#### Moses Lyon and Edward Brockway—Appellants, *against*Benjamin Tallmadge, John Tallmadge, David Wadham, David Thompson, Garret Smith, Aaron Smith, Junius Smith, William S. Tallmadge, Jonathan Richmond, and Solomon Dewey—Respondents.

ALBANY,

March, 1817.

A decree in one cause cat*. ^tbe «sed as a [,aae'auhu |ddt TMoteaui°| is distinct and independent: and :o a decree :o set aside a sale on execution, as fraudulent on the part of the defendant in the execu. tion, is not a defence to a bill filed hy the defendant against his judgment creditor, to get ri<¡ °f *3*fra,ldulent assignment beibrV\heSexeuTM ”0arsm'esrsl'5el fer„ecV°must *%*eíonlnThe"^ an,?1'»3 is 5 f“0atstbe°heari°& , . t A plea m bar of a former decree. must state so much of the former bill and answer, as to show that the same point was then in issue Where A. and B. answer separately to a hill in chancery, and B. refers to, and adopts the answer of *A.*as his own, and a replication is filed to the answer of A. and nut to that oí B. and their proofs are taken in the cause, this is not an admission that the answer of B. is true. A obtained a judgment against C . a sheriff, for the escape of a prisoner in execution, and C. obtained a judgment against B and E. hi- sureties for the limits of the gaol; D. attetwards prosecuted a writ of error in the name of C to reverse the judgment obtained by A. against C during the pendency ct which, C. assigned the judgment which he had obtained against D and E. to A., with the as^en*- of *l).*and released all errors in the judgment obtained hy A against him, (C.) D. then fill d a bill, to set aside the assignment and release, and to be permitted to prosecute a writ of error in the name of C. Held, that as the assent of D. was obtained, by taking an undue advantage of his situation and necess»ties, it was no obstacle to the relief sought; that the sureties of the sheriff had a perfect right to use his name in proeecnting a writ of error, a recovery against the sheriff being, in eíKeci, a recovery against them ; and that admitting the assent of D. was duly obtained to the assignment, yet as it did not appear that he had assented to the release of errors, the assignment could not affect bis right to bring a writ of error, nor wa«* his right affected by the release of errors. Where an unconscientious advantage has been taken of the situation of a person, a court of equity will relieve, although the circumstances do not amount to fraud in the contemplation of a court of law, *9*N'* interrogatories can he put to witnesses, which do not arise from some fact charged in the issue, and testimony as to facts not stated in the bill or the answer, is to he rejected. Courts are bound to decide upon the justice anti law of the case, and not merely upon the points raised by

THIS was an appeal from the court of chancery. The ap* *•A supreme court, at the suit of the defendants *Benjamin Tallmadge, John Tallmadge, David Wadham, David Thompson, Garret Smith, Aaron Smith, Junius Smith,*and *William S. Tallmadge,*for the sum of 2,627 dollars, and 24 cents, or thereabouts ; *Lyon,*with the defendant *Solomon Dewey,*on the 31st of *March,*1808, executed to the defendant *Jonathan Richmond,*then sheriff of Cayuga, a bond for the gaol liberties, to be -till pellants, in their bill in the coxirt below, stated, that the plaintiff, *Brockway,*being about the 31st of *December,*1807, committed to gaol, in the county of *Cayuga,*on a *ca. sa.*out of the . . granted to *Brockway ;*that a suit was thereafter instituted in ° *■' *'*the supreme court, by the plaintiffs in the execution, against *Richmond,*for the escape of *Brockway,*which was tried at the circuit in *Cayuga*county, on the 12th of *June, 1811,*where it appeared in evidence, that *Brockway*had been without the liberties at his own house, but that he had returned before the institution of the suit for the escape, and was within the liber*506ties, at the commencement of the suit, upon which testimony thecovu't directed the jury to find a verdict for the plaintiff, which they did, in pursuance of a construction which had before that time been given by the supreme court to the acts made for the establishment of gaol liberties 5 by which construction the sheriff was denied his plea of a return or recaption of the prisoner, before suit brought against him, and was subjected as for an escape, for every departure of his prisoner from the liberties. That their counsel, being dissatisfied with this construction, advised the plaintiffs, after notice of trial had been received, to bring a writ of error for the purpose of revising the judgment that might be given by the supreme court. That to induce *Richmond*to place the further defence of the suit in the hands of the plaintiff’s counsel, to manage at their discretion, the plaintiffs and *Dewey*proposed to confess a judgment to him on the bond given for the liberties, and such an arrangement was accordingly made. That after the trial of the cause a case was made, with leave to turn it into a special verdict, and judgment being given in *May*term, 1812. against Richmond, the case was turned into a special verdict, and in the ensuing *August*a writ of error was issued ; and that *Lyon*had expended in fees, to counsel in the case, and especially to prosecute the writ of error, the sum of 225 dollars. The plaintiffs stated, that while they were proceeding to discharge their obligation of indemnity to *Richmond,*and with a certainty of reversing the judgment, *Richmond,*and the plaintiffs in the suit for an escape, the latter acting by their attorney, who had the conduct of the suit, eollusively and fraudulently agreed, that *Richmond*should assign the judgment confessed to him to the plaintiffs in the suit for the escape, and should release all errors in the judgment in that suit, in consideration whereof they should relinquish all further proceedings on the judgment against him, and discharge him from all demands on account of the escape of *Brockway,*which agreement was carried into effect; that before this agreement was consummated, *Richmond*applied to *Lyon*and *Dewey*to deposit in money the amount of the recovery against him for the escape, with which it was not in *Lyords*power to comply, but being alarmed by information of the above agreement being about to be concluded, he prevailed on one *Fish,*who was then seised of real estate, in the county of *Cayuga,*to the amount of 20,000 dollars, at least, to become additional security to *507*Richmond,*to the amount of 1,800 dollars, and he, at the same time, strongly solicited *Dewey*to add further security for the amount of the residue of the judgment, but without effect; that *Richmond,*instigated by the attorney of the plaintiffs at law, and under pretence of future trouble, and apprehension of possible loss, although he admitted the sufficiency of the security, rejected the offer, and against *Lyon's*entreaties and warning, carried into effect the agreement, and discharged the writ of error, whereas the plaintiffs aver, that he had no ground for apprehension, or reason for requiring additional security, *Lyon*being then seised of a clear real estate, in the county of *Cayuga,*of the value of 4,000 dollars, besides about 1,500 dollars of personal property, and *Dezuey*being worth, in real and personal estate, 2,000 dollars, or thereabouts. The plaintiff *Lyon*further stated, that *Tallmadge*and the other plaintiffs at law, having got into their possession the judgment given to *Richmond,*by *Thomas Mumford,*their attorney, applied to him, and represented that *Dewey,*who had been a cleric of the plaintiff *Brockzoay,*had property of *Brockway,*to a considerable amount, in his hands, for his indemnity as bail for *Broclcway,*and that if he would consent to execution being issued on the judgment, it would be mostly satisfied out of property in the hands of Dewey, and of a reasonable share of *Lyon's*own property, so as not to leave more than five or six hundred dollars for him to *pay;*whereas, if the execution were continued *to*be stayed under the agreement for that purpose subsisting between the parties, *Dewey*would so manage, with the property in his hands, that no part of it could be procured, and the whole judgment would fall upon Lyon; that, oppressed by the proceedings against him, and alarmed at every incident and suggestion touching the premises, and labouring under the belief that he was without-relief, he yielded his consent, and execution wa's issued accordingly. The plaintiffs then stated, that, notwithstanding this representation, the dissatisfaction of *Dewey at Lyon’s*consent to the issuing the execution, was seized upon, and such arrangement made, as to detach him from the plaintiffs, under some engagement to protect his property, or the greater part thereof, from the operation of the execution, and throw the whole burthen of it on *Lyon,*and that *Dewey*had refused to join in this, suit with the plaintiffs. The plaintiffs further stated, that, in 1813, the court of errors decided the precise question arising *508on the special verdict before mentioned, and restored the sheriff to his defence of return or recaption before suit brought, as at common law. The plaintiffs prayed a discovery and injunction.

