
    Administrators of B. Cox, deceased, v. Samuel Hill and others.
    Where process is issued against several defendants, and is served upon part only, and returned not served as to others, the attorney employed by those served with process enters an appearance for all, and judgment against all, without the knowledge of the defendants not served: Held, that in a bill for contribution by those served, the others are not concluded by the judgment.
    'The attorney in such case is a competent witness in a suit for contribution between the co-defendants.
    This was a bill in chancery, adjourned here for final hearing ’from Pickaway county. The bill was originally filed in the court, of common pleas, and upon a hearing there dismissed. The complainants appealed from the decree of dismissal to the Supreme •Court.
    The bill charged that the intestate, in his lifetime, together with the defendants, signed a call for the Eev. Wm. Jones, a minister of the gospel, to minister for them, and stipulated to pay him a ■ certain annual compensation. That Mr. Jones accepted the call, and officiated for them ^several years. That finally his compensation being largely in arrear, he commenced a suit against those who gave the call, including the intestate, and the defendants and others, now removed, insolvent, and deceased, and recovered a judgment against them for four hundred and fifty-five dollars, and seventy cents debt, and fifty-two dollars and twenty-two cents costs; of which sum the intestate paid two hundred and sixteen dollars and thirty-four cents, and the object of the bill was to obtain a ratable contribution of the other defendants. Those who answered denied that they had signed the original call of Mr. Jones; denied that they were served with process in the suit at law, and denied that they authorized the attorney who entered an appearance, or any attorney to appear for them. One defendant admitted knowledge of the suit, and his liability, but alleged he had paid two hundred and forty dollars of the judgment, much more than his ratable proportion.
    The payment by the intestate was fully proved. The attorney who entered the appearance testified that he was employed only by the intestate and two others named, neither of them a defendant in chancery, who denied employing him. That some of those who employed him requested him to appear for the whole, but can not say that it was the intestate. He testified also that of the defendants in chancery none of them employed him to appear, except those of the three named. His veracity was impeached.
    The respondents alleged that the attorney was insolvent, and they could have no redress in compensation against him, as to which the proof was not explicit.
    Doan, for complainants:
    It is an established legal maxim that a judgment is conclusive upon all' the parties and privies to it, and while existing, can not be gainsayed by any of them. Swift’s Ev. 9; 1 Day, 170. Neither “can it be collaterally impeached, or called in question for any cause whatever. It can only bo questioned in duo course of law, by writ of error, petition for new trial, or application in chancery, where the direct object is to set aside the judgment in a suit between the original parties, or their representatives. Of course no action can *be maintained to recover back money paid upon a judgment while in force, nor for any wrongful act in obtaining it; for this would be to impeach it collaterally.” Such is the decisive and forcible language of that distinguished jurist, Judge Swift, in his treatise on evidence, pages 9 and 10. The same rule, says the above author, applies to a decree in chancery, though procured by false and forged testimony. Id., and Peck v. Woodbridge, S. C. E. Conn. 1808. The respondents, here, do not attempt to reverse the original judgment, nor petition for a new trial; nor do they apply in chancery against the plaintiff in that judgment to set aside the same. All these remedies wore open to them after the rendition of the judgment, and after, by their own admission, they had notice of the same. They have neglected to pursue any of these obvious remedies, and after one of their co-partners in the judgment has been compelled to pay the amount, attempt, in a suit with him, collaterally to impeach such judgment. Even if the court could, by the rules of law, thus collaterally suffer an inquiry into the consideration or regularity of such judgment, would they do it, in a case where there had been such gross laches on the part of the respondents? The defense set up here would have been pertinent to the issue between the plaintiff in that judgment and the respondents, but which theso .complainants can not be presumed to be conusant of, or qualified to meet. Hence the law forbids it from being collaterally impeached.
    In a late decision of Chancellor Kent the same doctrine is recognized, with some little modification, as that laid down by Judge Swift. He says: “A judgment of a court of competent jurisdiction can not be questioned or impeached collaterally in another court, in an action between the same parties and upon a point once put directly in issue and decided. This court can not examine into the intrinsic merits of a judgment at law without the aid of new and distinct matter, showing fraud in procuring it, or that it is used or retained against conscience.” 7 Johns. Ch. 182.
    That a judgment can not be impeached except for fraud, nor is its consideration inquired into, nor any- irregularity in the mode of its procurement, is more fully established in 3 Johns. Ch. 275, and 6 Johns. Ch. 235. In the last case the chancellor justly observes: “It is much more important to *the community that it (the rule above) should be preserved in all its force, than that even the frauds of the defendant should be detected in a way and by means of which the rules of law do not permit.” And again, he says: “I have always been struck with the wisdom of the remark of Lord Redesdalc, that 1 it is more important that an end should be put to litigation than that justice should be done in every case.’ ” 6 Johns. Ch. 238. See also 1 Johns. Cas. 436, and 1 Salk. 86.
