
    Dunlap v. Hundly.
    •The provisions of the Code of Practico, art. 746 et seq., authorizing the summary execution of foreign judgments, must he construed strictly.
    An orderof seizure and salo, obtained on a foreign judgment purporting to have been rendered on the confession of the defendant made through his attorney, willbe enjoined, where the transcript of the foreign record has a suspicious appearance on its face, and where, though .the plaintiff in injunction denied under oath the authority of the attorney to confess a judgment for him, and swore that he never abandoned his defence, no evidence is offered to disprove his allegations.
    APPEAL from the Pistrict Court of Madison, Curry, J. The plaintiff enjoined an order of seizure and sale obtained by the defendant Hundly, against the plaintiff, on the record of ajudgment rendered in Mississippi. The petition charges in substance : That in the winter or spring of 1837, the petitioner purchased ?■ negro man, Henry, from Thomas Hundly, a negro trader, who had brought said negro from the State of Virginia to the State of Missis T sippi, for sale as merchandize: that the sale and purchase of the slave was made in Mississippi: that said slave was brought into the State of Mississippi for sale, and sold to him afar the adoption of the present constitution of that State, which petitioner ayeys prohibits the introduction and sale of slaves introduced for sale: that he purchased said slave for a house servant, the vendor representing him as sober and honest, when he knew him' to be an inveterate drunkard, and that he had been sold to him in consequence of his intemperate habits: that he made to David Hundly his note for $1,800, payable four mouths after-date, for. the price of said slave: that at the maturity of his note he refused to pay it, on the ground that the slave was not such as he had been represented, and was wholly unfit for the purpose for which he had been bought: that suit was brought on tho note, in which he filed a plea in person, expecting to be relieved from the payment on two grounds; first, because a fraud had been practiced on him in the sale of the negro, in representing him as possessed of steady and temperate habits: second, because the sale was'a nullity, being made in direct violation of the constitution of Mississippi: that after suit was commenced, pe? titioner sent the slave to Hundly, who look him back and kept him, only .crediting the .note with $1,400: that at the September term, 1840, some person representing himself ;ys the attorney .of the petitioner, withdrew the plea filed by him in said suit, thereby depriving him of the means of making his defence : that he never authorised the withdrawal of his plea; that at that term a judgment was rendered against him, without any plea, for the sum of $394 : that at the June term 1842, said judgment was altered and rendered against him for $753 40: .that said suit was brought in the name of David JV. Hundly for the use of 1'homas Hundly: that Hun/dly has obtained an order of seizure and sale on said judgment, which the petitioner avers is void, being rendered on a void noté: that the demand is unjust: that the order of seizure and sale issued illegally on the record of ajudgmentwithout plea filed.” The petition concludes With a prayer, that the injunction may be perpetuated and for general relief.
    The defence is: 1. That the affidavit is insufficient, not being positive and Unconditional. 2. That the judgment was rendered after issue joined, is pror perly authenticated, and cannot be enquired into. 3;. That the' plaintiff cannot set up fraud or new matter, the judgment having been rendered after appearance and issue j oined. 4. That the allegations of the plaintiff are not correct.
    
    A witness proved that the note was given for the price of the slave Henry, the property of Thomas Hundly : that the note was handed to Hundly shortly after the sale: that he sold the slave to Dunlap as the agent of Hundly, in the State of Mississippi, for §1,800, and took the note for the payment of the price: that Hundly was a negro trader at the time, and told witness he had bought the negro from Virginia, and brought him to Mississippi, with many others, for sale. That he was brought to Mississippi a few weeks before the sale to Dunlap. That plaintiff returned him to Hundly, who said he would take him back, and sue the man he got him from, for damages.
    Snyder proved that he was a licensed lawyer in Mississippi, and that by the laws of that State, under the general issue, the defendant could have shown, that the note sued on was given for the purchase of a slave, that the slave was afflicted with a redhibitory malady, and had been introduced into the State for sale as merchandize, and was sold in violation of the constitutional prohibition. The injunction was perpetuated and the defendant appealed.
    