The joint and several answer of the defendants, *William Si Tallmadge, Jonathan Richmond,*and *Solomon Dewey,*stated, that the defendants, excepting *Richmond*and *Dewey,*were partners, under the firm of *Tallmadge, Smith dr Co.*The execution against *Brockway,*the bond for the liberties, and the suit' against *Richmond,*were admitted ; and *Richmond*said, that it appeared, on the trial, that *Brockway*bad escaped, and several times gone without the liberties of the gaol, while a prisoner in execution; that the defence of a voluntary return before suit brought was over-ruled, because the defendant’s plea was not accompanied by an affidavit that the escape was without his knowledge or consent, but that, during the pendency of the suit, he made such affidavit, and left it with his attorney. He denied the agreement, that the defence of the suit against him should be relinquished to *Lyon*and *Dewey,*in consideration of their confessing a judgment to him, but said, that *after the*action was brought against him for the escape of *Brockway,*and before it was tried, he brought an action in the supreme court against *Brochway, Lyon,*and *Dewey,*oq the bond for the liberties, which was defended, and noticed for trial, at the circuit next after the circuit at which the action against him for the escape of *Brockway*was tried, and after the decision of the supreme court on the case; that in *August*term, 1812, Brockway, *Lyon,*and *Dewey,*the defendants in the suit on the bond, by their attorney, gave a *cognovit actionem,*and a confession *of*damages, without any such agreement or consideration as is mentioned in the bill, and the defendant *Dewey*said, that this statement, as far as related to himself, was true, in substance, according to the best of his recollection and belief. The defendant *Richmond*further stated, that he did not sue out, nor authorize any one to sue out, the said writ of error, nor had he done any act, or authorized the doing any act, since the judgment rendered against him, to bring the same before the court of errors, nor did he ever conceive himself bound so to do, although he would have been willing to allow the plaintiffs and *Dewey*to have used his name, if they had suitably indemnified him against his responsibility for so doing, and his ultimaté re*509sponsibility to *Tallmadge, Smith fy*Co.; that after the verdict against him, and before judgment was rendered by the supreme court, he was alarmed at his situation in relation to that suit, not, however, in consequence of any representation by the plaintiffs therein, or their attorney, but by information derived from other sources, that *Lyon*had conveyed, or was about to convey, his real estate situate in the county of Cayuga, to one *Fish,*mentioned in the plaintiff’s bill, which conveyance the defendant apprehended was with a view to place the property out of the reach of the judgment which he had, or was likely soon to obtain, by confession, against *Brockway, Lyon,*and *Dewey ;*whereupon his attorney proposed to the attorney of *Tallmadge, Smith Co.,*that the defendant should assign to them the judgment obtained, or about to be obtained, by him against *Brockway, Lyon,*and *Dewey,*by confession, and that, in consideration thereof, they should discharge him from all further liability, in the action for the escape, which proposition, however, was not, at that time, agreed to, on their part; that, after the supreme court had given judgment against the defendant, in the action for the escape, the attorney for the plaintiffs in that action renewed the proposal above mentioned, or to the like effect, and that the defendant called upon *Lyon*and *Dewey,*and informed them of what was proposed to be done, at the same time informing them that he would refrain from making the proposed assignment, and would permit them to prosecute a writ of error on the judgment against him for the escape, in his name, if they would either deposit money in some safe and suitable hands, sufficient to indemnify him, or would give him sufficient security by way of indemnity; that they informed him that they could do neither, nor go beyond the security he then had by his judgment against them, and sundry obligations, principally against *Fish,*to a part of the amount of the judgment ; and they, then, informed him, that they could not blame him for availing himself of the proposed arrangement. The defendants *Richmond*and *Dewey*then stated, that soon after, and in consequence of what passed, as aforesaid, they, with *Lyon,*went to the office of *Thomas Mumford,*the attorney of *Tallmadge, Smith fy Co.,*and *Lyon*and *Dewey*made some propositions to *Mumford*to settle the suit against the defendant *Richmond,*for the escape, by securing the amount of the judgment, or a part thereof, and thereby exonerating *Richmond,*in *510that behalf; but *Lyon*and *Dewey*disagreeing among themselves, as the amount which each should pay or secure, no settlement took place. The defendant *Richmond*further stated, that, thereafter, and on the same day, he, with the knowledge and entire approbation of the defendant *Lyon,*assigned to the plaintiffs in the action for the escape, the judgment obtained against *Brockway, Lyon,*and *Dewey ;*in consideration whereof the attorney for the plaintiffs, in the action for the escape, gave him a discharge from all liability therein, and that this assignment bore date on or about the 23d of *December,*1812 ; that on the day when the assignment of the judgment was made, and after it was assigned, *Lyon*unequivocally agreed with the attorney of *Tallmadge, Smith Co.*that execution might be forthwith issued thereon, and proposed and agreed with the said ¡attorney to procure the attendance of the then sheriff of *Cayuga,*or of his deputy, at a particular place, on the following morning, to receive the execution ; at which place it was then proposed and agreed, that *Richmond*and the said attorney should meet *Lyon*and the sheriff, or his deputy. That the meeting *took*place accordingly, when an execution was delivered to the sheriff’s deputy, and *Lyon*informed the deputy, that he was willing that his property should be levied upon immediately; but, with a view to -obtain a part satisfaction of the execution from the property of *Dewey,*he proposed and agreed to accompany the deputy and the said attorney to the house of Dewey, in order to levy the execution on his property, which he did accordingly, and was accompanied by the defendant. *Richmond*further stated, that the assent of *Lyon*to the assignment, and what *Lyon*did and agreed to, as before stated, was given and transacted, without any fraud, or misrepresentation, practised on, or made to him by the defendant, or by the attorney of *Tallmadge, Smith Co.,*or by any other person, or persons, to the knowledge or belief of the defendant, and without any misconception of his rights, on the part of *Lyon,*according to the defendant’s understanding and belief; and that, on the day when the defendant assigned the said judgment, he released all errors in the judgment recovered against him for the escape, which was then also known to *Lyon,*and which the defendant was advised it was but an act of justice for him to do. The defendants, *Tallmadge*and *Dewey,*denied that any engagement had been made to detach *Dewey*from the plaintiffs, and to refuse to asso*511cíate himself with them in their bill. The defendant *Richmond*further stated, that he did not believe that *Lyon*was, at the time of the docketing the judgment in favour of the defendant, against Brockway, *Lyon,*and *Dewey,*seised of a clear real estate in the county of *Cayuga,*of the value of 7,000 dollars, or any other sum, because, as he understood and believed, *Lyon*had, previous to the docketing that judgment, made a fraudulent conveyance of his real estate, to prevent the said judgment from becoming a lien thereon ; that he believed that *Dewey,*at the time of obtaining the judgment, had some real estate which became bound by it, but not sufficient to indemnify this debt; and that he did not know what was the value of the personal estate of *Lyon*or *Dewey*; but whatever it might have been, it would not have been a security, unless taken iri execution, or otherwise secured to the defendant. The defendant *Dewey*stated, that, on the 26th of *December,*1814, in a conversation with *Lyon, he*informed the defendant, that he had got his affairs so fixed that he should not have his farm sold, and that" he could get the money and pay it, provided, in the end, the judgment should go against him. The answer denied all fraud and combination.

