
    The Same v. The Same.
    
      Held, that the residence of a defendant within the circuit of a judge, was alone sufficient to give him jurisdiction in an equity suit, although neither the cause of action had arisen, nor was the subject matter in controversy situated within his circuit.
    The three classes of cases in which an equitable jurisdiction was given, are dis- • tinct and separate, so that the existence, within a circuit, of any one of the facts upon which the jurisdiction was made 'to depend, was sufficient to justify its exercise.
    An amendment of a bill 'in equity not altering the title of the plaintiff to the relief sought, nor the nature or terms of the relief, is to be regarded as merely formal.
    
      
      Held, that; such .an amendment, where the bill had been taken as confessed by a defendant, did not render a subsequent decree against him irregular and void, although he had no notice of the motion to amend, nor was any copy of the amended bill served on him.
    Judgment at special term affirmed with costs.
    (Before Saxbford. Dure, & Bosworra, J. J.)
    April 6;
    May 8th, 1852.
    This was an action of ejectment. It appeared that Francis Kain, being the owner of an undivided one-half part of premises situate the corner of Greenwich and Reade streets, mortgaged the same, and afterwards died intestate. . The undivided half of the premises claimed in this action, descended to his brother, William Kain, subject to the dower of the-widow of the said Francis Kain, and to the payment of the said mortgage.
    William Kain conveyed his interest to Augustus W. Clason, the plaintiff.
    In December, 1846, Mary Ver. Yeelan, surviving executor of Henry Ver Yeelan, deceased, being the holder of the mortgage, filed her bill to foreclose the same before the vice chancellor of the second circuit, against A. W. Clason, the plaintiff in this suit, who, with other defendants to the foreclosure suit, resided in the second circuit, which suit ivas afterwards transferred from the vice chancellor’s court to the supreme court of the State of New York, in equity.
    The original bill did not state the residence of the defendants. It was taken as confessed by the defendant (the plaintiff in this suit), for want of his appearance after service of the subpoena upon him. The bill was afterwards amended, by stating the place of residence of the defendant, A W. Clason, and others residing in the second circuit.
    A decree of foreclosure and sale was afterwards made, and the property purchased by the defendant to this action, who received his deed, and entered into possession of the premises in May, 1848.
    The plaintiff commenced this suit in May, 1851, and the defendant set up the decree obtained in this foreclosure suit and his deed, in bar thereto.
    The cause came on to be tried before Mr. Justice Paine, at special term, on the 9th day of January, 1852, when, by consent, the following admissions were made :
    1st. That the plaintiff was seized in fee of an undivided half of the premises, as set out in the complaint, subject to the mortgage from Kain to Yer Yeelan, and to the right of dower of Henrietta Kain.
    2d. That the plaintiff in this action was one of the defendants in the foreclosure proceedings set up in the answer of C. G. Corley ; that he resided in Westchester county before, at, and since the time the foreclosure suit was commenced, and that some of the other defendants resided in Westchester county, and some in New York city.
    3d. That the original bill of foreclosure did not, on its face, show the residence of the defendants.
    4th. That such bill was taken as confessed against the said Augustus W. Clason, for want of appearance in said foreclosure suit.
    5th. That after such bill was taken as confessed, the complainant, in the foreclosure suit, amended the bill by stating the residence of the defendants in the county of Westchester. That the proceedings in the foreclosure suit went on without any notice to the said Augustus W. Clason, who had not appeared in the suit, and against whom the bill had been taken as confessed, and proceeded to the decree of sale.
    6th. That the mortgaged premises were situated in the county of New York.
    Both parties rested, and the defendant's counsel moved to dismiss the complaint, which the learned judge granted.
    The plaintiff's counsel thereupon excepted.
    The cause now came before the court on appeal.
    
