
    Reed, survivor, &c. vs. Pratt and Taylor, impleaded with others.
    In debt against several on a judgment of the supreme court of Ohio, two of them, viz. P. and T. pleaded that it was void for want of jurisdiction, having been rendered in a suit of which neither they nor their co-defendants had notice, and that none of them appeared therein, &c.: Replication, that P. and T. employed an attorney to appear in the suit, and did, by said attorney, so appear, as well for themselves, as for the other defendants, &c. On demurrer to the replication, it was sustained, and the matter contained in it held sufficient to estop P. and T. from alleging either their own non-appearance or that of the other defendants.
    Whether any of the defendants could be allowed, in such case, to set up their nonappearance in contradiction of the record, quere.
    
    A judgment of a domestic court of record, importing that the defendant appeared by attorney, cannot be avoided collaterally by showing that the appearance was without authority; the party’s sole remedy being by motion to the court which rendered the judgment.
    Demurrer to replications. The action was debt on a judgment in the supreme court of Ohio, rendered against Hiram Pratt, William F. P. Taylor, Gilbert Knapp, Eliphalet Tinker and Charles Forsyth.
    The defendants, Pratt and Taylor, pleaded several pleas; the third of which was, that all the defendants were non-residents of Ohio, when the suit, which resulted in the judgment, was brought, and that they continued so until after the judgment was recovered; that neither was arrested in said suit, or personally served with process, &c.; that they did not appear, (fee., nor did they authorize "any attorney, (fee. to appear, &c. The said Pratt and Taylor pleaded a fourth plea, alleging the like with respect to the defendant Knapp; also a fifth and sixth plea, alleging in each the same facts in regard to the defendants Tinker and Forsyth, respectively. None of the defendants, save Pratt and Taylor, interposed any plea.
    The plaintiff replied to the third plea, that the defendants, Pratt and Taylor, authorized A. & S., attorneys, (fee., to appear, and that, by said attorneys, they did appear, &c.; as well for the said Pratt and Taylor, as fop the other defendants, viz. Knapp, Tinker and Forsyth, &c.; praying judgment whether Pratt and Taylor ought to be permitted to allege non-appearance against their own act, &c. To the fourth flea, the plaintiff replied the like estoppel of Pratt and Taylor against setting up the non-appearance, &c. of the defendant Knapp; and to the fifth and sixth fleas, the same, as to the defendants Tinker and Forsyth, respectively.
    The defendants, Pratt and Taylor, demurred to the above replications, and the plaintiff joined in demurrer.
    
      iS. G. Haven, for the defendants.
    
      W H. Green, for the plaintiff.
   By the Court,

Cowen, J.

On the pleadings, the case is this: These five defendants were sued in the supreme court of Ohio; and all appeared by attorneys under the retainer of Pratt and Taylor. These two authorized the attorneys to appear for the whole. Judgment was accordingly obtained against all. Now in a suit here against all upon that judgment, Pratt and Taylor, the only parties brought into court, plead a want of jurisdiction in the court of Ohio, on the ground (inter alla) that there was no appearance in that court. This I think they are clearly estopped to do even independently of the more general question, whether the appearance of an attorney without authority, would not of itself be an estoppel. They were themselves the authors of a retainer and appearance, steps which led the plaintiffs to go on and take judgment against all; and now they alone, (not the defendants for whom they caused the appearance,) set up the want of authority. This is in the face of their own act which led not only to the judgment in Ohio, but the action of debt here. To allow them to plead as they have done, would be to legalize the grossest iniquity in direct terms. We need not inquire how it would be as to the other defendants. They do not plead. Pratt and Taylor have raised against themselves an estoppel in fais; and carried it into the record. They are precluded from all right to plead as they have done, by a double estoppel.

I am by no means prepared to admit, even had the other defendants pleaded their non-appearance, that we could have allowed their plea. We certainly could not in respect to a judgment of our own; but should have put them to a motion grounded on merits, when we might have opened the judgment upon terms. The appearance of an attorney in a court. of record, whether with or without actual authority, is a good appearance as to the court, and so far binding on the party that he cannot question its validity in a collateral way. Constitutionally, we are bound to give full faith and credit to a record or judicial proceeding in á neighboring state which asserts the fact of appearance by an, attorney in one of its courts. That measure of faith could hardly be called full, which should allow to be raised collaterally, a question against which our own records would conclude. It is by no means clear, therefore, that the party aggrieved should not be turned over to the foreign court for relief. But on this point it is not now necessary to pronounce definitively. There must be judgment for the plaintiff on the ground of estoppel as against Pratt and Taylor.

Bronson, J.

dissenting. If the plaintiff had replied that all the defendants did appear in the Ohio suit, the record, when produced, if it showed an appearance of all by attorney,. would have been prima facie evidence that they were regularly in court. (Shumway v. Stillman, 6 Wend. 447.) Should the defendants Pratt and Taylor then give evidence to show that the attorney had no authority to appear for the other defendants, and it should thereupon be an-' swered that Pratt and Taylor employed and authorized the attorney to appear for all, it would then be a question for the court and jury upon the evidence whether Pratt and Taylor were not concluded by their act in employing the attorney for all, from setting up his want of authority as to the defendants Knapp, Tinker and Forsyth. Questions of a similar character have often arisen upon evidence, but I have not met with any case where they have been made by the pleadings. Estoppels by matter of record or in writing may, and sometimes must be pleaded, if the party intends to rely on them; but such is not the rule in relation to estoppels in pais. In The Welland Canal Co. v. Hathaway, (8 Wend. 483,) it was said by Nelson, J. that estoppels in pais cannot be pleaded, but are given in evidence to the court and jury. I see no reason for questioning the correctness of that remark.

Judgment for plaintiff. 
      
       See the observations of Cowen, J. in The People v. Bristol and Rensselaerville Turnpike Co. (23 Wend. 230,) and the cases there referred to
     