The answer of the other defendants stated', that they have no personal knowledge of the matters contained in the bill; nevertheless, that they have been informed, and beli eve, and expect to be able to prove, that the facts set forth in the answer of *William*S. *Tallmadge, Richmond,*and *Dewey,*are true, as therein stated.

*Joseph L. Richardson,*a witness for the plaintiff, stated, that the stipulation to confess judgment in the suit ;on the bond, for the liberties was given on the express agreement of the attorney of *Richmond,*that *Lyon*and *Dewey*should have leave, at their own expense, to turn the case in the suit of *Tpllmadge, Smith,*& Co. against *Richmond,*into a special verdict, and bring a writ of error thereon; to all which *Richmond*assented, and that they, *Lyon*and Dewey, employed counsel for th at purpose: that they remonstrated with *Richmond*against his as signing the judgment, who gave as reasons for his doing so, that the judgment against him was large, that life was uncertain, and his family might be injured if he was taken off, and he had it ncjiw in his power to rid himself of trouble and responsibility, by die measure proposed, and releasing the errors in the judgment figainst him, which he would do, unless they would either deposit; the amount of the *512judgment against him in money, or give satisfactory personal security for the amount: that *Lyon*afterwards informed the witness> that he had got *Nathan Fish*to give security to the amount of 1,800 dollars, (which *Richmond*had confessed to the deponent was true,) but that *Dewey*had not made an equally satisfactory offer, and that he was afraid that *Richmond*would assign the judgment, on which subject *Lyon*appeared to be much distressed : that *Lyon*stated to the deponent, that he consented to the execution being issued, upon Mr. *Mumford’s*representation of *Dewey*having *Brockway’s'*property in his hands sufficient to discharge the greater part of the judgment, which might, by and by, be withdrawn. Several witnesses testified that *Fisk*was worth from 15 to 20,000 dollars ; and the property' of *Lyon*was variously estimated, from *5 to*8,000 dollars, and of *Dewey,*from 1,000 to 4,000 dollars. *Stephen*Lombard, also, a witness for the plaintiffs, stated that, in conversation, in *January,*1815, between *Lyon*and *Richmond, Lyon*observed to *Richmond*that he had always opposed his making the assignment, and did all he could to prevent it, offering *Fish*as a security for 1,800 dollars ; to which *Richmond*assented, but added, “ you recollect that after the assignment, I asked you if you blamed *meLyon*replied, t: I cannot blame any man for wishing to get out of trouble, but I do not think you had any occasion to assign the judgment, for we offered sufficient security that *Richmond*. also admitted, in the same conversation, that *Lyon*consented that execution should be issued, because Mr. *Mumford*had informed him that *Dewey*had enough of *Brock-way11 s*property in his hands to pay the judgment, which might" be put out of the way, if execution should be delayed, and leave *Lyon*to pay the whole. Several witnesses testified to the hostility of *Dewey*towards *Lyon.*

*Burnham,*a witness for the defendants, stated, that on its being proposed to *Richmond*to assign his judgment to *Tallmadge, Smith*& Co., *Lyon*and *Dewey*strenuously opposed it.

*Whitney,*another witness, stated, that he saw *Lyon*and *Dewey*together, when *Dewey*offered to give security to the amount of 1,000 or 1,200 dollars, but that *.Lyon*insisted on his securing 1,400 dollars, or that he, *Lyon,*would not have any thing to do with the business; and that *Richmond*might take out an execution as soon as he pleased ; and, as his property was secure, he did not care any thing about the execution, nor how quick it *513Came. *Dewey,*one of the defendants, who was examined as a witness, stated, that a day or two before the assignment of the judgment, *Richmond*consented that *Lyon*and *Dewey*might make use of his name to bring a writ of error, provided they would deposit a sum of money to the amount of the judgment, or give him additional security; they declined to do either, and *Richmond*then informed them, that unless the money should be deposited, or security given, he should assign his judgment to *Tallmadge, Smith*& Co., and receive a discharge from them. The witness stated, that it was out of the power of *Lyon*and himself to deposit the money, and that he himself offered to give *Richmond*additional security for a part of the judgment, if *Lyon*would give security for the residue; but nothing further was' done, in consequence of a disagreement between *Lyon*and the witness, as to the amount which each should secure: that a day or two after, *Lyon*and *Richmond*went with the witness to the office of *Thomas Mumford,*where *Lyon*and the witness made several propositions to *Mumford,*to secure to Tallm.adge, *Smith*& Co. the amount of the judgment against them, none of which were accepted; whereupon he left *Lyon*and *Richmond*at the office, and after an absence of about an hour, returned, and thereupon he saw *Mumford*hand a paper to *Lyon,*and asked him to sign it; that *Lyon*read it, and said that he agreed to it, but could not sign it, because he had promised his wife that he never would put his name to paper again: that the witness did not know that the judgment had been assigned, until after the execution had been delivered to the deputy sheriff on the following day, at which time *Lyon*professed a willingness to discover all his property, without giving the sheriff any trouble to look for it, and proposed to give an account of it, so that he might take an inventory of it, which .was accordingly done, and an inventory taken: that after the execution had been levied upon the property of *Lyon,*he, together with the deputy sheriff, *Richmond,*and *Mumford,-came*to the house of the deponent, and levied the execution on his property, which was pointed out to the deputy sheriff by *Lyon:*that the witness had frequent conversations with *Lyon*in relation to the subject, within two or three months after the assignment, and that he never heard from *Lyon,*that there was any fraud or misrepresentation, nor did he deny that the assignment and release of errors were made with his knowledge and approbation. The witness also stated, that *514*Lyon*had conveyed his farm to *Nathan*Fish,which was not, on the death of *Fish,*divided among his.heirs, who exercised no acts of ownership over it, and that the deed for it, aftér the death of *Fish,*was re-delivered to *Lyon. Thomas Mumford,*another witness for tlie defendants, testified, as to what passed at his office, substantially the same as stated by *Dewey :*thatduring the absence of *Dewey,*as before mentioned, but in the presence, and with the knowledge and approbation of *Lyon,*it was finally-agreed that the assignment should be made, by *Richmond,*and' that he should, also, release all errors in the judgment of *Tailmadge, Smith*& Co. against him : that *Richmond*then executed the assignment and release, and delivered to the witness, an execution on the judgment in his favour against *Brockway, Lyon,*and *Dewey:*that the witness delivered to *Richmond*a release of the judgment against him, and drew up a written consent to the effect, that *Lyon*consented and agreed to the arrangement, and read it to Lyon, who declared that he fully agreed to it, but declined signing it: that *Lyon*then represented to the deponent and *Richmond,*that *Dewey*was unwilling to pay his jlist proportion of the execution, and requested the witness to aid him in having half the execution satisfied out of the property of Dewey, and said that he would turn out property to satisfy the ' residue ; to this the witness acceded, and *Lyon*agreed to go early the next morning to procure the attendance of the sheriff to receive the execution. The witness confirmed the statement of *Dewey,*as to the mode in which the execution was levied, and testified that the deputy sheriff made out the inventory of *Lyon’s*property, from information given by *Lyon,*without going to his • house, and that *Lyon*pointed out to the deputy the property of *Dewey,*in order to make the levy. It also appeared that *Bropkway*was insolvent, and that *Tallmadge, Smith*& Co. would lose the amount of the debt due them from him, unless they could obtain it by means of the judgment assigned to them by *Richmond.*