    In the judgment now attempted to be impeached, as shown by the record, the very matter put in issue by the pleadings and decided was, whether the defendants had assumed in the article, as set forth in the declaration; that is, whether they had signed that article, and that issue is found against them. The respondents now propose, in another court, too, and that collaterally, to again inquire as to the consideration of that judgment, upon which issue has been once joined and decided against them by law. The eases above quoted from Johnson’s Eeports clearly show that this can not be done “ unless some new and distinct matter showing fraud in procuring it,” is charged and proved. There is strong doubt whether this can be done even then, except the plaintiff in that original judgment, Jones, was made a party to the suit.
    If, however, the court should think they can interfere with that judgment, although the plaintiff, Jones, is not a party here, and although it was rendered in a different court, let us see whether they have sufficient evidence of fraud in its procurement to warrant such interference. This fraud in procuring the judgment is not even alleged in the answers of Osborne, Bussell, and Latham. It is stated by Osborne and Latham that it was “ wrongfully,” and Osborne says, “unjustly" obtained; which, from the context, has a clear reference only to the appearance for them by attorney. If they have not charged this fraud in their answers they can not be permitted to adduce any proof of it. Wood alone expressly charges the intestate of these complainants with fraudulently procuring the said judgment. But he has taken no evidence whatever to establish this charge. If the evidence on this point, taken by Osborne and Latham, can not be used under their answers, Wood can not use it. As this is new and substantive matter set up by respondents, and denied by replication of complainants, full proof of the fraud must be adduced; it can not be presumed.
    *What' is this proof, then, if admissible, which respondents, Osborne and Latham, produce? It is the deposition alone of the attorney, who appeared and pleaded for these parties in the suit at law. Though ■ this deposition, if credited, falls far short of proving the fraudulent procurement of that judgment, yet it comes from a witness incompetent by interest to testify, and who stands impeached by at least four other witnesses. If a recovery is had in this action against those defendants in that judgment who were not examined, he is liable to them in damages to the amount of such recovery. On this ground, therefore, if on no other, his deposition must be excluded. Without it there is not a scintilla of proof to establish the only material fact of fraud.
    But even if he were not incompetent from interest, would the court permit an attorney, after pleading for a defendant, and suffering judgment to go against him, to come in and attempt to impeach that judgment by pretending he acted without authority, and was party to a fraud ? Would it not be equally competent and consistent with principle to admit the sheriff, after returning service upon his writ, and judgment had in consequence, to come in and disturb that judgment by swearing he never served such writ ? Under such a license what security could there be, or what certainty in a judgment?
    This pai-t of the case being disposed of, it only remains to show that an appearance by attorney to a suit is equally binding and good for all purposes, as a return of service upon a writ by the sheriff. This has been settled from time immemorial, and it is perfectly immaterial, after judgment, whether such attorney be solvent or insolvent, authorized or unauthorized. 1 Salk. 86, 88; 6 Johns. 34; Odlaid v. Dwight, 4 Cranch, 421. It is binding, too, upon the defendants, even if the appearance is procured by the plaintiff himself. Cro. Jas. 685, 694; 1 Strange, 693.
    Folsome, for respondents:
    Complainants contend that the judgment gives them a perfect equity, and that a court of chancery will, under no circumstances, look beyond it.
    Osborne and Latham say they had no personal knowledge of the suit at law; that Oox procured their appearance to *be entered, and plea filed for them without their knowledge or authority, and that they were never liable to Jones, the plaintiff in that suit, and that judgment was wrongfully procured by Oox and other defendants in that suit. They insist that none of their rights in this suit are precluded by that judgment; they were not parties to it; if they were, they became so wrongfully. An act done in wrong is, in chancery, not done at all.
    It is not necessary to impeach that judgment; it is sufficient for respondents that complainants derive no equity under it; but a judgment may be impeached if procured by fraud or collusion; and the authorities cited from Swift’s Evidence and Day’s Reports refer to a different class of cases, and have nothing to do with this. A judgment procured by fraud or collusion is not or-ly reduced to prima fade evidence, capable of being rebutted by adverse testimony, but its effect is wholly destroyed. Those principles are fully established by references, to wit: 2 Starkie’s Ev. 241-243, 254; Hull v. Blake, 13 Mass. 157, 507; Winchell v. Stiles, 15 Id. 230; Rorden v. Fitch, 15 Johns. 121; 19 Id. 164. In all these cases the principle that fraud will vitiate all judicial acts is distinctly recognized. In the Duchess of Kingston’s caso, it was resolved that admitting the sentence of the spiritual court to be conclusive, yet the effect might be removed by showing fraud or collusion. 2 State Trials, 230, 260; 1 Vesey, 159.