      W. C. R. English, for the appellant, made and argued the following points:
    I. The appellant is not a party to the decree of foreclosure.
    1st. An order pro confesso is part of the ordinary process of the court to effect justice, and was properly taken against the appellant, but such process fell by reason of the amendment.
    2d. By our practice an amendment may be made, under general rules, at the peril of the party, and it is subject to the same analogies as in England, where the practice is to ask the court for permission. There, it will only be allowed to issue when it is clear that it cannot prejudice a party ; if it may prejudice him, interlocutory process falls (1 Hogan, 106, 149, 217; 2 Cox, 411).
    3d. The appellant was prejudiced by the amendment, because, upon the original bill, the court would have refused to make a decree, for the record not only showed no jurisdiction, but exclusive jurisdiction in another (6 Vesey, 685; Mitford, § 44; 1 Bland R. 255).
    4th. The record should show the jurisdiction of the vice chancellor, his is a limited jurisdiction (Hoffman C. P. p. 2; 3 Dallas, 382).
    5th. A defendant may lie by, or demur, but is not concluded by silence (9 Cowen, 229).
    6th. The amendment, after taking a decree pro confesso, was & fraud upon the court and the defendant.
    7th. The fraud is a mere question of law upon admitted facts, and a court of law can pronounce the decree void.
    II. The vice chancellor of the first circuit had exclusive jurisdiction.
    1st. The rules of construction are, that the object of a statute is to be regarded, that the various parts are to be construed so as to form one harmonious whole ; in case of repugnancy between several provisions, such construction is to be adopted, as will best reconcile the language with the spirit of the statute ; where an order of events is laid down, such order must be Strictly observed in cases where its neglect would create a conflict of jurisdiction (2 R. S. 97).
    III. The statute contemplated two cases of exclusive and one of concurrent jurisdiction.
    1st. Under the first and second clauses, neither a cause of action nor a subject matter of controversy can by the nature of things be in but one circuit, and but one vice chancellor can have jurisdiction, but by the third clause eight vice chancellors have jurisdiction. The last, therefore, is a subsidiary clause, and must be so construed.
    