The cause coming on to a hearing in the court below, the Chancellor dismissed the bill as to all the defendants, with costs, and dissolved the injunction. An appeal was entered from this decree, and the cause being brought on to argument, the Chancellor assigned the reasons for his decree, for which, see 2 Johns. *Dh. Rep.*56. 6b

*515*T. A. Emmet,*for the appellants.

*Riggs*and S. Jones, jun., contra.

Spencer, J.

Before I enter on the merits of this cause, I shall briefly examine some preliminary objections. It appears from the chancellor’s opinion, that a decree was read at the hearing, which had been given in the court of chancery in *June,*1815, in a cause pending in that court, between *Tallmadge*and others against *Lyon,*setting aside a sale of the property ot *Lyon*and *Dewey,*under a judgment in favour of *Richmond,*and assigned to *Tallmadge*and others, on the ground that it was a fraudulent sale. That decree was taken by default, and the complainants in that suit were ailowed to resell the property, thus fraudulently sold, on that judgment. His honour, the Chancellor, considered this as a decisive objection to any relief to *Lyon*in this cause, on the ground that that decree having never been questioned, remained good, and could not be impeached in a collateral way.

I cannot assent to this conclusion. The subject matter of the appellant’s bill could never have been set up as a defence in that suit, for it was wholly a disconnected subject. If the sheriif’s sale was fraudulently procured by *Lyon,*he could not defend himself from that fraud, by insisting on the matters forming the grounds of the present bill. This consideration would be sufficient to show, that the decree in the former cause cannot operate as a bar to this suit. But there is another answer: the decree in the dormer cause, to be available, should have been pleaded, or relied on in the answer, as a bar. ■ It was not enough to read it at the hearing; -and I must doubt the propriety of its being read at all at the hearing.

It is a well-established rule in equity, that a plea in bar of a former decree must state so much of the former bill and answer, as to show that the same point was then in issue. *(Hind.*176. 2. *Atk.*603. 2. *Ves. 577.)*And, beyond all controversy, the case stated in the appellant’s bill was not, and could not have been, in issue in the former cause. It was then a mistake to-suppose that the appellants sought to attack or impeach the former decree, in a collateral way, or in any shape; and that de-, cree does not stand in the way.

It has been urged, and, I think, ungraciously, that the *516answer of all the defendants, composing the firm of *Tallmadge, Smith*& *Co.,*except one of them, adopts the answer of *Richmond,*and that no replication having been filed to their answer, it is admitted to be true ; and, then, it is insisted, all fraud, coilusión, or oppression is disproved. '

There can exist no doubt, that all the proof in the power of any of the respondents is before the court. The firm of *Tallmadge, Smith*& *Co.*appear to have had no personal concern in any of the transactions, and they admit their ignorance of them; but though their attorney, Mr. *Mumford,*under these circumstances, having referred to *Richmond’s, Dewey’s,*and *William S. Tallmadge’s*answers, and stated their expectation of being able to prove the facts set forth by the other respondents,’ we ought to consider the proof given by them, as the proofs of the respondents ; thus adopting and referring to the answers of the other respondents. Thete is yet a more decisive answer. The fact is not made out that there was no replication to these answers. There appears to be a replication, and the court is bound to intend it was filed in season, unless the contrary be proved. Besides, as this is mere matter of form, and all the evi-. dence has been adduced which the parties, or either of them, can bring forward, the court below would have permitted the replication to have been filed, *nunc pro tunc,*as both parties have proceeded on the idea that the cause was completely at issue. This appears by the commissions to examine witnesses, and the interrogatories.

This brings me to the merits of the cause ; and after as full a consideration as I have been able to give, I am bound to say, that, in my judgment, the decree in the court below ought" to be reversed, on two grounds :

First. On the ground that *Richmond,*if he, indeed, ever obtained' *Lyon’s*assent to the assignment of the judgment he held against *Lyon,*Dewey, and *Brockway,*and to the release of errors in the judgment in favour of *Tallmadge*and others, against him, obtained it under circumstances of such fraud and oppression as to render the assent nugatory and void.

Second. Admitting all the facts set up by *Richmond*to be true, they form no defence to the appellant’s title to the relief he asks.

The’object of the appellant’s bill is to set aside the assignment of the judgment in favour of *Richmond*against the appellants and *Dewey,*and the release of errors executed by *Rich**517*ynond*on the judgment against him, in favour of *Tallmadge, Smith*& Co., and to be permitted to make use of *Richmond"1 s*name in prosecuting a writ of error on the latter judgment. And unless the appellants have forfeited the right to prosecute the writ of error, it appears to me there cannot be a doubt, that, upon principles, as well of equity as of justice, they ought to be allowed to exercise it.

The question whether that judgment was erroneous, is not now to be considered; the object of the bill is to get rid of these acts, which operate as a hindrance to the prosecution of the writ of error ; and the question before us is, whether the appellants are not entitled to the interposition of the court of chancery, to enable them to proceed in the writ of error, by removing the obstacles which have been interposed.