    So executors plead judgments recovered; plaintiff may reply they were covinous. Lloyd v. Maddox, Moore, 917. In the case of Hull v. Blake, above cited, the court say, if a party collusively submit to a judgment, which, by law, could not be recovered against him, he can derive no advantage under it if that collusion is put in issue; and on that issue failure to appeal might, under some circumstances, be sufficient evidence of such collusion. Complainants chose that right_should not bo done in this case, rather than their frauds should be attacked with too little ceremony, and seem to forget that they are in a court of chancery, where fraud is without ceremony held in detestation. The proof is clear that the judgment was obtained by fraud, and that, too, by the act of Cox or his attorney. The same attorney acted for Bell and Cox; and if Bell instructed their ^attorney to appear for respondents without authority, Cox is chargeable therewith, and the judgment is thereby vitiated. Complainants do not deny Cox’s liability to Jones, if, by the fraud of any person, judgment has been rendered against Osborne and Latham, and they deprived of legal defense to the action. Cox’s situation is not made worse for judgments being rendered against them, and, of course, it can not inure equitably to his advantage. Wrongs practiced by a stranger, which have done complainants no injury, and surely have done respondents no,good, can give them no equitable rights. He that asks equity must do equity. Let them show that respondents were liable to Jones in the suit at law. If they were not liable there, they can not be liable here. If the judgment is con- ■ elusive as to all persons, whether parties or privies, whose rights have been changed by it, or have derived titles through it, yet in a suit between co-defendants to that judgment, under the rule laid down in the Duchess of Kingston’s case, above cited, its effect may be so far avoided, that complainants can take no benefit from it. They insist that respondents are in gross laches, for neglecting to attack the judgment by writ of error, new trial, bill in chancery, etc. This is sheer grumbling. I will not inquire whether they could have disturbed that judgment, as against Jones. It is enough to say, in so doing, complainants would receive no benefit, as they have not yet suffered, they have no ground of complaint. Respondents only seek to defend themselves, and have lost no time in doing it.
    It is insisted that complainants are. not privy to anything previous to the judgment; and that they can not now, for want of that privity, be driven back of the judgment. If Cox and respondents were joint obligors to Jones, he must be -presumed to be at all times privy to the liability. I shall next inquire, what is the testimony ■that sustains the charge of fraud and collusion ? They seem to admit. that the proof is clear, but the witness is impeached. This witness was complainant’s (Cox’s) attorney, in the suit at law. An inquiry will arise, whether he can impeach him. The attorney is the agent of the client. See Phelps v. Bridge, 11 Mass. 242. The acts of the agent are the acts of the principal. He has trusted him, and must answer for him. Making him his agent, he has from ne-. cessity made him a ^witness. 4 Starkie’s Ev. 768. He has made him a witness; he can not attack his credit. The principal and agent are intimately identified. A man can not stultify himself; can he stultify his agent? His wife may be his agent, and he can not take advantage of her coverture. A man can not falsify himself; can he falsify his agent? Surely not, so far as relates to his agency. The agent is in all eases, a witness to prove his agency, and that he acted according to the instructions of his principal. 4 Starkie’s Ev. 1730. But it is said he is interested. But his interest was against the respondents, who called him. Ho was bound to answer, though his testimony subject him to a civil liability or charge. 2 Starkie, 135. But the witness is strongly corroborated in almost every material part of his testimony. If is proved that he was acting as attorney for Cox and others in that suit. It is in proof that the amount for which said judgment was rendered, was agreed on by Cox, Bell, and others, and that judgment was rendered thereon, by their direction. It appears of record, that the summons was returned not served, as to Osborne and Latham ; and that Cox’s attorney appeared and pleaded for them. It is in proof that Osborne’s name to the paper, which was the foundation of that suit, was a forgery (all this appears, independent of the testimony of the attorney); therefore, by law, no judgment could have been rendered against any of the defendants in that suit; and according to the rule laid down in the case of Hall v. Blake, above cited, the evidence of collusion is sufficiently strong. Complainants argue that the appearance of an attorney is equal to the sheriff’s return ; admitting it to be so, and after judgment it should appear that the attorney had, through mistake, entered the appearance for a defendant without authority, or that the sheriff had served his process through mistake upon a wrong person, though of the same name, aud judgment should be rendered against the defendant without his knowledge, it is not contended that the judgment would, in its operation, as to the plaintiff or third person, be affected; but in a suit in chancery, between co-defendants to that judgment, for contribution for moneys paid thereon, and against the defendant above who knew nothing of the judgment, nor of the existenoe of the suit, until after the judgment was rendered, would not these facts remove the effect of the judgment *as to that defendant, and place the parties’ equity on the original liability ? Can an equity originate in fraud, accident, or mistake ?
    Douglas, on same side:
    Without stopping to inquire whether this bill can be sustained upon any principle, it is sufficient to say, as to the respondent Wood, that nothing is so plain as the fact that it can not be sustained against him.
    
