
    AUSTIN AND MELVILLE v. BROWN.
    Can an attaching creditor, come into Court and call in question, a judgment regularly entered against his debtor, by another plaintiff, quere ?
    
    
      S. R. Hamilton,
    
    in behalf of Hoy a plaintiff in attachment against Brown, applied for a rule" to shew cause &c. or for an order for a feigned issue to try the fairness of the judgment entered by confession on bond and warrant of attorney, in favor of Austin and Melville, and read an affidavit of Hoy that he believed the judgment to be fraudulent.
    
      H. W. Green contra,
    contended that no such application can be made except by a judgment creditor: that the affidavit did not disclose sufficient ground for such a rule, and that it was taken without notice.
    He cited 5 Halst. R. 348, Worthy and al. v. Scudder and al.
    
   Hornblower, C. J.

I cannot conceive that a mere party litigant is entitled to come into Court and question a judgment regularly entered. The applicant has issued an attachment, the object of which is to compel the defendant’s appearance. The effect of the levy is the additional security, in case of recovery, but there must be property legally attached. In this case it had been levied on under an execution.

The applicant has failed to lay before the Court such prima fade evidence of fraud as would Justify any interference of *nc Court. Such facts should be disclosed, on which if true, ¡.Le Court may open the judgment.

Fold, J. If it appear Jiat a judgment is fraudulent, I am inclined to think a plaintiff in attachment may have a right to investigate it. But it must appear by facts sufficient to raise a belief in the Court, of the unfairness of the judgment. The affidavit in this case is defective.

Ryerson, J. The applicant’s affidavit is only as to his belief. There is no fact or ground stated on which we can be authorised to interfere with the judgment.

I have doubts of the right of an attaching creditor to make such an application.

Rule refused.  