Lyon v. Boilvin

The Opinion of the Court was delivered by Scates, J.* H. L. Kinney drew a bill upon Lyon & Howard, who accepted the same. Webster, the payee, indorsed it to Boilvin, who sued the acceptors. After four summonses were returned “not found,” the' record shows that the defendants came, by Champlin their attorney, and entered their appearance, and on their motion the cause was continued until the May term 1842. At that term, after reciting that “it appearing to the Court that process of summons had been served,” the defendants were called, a default entered, and judgment for debt and interest. At the November term 1843, the defendants, by Butterfield their attorney, moved to set aside and vacate the judgment. On cross motion of plaintiff below, the Court ordered that the entry of judgment be amended so as to recite that defendants entered their appearance by their attorney, instead of the recital of service of process. On defendants’ motion, it was ordered that they have until the first day of March then next to plead issuably, and that all further proceedings on the judgment be stayed, and which should stand as security for the plaintiff, and cost to abide the event. These several decisions were excepted to, and are assigned for error. It appears from the affidavits read in the Court below, that Champlin was not the attorney of defendants, and had no authority from them to appear in the case for-them in any manner. To the first point; the Court unquestionably had the power, and did right in correcting clerical mistakes, as it was doubtless one, in reciting service of process, against the officer’s return. In amending, it was proper to make the entry recite truly what already appeared on the files, to wit, an appearanee by attorney, and so make it good, in affirmance of the judgment. Rev. Stat. 48, ch. 5, §§ 2, 3. As to the second point; how far may a Circuit Court give relief under such circumstances ? Shall the party be driven into chancery to vacate or enjoin the judgment, and to a suit at law against the attorney, simply to preserve a fiction that records import absolute verity, and cannot be contradicted? The first is too dilatory and expensive to comport with justice; and the Courts in Ohio have refused the relief there, upon the ground, that the party had his remedy at law by motion to the Court rendering the judgment. Critchfield v. Porter, 1 Ohio Cond. R. 656. The other is too difficult of proof, and doubtful of satisfaction in cases of insolvency. But, while we afford a summary relief by asserting a power in the Circuit Court to vacate the judgment, we should not, on the other hand, go to the opposite extreme, and deprive an innocent of all the fruits of his diligence, as might be the case in allowing other junior judgment creditors to acquire prior liens, if the judgment was unconditionally set aside; possibly purchasers under it might, also, be involved. If the defendants are let in to make a defence, and can show a meritorious one, in bar of a recovery, the former judgment will go for nought. But when they come to ask a favor, they should not complain, if such terms accompany it as will secure the plaintiff in statu quo, so far as he may maintain his claim. We are of opinion, the Court may set aside the judgment wholly, or partially, and upon terms, as was done in this case; and so, according to circumstances, securing to innocent plaintiffs their just advantages, and stripping the faulty of all. The defendants will have every opportunity and advantage of showing their merits, and making their defence, and without injuring the plaintiff; only preserving to him his lien and precedence, should he maintain his demand. The defendants ought to enter their appearance, plead and try the merits. Such was the decision in Denton v. Noyes, 6 Johns. R. 295, after reviewing the authorities, and we approve the precedent. This Court has decided substantially the same principle, that relief should be given, in the case of Sloo v. The State Bank, 1 Scam. 428. From the review of authorities in Denton v. Noyes, it appears that the Courts in England have decided both ways, according to the particular circumstances. In the case in 1 Salk. 88, the Court refused to set aside the judgment, remarking, that if the attorney be not responsible, or suspicious, they would set it aside. See, also, 1 Salk. 86; Cro. Jac. 695; 1 Strange, 693; 2 Barnad. 