#### *Noble Reed *against*Henry Bainbridge. *(a)*

Regularity byJ'confe®don

Right of questiorfthe regularity of the judgment. (b)

Scire facias to revivo judgment served on

BAINBRIDGE, then of the county of *Monmouth,*in slale> on lhe 12th *February*1814, executed a bond in the penalty of 5924 dollars, 50 cents, conditioned for the payment of 2962 dollars, 25 cents, with interest, on or before the 14th of the same month of *February*1814. Accompanyjng -¡fog bond, there was a warrant of attorney of the same date, “to appear &c., receive a declaration in / / action of debt, on the bond, or as for so much money borrowed, at the suit of *Noble Reed,*and thereupon to confess the same action, or else to suffer judgment by *nihil dicit,*&c. to pass against the said *Bainbridge*of record, for the said debt, together with costs, and to release the errors of such judgment,” &c. Upon the bond, was endorsed an *401assignment, under seal, by *Noble Heed,*for the consideration of 2500 dollars, unto *John Thorne*of the city of *New-York,*and dated the 14th day of *February*1814. On the 18th day of *February*1814, a copy of the bond, warrant of attorney, and assignment, were presented to the Chief Justice, and judgment signed, under “the act directing the mode of entering judgments on bonds, with warrants to confess judgments,” in the name of *Noble Reed,*and as of the preceding *November*term. This judgment was filed and recorded on the next day. To revive this judgment, a *scire facias*was issued returnable to *May*term 1816. It was served upon *Rainbridge*in the city of *New- York,**(a)***a rule for appearance taken, and no appearance being entered, judgment was given at the same term. A *fieri facias*was issued, returnable to *September*following, and delivered to the sheriff of *Monmouth,*on the 13th *June,*with directions to levy on the farm formerly of *Rainbridge,*then in possession of *Denise Schenck,*which direction the sheriff obeyed. At *September*term, *Denise Schenck*presented to the court his own and other affidavits, which stated, in substance, the following facts.

On fhe 15th of *April*1814, *Schenck*entered into an agreement with *Rainbridge*for the purchase of the before mentioned farm, and in the same month entered into possession of it, and so continued to this time. On the 9th of *May*1814, he received from *Rainbridge,*a deed for it. At the time the agreement was made, and when *Schenck*paid the full consideration for it; *Rainbridge*assured him, repeatedly, and in the most solemn manner, that there were no other incumbrances on the farm, except two mortgages, to *Iligbee*and *Holmes,*an execution in the hands of the sheriff, and a small claim in the hands of *Joseph Phillips,*esq. That *Rainbridge*lived in the county until *April*1816, when he removed to the city of *New-York,*and continued to reside there; that he is the brother-in-law of *Noble Reed,*who removed from this state to *New-York,*before *Schenck’s*purchase, and in *September*1815, was discharged as a bankrupt; that *Schenck*took every means in his power to ascertain what the amount of the incumbrances were, but never received any information, nor had *402any notice, of Reed’s judgment, until the sheriff levied on the farm. That *Bainbridge*does not possess correct habits, nor is able to make satisfaction to *Schenck*for the breach of the covenants in his deed. Certain declarations of *Beed*and *Bainbridge*were also proved, which tended to shew that this bond was a contrivance of theirs, to cheat *Schenck*out of the money.

Upon these facts, R. Stockton, on behalf of *Denise Schenck,*moved to have the judgment and execution set aside and vacated. 1. Because *Schenck,*the tenant of the freehold) should have been made a party to the *scire facias.*2. Because the original judgment was irregularly entered, *Beed*having then assigned the bond to *Thorne,*and having no longer any right of action against *Bainbridge. Pat.*254. And 3. Because there was fraud in the original bond, warrant and judgment, and the parties should be put to their action, which the court would permit *Schenck*to defend.

The motion was opposed by *Hornblower.*After argument, the court, *(Southard*J. *absen.)*1. Intimated an opinion against the motion on the first point. 2. Offered the purchaser an issue to be tried in the county of *Monmouth,*upon the question of fraud. And 3. On motion of R. *Stockton,*directed asecondargument, upon the second point, as to the regularity of the judgment. This argument was had at *November*term 1816, by R. *Stockton*and *Wall,*for purchaser. *Ewing*and *Vanarsdale,*for *Thorne.*

'The *counsel*for *Schenck*maintained. 1. That being a purchaser directly interested in the regularity of this judgment, he *had a right both in law and equity, to be heard. 2 *Str.*1121. *Coxe’s Pep.*3.

