dissenting:
This action was upon the record of a judgment rendered in the supreme judicial court of Hew Hampshire. The pleas filed were: 1st. Nul tiel record, and 2d, payment in full, upon both of which pleas issue was joined. A demurrer having been sustained to the third and fourth pleas, the defendant, by leave of court, filed an amended plea in which it is averred the judgment mentioned in the declaration was had and obtained by fraud and covin of the plaintiff with intent to defraud defendant out of the sums of money mentioned in the declaration. To this plea plaintiff interposed a general demurrer. Without having disposed of the demurrer, at the June term, 1874, the court, without the intervention of a jury, by consent of parties, heard the evidence, and rendered judgment for the plaintiff.
This was irregular. The plea of fraud and covin practiced by the plaintiff in procuring the judgment, as averred, with intent to defraud the defendant out of the sums of money sued for, constituted an effectual bar to a recovery until it was in some appropriate way answered. This was not done. The demurrer admitted it to be true. Richeson v. Ryan et al. 15 Ill. 13; Sammis v. Clark, 17 ib. 398 ; Moore v. Little et al. 11 ib. 549.
It is insisted the defendant is in no position to avail of this error, because he had not joined in demurrer and thus presented an issue at law. It was not essential, in my opinion, there should be a joinder, but if it was, like the similiter to the general issue, it could be added by either party. As the plaintiff desired to move the court to action, it was her duty to present the issue for trial. The defendant, with entire safety, could rest his defense upon his plea until it was answered.
It is contended the plea is clearly bad, and on the authority of Granger v. Warrington, 3 Gilm. 306, it is insisted no good object can be accomplished by reversing this judgment and sending the case back for the court to decide on the plea which this court can see must be held bad.
Admitting the authoritativeness of that decision, I do not think this ease comes within the rule there announced. It is not so clear the plea is insufficient. It is enough the plea, in substance, constitutes a defense to the action, and it need not be so formal in its statements it would not be obnoxious- to a special demurrer. Fraud and covin in procuring a judgment have always been held to vitiate it, and to constitute an effectual bar to any recovery on the record. The objection taken as to the sufficiency of the plea is, it does not state in what the fraud alleged consists.
There is authority, entitled to the highest consideration, that in such a plea it is sufficient to allege fraud and covin generally, without showing such fraud specially. Sherwood v. Johnson, 1 Wend. 445.
Whether the matters in the plea are defectively stated or not, I am unwilling plaintiff should have further execution of her judgment over the solemn admission made on the record by the demurrer that it was obtained by fraud and covin.
In my opinion the judgment should be reversed and the cause remanded that the court might have opportunity to dispose of the demurrer.