It may be useful to ascertain under what circumstances of fraud and imposition a court of equity will give relief; that, having the principle, we may apply to it the facts of the case. Lord Hardwicke, (2 *Ves. Rep.*155, 156.) specifies the kinds of fraud which a court of equity will relieve against; and under his third head, he speaks of fraud which may be presumed from the circumstances and conditions of the parties contracting ; and this, he says, goes further than the rule of law, which is, that it must be proved, not presumed ; but he adds, *ie*it is wisely established in equity to prevent taking surreptitious advantage of the weakness or necessity of another, which knowingly to do, is equally against conscience as to take advantage of his ignorance ; a person is equally unable to judge for himself in one as the other.’’ The same principles are maintained by Lord *Erskine.*(13 *Ves.*jun, 51.) He says, a court of equity will prohibit a party from taking advantage of an instrument obtained by an advantage taken of men *unguarded in particular*situations, and under circumstances, where courts of law cannot give adequate remedy ; though, he says, fraud, according to the ordinary understanding of the term, is equally the subject of their jurisdiction.

These are valuable and salutary principles, “ coming home to the bosoms and affairs of menand it is for us now to consider, whether the facts proved warrant the application of them.

I consider it to be immaterial whether *Richmond*did, or-'did not, agree, that *Dyon*and *Dewey*should have the right to *518use hi's name in the prosecution of the writ of error; for he had no right to withhold it, and if he had done so, a court of equity would have compelled him to permit the use of his name, and would have restrained him from doing any act impairing the rights of *Lyon*and *Dewey.*Can this be doubted, when we consider, that the bond given by *Lyon*and *Dewey*to *Richmond,*was in the nature of a bond of indemnity ; that a final recovery by *Tallmadge, Smith*Co, against *(.Richmond,*for the escape of *Brockway,*was, in effect, a recovery against *Lyon and Dewey,*though nominally against *Richmond;*that it fixed them, beyond controversy, for the amount recovered against *Richmond;*and provided they were able to respond, it was perfectly immaterial to *Richmond,*whether there was a .judgment against him or not ? *Lyon*and *Dewey*were" to bear the burthen, and as sureties to the sheriff", they had a perfect right to contest, in the last resort, the right of *Tallmadge, Smith*& *Co.*to recover against *Richmond;*for that was to be the basis of their liability.

I shall not, therefore, stop to inquire, how the proof stands in regard to *Richmond’s*assent to their using his name, to prosecute the writ of error, though I think the evidence pérfectly clear that he did consent. My doctrine is, that he could not refuse.

Again ; although I hold it to be unimportant, whether *Lyon*actually consented that *Richmond*should assign his judgment against the appellants, let us examine under what peculiar and extraordinary circumstances this consent was forced from him. When *Richmond*required further security", under the threat of assigning the judgment, unless it was given, he had a judgment which operated as a lien on the real property of *Lyon*and *Dewey,*which is proved, without contradiction, to have been unquestionable security to a larger amount than the judgment of *Tallmadge, Smith*& *Co.*Under the apprehension, however, that *Richmond*had it in his power, by assigning the judgment, to strip them of their right to proceed on the writ of error, *Lyon*offered the security of a Mr. *Fish,*for 1800 dollars, who is stated, by all the witnesses, to be worth 10 or 15,000 dollars ; and, in truth, it seems to me impossible to read the proofs, without being convinced, that *Lyon*did every thing in his power, and more than, in honesty, ought to have been required of him, to satisfy the demands of *Richmond*for security ; and, at length, believing himself at the mercy of Richmond, and without redress, yielded *519a reluctant assent. To show this to be a case of complete oppression, let us examine the shallow pretences set up by Richmond, for further security. He alleges that he was alarm ed at the information he had received that *Lyon*had conveyed, or was conveying his real estate to *Nathan Fish,*with a view to place the same out of the reach of the judgment he had, or was likely soon to obtain, by confession. I see no proof, that he ever received such information, or that the fact itself was true. *Richmond*does not specify the name of any person who gave such information, and there is not a particle of legal proof, (hearsay there is,) that such information was communicated to Richmond, or that the fact was so. I put out of the question *Dewey’s*testimony, if he stood ever so indifferent; he knows nothing himself; he speaks of deeds he never saw, and relates conversations with persons now alive, and who might have been examined. I reject the whole of this illegal and inconclusive evidence ; and I then perceive nothing to warrant the assignment, on the ground of apprehension; and must conclude, that the pretences set up to justify the demand for further security, evince a settled determination on the part of *Richmond*to oppress the appellant *Lyon,*by taking an unconscientious advantage of his situation, of his fears, and his ignorance; and, consequently, I hold the assignment and the release of errors to have been given in bad faith, and, so far as they affect the appellants, null and void.

The second proposition, admitting that all the facts set up. by *Richmond*to be true, they form no defence to the appel-. ant’s title to relief, there will be no difficulty in maintaining.

I have already noticed the relative situation of the parties. That *Lyon*and *Dewey*were sureties to the sheriff; that their bond was a bond of indemnity, and that they were liable to the sheriff only in case there was an eventual and final recovery against him; and that they being fixed by such recovery, had a natural and equitable right to contest, in the last resort, his liability for the escape. I now hold, that the assignment did not prejudice the appellants’ right to prosecute the writ of error, had their consent been fairly and fully obtained; and that there is no legal proof before the court, or which we can notice, that the release of errors was given with *Lyon’s*assent. What rights did *Tallmadge, Smith*& *Co.*acquire in virtue of the assignment made by *Richmond ?*Certainly no other *520or greater right than *Richmond*could confer. *Richmond’s*r*§kt to enforce the collection of the judgment against *Lyon*and *Dewey*depended entirely on this, whether *Tallmadge, Smith*& *Co.*had a legal right to recover againt him for *Brockway’s*escape. And, although the supreme court had pronounced a judgment against *Richmond,*a right had been reserved in the case before that court, to test, in this court, the correctness of that judgment,, by turning the case made into a special verdict. The consent to the assignment of the judgment was no waiver of the right to prosecute the writ of error; and *Tallmadge, ‘Smith*& Co. acquired, by the assignment, the right to enforce the collection of the judgment, if it should eventually appear, on the decision of the writ of error, that they had just grounds of recovering against the sheriff for the escape. It is, therefore,unnecessary to disturb that assignment; it operates no prejudice to the appellants.