2. That there was no valid authority by the warrant, to enter up judgment in the name of *Noble Beed,*but the same was either destroyed or passed' to *Thorne*by the assignment. *Pat.*254. 5 *Com.*344. 2 *Bl. Com.*442. 1. *Bac. Asst. A. Chit, on Bills*111, 112. 12 *Mod.*192-3. 1 *Bac.*322.

3. That this court has full power over the proceedings, and may vacate them when they are shewn to he' illegal and irregular. *Pat.*454. Even if the judgment were *403according to the course of the common law, by declaration, plea, and regular judgment roll, the court whose-authority is used, has full jurisdiction to set it aside, wherever improperly entered or obtained. 1 *Str.*20. 2 *Str.*1121. 1 *Black. Rep.*1097. *Doug.*186. *Dali.*119. *Barnes*277, 52. 9 *John.*80.

The *counsel*of *Thorne*maintained, 1. That this judgment stands in the same situation as a common law judgment, and the court which renders a judgment cannot set it aside on motion, for error apparent upon the face of the record.

2. That if there be error in entering up the judgment, the act of assembly cures the error and protects the judgment. *Pat.*455, sec. 3. The words of this section completely cover this case.

3. If the judgment be irregular, *Schenck*cannot take advantage of the irregularity. He is not a *party*or *privy,*nor injured by the judgment when it was rendered ; nor is it cast upon him by operation of the law; but he is a *purchaser,*with notice ; a stranger coming in voluntarily and must take *cum onere.*2 *Bac.*tit. *Error*195, 196> 198, 199. 2 *Str.*1121. 9 *John.*80. *Ooxe*3. t

4. That the judgment was not erroneous. After the assignment of a bond or sealed bill, an action may be maintained either in the name of the assignor or assignee, and judgment may be entered in the same way. *Pat.*254, sec. 2. The language of this section leaves it optional with the party whose name to use. Before, he was obliged to sue in -the assignor’s name; by it he *may*sue in his own. 1 *Com. Dig.*322, c. 5 *John.*175. 10 *Mod.*337. 11 *Rep.*64.

5. It was necessary, in the present case, to enter the judgment according to the authority which had been given. It could be *entered in no other way. The warrant is, to confess judgment on that bond, to *Noble Reed,*and not to his assigns. The bond is assignable, the warrant is not. The assignee is authorised to use the warrant to enter up his judgment, but it must be in *Reed’s*name, and for his own use. Of this *Bainbridge*could not complain, and *Schenck*has no higher rights.

*4046. If the question were at all doubtful, the decision be in favour of *Thorne.*He has pursued his rights fairly, and has no remedy if this fail him. On the other hand, *Schenck*was negligent, even in ordinary precaution. The judgment was recorded regularly. This was legal and full notice to him, and all others. And this very record of the judgment, is a conclusive answer to all the charge of combination and fraud: a charge which *Thorne*is ready to meet upon the issue, which the court expressed a willingness to direct to be tried.

*Rossell*J.

delivered the opinion of the court. *Southard*J. did not hear the whole argument, and was prevented by indisposition from looking into the case, he however intimated a doubt of the correctness of the opinion.

(a)

*Parker*vs. *Griggs, ante 161. Burrow vs. Bispham, 6 Hal. 118. Blackwell vs. Rankin, 3 Hal. Ch. 157. Eagle ads. Emly, 2 Har. 348.*

(b)

*Milnor vs. Milnor, 4 Hal. 94. Black vs. Kirgan, 3 Gr. 50. Evans vs. Adams, 3 Gr. 375. Melville vs. Brown, 1 Har. 369. Silvers ads. Reynolds, 2 Har. 278. Clapp vs. Ely, 3 Dutch. 555. Reading vs. Reading, 4 Zab. 359. Hoyt vs. Hoyt, 1 Har. 138. Scudder vs. Coryell, 5 Hal. 340.*

(a)

 Nix. Dig. 731, *\*105, 750, $ 229. See *Custner vs. Styer, 3 Zab. 236.*

Rossell J.

The counsel in support of the judgment, in this case, rely on three reasons. 1. That *Denise Schenck*having no interest in the suit at the time of entering the judgment, and not being a party to the record, cannot now be heard.

2. The judgment -being entered on the records of this court, is not a subject matter on which the justices can adjudicate, but the party complaining must be left to his writ of error.

3. That the judgment is regularly entered in the name of *Noble Reed,*the obligee, as in that it followed the terms of the power of attorney annexed to the bond.