      Thomas, for the plaintiff.
    The first ground of defence is untrue in fact. The second and third grounds are substantially the same. Neither are true in factor in law, if “ after appearance and issue joined” means ‘■'■upon appearance and issue joined,” and is not a mere play upon words. The contestatio litis is formed by an answer or judgment by default, and is the foundation of the suit. B. and S. Dig, 509, E. 1, and cases cited. The record shows that the case was put at issue by the plea filed by the defendant in person, and that some one, representing himself as of counsel, withdrew the plea, destroyed the issue, and suffered judgment to go against the defendant. The present petition shows that the defendant in that case appeared in person, and that his plea was withdrawn and judgment taken, without, his knowledge, authority or consent, when he had reason to suppose the suit was at an end by the return of the slave. The affidavit annexed to the petition verifies the truth of the facts stated therein, and throws upon the defendant the proof of authority in the attorney to represent Dunlap in withdrawing his plea, destroying the issue made by him, and thus depriving him of his defence. 9 Mart. 88. 12 M. 70, 255. None was attempted. Miller v. Gaskins, 3 Rob. 94. A judicial confession can only be made by the party, or by one specially authorised by him. Civil Code, art. 2270. 8 Mart. N. S. 547. 6 La. 296. .What the law of Mississippi is on the subject is not shown, and it will be presumed to be the same as ours. This presents a stronger case than that contemplated in article 747 of the Code of Practice, as ground for an injunction. Here there was not eyen a judgment by default, to form a constructive contestation on which to rest a judgment. Article 749 authorises an injunction to restrain the execution of an order of seizure and sale, issuing upon a judgment rendered by “a tribunal other than of this State,” for any of the “causes which prevent the sale of property mortgaged, or otherwise bound by virtue of an act importing a confession of judgment.” Article 739 declares that: “The debtor can arrest the sale of things thus seized, by alleging some of the following reasons, to wit: that the debt has been extinguished by transaction, novation, or some other legal manner jtljat it w.as obtained by fraud, violence, fear, or some other unlawful means.”
    The plaintiff alleges in his petition, and has proved that the debt was extinguished by the transaction, in returning the slave, and that the judgment was obtained by surreptitiously withdrawing his defence. The thing adjudged can only take place between parties, upon a contestation “formed ” between ¡them, either express or implied. Code Prac. 357 to 360. C. C. art. 2265. B. and S. Dig. 509, E. 1. 2 Peter’s Dig. 544, note 29.
    The judgment was subject to the equitable revision of a court of Chancery in Mississippi. It c.an have np greater effect here. If the door was open to relief there, it is here. Qur courts possess all the power necessary to give relief, although our system of juresprudence differs in the form of reaching and applying the remedy. Courts of equity will always relieve against judgnjonts at law,. unfairly obtained. 1 Story’s Eq. ss, 32, 82- A fortiori when it is not only unfairly obtained, but upon an unlawful cause. They will not ordinarily relieve against judgments at law, where the defence might have been made full and complete, but was not, owing to the fault, or neglect of the party applying for their aid. Dunlap had done all he was bound to do. He made his defence in person; rescinded the contract of sale and jiurchase by the return of the slave; and extinguished the note by the transaction.
    The judgment of a State court, has the same credit &c. Conklin, 241-2. 2 Peter’s Dig. 544, sec. 2. Whatever plea could be pleaded to it in such State, can be pleaded to it in an action on it in another State, and none other. 3 Wheaton, 234. 4 Cowen, 243. That such is strictly the law, where a distinction is recognized between the redress which is afforded at law and in equity is clear. But under our system, where no such distinction is recognized, tho rule would defeat the ends of justice, and enable a party to enforce a judgment here that equity would relieve against in the State where it was rendered, unless our courts interpose thoir equity powers, or hold the judgment of another State to conclude the parties only when rendered in the last resort upon a full hearing. Why drive a party, when proceeded against here upon a foreign record, into the court of Chancery where the judgment was rendered, for relief which the equity powers of our courts can as well afford. Civil Code, 21. 1 Story’s Eq. ss. 14, 26 to 33, 59.
    The fourth and last ground of dofonce isa general denial. The plaintiff relies upon two grounds to maintain his exemption from liability to pay the note, which was the foundation of the action in Mississippi: 1. Thatthe note was extinguished by transaction, in cancelling the sale and surrendering the slave, for the purchase of which it was given. The evidence of M'Kouen, the agent who made the sale, is full upon this point. The inducement to cancel the sale, witness shows, was the intemperate habits of the slave, I-Iundly declaring he would sue his vendor in Virginia for damages. 2. That the note was given for the purchase of a slave, introduced and sold to him in violation of the constitutional prohibition of Mississippi. The second section, title slaves, of the constitution of Mississippi, prohibiting the introduction of slaves for sale, as merchandise, after May, 1833, is in evidence. The witness proves that the slave Henry, with many others, was introduced into the State of Mississippi, and sold in violation of this prohibition.
    The Supreme Court of the State of Mississippi, in the case of Bryan v, Williams, 5 Howard’s Reports, and this court in the case of Cotton v. Bryan, 6 Rob. 115, have decided that all contracts made for the sale and purchase of slaves introduced into the State of Mississippi for sale, and there sold after May, 1833, are null and void, and that they will not lend their aid to enforce them.
    It is alleged in the petition, and shown by the record, that at the September term, 1840,Dunlap’s plea was withdrawn, and judgment taken against him for $394. That at the June term, 1842, without notice of any kind, in the name of correction, the judgment was altered or amended, increased and entered for $753 40.
    "Which is the proper judgment 1 Certainly, if either, the first. The order of seizure issued on the last. Code of Practice, 546, 547, 548. 6 La. 69. 12 Mart. 558.
    After a judgment is once rendered, the party against whom it was rendered, is po longer, after the close of the term, presumed to be in court.
    