      
      H. L. Riker, for the respondent, made and argued the following points :
    I. The decree of foreclosure and sale in Ver Veelan v. Kain, Augustus W. Clason, and others, is binding by way of estoppel until reversed (Fuller v. Van Geesen, 4 Hill R. 176; Davoue v. Fanning, 4 J. C. R. 203; O’Brien v. Heeney, 2 Edward R. 246).
    I. This decree cannot be inquired into in this collateral action (Fuller v. Van Geesen, 4 Hill R. 176; Murray v. Murray, 5 J. C. R. 60 and 69; Davoue v. Fanning, 4 J. C. R. 203; Bennet v. Winter, 2 J. C. R. 205).
    2d. It cannot be questioned by Augustus W. Clason, the plaintiff in this action (he being a party to this decree), except by a bill of review (Elliot v. Pell, 1 Paige R. 268; O’Brien v. Heeney, 2 Edwards R. 246; Frost v. Myrick, 1 Barb. Sup. R. 369; Davoue v. Fanning, 4 J. C. R. 203; Gelston v. Codwise, 1 J. C. R. 195).
    3d. If erroneous, it cannot be attacked collaterally in an action of ejectment against the. purchaser (Clarke v. Van Surlay, 15 Wend. 448; and on appeal, 20 Wend. 365).
    II. Courts of law will not examine into the merits of a decree of the court of chancery, under which a judicial sale has been made in a subsequent suit between a party to such decree and a stranger, a bond fide purchaser under the decree—but will leave the party to his relief in a court of equity, where ample justice can be done to all (Clarke v. Van Surlay, 15 Wend. R. 448).
    III. The decree cannot be impeached, even by third parties in a suit, in which the decree is admissible evidence (Murray v. Murray, 5 J. C. R. 60). Except for fraud, which- is not pretended in this case: or want of original jurisdiction of the court making the decree (Borden v. Fitch, 15 J. R. 134; and cases cited).
    IY. The circuit judge of the second circuit had jurisdiction, concurrently with the chancellor, of the foreclosure- proceedings, from the fact that Augustus W. Clason (the plaintiff in this action), and several other of the defendants, resided within the limits of the second circuit, at the time the foreclosure suit was commenced (2 R. S. 226, § % Subdivision 3; Brown v. 
      Brown, 1 Barb. Ch. R. 189, 213, and 216; Burckle v. Eckhart, 3 Denio R. 282; and on appeal, 3 Com. R. 131; Cromwell v. Cunningham, 4 Sand. Ch. R. 384; Bank of Orleans v. Skinner, 9 Paige R. 308; Varick v. Dodge, ibid. 150; Bicknell v. Field, 8 Paige R. 443; Exr. of Burling v. Livingston, &c., case of foreclosure of land at Utica, some of the defendants residing in the first circuit, John F. Mitchell, Esq., for compt., brought suit before V. C. of the first circuit in April, 1843; Collins v. Hawks, &c., foreclosure of lands in second circuit, some of the defendants residing in the first circuit; George T. Strong, Esq., for complainant, brought suit before V. C. of first circuit, in May, 1843).
    And that circuit judge (or vice chancellor) before whom a suit is once properly brought, acquires jurisdiction, exclusive of all other vice chancellors (Burckle v. Eckhart, 3 Com. R. 136; Brown v. Brown, 1 Barb. Ch. R. 215; Paff v. Kinney, 1 Brad. Surr. R. 6). And exclusive of the chancellor- (6 Paige R. 105, and cases cited. In the matter of the Rec’rs of the Globe Ins. Co.)
    1st. Jurisdiction is a matter of fact, and although the fact does not appear on the face of the bill of complaint, may be proved (Burckle v. Eckhart, 3 Com. R. 137).
    2. No jurisdiction appearing on the face of the bill of foreclosure, was ground for demurrer (Varick v. Dodge, 9 Paige R. 151; McElwain v. Willis, 3 Paige R. 506; On appeal, 9 Wend. R. 561; Cooper’s Pl. 5, 181).
    The amendment of the bill, stating the residence of Clason and others, cured this defect (Bank of Orleans v. Skinner, 9 Paige R. 309, 310; McElwain v. Willis, 3 Paige R. 508).
    3d. The vice chancellor’s court was a court of general jurisdiction (Foot v. Stevens, 11 Wend. R. 483).
    4th. The decree in Van Veelan v. Kain, &c., having been made by a.court of general jurisdiction, its jurisdiction will be presumed, until the contrary is expressly shown by the opposite party (Bloom v. Burdick, 1 Hill R. 139, 141; Foot v. Stevens, 17 Wend. R. 486; Hart v. Seixas, 21 Wend. R. 46; Shumway v. Stilman, 4 Cow. R. 296; Davis v. Packard, 6 Wend. R. 332; Clarke v. Van Surley, 15 Wend. R. 448).
    V. The want of notice to Augustus W. Clason, of the amendment of the bill of foreclosure, is a point of practice which cannot be inquired into in this action (Clark v. Van Surlay, 15 Wend. R. 448).
    1st. Even if it could be inquired into here, Clason was not entitled to notice, he not having appeared in the foreclosure suit (Hoff. Ch. Prac. 300; Ch. Rule 43, of 1844).
    2d. The bill being amended before his appearance, is, as far as Clason is concerned, considered as the original bill.
    VI. Corley is. assignee of the mortgage to Van Veelan, and being in possession of the mortgaged premises, this action will not lie (Olmsted v. Elder, 2 Sand. R. 328; Arnot v. Post, 6 Hill R. 67; Fort v. Burch, 6 Barb. R. 76; Phyfe v. Riley, 15 Wend. R. 248; Van Dyne v. Thayre, 14 Wend. R. 236; Jackson v. Bowen, 7 Cowen R. 13; Jackson v. De Lancy, 13 J. R. 537; Jackson v. Minkler, 10 J. R. 480).
   By the Court.