      First. He never signed or authorized the signing of the original call.
    
      Second. He was not summoned in the suit at law.
    
      Third. .No appearance was entered for him in that suit, either with or without his consent.
    Wood’s answer stands uncontradicted, that he never placed, or authorized the placing of his name to the instrument upon which the judgment at law was obtained; and the instrument is not in proof, to show his handwriting or authority: nor is it in any manner proved. Was there an appearance entered for him in the suit at law ? I answer, no ! The whole strength of the words is : “Plea, general issue notice of set-off of any payments which may have been made by defendants previous to this date.” These Pennsylvania words, even under their system, in their fullest extent, could be received as an appearance only for such defendants as the attorney was authorized to appear for; and the words themselves import that nothing further was intended. It is not the genius and spirit of our laws that the rights of absent parties should bo compromitted in such way. They are of too serious a nature to be made a catching business. Therefore, in a late case, where the attorney had entered an appearance for his client, by his own handwriting, to the suit, the court permitted him to explain by saying it was done through mistake.
    But the deposition of the attorney himself puts the matter beyond all question. Ho proves that ho never intended, nor in fact never did enter, an appearance for the respondent Wood. The bill, as to him, ought at any rate to be dismissed.
    *Doan, in reply:
    The argument of respondents' counsel, seems based upon a novel idea, viz : that complainants must show the liability to Jones, the original plaintiff at law. One would suppose the record of the judgment produced, was sufficient evidence of this liability. To require us to trace their liability beyond that would be to reverse all the common rules of evidence. It would imply the presumption that complainants could know and be prepared to investigate the dealings and transactions between the plaintiff and the respondents, to which they are presumed to be perfect strangers. On this principle there could be no end put to litigation; a judgment could never settle the rights of parties, or be evidence of anything. Such is not the law. A record showing a judgment against a certain number of defendants is conclusive evidence of the joint liability of such defendants. If one defendant pay that judgment, the others are clearly liable to contribute their proportion. To avoid this, the onus probandi surely rests upon those seeking to get rid of it. The record is sufficient evidence for complainants of respondents’ liability. It is more than mere prima facie evidence; for it can not bo gainsayed certainly, unless fraud be shown in procuring the judgment.
    