      Amonett, for the appellant,
   The judgment of court was pronounced by

Slidell, J.

Hundly had obtained an order of seizure and sale on a judgment recovered against Dunlap in Mississippi. Dunlap thereupon filed his petition for an injunction, in which he avers, under oath, that a plea which he had filed to the merits in the suit in Mississippi had been fraudulently withdrawn, and a confession entered without his authorization. He then sets forth various grounds of defence which he had against the action, and avers the note upon which the suit in Mississippi was brought to have been void under the constitu. tion of Mississippi, in which State it was made. An injunction was obtained, commanding the sheriff not to proceed with the sale of the property, until the further order of the court. After trial the order of seizure and sale was an-' nulled, and the injunction was perpetuated. Hundly appealed.

The record of the suit in Mississippi shows that Dunlap first filed, by his attorney, a plea of the general issue. The record then- sets forth that his attorney-appeared at a subsequent term, withdrew the plea and confessed the'j ust-iee of the’ plaintiffs claim, upon which judgment was entered against Dunlap for $394 and-costs. Upon this judgment there was-an execution, and return of nulla Iona.

About two years subsequent to the rendition of the first judgment, and after' the return of the execution, an application was made by motion to correct the' judgment theretofore rendered for $394, upon a suggestion that the same1 should have been for $753 40. It is stated that the defendant having had notice’ of this motion, the judgment was thereupon amended, and it was decreed “that the plaintiff recover of said defendant the sum of seven hundred and fifty three dollars, forty cents, with interest from the — day of October, 1840, the date of rendition of said judgment originally recovered in said court, and also costs of suit.-’

There is something very extraordinary and suspicious on the face of this record ; and although the plaintiff in injunction has denied under oath the authority of the attorney to confess judgment for him-, and swears that he never abandoned his defence, no evidence to the contrary, except the record itself, has been adduced.

We have not been assisted with any testimony to show what faith and credit would be given in Mississippi to a record, which varies so materially not only from the forms and mode of proceeding adopted in our own courts, but from what we have supposed to be the practice at common law. It is our duty to construe strictly the provisions of our Code authorizing the summary execution of foreign judgments; and litigants who choose that remedy must bring themselves fully and unequivocally within its requisitions. See Miller v. Gaskins, 3 Rob. 94. 8 Martin, 236. Judgment affirmed.  