It has been insisted, that Richmond, having released the errors in the judgment against him, with the consent of *Lyon,*the very object of the bill is defeated, and that it would be nugatory to require *Richmond’s*assent to using his name in prosecuting the writ of error, when his release would cure all errors. I have said, that there is no legal proof that *Lyon*did assent to the release of errors by *Richmond.*

It is an incontrovertible rule in the court of chancery, that no ■ interrogatories can be put to witnesses that do not arise from some fact charged and put in issue. This was the rule unanimously adoped by this court, in the case of *James*v. M'Kennon; (6 *Johns. Rep.*565.;) and it is a rule so necessary and just, to prevent surprise upon either party, as not to stand in need of any argument to enforce. or elucidate it. In the case referred to, the respondent had examined his witnesses to establish a fraud not alleged in the bill: but this court considered the proof inadmissible, irrelevant, and immaterial, and wholly rejected it. The same principle applies to a fact, not set up in an answer, and which is a material and independent, fact, not arising from the bill : to such fact, which might have been set up in the. answer, but -is not, the defendant can adduce no proof; because it forms no part of the issue between the parties, and it would operate as a complete surprise on the complainant, who could not foresee that proof of a fact not insisted on in the answer, would be given*

*521The only answer which states the release of errors, is that of Richmond, and he does not allege, or pretend, that *Lyon*ever assented to the giving the release; all he says on that subject is, that he released ail errors in the judgment recovered against him, and *that it was known to Lyon.*Now, admitting that he did know it, his knowledge that *Richmond*was about to release the errors is a very distinct thing from his actually agreeing to it. All the proof in the case, that goes to show *Lyon's*assent and agreement to the release of errors, is irrelevant, impertinent, and inadmissible, inasmuch as *Lyon's*consent to the release was not in issue, and he could not be expected to disprove a fact which none of the answers had alleged or set up. The court therefore, bound, on the authority of the case of *James*v. ISj M‘Kennon, to reject this proof, and then the case stands on *Lyon’s*consent to the assignment of the judgment only. It is true that the appellants’ counsel did not take this point; but it is the duty of a court of justice, in giving judgment upon any case submitted to them, to give that judgment according to the justice and law of the case; and when any point not urged by counsel, presents an important bearing on the cause, I hold it to be my duty to notice it, and be influenced by it. The object in employing counsel, and permitting them to argue before a court, is to aid the court in its investigations; and it would be strange if the court were bound to shut their eyes upon every point not suggested by them.

In whatever light this cause presents itself to my view, I can perceive no solid ground for doubt, but that the appellants are entitled to relief. If *Lyon*consented to the release of errors, I am of opinion that his consent was obtained by imposition and fraudulent practices ; that an unjust and unconscientious advantage was taken of him, under circumstances which entitled him to be relieved. I hold that the assignment of the judgment took away no right which the appellants had, and that it conferred none but such as *Richmond*could give ; that his judgment *againstLym*and his co-obligors, was merely in the nature of an indemnity against the eventual recovery in this court, by *Tallmadge, Smith. Co.*against him ; but that it did not operate to deprive • the appellants of their just, equitable, and inherent right to contest, in *Richmond’s*name, the validity df the recovery against him, and that there is no proof before the court, that *Lyon*ever *522agreed, or consented, that *Richmond*should execute the release of errors. I am, therefore, for reversing the decree.

Thompson, Ch. J.

It will be necessary, to a right understanding and correct application of the testimony in this case, to ascertain, from the pleadings, the grounds upon which the appellants placed their claim to relief in the court of chancery.

The bill charges, that the appellants, after receiving notice that the cause of *Tallmadge, Smith fy Co.*against Richmond, for the escape of *Brockway,*was to be brought to trial, in order to induce *Richmond*to place the further defence of that suit in their hands, proposed to confess a judgment on the bond given by them, as the sureties of *Brockway,*to *Richmond,*the sheriff, and that it was thereupon *agreed,*that they should confess a judgment on the bond, and that *Richmond,*in *consideration*thereof, should give up and relinquish to the appellants the further conduct and defence of the suit against *Richmond,*for the escape; but that *Richmond,*and the plaintiffs in the escape suit, in violation of that *contract,*fraudulently combined to supersede any further proceedings, on the writ df error, by *Richmond's*assigning to them the judgment, so confessed, upon the surety bond, and releasing all errors upon the judgr ment for the escape of *Brockway.*The substance of the allegations in the bill, therefore, is a fraudulent violation of a contract, in relation to the prosecution of a writ of error upon the escape suit of *Tallmadge, Smith & Co.*against *Richmond.*Without particularly referring to the several answers of the defendants in the court of chancery, I am warranted in saying, that they contain a most direct and unequivocal denial of any such agreement or contract as is stated in the bill, and of the .fraud and collusion charged against them.

.Upon such a state of the pleadings, it is not disputed, that the settled rule of the court of chancery requires moró evidence than the testimony of one witness, to support the allegations in the bill. A recurrence to the testimony will, I think, warrant the conclusion that, so far as relates to the agreement set forth in the bill, it is unsupported, except by the naked and uncorroborated testimony of a single witness. *Richardson*does state, that the confession of judgment by the sureties .of *Brockway*was given on an *express stipulation*by *Rich**523*mondas*attorney, that *Lyon*and *Dewey*should have leave, at their expense, to turn the case made in the cause against *Richmond,*for the escape, into a special verdict, and bring a writ of error thereon. But it is worthy of particular notice, that this witness says, that such confession was given on the plaintiffs’ entering into a stipulation *in*writing, which is referred to, and which contains no provision whatever in relation to the prosecution of the writ of error. It only relates to the amount for which an execution should issue, upon such judgment. Is it not reasonable to conclude, that when the parties undertook to reduce to writing the stipulation in relation to the confession of that judgment, the whole agreement would have been incorporated ? Instead of this, according to this testimony, the most essential and necessary part is omitted. I would not be understood as intimating that this witness has intentionally misstated any facts. There is no doubt, from the testimony of many of the witnesses, that there were various conversations between the parties in relation to the prosecution of the w'rit of error, and which may have occasioned some mistake or misapprehension, as to what did take place at the time the confession was given. But admitting the agreement to have been precisely as stated by this witness, it is only one witness against the denial by the answer, and the allegation in the bill, of course, is not supported. The testimony of *Lombard*does not at all disprove the answer; he says *Richmond*admitted that *Lyon*always opposed his making the assignment of the judgment, but, in the conversation alluded to by him, *Lyon*did not pretend, or even intimate, that such assignment was in violation of any agreement between them. Nor in all the various interviews and conversations between *Lyon*and *Richmond,*relative to the additional security required by *Richmond,*do we hear any intimation of a violation of an agreement in relation to the prosecution of the writ of error. If any such agreement had existed, we should most likely have heard of *Lyon*charging him with a breach of his engagement, and not of his endeavouring to procure additional security, so as to prevent the assignment. We must, therefore, I think, without doubt, assume, that there is no competent proof of any agreement between *Richmond*and the sureties of *Brockway,*to give them the control of the judgment against *Richmond*for the escape.

*524It was, however, urged on the argument, that the sureties*, independent of any special agreement for that purpose, had a right to lake the conduct and management of the suit against the* plaintiff for the escape, and to prosecute a writ of error upon that judgment. Admitting this right, it must necessarily follow, that if the sureties were so far parties in interest, as to be entitled to bring a writ of error, they are competent to assent to a release of errors, and must be bound by such assent, if given.

