3436. Set-off in equity. The jurisdiction of a court of equity in relation to set-offs is more extensive than that of common-law courts; and when the defendant in one of the judgments is insolvent, and the plaintiff in the other is not the real party in interest, but a trustee for the insolvent defendants in the other judgment, a court of equity will decree a set-off.21 Where the parties to two judgments are not the same, a court of common-law jurisdiction can not set off one against the other; but a court of equity will look beyond the nominal to the real parties in interest, and adjudicate the rights of the parties accordingly.2 22 A court of equity will not permit a cestui que trust, who was insolvent, to enforce and collect, through his trustee, a judgment against a party who holds a just and valid demand against the cestui que trust, which he has no means of enforcing or collecting if a set-off is denied.23 An action brought in a court of equity to enforce a set-off of one judgment against another is "an action upon a judgment or decree," within the meaning of section 17 of the Statute of Limitations, and may be brought at any time within five years of the date of the judgment or decree.24 § 3437. Several pleas. Where there are several pleas to the country, with the plea of nul tiel record, and the parties go to trial, generally it will be presumed here that the issues were respectively decided by the proper tribunal.25 § 3438. Void judgment. Although the existence of a judgment, relied upon for the relief sought, is admitted by the answer, if the plaintiff proceeds to put it in evidence, and it is void upon its face, the court will treat it as forming no grounds for the plaintiff's action.26 So where by his answer, in an action upon a judgment, the defendant puts in issue the existence of a regular, valid, and legal judgment, any evidence tending to show the judgment illegal or void is competent. Hence, under such pleadings, after the plaintiff has produced a certified copy of the judgment record, the defendant may prove the statute, a rule of court (the judgment being a foreign judg21 Hobbs v. Duff, 23 Cal. 596. 22 Id. 23 Id. 24 Id. 25 Wall's Administrators v. Fife, 37 Penn. St. 394. 26 Ely v. Cook, 2 Hilt. 406; S. C., 9 Abb. Pr. 366. ment) showing the same to be irregular, and a certified copy of the record showing an order of that court vacating the judgment on the ground of such irregularity, although the vacation was made subsequent to the issue in the action. This is competent under a general denial, for it shows that no such judgment as the plaintiff has alleged in his complaint has in reality existed; that it never existed except in form, and was ab initio unlawful, irregular and void. § 3439. When debt accrued. This defense may be pleaded to an action on a judgment, founded on a debt existing when the bankrupt filed his petition, but which judgment was recovered before the discharge was granted, so that the defendant had no opportunity of pleading such discharge in the prior suit.28 Otherwise, if the discharge might have been pleaded, but was not in the original action.29 § 3440. The same-invalidity of a foreign judgment. Form No. 790. [TITLE.] The defendant answers to the complaint: I. That no summons or copy of the complaint, or either, was served upon him in the action mentioned in the complaint. II. That he never appeared, in person or by attorney, in said action.30 27 Kinsey v. Ford, 38 Barb. 195. An allegation of merits should be made in a complaint or answer denying the validity of a judgment as an earnest of good faith, but such allegation is not essential or traversable. Wilson v. Hawthorne, 14 Col. 530. 28 Dresser v. Brooks, 3 Barb. 329; Fox v. Woodruff, 9 id. 498; Johnson v. Fitzhugh, 3 Barb. Ch. 360; Clark v. Rowling, 3 N. Y. 216; 53 Am. Dec. 240. 29 Steward v. Green, 11 Paige, 535. 30 Facts in opposition to the record of a judgmert obtained in one state can not be alleged to contradict the judgment in an action brought upon it in another state. A judgment in one state is conclusive between the parties in another state. Field v. Gibbs, Pet. C. C. 155. In an action upon a judgment of the court of another state the record may be contradicted by evidence of facts impeaching the jurisdiction of the court, but where it is shown that the court had jurisdiction its judgment is conclusive and can not be inquired into. Guthrie v. Lowry, 84 Penn. St. 533; and see Graham v. Spencer, 14 Fed. Rep. 603; Gilman v. Gilman, 126 Mass. 26; 30 Am. St. Rep. 646. For form of defense, for invalidity of a foreign judgment, see Long v. Long, 1 Hill, 597; Shumway v. Stillman, 6 Wend. 447; Starbuck v. Murray, 5 id. 148; 21 Am. Dec. 172; see, also, § 3441. The same — invalidity of judgment against nonresident. [TITLE.] Form No. 791. The defendant answers to the complaint, and alleges: I. That the action in which the supposed judgment against him was alleged to have been recovered arose upon an alleged contract. II. That when the action was commenced, this defendant was a nonresident of the state of California and a resident of Illinois. III. That he never appeared in that action and never was personally served in the state of California, or elsewhere, with summons therein. IV. That no order for publication of the summons in that action was ever made [or state other facts showing failure to obtain jurisdiction]. 