I shall consider these propositions in their order. As to the first. *Denise Schenck*is a party *interested*in this judgment. He is the *bona fide*purchaser, and in actual possession of the land on which the execution following this judgment has been levied. And I take it to be a clear rule, founded on the immutable principles of justice, that he whose interest is to be affected by the acts of a court, has in every such court, a just right to be heard. And that it has been the practice of this court, to so let in the party in interest, although his name does not appear on the record, is proved by the case in *Goxe’s Rep.*3, where the heir, though not *a party to the record, moved to set aside the judgment. This too, is the practice of our *405sister state of *New-YorJc.*3 *John.*20. A purchaser after judgment, was heard in a motion to set it aside, and although he did not prevail, no objection was taken to him. In *Pennsylvania*also, *Soyer*a partner of *Basse,*confessed a judgment in the name of the firm. On the application of creditors, not parties to the record, the judgment was annulled. Other authorities might be named, but these are sufficient to establish the principle, that courts will, on all proper occasions, hear the party whose interest is to be affected by their judicial proceedings.

Not a solitary case supports the principle laid down in the second point, advocated by the counsel for the plaintiff; but there are abundant authorities to prove the contrary. 2 *Strange*1121. After execution, the court set aside the judgment for irregularity. 1 *Strange*20. One executor confessed judgment for himself and co-executors; and the judgment for this was annulled, (a)*A. Burr.*1996. A judgment in ejectment had been regularly obtained, and the writ of possession issued and executed. The judgment was set aside on the application of the party in interest. 9 John. 8. The court say they have an *equitable*jurisdiction over judgments entered up before them on warrants of attorney. But we need not seek authority for this power out of our own state. *Coxe’s Rep.*before cited, and *Pen. Rep. Wood*v. *Hopkins,*689, shew that this court have exercised this power over judgments entered up before them.

As to the third point. I consider it a sound principle of law, that to enable a party to recover in any action, real or personal, he must make out in himself a clear and undoubted right to the matter or thing demanded. If this is correct, and we apply this rule to the case before us, how does it stand. *Noble Reed*comes into court and demands judgment on a bond, with a warrant of attorney annexed, authorising a confession of judgment to himself only. On the same instrument is an assignment *in full*from *Reed*to *Thorne,*a third person, shewing that for a valuable consideration, *Reed*had parted with his *406whole interest in the , obligation on which judgment thus demanded. If under such circumstances (as the law now stands) he could obtain a judgment, this rule, founded in common sense and common justice, becomes a dead letter. But it is contended there are exceptions to *this rule in the cases of common carriers and auctioneers, who are permitted to maintain actions although the property in the thing for which it is brought, is confessedly in a third person. But it may be asked *how*are they permitted to sustain such actions? It is only by shewing a special property in themselves, to the matter in dispute, at the time it went into the hands of the defendant, and sueing in their *own name,*that they are enabled to recover; if they fail so to do, they cannot prevail. And this, so far from impugning the general rule, is in absolute confirmation of it. It is again urged; that although a bond is a chose in action, and therefore not assignable at common law; yet courts have for ages protected the rights of assignees and permitted them to sue for and recover in the name of the assignor; that our statute of 1797, by making bonds assignable, was not intended to take away this common-law right, which continues, in all points, as it did before the passing of that law. In support of this doctrine, they have cited 3 *John.*426. 2 *John.*260. *Black.*81. 7 *Term. Rep.*763, 2 *Cranch*342. 1 *Oranch*428. 1 *John.*580. In looking into these cases;” we find points that are not disputed; as that courts will protect the rights of assignees; that a statute without negative words, express or implied, does not take away a previous remedy. But the cases most relied on are from 2 *Oranch*342, and 10 *Johnson*580. The first was an action brought by the assignees of several bills of exchange, charged in an *open account*in the name of the assignor (one of the firm). The defendant moved the court to instruct the jury, that as the balance was transferred to the firm this was not a subsisting debt from the defendants to the plaintiffs *alone,*at the commencement of the suit; the court overruled this motion “ for that although the debt was in *equity*transferred to the assignees, yet the suit was maintainable for their benefit, in the name of the assignor. The case in *John,*was in *equity.*A note was *407assigned by one *Johnson*to the respondent, and a mortgage originally given as a security for the debt, to him at the same time. The chancellor decreed, “ that as Johnson, in every equitable point of view, was the maker of both note and mortgage, that they were delivered at the same time, parcels of the same contract, inseparably connected, directed to the same object, and satisfied by the same means; that an assignment was not necessary to vest the *equitable*right of the mortgage in the respondent.”