The next inquiry, therefore, is, whether the proof in the cause, supports the allegation in the bill, that the assignment by *Richmond*of his judgment against *Lyon*and others, and the release of errors in the escape-cause, were procured by a fraudulent agreement, between *Richmond*and the house of *Tallmadge, Smith Sc*Co., to the oppression and injury of the sureties of *Brockway,*in depriving them of the benefit of a writ of error. The answer is equally explicit in the denial of the fraud, as it is of the agreement set up in the bill, and we must look to the proofs, to ascertain the truth with respect to this allegation.-

It was admitted on the argument, and indeed could not be questioned, that if *Lyon*voluntarily assented to the assignment and release of errors, he has no cause of complaint, and is not entitled to any relief.

The only ground of oppression or unfair conduct, on the part of *Richmond,*that has been urged with any appearance of plausibility, is *requiring of the sureties of Brockway additional secu~ rity,*as the only terms upon which he would refrain from assigning the judgment and releasing the errors. It cannot be pretended that *Richmond*was bound to prosecute a writ of error. He had, in good faith, and with the aid and assistance of counsel employed by the sureties of Brockway, defended the suit for-the escape ; and the judgment obtained against him, thus defended, was all that was necessary to entitle him to a remedy over against the sureties. He could not be bound to incur the trouble and expense of prosecuting a writ of error; and it was very reasonable for him to wish to exonerate himself from all: responsibility, which he could do, by closing with the proposition made by Tallmadge, *Smith*<§■ Co., to assign the judgment he had against the sureties, and release the errors in their judgment against him. This proposition was not accepted hastily, and without notice to *Lyon. Richmond*repeatedly offered to permit the sureties to take the control and management of the suit, and *525prosecute the writ of error, provided they would deposit the amount of his judgment against them, or give him additional security, to indemnify him in that behalf. Was there any thing unreasonable, or unjust and oppressive in this ? In our inquiries, whether *Richmond*had any cause for alarm, we must look at the then state of things, and the information he then had; and not suffer our judgment to be influenced by any subsequent information he might have acquired, which ought to have removed his alarms. From the testimony, as it *now*appears before us, it is most likely that *Richmond*was amply secured by his judgment. The conveyance given by *Lyon*to *Fish*of his farm, according to the present proofs, would be deemed fraudulent, and, of course, couldnot *prejudice Richmond,*or defeat his judgment. But *Richmond's*conduct is not to be tested by this rule. If he had then reasonable grounds for believing himself insecure, he was justifiable in requiring better security, or in relieving himself from all further risk and responsibility. *Richmond,*in his answer, says, he was alarmed as to his situation, in relation to his security, in consequence of information he had received, that *Lyon*had conveyed, or was about conveying away, his real estate to *Fish,*with a view of placing the same out of the reach of the judgment, which he had, or was likely soon to obtain, against him. The answer in this respect, it is true, is not evidence, but it is supported by the proofs in the case. *Dewey,*in his examination as a witness, says, *he knew*that *Lyon*conveyed away his farm to *Fish, about' the time*the suit was commenced by *Tallmadge, Smith*<£/• Co. against *Richmond,*for the escape of *Brockway.*Although such evidence would not be competent proof of the transfer of the title, yet it afforded reasonable ground of suspicion, that *Lyon*was attempting to place his property beyond the reach of *Richmond's*judgment. *Whitney,*another witness examined in the cause, says, that in a conversation with *Lyon,*respecting *Richmond's*intention to assign the judgment against him, to *Tallmadge, Smith &/■ Co., Lyon*said, *Richmond*might take out an execution as soon as he pleased, as his, *Lyon's,*property was *secure, he did not care any thing about the execution, nor how quick it came. Richmond,*in his answer, does not say that these were the sources of the information which occasioned his alarm. Yet it is reasonable to conclude, that they rvere. But if they were not, the case is still stronger in making out *526cause of suspicion. These were facts then existing; and if *Richmond's*alarm arose from other information, his real cause *t , n •*for suspicion was much strengthened. This proof is, at all events, amply sufficient to show that *Richmond's*alarm was not a mere pretence, for the purpose of justifying his demand of further security, and serving as a cloak for any collusion between him and *Tallmadge, Smith Co.*to evade the writ of error. The proof in the case does not warrant the conclusion that *Richmond*was unfriendly to *Lyon;*but that his conduct proceeded from an honest desire to extricate himself from all further risk and hazard, on account of the escape of *Brockway*; ánd the very circumstance of *Lyon's*being unable or unwilling to give more satisfactory security, was calculated to increase the suspicions of *Richmond,*as to his responsibility. That *Lyon*had full and fair notice of *Richmond's*intention to.assign the judgment and release the errors, unless further security was given, appears from the witnesses on both sides ; and that this was done with the knowledge and approbation of *Lyon*and *Dewey,*is very fully proved, by the testimony of *Dewey*and *Mumford,*and their evidence is strongly coroborated by other proofs in the cause. If this be so, whatever might have been the previous right of *Lyon,*touching the prosecution of a writ of error, he waived and abandoned that right, by his consent to the assignment of the judgment, and the release of errors,