Duer, J.

Nearly the entire argument, on the part of the plaintiff, rests upon the assertion that the vice chancellor of the second circuit had no jurisdiction of the suit in which the decree of foreclosure and sale was pronounced, and, consequently, that the decree itself, and all the proceedings under it, are wholly void.

It is useless to consider whether, even, upon the supposition that the decree was invalid, the plaintiff would be entitled to recover in the present suit, since we are clearly of opinion, that the single fact that some of the defendants resided within the circuit of the vice chancellor, who made the decree, was sufficient to maintain his jurisdiction.

It must be admitted, that if the words “ concurrently with the chancellor, and exclusive of any other circuit judge,” in that section of the revised statutes (2 R. S. p. 168, § 2) which defined the equitable jurisdiction of the circuit judges, must be understood as meaning, that, in all cases, at the time of the commencement of a suit, the jurisdiction, concurrent with that of the chancellor, could only belong to a single judge, the objection .to the jurisdiction, which has been pressed upon us, (as the subject matter in controversy was in this city,) would be unanswerable and fatal; but this construction of the words in question would be directly repugnant to other provisions in the section ; nor is a resort to it, at all, necessary to explain the introduction of the words and satisfy their meaning. They may be so construed as to give to the entire section a reasonable and consistent interpretation.

The statute declares that every circuit judge within the limits of his circuit, shall have jurisdiction, concurrently with the chancellor and exclusive of any other circuit judge, in all causes and matters in equity, in the following cases :

1. When such causes or matters shall have arisen within the circuit of such judge ; or,

2. When the subject matter in controversy shall be situated within such circuit; or,

3. When the defendants or persons proceeded against, or either of them, reside within such limits.

The construction which we adopt, is, that the classes of causes here enumerated are distinct and separate, so that a circuit judge, before whom an equity suit was brought, might rightfully exercise jurisdiction, if the case could be justly referred to any one of them ; in other words, if the existence, within his circuit, of any one of the alternative facts, upon which the jurisdiction is made to depend, could be truly averred.

It is obvious, that upon this construction, several judges might have had an equal right to entertain the suit before it was brought, and the jurisdiction be rendered exclusive only by its actual commencement, since the cause of action might have arisen within one circuit, the subject matter in controversy be situated within another, and the defendant reside within a third. It seems to us, equally clear, that the terms of the law allow no distinction to be made between the alternative facts, as to their effect in conferring jurisdiction, but compel us to say, that if the jurisdiction might be exercised by a judge within whose circuit the subject matter in controversy was situated, although neither the cause of action had arisen, nor was the defendant residing within it, the fact of such residence, independent of other circumstances, would equally avail to confer the authority. In other words, residence is just as plainly stated as a distinct, substantive ground of jurisdiction, as the origin of the causes of action, or the locality of the subject matter.

If the construction, which has been stated, is rejected, there is only one other, as it seems to us, that can be adopted. It must be held, that no circuit judge could in any case acquire jurisdiction, unless by a concurrence of all the facts which are specified as conditions of its exercise ; that is, unless the cause of action had arisen, and its subject matter was situated, and the defendants, or one of them, resided within his circuit. To effect this, the three classes of cases, which the statute has so plainly distinguished, must be resolved into one, and the disjunctive “ or,” by which they are separated, be stricken out, and the connective “ and ” be substituted. We think, however, that so material an alteration of the words of the law, would be gratuitous and arbitrary. We are aware, that in the construction of a statute, as well as of a will, “ and may in some cases be substituted for “ or,” and vice versa, but this can never be done, unless the change is necessary to carry into effect an intention, which is shown, from other provisions, to be manifest and certain. We are by no means satisfied in-the-present case, that the intention of the legislature was such as to require the alteration. On the contrary, we are persuaded that the legislature could not have intended to restrict the equitable powers of the circuit judges, within such narrow limits, as the alteration, if made, would certainly have imposed. We are persuaded, that the legislature intended that, in every case, a jurisdiction concurrent with that of the chancellor, should belong to one, at least, of the judges, and cannot, therefore, admit a construction, which, in a very large proportion of cases, would have rendered his jurisdiction, not concurrent, but exclusive. It was in order to relieve the chancellor, that equity powers were vested in the circuit judges, and so far as the terms of the statute may admit,it is this intention that courts have been bound to effectuate.