232; 1 Binney, 214, 469; 1 Keble, 89. See Contra, 2 Show. 126, 161; Barnes, 239; 1 Term R. 62; Pothier, title “Con de mandat,” No. 130. The objection taken, that Champlin was not an attorney at law for want of enrolment in the 'Supreme Court, cannot avail any thing, because it does not appear of record in the case, that such was the fact. The party cannot be allowed to treat the Roll of Attorneys in this Court, as a part of his record without incorporating it by his bill of exceptions. The last error that we deem important tobe noticed, is the refusal of the Court to continue the cause at the November term 1844. The issues were non assumpsit, and a notice of special matter, the same as set forth in Howard’s affidavit, and upon which the cause had been continued at the Spring term. It stated that the bill was an accommodation bill, drawn on, and accepted by defendants, merely for the purpose of enabling Kinney to get the same discounted at the United States Bank at Philadelphia, to pay defendants a debt he owed them, and that Kinney was to meet the bill at maturity. But that lie perverted the bill to a different use than that for which it had been drawn; that Boilvin did not receive the same for value in the ordinary course of business, but merely for collection on Kinney’s account. He expected to prove these facts by Daniel F. Webster, who resided in Washington City, but who had sailed for China, as Secretary of Legation to Caleb Cushing, our American Minister. The affidavit of defendant’s attorney was also read, stating that a dedimus had been sued out on the 4th day of March, 1844, and forwarded to Mr. Cushing to take Webster’s deposition, but that it had not been returned for want of time, and that this is material evidence, as disclosed in said Howard’s affidavit, filed at last term to which he refers for that purpose. The Court refused the motion and tried the cause. The correctness of the decision depends upon diligence, materiality and competency. The materiality is unquestionable, as he proposes to prove the substance of the notice. The diligence, I think, equally so. They had until the first of March to plead. Before plea and issue it would be difficult to know to what facts to direct the interrogatories; and I think he used diligence in sueing out the commission. How long should the Court continue for the execution and return of a commission from China? The defendants say there has not been time. We must take this, or act upon our general information, derived from sources accessible to all, as to the geographical position of, course of navigation to, and state of intercourse with China, or else require the unpardonable prolixity in the affidavit to set it all forth. I know not how long it would require, neither as a matter of law, nor fact. But in exercising a sound supervisory discretion, and acting upon such information as I possess, I feel warranted in saying that a year is not unreasonable time, if it be even long enough, according to the present course of navigation and intercourse between the two countries. The Court is of opinion there was diligence. The question of Webster’s competency is one of greater difficulty, though not without authority to govern it. While we admit, and approve the general rule as laid down in Walton v. Shelley, 1 T. R. 296, 1 Greenl. Ev. 430, § 385, and authorities cited in note 2, and sanctioned in 9 Peters, 51, 57, that a party to a negotiable instrument shall not be received as a witness to impeach it, yet Webster, in this case, would fall under an exception to it, for it would not preclude him from testifying to facts and circumstances transpiring after the making the instrument. 6 Ohio, 246. Nor does it seem to me, that it would in a case like this set up in the notice where the plaintiff is alleged to act as a mere collector or agent for the drawer. And in like manner where the assignee took it, with notice of all the circumstances and purposes for which it was drawn. The witness is not called to prove that the bill was void, or illegal, or tainted with any turpitude; but to show that it was designed to use the bill and its pioceeds for a particular purpose, which has been perverted. To allow the contract to be violated, and an advantage gained by the drawer, by a mere transfer or assignment to an agent to collect for his own use, would be a fraud upon the acceptcis. The indorser may be a competent witness to prove how it was to be used, without impeaching the validity of the bill; it is only attacking the subsequent misuse of it. Under these peculiar circumstances, it has been held that the Court would not, upon a motion to continue, decide a question of competency, or admissibility of evidence. 1 Dowl. & Ryl. 159; 5 Cowen, 16. It may be well enough, as a general rule, and it might he frequently dangerous to determine questions so grave and important upon ex parte motions, and without debate. But the question has now been solemnly argued before us, and considered, and so far as facts appear upon this record, we are of opinion that Webster is admissible to prove the facts before us. We are, therefore, of opinion that the Circuit Court erred in refusing the continuance. Judgment reversed with costs, and cause remanded with directions to award a venire de novo. Judgment reversed. Footnotes [*] Purple, J., having been of counsel in this cause, took no part in its decision.