Shulze's Appeal

The opinion of this court was delivered by Gibson, C. J. ' That the record of a judgment can. affect only parties and privies, and that no one shall have advantage 'from it who would not have been prejudiced by it, are principles with which every lawyer is supposed to be familiar. On what principle, then, did the inactive creditors think to gain an advantage from the successful activity of Lawshe, who alone contested the fairness of Shulze’s judgment and undertook to prove it collusive ? Had the jury found it to be fair, the verdict would not have bound the other creditors; and Shulze would have been exposed to the vexation of encountering them in turn, or as many of them as were willing to contest the matter with him. His position would have been unequal and disastrous, if a verdict in his favour could havd given him no more than a single point, while a verdict against him would have lost him the game. t It has been urged that the style of a feigned issue is a matter of arbitrary arrangement, designed to disclose, not the names of the actual parlies to the contest, but the fact to be tried; and it is alleged that all the creditors' were active parties at the trial, and incurred responsibility for costs. Were it at all material, we should look in vain into the record for any trace of this activity. It was indeed said by the judge, that Lawshe was contesting the fairness of the judgment for himself and the other creditors but he surely knew that Lawshe had no right to contest it for those who had not challenged it; for if he could not bind them by his proceeding, he could not benefit them by it. One person may acquiesce in a transaction known by him to be honest, while another may nevertheless avoid it; and each must be allowed to act for himself. Nor is it less certain, that a court will go beyond the record, for the actual parties to a suit no further than to charge them. Besides, a judge’s charge is filed under our statute, not to record matter, of facts, but to be revised in matters of law; and it is part of the record for no other [254] purpose. But that is immaterial. It does not appear by the petition to originate the proceedings, which was filed and sworn to by Lawshe alone, that there was a suggestion of collusion by any one else. The inception of the proceeding was well enough, if the object was to try the question of fraud only for the benefit of Lawshe; but the nature of it was misconceived, if it was meant to try the question for the benefit of any one else. The motion to open the judgment in Whiting v. Johnson, 11 Serg. & Rawle, 328, which is appealed to as a precedent, was made in behalf of the creditors generally; and, to complete the parallel, the petition for the issue should also have been signed by the creditors generally — the very thing on which the case is deficient. At that time, the practice was not to award a collateral issue, but to open the judgment, as it was termed, on motion sustained by affidavit, and try the matter on pleadings in the action ostensibly between the original parties; but the creditors, though not formally parlies, were actually so. The proceeding was one of those miserable shifts to which we were driven for want of the powers of a court of Chancery. The statute on which the present proceeding is founded, directs that a suggestion of fraud be tried in a collateral issue to which the parties may be fabulous; but it seems to be forgotten that, as the whole is a chancery proceeding, the name of the actual parties ought to appear as complainants and respondents. If they do not, we shall have gained little by the statute. It is proper, however, that there be not only actual parties, but a distinct statement of the contested facts — ■ not the whole of the case as a subject of scuffle before the jury — so that in distributing the fund on the basqs of the verdict, the court may have to deal with no more than questions of law. For want of attention or skill in this matter, we are often confounded by the rude and undigested mass in which such proceedings are sent to us. At the present term we have had a general verdict, on, what was called, an issue without declaration or plea, between one of the lien creditors as plaintiff, and all the rest as defendants; in which complicated claims to priority were thrown promiscuously before the jury, under the direction of the court, as the arbiters of both fact and law. Such a proceeding is discreditable to a court which allows it, as well as to counsel who resort to it; and I take leave to say that another of the same stamp will not be received here as a ground of adjudication. On the state of the record, as it appears before us, the decree was manifestly wrong; but as the creditors, who omitted to contest the fairness of Shulze’s judgment, may have done so under a belief that Lawshe’s issue would serve for all, we think it the safer course to [255] remit the record, with direction to allow them to come in at the first term, an'd litigate the matter jointly or severally for themselves; and to make distribution according to the event. Decree of distribution reversed, and record remitted for further proceeding.