      It is contended that this fraud is proved, independent of the attorney impeached. How? It surely can not be supposed that the allegation in the answers, that the attorney’s appearance for them was unauthorized and wrongful, is any evidence of that material fact. This allegation is denied by the replication, and must of course be proved by the respondents. Not a witness, save the attorney, speaks a word to this fact, orto any other fact indicating fraud. Even if that appearance was proved unauthorized and wrongful on the part of the attorney, that would still be insufficient to attach fraud to the intestate Cox, or his co-defendants. The attorney might enter such an appearance upon his own mere motion, or by accident; and would this warrant the court to look beyond the judgment. I think this is not the kind of fraud required to justify it.
    It seems to be questioned by respondents whether, from the relation existing between the client and his attorney, the ^client can impeach him. If he can not be impeached, he certainly can not be examined as against his client. Indeed, there is strong doubt whether he can be examined, or suffered to disclose anything committed to him, as an attorney, by his client. In the original suit between Jones and these parties, he clearly could not be allowed to disclose anything of tlie kind-. Can he do so in a suit between his client and other parties, and that, too, relating to the same subject matter? I am inclined to think not. This is an additional reason, to those already urged, why his testimony should be wholly excluded. The authorities cited by respondents to the point of the right to impeach, are where the principal calls the agent, or where no other relation exists than mere principal and agent. Between the client and his attorney a different, and necessarily more intimate relation exists. The client must repose special confidence in his attorney, and make many confidential communications to him, which it would be frequently ruinous to him to have disclosed. The ends of justice require that this confidence should be held sacred, and on no account bo betrayed. Hence the reason of the law, why the attorney can not be called on to disclose anything arising between him and his client, as such. But if he can be examined by the adverse party, he can certainly be impeached by his client, whose trust he is betraying.
    The record exhibited shows not only an appearance by attorney of respondents, but it shows, too, that the plaintiff considered them in court, and filed his declaration against them accordingly. The court can not presume an attorney would appear for parties unless he was authorized, and would require other proof of that material fact than the mere allegation in the answers. If, however, the attorney’s testimony is excluded or discredited, there is not a particle of evidence showing his want of authority. As those respondents base their whole charge of fraud in procuring that judgment upon such alleged unauthorized appearance for them by the attorney, and as they fail to prove that appearance unauthorized, they have nothing on which to rest such charge, or to claim exemption from contributing to said judgment.
    It is incumbent on respondents to show not only that the judgment was obtained by fraud and collusion, but that the *intestate Cox was a party to that fraud, before they can avoid contributing to him. Of this fact there is nothing deserving the name of proof, though a strenuous effort is made to give that color to the testimony, and it is strongly insisted on in respondents’ argument. The character of intestate, however, is proved to have been above a suspicion of this kind. Though he may have employed A. as an attorney, and though he may have been present when the amount'was agreed on for which judgment should be rendered, yet all this is very far from laying the least foundation for a suspicion of fraud as attaching to him; and it must be borne constantly in mind that fraud can not be presumed, but must be proved. There is not a particle of evidence showing that Cox requested an appearance to be entered for these respondents, or that he colluded in any manner with the attorney, or any one else, to procure said judgment against them. Though this is assumed in respondents’ argument, there is no foundation for it whatever in the evidence, or in fact. A great part of the argument of respondents having a foundation equally imaginary, it is not deemed necessary further to reply to it.
   By the Court :