It is said, however, that the construction upon which we have insisted, however reasonable it may seem, is not to be reconciled with the terms of the statute, and cannot, therefore, be admitted. It is contended, that by adopting it, the declaration that the jurisdiction of each circuit judge, in the specified cases, shall be exclusive of any other judge, will be rendered ineffectual and void ; and that in judging of the intent of the legislature, it is far more reasonable that “ or ” shall be construed “ and,” than that the significant words which contain this decíaration, and which could only have been inserted upon deliberation, shall be wholly expunged.

That the words in question have created some difficulty in the construction is not to be denied, since it is not readily understood in what sense q jurisdiction can be deemed exclusive, which several judges may, at the same time, be equally competent to exercise. The reply to the objection, given upon the argument, was that the jurisdiction was meant to be exclusive only when it had attached by the commencement of the suit, and that the words “ exclusively of any other judge,” refer to its actual exercise, not to an antecedent right. Although we were at first disposed to acquiesce in this reply, we own, that upon further reflection we have been led to doubt its sufficiency. It was certainly not necessary to declare that the jurisdiction, thus interpreted, should be exclusive, since in all cases a jurisdiction which, previously to its exercise, is concurrent, in several judges, becomes exclusive in him before whom the suit is actually brought. It is exclusive as soon as it attaches, and in this sense the equitable jurisdiction of each circuit judge was just as exclusive of that of the chancellor himself, as of that of any other judge (6 Paige 105. In the matter of the Globe Ins. Co.).

The statute, however, declares that the jurisdiction of every circuit judge as a vice chancellor, shall be concurrent with that of the chancellor, which necessarily means “ concurrent ” as an existing right, prior to its actual exercise, and it seems a just conclusion that the jurisdiction which is declared to be exclusive, refers to the same period, and means “ exclusive,” not in consequence of, but prior to, the commencement of the suit in which its exercise is required, that is, an exclusive right to entertain the suit. The words “ concurrently ” and “ exclusively,” as used, are opposed to each other ; but there is no real opposition unless they are understood in the sense that has been explained.

Yet, if we adopt this construction, it is by no means necessary, in order to give effect to the intention which, we certainly believe, was that of the legislature, that the words, which create Lhe difficulty we admit, should be wholly expunged ; but it is necessary that they should be understood, with a qualification, which may reconcile them with the provisions that follow. This qualification, indeed, is not expressed, but unless we impute to the revisors and the legislature a palpable contradiction, it is certainly implied.

We understand then the words, “exclusively of any other judge,” as applying to every, other judge who in the enumerated cases would not be competent to exercise the jurisdiction ; in other words, within whose circuit no one of the facts necessary to found the jurisdiction could be truly alleged to exist. Thus interpreted, there is sufficient room for the application of the words in the sense which it has been admitted belongs to them, and the reason and propriety of their insertion become apparent. It was foreseen, that in most cases the jurisdiction would be exclusive, as an antecedent right, in a single judge. It would be so, not only when all the jurisdictional facts were found to co-exist within the same circuit, but, in all cases, when the origin of the causes of action, or the locality of the subject matter in controversy, or the residence of the defendant, in suits against a single defendant, was the sole ground upon which the jurisdiction could be raised (Brown v. Brown, 1 Barb. Ch. R. 189; Burckle v. Eckart, 3 Denio 282, S. C.; 3 Comst. 139); and in cases not falling under either of these categories, although the jurisdiction might be concurrent, prior to its exercise, in several judges, it would yet be exclusive of some. It is true there was a bare possibility that the words “ exclusively of any other judge,” might, in some cases, not be applicable. Cases in which, before the institution of a suit, each judge would have an equal right to entertain it; but as this could only happen when one or more of the defendants resided in each of the eight circuits of the state, it is not improbable, that a contingency so very unlikely to happen, and which probably never has happened, was wholly overlooked. A possibility so remote cannot be regarded as a serious objection to the construction we have suggested.

