Where

inal contract, and void for the same reasons. the contamination reaches, it destroys. The principle to be extracted from all the cases is that the law will not lend its support to a claim founded on its own violation." In Mitchell v. Smith, 1 Bin. 110, a case of the sale and purchase of a Connecticut title to Pennsylvania lands, Shippen, C. J., says: "The contract is illegal, being founded on a breach of the law, and of consequence a void contract, and cannot be enforced in a court of law." In Seidenbender v. Charles, 4 Serg. & R. 151, it was held there could be no recovery upon a ticket in an illegal lottery. Tilghman, C. J., says: "I consider it as perfectly settled that an action cannot be sustained, founded on a transaction prohibited by statute, although it be not expressly declared that the contract is void." Page 160. Yeates, J., said: "The principle of public policy is that no court will lend its aid to a man who grounds his action upon an immoral or illegal act. Justice, as between these individuals, would require either payment of the money or reconveyance of the property, but principles of public convenience demand that the justice of the case shall yield to higher considerations -the operation of the precedent on public morals and the public interest. It is for these reasons courts of justice will not assist an illegal transaction in any respect." To the same effect, see Fowler v. Scully, 72 Pa. St. 456; Brua's Appeal, 55 Pa. St. 294; De Groot v. Van Duzer, 20 Wend. 390; Reynolds v. Nichols, 12 Iowa, 398; 2 Kent's Com. (13th ed.) 466, and cases cited; Sumner v. Summers, 54 Mo. 340; Cheltenham v. Cook, 44 Mo. 29; Kitchen v. Greenabaum, 61 Mo. 110. In White v. Buss, 3 Cush. 448, Shaw, C. J., said: "It is well settled by the authorities that any prom. ise, contract or undertaking, the performance of which would tend to promote, advance or carry into effect any object or purpose which is unlawful, is in itself void, and will not maintain an action. The law which prohibits the end will not lend its aid in promoting the means designed to carry it into effect, and in this respect the law gives no countenance to the old distinction between malum in se and malum prohibitum. That which the law prohibits either in terms or by fixing a penalty to it, is unlawful; and it will not promote in one form that which it declares wrong in another." And it does not at all alter the principle to be applied in such cases because the instrument declared on is in one form, while the statute levels its denunciations and penalties at an instrument in another form. The law looks at the substance of things, not at their shadows. To say that the law prohibits a lease being made of a house to be used as a bawdyhouse, and that the courts will refuse to enforce such a contract, but that, if such contract takes on the form of deed or contract of absolute sale, then the courts would have to enforce such a subterfuge, is unsustained by either reason or authority, and at war with both.

In this case the evidence, which was entirely com. petent for that purpose, tends very strongly to show the illegality of the contract aforesaid. In such case, such evidence is not introduced to "vary or control the contract," but to show that in contemplation of law, in consequence of the proven illegality, no contract at all ever had an existence; that it was void ab initio. 2 Pars. Cont. (6th ed.) 554; 1 Greenl. Ev. (14th ed.) § 284, and cases cited. The case of Sprague v. Rooney, supra, is opposed to this view; but, that case being without support in re.son or precedent, we overrule it.

MENT.-A question upon which there is some conflict of opinion was decided by the Supreme Court of California in Glessner v. Palmater. It was there held that were the owner of land contracts to convey it upon the payment of a certain price, for which he accepts notes, but the title is not to pass until the notes are paid, the land is, by express contract, held in pledge for such payment, and the notes and contract are in the nature of a mortgage, and the lien will pass to the assignee of such a Paterson, J., says:

note.

There is, perhaps, no subject of equity jurisprudence discussed in the books upon which there is a greater diversity of opinion than exists in relation to the origin, nature and effect of a vendor's lien, against whom and in whose favor it avails, and how it may be discharged or waived. Hammond v. Peyton, 34 Minn. 531, 27 N. W. Rep. 72. The various definitions given and principlea applied to it by the courts, are hopelessly irreconcilable; and, if we take the expressions found in decisions and text books, without observing the distinction between the lien implied by law in favor of a vendor who has parted with the legal title and taken no security for the purchase money, and the security which the vendor has while he holds the legal title under an unexecuted contract for the conveyance of lands upon payment of the purchase money, there will appear to be great confusion and inconsistency. The former, the implied lien, is properly known as a "vendor's lien." It is the creature of courts of equity, founded upon the equitable presumption that where the vendor has parted with his title and taken no security for the payment of the purchase money, the parties intended that the property itself should remain as a pledge for the payment of the purchase price of the land. The lien thus created by implication is not a specific, absolute charge upon the property; it is personal to the vendor, and does not pass by a transfer of his claim for the purchase money. The fee is in the purchaser, and he may defeat the lien by a conveyance to a bona fide purchaser for value. Sparks v. Hess, 12 Cal. 186; Baum v. Grigsby, 21 Cal. 172; Lehndorf v. Cope, 122 Ill. 233, 13 N. E. Rep. 502. The latter is properly designated as a vendor's lien. Where the vendor holds the legal title under an unexecuted contract for the conveyance of land upon payment of the purchase money; the transaction shows upon its face that he holds it as security. The vendee cannot prejudice that title, or in any way divest it, except by performance of the act for which the vendor holds it. The vendor's security is something stronger than a mortgage, because the legal title is retained as security. Stevens v. Chadwick, 10 Kan. 413. It has been called an "imperfect" or "equitable" mortgage, which is a more appropriate term than "vendor's lien." Moore y. Lackey, 53 Miss. 85. In many of the best considered cases, including Sparks v. Hess, supra, it is treated as if it had the similitude of a mortgage, subject to foreclosure the same way a mortgage is foreclosed. There is no necessity for any lien by implication. Where the title is not to pass until the vendee pays the purchase price, the land is by express contract held in pledge for such payment, and the notes and contract may be considered as an in

