Fricks v. Miller

By the Court.— BROWN, C. J., delivering the opinion. The judgment against (Collins and the other officers was obtained in 1866, after the Courts of this State, recognized by the Government of the United States, had been opened, in which the .defendants 'would have been heard to set up the illegality of the consideration of the note. If they 'desired to defend on that ground, it was their duty to make the defence before (judgment. Having failed to do so, we think they are not now entitled to go behind the judgment to allege the illegality of the consideration of the contract, and that they could only have opened it within twelve months after the adoption of our present constitution, for fraud, illegality, or error of law, 'in procuring the judgment. If the suit had been brought in the Courts during the war upon such a note, and judgment had been rendered upon it, we are not prepared to say the same rule would apply. The Courts as then organized would not have heard such a defense, as they would have been bound to hold the consideration a legal one: and in such a case, we think the defendant might have moved to open the judgment, at any time before the expiration of the year, after the adoption of the Constitution, for the purpose of showing the illegality of the consideration. But no such reason applies where the suit was brought in the Courts, since the war, as no such rule of public policy then excluded the defense. *We hold that the judgment against Collins and others, which it was the duty of Miller, the defendant, to pay, is a sufficient consideration to support the note, given in [277] payment of it, which is the foundation of the present action. But it is insisted that Miller gave the note with the understanding that he was to have the benefit of any action of the. legislature “killing old debts.” Admit this, and we do not see how he is benefited, as there is no such Act killing the judgment for which he gave this note, unless it were attacked within the year, for fraud, illegality or error of law, in procuring it. If the defendants intended to rely upon the illegality of the original contract, they should have done so at the proper time and in the proper form. Judgment reversed. McCAY, J., concurred, but furnished no opinion.