
    Francis Chambers vs. Silas W. Robbins.
    Upon a bill in equity praying that the defendant might be enjoined against enforcing a judgment at law which he had obtained against the plaintiff in violation of an agreement between them on the subject, and without his knowledge, and that the defendant be required to discharge the judgment, it was found that the defendant had never threatened to enforce the judgment. but had refused to discharge it unless the plaintiff would also discharge a claim which he held against him. Held,l. That it was not a sufficient reason for refusing the reiief sought, that the defendant had not threatened to enforce the judgment, since it was indispensable to the security of the plaintiff that it should be discharged. 2. That the refusal of the defendant to discharge the judgment was equivalent to a threat to enforce it.
    ?. Where, upon a bill in equity, the case has been reserved, upon facts found, for the advice of this court, it is too late for the defendant to object that other parties should have been brought in.
    "Bill in Equity. The principal allegations of [ *553 ] the bill were as follows: that, on the 26th day of May, 1855, the plaintiff, together with David A. Mills and Martha G. Mills, his wife, of &c., took an appeal from a certain decree of the court of probate for the district of Hartford, passed on the 21st day of May, 1855, approving the will of Mary Robbins, late of said district, deceased, of whom the appellants were heirs at law, to the superior court then next to be holden at Hartford, on the 4th Tuesday of September, 1855, and that upon such appeal bonds for prosecution were duly given by the appellants, and notice was ordered to he given .to the present defendant, who was administrator on the estate of said deceased, and sundry other persons mentioned in said order, who were all the persons interested in said will, of the pendency of said appeal, which notice was given and order complied with in all respects in due form of law; that said appeal was duly entered in said superior court at the then next term thereof, when the appellants appeared, as did also the defendant, and the cause came by regular continuances to the March term of said court,, when the said David A. and Martha G. Mills withdrew from said cause, filing with the clerk of said court, a written notice of said withdrawal, of which the defendant then had notice ; that said cause thence came by regular continuances to the September term of said court, 1857, when the petitioner, the remaining appellant, made a settlement of said cause with the defendant, the only appellee who had appeared therein, and that it was thereupon agreed between the petitioner and the defendant, in writing, that said cause should be entered “ done ” in the docket of said court, which settlement was then and there communicated by the petitioner to the clerk of said court, and to the attorney of record of' the defendant, and that the petitioner requested the clerk to make an entry in said docket, in conformity with said agreement; that the clerk then made a memorandum of the entry to be made, such as the parties had agreed to; that nevertheless the defendant, either by himself, fraudulently, or by his said attorney, through misapprehension and mistake of the latter, arid in violation of the ágreement, at the same [ *554 ] term procured #a judgment to be rendered in favor of the defendant against the petitioner and the said David A. and Martha G. Mills, in their absence and without their knowledge, for the sum of f>77.89, costs of suit, and had since taken out execution therefor, and still held and threatened to enforce the same; that the said David A. Mills and wife, at the time of their withdrawal from said suit, paid to the defendant all the costs that had accrued against them up to the time of said withdrawal, and that, if said execution or judgment should be enforced against them, they would have a remedy over against the petitioner; that the petitioner had applied^to the defendant to discharge said judgment, but that he had at all times refused to do it, and that he apprehended, and had just cause to apprehend, that the defendant would enforce the judgment against him, or, if this should not be immediately done, that the evidence of the settlement and of the unlawful obtaining of the judgment might be lost, and the petitioner eventually be subjected to great and irreparable loss; and praying the court to decree that the defendant should enter satisfaction, upon the record in said ca'use, of the judgment therein recovered, deliver up said execution to be cancelled, and be forever enjoined not to collect or enforce said judgment and execution.
    On the trial of the cause, upon a general denial by the defendant, the court found the facts stated in the plaintiff’s bill to be proved and true, except that the court did not find that the respondent had, since he obtained the judgment, threatened to enforce it, and to cause the execution to be collected of the plaintiff; but that he had refused to discharge the judgment or give up the execution, unless the plaintiff would discharge the defendant from all claim growing out of the settlement of the probate appeal; and on these facts the question as to what decree should be passed was reserved for the advice of this court.
    
      Sturges, with whom was Treat, for the plaintiff.
    
      M. Welles and Taylor, for the defendant.
   *HntMAN, J.

The defendant obtained his judg- [ *555 ] ment in violation of his agreement with the plaintiff that the case should be discontinued without costs. After an entry in the docket, which would have operated as a discontinuance, had been made, the defendant subsequently entered for costs. Whether this was done in consequence of a misunderstanding between the defendant and his counsel, or whether by the fraud of the defendant, can make no difference, since, in either case, it operates as a fraud upon the plaintiff. He had done every thing necessary or proper for him to do to carry out the agreement. He had himself caused the proper entry to be made, which was itself a discontinuance had the defendant suffered it to remain without entering for costs. Under these circumstances he had a right to rely on the agreement that the cause should be ended ; and the defendant’s subsequent entry was a clear violation of the agreement, which places the plaintiff entirely in the defendant’s power in respect to the costs, as his property may at any time be taken to satisfy the execution, unless the court interferes by injunction to prevent it. It is found, it is true, that no threat had been made to enforce the execution. But this is no reason for refusing the relief asked for, since it is indispensable to the plaintiff’s security that the judgment against him should be discharged, or put in such a condition that it can never subject him to the danger of further litigation. The defendant however refused to discharge or give up the execution, unless the plaintiff would also discharge a claim against him. This, surely, is a clear attempt to use the judgment as a subsisting and valid claim, and is tantamount to a threat to enforce it.

Again, it was said, that the case at least ought to stand over, that Mills and wife might be brought in and made parties to it. It may be admitted that this would have been the proper course; if the suggestion had been made at an earlier stage of the proceeding. But no such objection appears to have been made in the superior court, and we think it too late now to take it, bv wa}'of suggestion and argument in this court.' No decree is asked for against them, and their rights are such as do [ *556 ] not affect the defendant. *They are in a position antagonistic to the' defendant, and, not being parties, their own rights are preserved; and if the defendant wished the controversy settled in respect to them, he might at an earlier day have caused them to be brought before the court. It does not appear to us, therefore, that the purposes of justice will be subserved by postponing the case for the want of proper parties.

We therefore advise the superior court that the plaintiff is entitled to the relief prayed for.

In this opinion the other judges concurred.

Decree for plaintiff advised.  