist, and consequently was not reached by the discharges.
This carries us back again to the starting point. In answer to an action to enforce a judgment recovered in 1843, the defendants set up bankrupt discharges from all debts which they owed the year before. Such a defence is a palpable absurdity.
I have assumed that the Rowlings might have had relief against the judgment on motion, if they had applied in due time. But it is proper to say, that our bankrupt act does not, like the English bankrupt law, make provision for such a case; and it is far from being clear that the defendants could have got rid of the judgment in any way. But conceding that they might, we can not give the relief which they claim without a plain departure from well established principles.
It is my humble office to search out and declare the law as it is. I have no commission to make it better: that high prerogative has been entrusted to the legislature. *Page 230
I think the decree of the supreme court erroneous; and my brother JEWETT concurs in that opinion.
TAYLOR, J. did not hear the argument, and gave no opinion.
And thereupon the decree of the supreme court was affirmed.