8 3442. The same [TITLE.] -- fraud in obtaining judgment. The defendant answers to the complaint, and alleges: I. That after the commencement of the action mentioned in the complaint, the said plaintiff came to this defendant, and with intent to deceive him and prevent him from defending it, falsely and fraudulently represented [here state the false representations, detailing the fraud fully and explicitly]. § 3443. Fraud. In an action on a foreign judgment, matters of defense alleging fraud in the obtaining of that judgment, even if conceded to be frivolous, can not be held irrelevant, so as to be stricken out.31 A plea of fraud in obtaining a judgment sued upon can not be demurred to generally, because not showing the particulars of the fraud set up. Going to a matter of form, the demurrer should be special.32 Fiske v. Anderson, 12 Abb. Pr. 8; Force v. Gower, 23 How. Pr. 294. It is not enough merely to allege that his domicile was elsewhere. Shumway v. Stillman, 4 Cow. 294. 31 Fassnacht v. Stehn, 5 Abb. Pr. (N. S.) 338. The prevailing doctrine is, that a plea of fraud is not admissible in actions on judgments of sister states, where there was jurisdiction of the person and subject-matter, unless it can be set up in the courts of the state rendering the judgment. Ambler v. Whipple, 139 Ill. 311; 32 Am. St. Rep. 202, and note. 32 Christmas v. Russell, 5 Wall. 290. CHAPTER VIII. ANSWERS ON THE MONEY COUNTS. 3444. Denial of receipt. [TITLE.] Form No. 793. The defendant answers to the complaint: That he has not received the money mentioned in the said complaint, nor any part thereof. § 3445. The same accounting and payment. [TITLE.] day of .... The defendant answers to the complaint, and alleges: he accounted with and paid over to the plaintiff all money received by him up to that day, as such agent of the plaintiff. § 3446. Discharge in bankruptcy. In an action of assump sit, for money had and received, the defendant pleaded a discharge in bankruptcy. The plaintiff replied that, in the proceedings of the defendant in obtaining his discharge, the defendant was guilty of fraud, and of the willful concealment of his property and rights of property. The defendant rejoined, traversing the fraud and the willful concealment, and concluding to the country: it was held, on demurrer, that the rejoinder was bad; that the replication was bad also, in attempting to put in issue several distinct matters, and that the plea was good, notwithstanding that it contained no specific averments that the debt was one provable under the bankruptcy, or that the defendant had received a certificate of discharge, or that notice of a hearing was given to the creditors before the discharge was granted.1 § 3447. General denial-insufficient denials. An allegation in the complaint that the defendants sold plaintiff's property 1 Weld v. Locke, 18 N. H. 141. for a certain sum, and that they "have had the use of and interest upon said money since it was received by the defendants for the plaintiff's use," is sufficiently controverted by a denial in defendants' answer' that they sold the plaintiff's property, or that they received therefor any money whatever to the plaintiff's use. If the complaint avers that the defendant is indebted to the plaintiff in the sum of three thousand dollars gold coin, for so much money received by defendant for plaintiff's use, and the answer denies that the defendant received three thousand dollars in gold coin for plaintiff's use, it is only a denial of its receipt in gold coin, and does not raise an issue. § 3448. For money lent-denial of loan. Form No. 795. [TITLE.] The defendant answers to the complaint: That the plaintiff did not lend him the money mentioned in the complaint, nor any part thereof. § 3449. For money paid — denial of request by defendant. [TITLE.] Form No. 796. The defendant answers to the complaint: I. That he never requested the plaintiff to pay any money to A. B. II. That he never promised to pay any money to the plaintiff, on account of any money paid to the said A. B., or at all. § 3450. Assignment of claim. To an action for money due, a plea on equitable grounds that plaintiff assigned the debt to D., who notified defendant that assignment is still in force; that defendant is still liable to pay D.; that the action is not brought for the benefit nor with the consent of D.; that if the plaintiff recovered, the defendant would still be obliged to pay D., is good. In an action to recover money alleged to be due 2 Robinson v. Corn Exchange Ins. Co., 1 Abb. Pr. (N. S.) 186. 3 Leffingwell v. Griffing, 31 Cal. 231; see § 3174, ante. Where, in his complaint, the plaintiff alleges indebtedness as a substantive fact, instead of averring the facts out of which the indebtedness grew, as a conclusion, the defendant may treat it as an alleged fact, and so deny it in his answer. McLaughlin v. Wheeler, 1 8. Dak. 497; and see Quinn v. Lloyd, 41 N. Y. 349; § 617, ante. 4 Jeffs v. Day, L. R., 1 Q. B. 372. Vol. II -89 |