
    Wardell against Eden.
    Where the plaintiff after he had assigned a judgment to a third person, entered up satisfaction on the record, the court on motion, ordered the entry of. satisfaction to be vacated.
    Courts of law will take notice of and protect the rights of assignees, ()
    Where an attorney is employed, notice must be served on him, not on the party.()
    Hamilton, moved to vacate the entry of satisfaction on the record in this cause.
    It appeared, that a bond had been executed, on the 15th June, 1800, by Eden to Wardell, conditioned for the payment of 50,000 dollars, and It judgment was entered upon the bond, on the 8th July last, by virtue of a warrant of attorney for that purpose, with a stay of execution for six months. On the 17th of July last, the judgment was assigned, for a valuable consideration, to Nathaniel Olcott, and by him, on the 1st of August, to Solomon Rowe, and by him, on the 7th of October, to the bank of New York. On the 7th of October, Olcott became bankrupt, and on the next day, Rowe died insolvent. The bank, on the 9th October, gave notice to Eden of the assignment to them, and forbad his paying any part of the bond to Wardell, and also gave a notice to Wardell, forbidding him to receive any thing from Eden. On the 6th day of October, Eden .paid War-dell a small sum of money, and on the 10th October, War-dell entered upon the record, a satisfaction of the judgment. The bond was originally given, both for money due, *and to secure such further sums as Wardell should continue to advance.
    The present motion was made in behalf of the bank of New York.
    The notice of the motion had been served on the attorney of the defendant, by leaving it at his office, and on the defendant himself, by delivering it to his brother. |'he attorney was only named in the ‘Warrant of attorney, to confess judgment on the bond.
    
      B. Livingston
    
    raised a preliminary question, whether the service of the notice of the present motion had been regularly made, as it had only been given to Eden’s brother, who happened to be at Eden’s house, ana it did not appear, that it had ever come to his personal knowledge ; or 2dly, as it had been given to Eden’s attorney, by leaving it with his (the attorney’s) brother, who happened to be alone in the office.
    
      
      (c) See n. (a) to Andrews v. Beecher, supra, vol. I, p. 411 ; also Timan v Leland, 6 Hill, 237 ; Wheeler v. Wheeler, 9 Cowen, 34; Jackson v. Blodget, 5 id. 202; Briggs v. Dorr, 19 Johns. 95 ; Dawson v. Coles, 16 id. 51; Meghan v. Mills, 9 id. 64; Anderson v. Van Allen, 12 id. 343 ; Van Vechten v. Graves, 4 id. 403 ; Littlefield v. Story, 3 id. 425 ; Johnson v. Bloodgood, supra, vol. I, p. 51.
    
    
      
      (d) See Grah. Prac. 2d ed. 711.
    
   The Court.

Both services cannot be good: wherever there is an attorney retained, the service must be on him; therefore the service on Eden himself, was' irregular, but the service on the attorney’s brother, being in his office, was good.

Lansing, Ch. J. and Lewis, J. were of opinion, that the attorney in this case, being constituted only an attorney to confess judgment, his authority expired with the act, and therefore he could no longer be considered as attorney in the suit, but they both agreed that the service on Eden was well made.

Some further affidavits were read on both sides.

Hamilton and Harison, then contended, that in- this transaction, a fraud had been practised between Eden and * Wardell, on the bank, by entering up the satisfaction after notice, which must have been done to defeat the lien which the judgment had given upon Eden’s real estate. They insisted, 1st. That the entry of satisfaction was irregular, because it was done by the party himself, and not by his attorney. Though, by statute, a party might possibly “ appear, prosecute, defend, &c. in person,” yet that after he had once made an election to appear by attorney, he could not appear in the suit in proper person. Notwithstanding the suits are in the names of the obligees, yet courts of law will always take notice of the rights of assignees, and protect them from injury, so that substantial justice may be done between the parties. (1 Term Rep. 619 ; 4 Term Rep. 340.) The court may interpose in this summary way, and lay their hands at once on the judgment, without turning their applicants round to a court of chancery. (Viner’s Abr. Judgment, K. a. 636. sec. 4, 5, 6.) Or if there should arise any doubts about the facts alleged, the court may direct an issue. (1 Wils. 33; Sayer, 253; Barnes, 130.)

The Attorney General and B. Livingston, contra. This is a novel way of bringing up such a question, when really neither of the parties to the suit are in court.

1. It was perfectly regular for the party to enter up the satisfaction himself, and it is neither the province nor the duty of the attorney to do it. The very form of his warrant shows this : for being merely to prosecute and defend, the entering up satisfaction of the judgment could not be considered as being comprised within his powers. (1 Sell. Prac. 14 ; Sayer, 217 ; 2 H. Bl. 608 ; 1 Bac. Abr. Attorney, 299.)

By the practice of courts, warrants of attorney are in force for one year and a day, for the sole purpose of enabling the attorney to sue out execution.