The complainant comes before us seeking equitable relief against the defendants upon the ground that they are equally liable with himself to pay the money which he has actually been compelled to pay. This liability the defendants controvert. But the complainant contends they are precluded from disputing his claim by the joint judgment against them all at law. The first question to be determined is, whether it is competent for the defendants to show that they were not actual parties to, and did not make defense against, the suit at law.

It is not pretended, on either side, but that the judgment, as between the parties, plaintiff and defendants, is conclusive. Tho matter debated is, whether, as between the defendants themselves, it is equally conclusive. And we are of opinion that it is not.

As between the defendants to a suit, nothing is adjudicated by a joint judgment against them. Their joint liability to *the plaintiff is established as between him and them, and nothing more. Who of tho defendants ought to pay the debt, or in what proportions they should contribute to pay it, remains to be settled between themselves, and must remain open for controversy.

If each defendant is actually before the court, and makes defense, it may be that, as between each other, the original liability is established. But this can not be admitted, in a case where the complainant in equity was before the court, an actual defendant, and the defendants in equity were put before the court by the act of the complainant himself, and the proceedings had without their knowledge. Were this permitted, very little effort would be necessary to fix individuals with unheard of liabilities. It can not be controverted, but that, in case of a judgment against joint obligors upon a bond, if one paid the whole and brought his bill for contribution, it would be competent for the other to prove that he was originally only a security, and therefore not liable. So in case of a judgment against one of two obligors, and payment coérced, in a suit against the other for contribution, the execution of the bond must be proved.

The defense set up here is, that the defendants never signed the original call, and were in fact parties to the judgment, except by' the procurement of the complainant. This defense, it is said, impeaches the judgment collaterally, which is not allowable. On the contrary, we are of opinion that it does not affect the judgment at all, as between the parties to it. It is. but showing a reason why it is not conclusive between others, who were co-defendants in it, and whose relative rights were not settled by it.

The defendants, who resist their present liability, were brought before the court by the attorney employed by the complainant, without their knowledge, or consent, and judgment passed against them before they knew a suit was pending. This fact is established by the testimony of the attorney himself. In bringing these parties before the court, .he acted as the agent of the complainant; and, if not by his direct procurement, it was in consequence of the character conferred upon him, by appearing as attorney for the complainant, who, if conusant of the fact, is equally culpable with the attorney. Be that as it may, the connection ^between those who improperly caused the appearance to be entered, is too intimate to permit the acts of any one of them to conclude those who, by their agency, were made parties. In this light we regard the judgment as collusive, and consequently it proves nothing against the defendants in this case.

It is objected that the fact of the collusion is proved only by the testimony of the attorney, who was inadmissible upon account of interest, and whose veracity is impeached. The interest of the witness is only that of every agent, or every person who assumes to act as an agent. Between parties affected by his acts, he may be called upon to prove his agency, or to prove the fact that he acted without authority. The decision founded upon his testimony can not be given in evidence to affect him, if an action be brought against him with respect to his conduct. And the fact, that to speak the truth may disclose matter whereon to ground a civil action against him, furnishes no excuse from testifying in his own mouth, much less can either party make it an objection to his testifying. We do n.ot consider his testimony discredited by the impeaching evidence. He is corroborated by many circumstances, as well as by the oaths of the defendants, in their answers, which is in no respect answered or impeached.

Independent of the judgment against them, there is no proof that the defendants, now before us, ever subscribed the call to Mr. Jones, on which the judgment is founded. They all deny it positively, or qualifiedly. The complainant does not show that he is entitled to the relief sought, which, as the case stands, it is incumbent on him to do. The bill is dismissed as to those defendants who have answered, and is continued as to those in default.  