*Mumford,*in his testimony, after stating the various propositions and conversations between himself and *Lyon*and *Dewey,*relative to. further security, and the proportion of the debt which each should pay or secure, all which failed of being effected, in consequence of a disagreement between *Lyon*and *Dewey,*as to the proportion which each one should assume, Says, that, in the *presence,*and with the *knowledge*and *approbation*of *Lyon,*it was finally agreed between the witness and *Richmond,*that he, *Richmond,*should assign his judgment against *Lyon*and others, to *Tallmadge, Smith cy Co.,*and *release all errors in the judgment for the escape,*on *Tallmadge, Smith dy Co.*discharging him, *Richmond,*from all responsibility on that judgment ; and that the necessary writings to carry such agreement into effect were, then,, drawn and executed, and the negotiation-completed, and that *Lyon*was *present,*and *consented*and *agreed*to the same. That he, the witness, drew a written consent to-that effect, and read the same to *Lyon,*who declared that he. *527fully agreed to the same, but that he never meant to put his name to any paper again. As to this fact, *Mumford*is supported hy the testimony of *Dewey,*who swears that he saw *Mumford*hand a paper to *Lyon*to sign, that he read it, and said he *agreed*to it, hut could not sign it, because he had promised his wife that he never would put his name to paper again. *Dewey*also states, that, in a subsequent conversation with *Lyon,*in which he, the witness, found fault with *Lyon*for-having *consented to the assignment and release of errors, Lyon*did not pretend to deny that it was done with his knowledge and approbation. This testimony is strengthened hy that of *Lombard,*a witness on the part of the appellants, who says, that, in a conversation between *Richmond*and *Lyon,*relative to this assignment and release of errors, *Lyon*acknowledged he did not blame *Richmond*for wishing to get out of trouble ; and a like declaration of *Lyon*appears from the testimony of *Richardson.*Had *Lyon*considered *Richmond*as having violated any agreement, or practised any fraud or unfair conduct towards him, he would not have held such language concerning him ; it amounted, substantially, to an unwilling approbation of *Richmond's*conduct, and is altogether inconsistent with the pretence now set up. Nor is there any thing in the testimony of *Richardson,*which goes to disprove, or render doubtful *Lyon's*assent to this assignment and release of errors. His testimony relates, principally, to transactions between the parties prior to the assignment, and whilst the attempt was making between *Lyon*and *Dewey,*to procure and arrange the additional security, and which is admitted, by all the witnesses, to have totally failed. *Richardson*was not present when the business was completed, and all that he afterwards heard from *Richmond*was, that *Lyon*had told him that he did not blame him for getting out of trouble; that *Lyon*consented to, and urged, the issuing of the exécution against himself, *Dewey,*and *Brockway,*is a fact established beyond contradiction. It was said on the argument, that this was done for the purpose of getting hold of the property of *Brockway,*in the hands of *Dewey,*as was alleged ; but this answer is altogether unsatisfactory. If that had been the sole objection, the proceedings on the execution would have stopped them; instead of which, it was not only levied on all *Dewey's*own property, but on *Lyon's*also; and *Lyon*himself took an active part in aiding and assisting the sheriff; *528■all wliich is utterly irreconcilable with the idea, that *Lyon*still wished, or expected, to pursue the writ of error. This he had abandoned, and his object, then, was to compel *Dewey*to pay his proportion of the judgment. From all the testimony in the case, it appears, that he had been, for a long time, endeavouring to get *Dewey*to pay, or secure, a part of the judgment. But having failed in this, he had recourse to the execution, for ■this purpose. If *Mumford*is to be credited, there cannot remain a doubt but that *Lyon*assented to, and approbated the assignment and release of errors. His testimony is clear, plain, and unequivocal, as to that fact, and given with such circumstantial detail, that utterly precludes the possibility of mistake. If the fact was not so, he must have sworn false ; and is there any thing in the case to justify such a conclusion ? He is corroborated by Dewey, and by *Lombard,*and even by *Richardson,*and by the strong and undisputed fact, that *Lyon*sanctioned and approved the issuing, and aided and assisted in levying, the .execution. Nor is there any evidence contradicting the testimony of *Mumford*as to that fact. I cannot, judicially, know *Mumford,*except as he appears in this case. He was known, by the appellants, to be a witness in the cause, and is not impeached. If his character was assailable, he should have been impeached in the court below; that has not been done, and there are no circumstances appearing, in this case, to discredit him. I am not, therefore, prepared, to pronounce upon him the *harsh*and *severe*judgment, that he has *sworn false ;*and without doing so, it seems impossible to deny the *assent*of *Lyon*to the assignment of the judgment *and release of errors.*

In deciding on the merits of the present case, we must lay out of view, altogether, the question which would have been brought before this court upon the writ of error; for admitting the judgment to have been erroneous, it was competent for the parties to waive the error; and if this has been done with the knowledge and assent of *Lyon,*he comes too late now to complain. It would* I think, be going a little too far, to say, that it was certain, at the time when this transaction took place, that the judgment would be reversed. The assignment and release of errors were given in the fall of 1812; at which time, according to-what had been considered in the supreme court, for years, the settled, construction of the act relative to the security for gaol *529liberties, there was *no*error in that judgment. It was not until after this time, that a different construction was adopted by this court. If this release of errors had been given after the decision of a similar question in this court, it would have afforded a pretty strong argument against the good faith of that transaction ; but, admitting it to have been a doubtful question, at that time, we must, in weighing the testimony, look at the then state of things, and not suffer ourselves to be influenced by any subsequent alteration or construction of the law. Judging, then, from the facts and proofs in the cause, I am not able to discover any well-founded doubt, but that the assignment of the judgment, and the release of errors, was a fair transaction on the part of *Richmond,*after due notice and warning to the sureties of *Brockway,*and claiming from them no more than reasonable additional security: and I am satisfied that this was done with the knowledge and voluntary consent and approbation of *Lyon ;*and, if so, there is certainly no ground upon which he can claim the relief sought for. I am, apcordingly, of opinion, that the decree of the court of chancery ought to be affirmed.

Platt, J. and Yates, J. were of the same opinion.

Van Ness, J. was absent.

Allen, Cantine, Cochran, Hascall, Livingston, Stewart, Tibbitts, Van Burén, and Van Vechten, senators, also concurred in the opinion of the chief justice.

Bates, Bicknell, Bloom, Crosby, Elmendorf, Hart, Knox, Mallory, Noyes, Prendergast, Ross, and Swart, senators, concurred in the opinion of Mr. Justice Spencer, that the decree of the court of chancery ought to be reversed.

This being the opinion of a majority of the court,* the following decree was, thereupon, entered: “ Ordered, and decreed, that the decree of the court of chancery, dismissing the appellants’ bill with costs, be, and the same is, hereby reversed, annulled, and vacated; and it is further *ordered, adjudged,*and *decreed,*that the release of errors set forth in the appellants’ bill of complaint, and admitted by the answer of the respondents, to have been given by *Jonathan Richmond*to *530*Benjamin Tallmadge*and others, releasing the errors in the judgment obtained in the supreme court, by the said *Benjamin Tallmadge*and others, against the said *Jonathan Richmond,*for the escape of *Edward Brockway,*be, and the same is, hereby annulled and vacated, and shall, accordingly, be delivered up to be cancelled ; and it is further *ordered, adjudged,*and *decreed,,*that the appellants be at full liberty to sue out, maintain, and prosecute a writ of error in this court, in the name, and on the behalf of the said *Jonathan Richmond,*upon the said judgment rendered in the supreme court, in favour of the said *Benjamin Tallmadge*and others, against the said *Jonathan Richmond,*for the escape of the said *Edward Brockway ;*and that a writ of injunction issue, restraining and prohibiting the said *Jonathan Richmond*from intermeddling with, releasing, or discontinuing the said writ of error, so to be brought and prosecuted; and restraining and prohibiting the other respondents, or any of them, from pleading the said release of errors, hereby annulled and vacated; and, also, that a writ of injunction issue, restraining, prohibiting, and staying all and every execution issued, or to be issued, on the said judgment in the supreme court, in favour of the said *Jonathan Richmond,*against the said *Moses Lyon, Solomon Dewey*and *Edward Brockway,*or any, or either of them, upon the bond given by them to the said *Jonathan Richmond,*for the gaol liberties, for the said *Edward Brockway ;*and that such injunction be continued until the final hearing and determination of the said writ of error herein before mentioned, and allowed to be sued out and prosecuted in the name of the said *Jonathan Richmond;*and in case the said judgment, whereon the said writ of error is allowed to be prosecuted, should be reversed, then, that a perpetual injunction be awarded, to restrain and prohibit such execution upon the said judgment against the appellants and the said *Solomon Dewey;*and it is further *ordered, adjudged,*and *decreed,*that the record be remitted to the court of chancery, to the end that the order, judgment, and decree of this court may be executed.

Decree of reversal.

*

= *For re ve*