*Neither of these cases in my opinion support the doctrine contended for by the counsel for the plaintiff; in the first, had the *legal*as well as the *equitable*right been transferred, the decision of the court would in all probability have been different. In the second, it is the province of the court in a peculiar manner, to protect the *equitable*lights of parties ; and the chancellor very justly decreed, that this equitable right to the mortgage in question, agreeably to the original understanding of the parties vested on its delivery according to that intention.

In examining this subject a little farther, it will not be necessary to go into the doctrine of choses in action before the statute of *Anne,*and the gradual modification of that doctrine subsequent to that statute; it appears to have settled down in this: that c oses in action, not made assignable by that statute, were so far recognized and protected, that courts would permit the assignee as trustee, agent or attorney, for the assignor, to bring an action in his name to recover the money actually due on the obligation. In this situation they were, when the legislature of this state, passed the law of 1797, thereby declaring, “ The assignment of bonds, bills, &c., good and effectual in law, and that the assignor of any such, *may*maintain an action of debt in his own name.” It is alleged that the word *may,*was cautiously selected to secure tiro subsisting rights of assignees to instruments assigned; or in other words, to give' to assignees an additional right of action. I do not think this correct. It is not reasonable to suppose the legislature would act without a motive, and if the interest of assignees of bonds, bills, &c. were so protected as to insure a recovery on all *408kinds of 'assignments, what reason or necessity existed, the legislative interference, and to adopt a course so unusual as to give two remedies for the most simple of all actions, debt on a bond, &c. The wisdom of legislatures is seen in the uniformity of their laws. They avoid, and as much as may be, do away all circumlocution and fiction in the execution of those laws, and their motives must be sought for from the subject matter, before them. I therefore believe, that our legislature took a more comprehensive view of the subject of assignments ; *(a)***they saw the absurdity and hardship of shackling instruments, assignable on the face of them, by the antiquated rules of the ancient common law, and compelling courts and parties to resort to fiction to establish rights incontrovertibly *just in themselves. The old doctrine (adopted to avoid maintenance) that choses in action, could not be assigned, had been so far done away, that the assignee had a property in the paper and wax, and was permitted to bring an action. If then, a third person could thus acquire an interest in the thing, whether he brought the action in his own or in the name of another, it could not affect the question of maintenance, on which the rule was formed. The reason of the rule then, being done away, the legislature wisely concluded the rule itself should cease. They therefore annexed the now legal right of the assignee, to his then equitable one, and empowered him like all other creditors, to sue in his own name for his own debt: but by no means exempted him from the general rules established for the regulation of others.

When affirmative words, in sense contain a negative, they are equally as binding as when the negative is used. *May*is frequently construed to mean *shall.*(b) The statute of *Henry*the VI. and 28, enacts, that sheriff *may*bail, under which he is *bownd*to bail; so by the statute of *Gharles*II. 12; church-wardens and overseers *may*make rates to reimburse the constables; an indictment lies against them if they refuse.

*409But if my ideas respecting the intention of the legislature, are unfounded, let us examine what was the actual common law right acquired by *Thorne,*in this bond and warrant of attorney, under this assignment. “Endorsements are made either in blank, in full or restrictive. If in blank, it is said not to transfer the property and interest without some further act. If the endorser fill up the blank and make it payable to himself, the action cannot be brought in the name of the endorser, which otherwise it may be.” *Chit, on Bills.*3. If this rule in *Chitty*is correct, and it appears to me to be founded in sound reason, *Thorne*having taken an assignment *in full,*could not before the passing of our act of 1797, maintain an action in the name of *Noble Reed;*nor could he on the warrant of attorney, enter up a judgment in his own name, as the confession of judgment therein expressed is restricted to *Noble Reed*only. It is not contended that our statute gives any support to this judgment; and if at common law, it could not be brought in this form in this manner, on what ground can it be sustained by this court ? If it is said this is form only, and should not be permitted to destroy the sub*stantial rights of parties; it may be answered, that it is a form which has governed judges from the earliest times, and although many mere forms have been done away for the promotion of justice, this still remains, and courts and parties are bound to a compliance with it.

On this view of the subject, I am of opinion, that this judgment has been irregularly entered and cannot be supported.

Judgment set aside.

(a)

*Ballinger vs. Sherron, 2 Gr. 145.*

(a)

*Sheppard vs. Stites, 2 Hal. 94.*

(b)

*Seiple vs. Borough of Elizabeth, 3 Dutch. 407. State vs. Newark, 4 Dutch. 491.*See *Woodhull vs. Neafie, 1 Gr. Ch. 409. Ludlow vs. Ludlow, post 394.*