It is this construction, therefore, that we adopt, persuaded that it explains and expresses, truly, the intent of the legislature. By adopting it, we give to the words exclusively of any other judge,” their appropriate sense ; we render them consistent with the other provisions of the section, and we relieve ourselves from the necessity of striking them out as .superfluous or contradictory—superfluous, if they only declared a consequence which, whether declared or not, must have followed ; contradictory, if they could only be understood in the literal, unqualified sense which the argument for the plaintiff requires. We repeat, that we are saved from this necessity, since assuredly we could not have sacrificed to doubtful expressions the clear legislative intent, which, we have shown, is manifested by the other provisions of the section,

We have taken more pains than might seem to be necessary to explain and vindicate our judgment, arid we have done so from the conviction that the question we are deciding is of real and grave importance. It concerns not alone the parties to the present suit. We believe that, during the whole time, that the former organization of our judiciary was in force, the understanding of the bar and of judges throughout the state, as to the jurisdiction of the vice chancellors, corresponded substantially with the views that we have expressed ; and, hence, if the decree upon which this defence is founded were declared a nullity, we should not venture to compute the number of those, upon which the like sentence might hereafter be pronounced. It is needless to dwell upon the consequences that would ensue. The multiplied and vexatious litigation, the disturbance of established titles, the ruin in which many would be involved, and the wide-spread anxiety and alarm. The continued existence of doubt, upon a question, threatening these consequences, would itself be a positive evil, and it is this, that we have been desirous to prevent. This is, probably, the first case in which an argument founded upon these doubts has been addressed to a court of justice, and, we may hope, it will be the last. We add, that although there is no decision to which we can appeal as an express authority, yet, it appears to us, that in every case in which the question as to the statutory jurisdiction of the vice chancellors has arisen, the truth of that construction of the statute, upon which we have insisted, is either admitted in terms or plainly implied. It is so in the cases we have before quoted, Brown v. Brown and Burckle v. Eckart, and in the following— Bicknell v. Field, 8 Paige 443; Bank of Orleans v. Skinner, 9 Paige 308; and Cromwell v. Cunningham, 4 Sand. Ch. R. 384.

Another ground, upon which the plaintiff seeks to recover, is, that he was not a party to the decree of foreclosure and sale, and is, therefore, not hound by its provisions and the proceedings under it. It is not denied that he was originally a party to the suit, that the bill was taken against him as confessed, and that in the pleadings and decree he is mentioned as one of those whose rights, in the equity of redemption, were meant to be foreclosed and barred.

But it is contended, that by the amendment of the bill, his prior default in not answering, was opened and superseded, and that as the amendment was made without notice, and no copy of the amended bill was served upon him, all the subsequent proceedings, as against him, must be deemed irregular and void. To this conclusion, however, we cannot assent. Although the amendment of the bill was proper, and perhaps necessary to show the jurisdiction of the court, yet as it neither altered the title of the complainant to the relief that was sought, nor the relief itself, in its substance or form, we think, it may be justly regarded as merely formal. As the facts correspond with the amendment, it worked no prejudice to the plaintiff, when made, nor does it furnish to him now, any reasonable ground of com-, plaint. . There may have been some irregularity in the proceedings, which the court in which they were had, upon application, might have corrected, but there is no irregularity that would justify us in holding the decree and the sale under it to be wholly void. We think, on the contrary, that they have given a title to the defendant which the plaintiff is not at liberty to impeach.

The judgment at special term is affirmed, with costs.  