The general warrant of attorney only extends to judgment and execution, and there ought to be a special warrant made out for the purpose of authorizing an attorney to enter satisfaction, which may be made to the attorney who has conducted the suit, or to any other. (1 Sell. 546; l Crompt. 378; Impey, 408 ; T. Raym. 69.)

*The doctine contended for on the other side, that [*124] all acts relating to a suit, after it is instituted, must be done by the attorney, cannot be true, as it is settled law, that a retraxit must be always entered by the party himself, and can never be done by attorney. (2 Sell. 338 ; 3 Salk. 245 ; 8 Mod. 58.)

2. Though courts of law will take notice of the rights of assignees, yet this can only be done sub modo ; for choses in action are only assignable, by way of covenant. They might, perhaps, form a consideration for an assumpsit, but then the original instrument is gone, the demand becomes a personal one, and the action must be brought upon the promise ; otherwise, the plaintiff must always resort to a court of equity. (2 Bl. Rep. 621; 4 Term Rep. 341, 640.) At any rate, this is not the proper method for the plaintiff to obtain a remedy, by vacating the judgment, on motion. The law, in such case, will oblige a party, paying money after notice, to pay it over again, and the demand, therefore, from the time of the notice, is a personal one. (Doug. 338 ; 6 Term Rep. 361.)

3. Courts of law never vacate a judgment for fraud, but only for irregularity, or in cases of legal disability, such as of an infant,feme covert, or any person under duress, where the instrument is avoidable. (1 Sellon, 377.) At common law, the remedy is by an action of deceit, and if it happens subsequent to judgment, by an audita querela. In cases of fraud, or other controverted facts; an issue is always to be directed. (Cowp. 727.)

If an entry should be made, vacating the judgment, on the ground of fraud, and, afterwards, a jury, whose exclusive province it is to judge of matters of fact, should find the fact differently, then the record would be at variance with itself. But it would be improper in this court to direct an issue. The court of chancery is the proper forum, and there the bank may seek their remedy. The plaintiffs may, perhaps, proceed by scire facias, on the judgment, in the name of Wardell against Eden, and the pleadings would af~ ford an issue of fraud or no fraud, to be tried by a *jury.

As to the notice of the assignment, so much relied, on, the furthest the court could go in regard to notice to assignees, would be to put them on the same footing with indorsers of bills of exchange, in regard to which it is not only necessary to give notice, but to add that the indorser is looked to for payment.

Hamilton and Harison, in reply, said that this was the only way that the plaintiffs had to secure the property from being placed entirely beyond their reach ; and that although a scire facias should be brought, as suggested on the other side, yet that they could have no security for the satisfaction of their judgment, in the event of their recovering one. That as to the instance of a retraxit which had been cited, it did not apply, for the attorney is’to prosecute the suit for the end of obtaining satisfaction, but a retraxit is not a prosecution for such an end; it is entering a bar to the suit without having received satisfaction. It is important that attorneys should make the entry of satisfaction, as it would guard the court against fraud, for the court can always know its own officers, but cannot be supposed to know the party.

Courts of law, as to their power to vacate judgments, are not confined to cases of irregularity only. In the case of the Quare impedit, in Viner, a judgment was vacated on the ground of fraud, not, it is true, by motion ; but that depended on the extension of this form of practice, of late years. As to sending the plaintiffs to a court of chancery, it was objectionable : 1. Because, although a court of chancery will not interfere where the party has a remedy at law, yet the converse of the proposition is not true. 2. Because it would ’ turn a legal lien, which the plaintiffs have, into a mere equitable lien. 3. Because, if there is a remedy at law, chancery will refuse to relieve.

Per Curiam.

On the facts appearing in this case, we think there is probable cause to conclude, that there was a collusion between Wardell and Eden, to defraud the bank. *A court of law will always take notice and protect the interest of an assignee; but not so as to conclude or injure any party, but so as to save the rights of all. We therefore direct the following rule to. be entered in this cause: (

“ On reading and filing the affidavit of Martin S. Wilkins, and the papers thereunto annexed, on the part of the president, directors and company of the bank of New York, claiming to be assignees of the judgment in.this cause, and the affidavits of the said Joseph Eden, and the papers thereunto annexed, on the part of the said Joseph Eden ;

■“Ordered, That a vacatur of the entry of satisfaction of the said judgment be entered on the record, and a minute thereof made in the book of dockets of judgments : Provided, that the said president, directors and company, shall not cause a scire facias, or any writ of execution to be sued, or a suit in debt to be brought on the said judgment, until they shall have farther applied to the court; and it is to be understood also, that the said Joseph Eden may at any time apply to the court, that the entry of the satisfaction may be deemed unvacated, or that satisfaction be entered anew on the said record, and the court will, on such future applications of the parties respectively, take such order as shall be just: and it is further ordered, that the clerk cause a copy of this rule to be annexed to the said record.”

Lansing, Ch. J._and Lewis, J. dissented.

Rule granted, as above.() 
      
      
        (a) This rule was made absolute in April term, 1800.
     