17 D.C. 548 (D.C.D.C. 1888), 4083, Jackson v. Hulse
|Docket Nº:||Equity. 4083.|
|Citation:||17 D.C. 548|
|Opinion Judge:||Mr. JUSTICE MERRICK:|
|Party Name:||DAVID JACKSON v. MARGARET HULSE, ET AL.|
|Attorney:||MESSRS. W. D. DAVIDGE and FRED. W. JONES, for plaintiff: MESSRS. JAMES M. JOHNSTON and CALDERON CARLISLE, for defendants:|
|Case Date:||October 15, 1888|
|Court:||Supreme Court of District of Columbia|
1. A promissory note given by a married woman is at common law absolutely void, and so also is a judgment confessed by her.
2. A joint judgment which is void as to one of the parties is void as to all.
APPEAL from a decree dismissing a bill filed to enforce a judgment.
THE FACTS are sufficiently stated in the opinion.
The judgment is conclusive until set aside in the Court which rendered it. Coit vs. Haven, 30 Conn. 190; Cook vs Darling, 18 Pick. 393; Granger vs. Clark, 22 Maine 128; 2d Am. Leading Cases (ed. 1857), 812 and cases there cited.
At most, the judgment was only voidable as to the minor, and was valid as to the adult defendants. Crane vs. French, 1 Wendell 311; N. Y. Bank Appeal, 36 Penn. St., 458; Hall vs. Lanning, 91 U. S. R., 160.
Hall vs. Williams, 6 Pick. 232, that " a judgment being entire, if a nullity with respect to one, is also to the whole" has been not only modified but overruled in many subsequent cases, which decide that the judgment is only voidable as to the defendant, who was either not summoned, or was an infant, or who was otherwise not properly before the Court. Stockwell vs. McCracken, 109 Mass. 84; Hendrick vs. Whittemore, 105 Mass. 23; Henderson vs. Staniford, 105 Mass. 504.
The cases are numerous where judgment has been vacated as to one party but held good as against the other. Motteux vs. Staubin, 2 W. Black, 1133; Ashlin vs. Langton, 4 Moore & Scott, 719; Gerard vs. Basse, 1 Dallas 119; Silvers vs. Reynold, 2 Harr. (N. J.), 275; Crane vs. French, 1 Wendell 311; Douglass vs. Massie, 16 Ohio 271; Newberg vs. Munshower, 29 Ohio St., 687; Harvey vs. Drew, 82 Ill. 606.
The note and power of attorney, and the judgment obtained thereon are void because founded on an illegal consideration as to all the defendants. " Ex maleficio non oritur contractus." " Ex turpi causa non oritur actio." " Ex dolo malo non oritur actio ."
The note was given in place of a forged note to " stifle a prosecution" for forgery against H. D. Smith. Keir vs. Leeman, 6 Q. B., 308-9 Q. B., 394.
The power of attorney was obtained on the same pretext, and for the same consideration, and effectually prevented exposure of the illegality in the suit at law. Thomas vs. Lloyd, 9 Md. 536, note.
The judgment was obtained solely by virtue of the power of attorney, none of the defendants being served with process; and if this could make an illegal contract enforcible, the law would be made to lend its forms to defeat its own substance. Ibid.
The real object and effect of the agreement is what makes it illegal— and it matters not that there is no express agreement to compound a felony, if the Court can clearly see from the circumstances and situation of the parties what were the real object and effect of the agreement. Williams vs. Bayley, L. R., 1 H. L., 200.
It was contended in the lower court that Jackson was not estopped from enforcing his judgment because he had never actually contracted to withhold or abandon the criminal prosecution, in consideration of receiving a new note signed by defendants. But this is not necessary, for all the defendants signed the note and warrant of attorney, with the conviction on their part that these would, in fact, prevent the criminal prosecution. It was the pressure of the situation and of this conviction which alone led them to execute the new note and the warrant of attorney. Williams vs. Bayley, L. R., 1 H...
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