strument in the nature of a mortgage. It is a lien by contract, is an incident to the debt, and the assignee of notes given for the purchase money, like the assignee of a note secured by mortgage, is entitled to the benefit of the security. Avery v. Clark (Cal.), 25 Pac. Rep. 919; Wright v. Troutman, 81 Ill. 374; Adams v. Cowherd, 30 Mo. 460; Lowery v. Peterson, 75 La. 109; Bradley v. Curtis, 79 Ky. 327; McClintic v. Wise, 25 Gratt. 488; Lagow v. Badollet, 1 Blackf. 419; Dingley v. Bank, 57 Cal. 471. There are a few decisions to the contrary, some of which inveigh against the rule, and, emanating, as they do, from highly respectable authority, are entitled to careful consideration; but they bear evidence of a departure from sound legal rules, and will be found generally to have been influenced by decisions in cases where the legal title had passed to the vendee, thus overlooking the distinction we had attempted to point out, and which is paramount always in determining questions of this kind. The authorities preponderate very decidedly in favor of the view we have expressed. 2 Jones, Liens, § 1119, note.

McFarland, J., dissenting from the conclusion of the court, says:

I dissent, and adhere to the views expressed in the former opinion. 24 Pac. Rep. 608. I cannot subscribe to the doctrine that the owner in fee of land, who simply agrees to convey it upon the payment to him of certain money evidenced by a promissory note, is in the same condition as one who conveys the land and takes back a mortgage; or that if, in the former case, he merely assigns the promissory note, the assignee of the note has a lien on the land. If the latter can enforce such a lien, he must be able to release it. But how could he release it? It could be released only by conveying the land to the vendee, but how could he convey that which he hath not? If, after the assignment of the note, the vendor should convey the land to the vendee, what then would be the condition of the supposed lien of the assignee of the note? The whole doctrine must rest on the untenable proposition that the assignment of a negotiable promissory note is a conveyance in fee of land.

I know that some of the recent text-writers speak of such a case as bearing "a strong similitude to that of a mortgagee and mortgagor," and say that, although it is often spoken of in the cases as a vendor's lien," yet, in their opinion, such language is "a misuse of terms;" and that, although "it has been said in English and American decisions, that the vendor's lien may arise before conveyance as well as after," yet, that this saying "confounds legal notions which are essentially different." But, in my opinion, those "English and American decisions" correctly state the law, and tend to prevent confusion. In this State Sparks v. Hess, 15 Cal. 194, is the leading case on the subject. In that case the court say: "This is not a suit to enforce a vendor's lien after conveyance executed, but to enforce such lien when the contract of sale remains unexecuted;" and that, while the position of the vendor is "in some respects" like that of a mortgagee, it is in other respects different. The vendor is at liberty to ask either a decree directing performance, and in case of refusal a sale of the prem. ises, or a decree barring the right of the vendee to claim a conveyance under the contract. Throughout the whole case the right of the plaintiff is treated as and called a "vendor's lien;" and there is no doctrine better established than that a vendor's lien is not assignable. In the case at bar there was no conveyance of the legal title from the owner of the land (Webster)

to the assignee of the note; and in my opinion, the mere assignment of the note carried no title to the land, and no vendor's lien, or any lien at all. But, in my opinion, a vendor's right is too shadowy to be a lien, within the meaning of the attachment law.

The

MASTER AND SERVANT-DEFECTIVE APPLIANCES · CONTRIBUTORY NEGLIGENCE. opinion of the Michigan Supreme Court in the case of Baux v. Blogett and Davis Lumber Co., 48 N. W. Rep. 1092, contains a review of the leading authorities upon the question of defective machinery in the law of master and servant. In this action, for personal injuries received through dangerous machinery, which was left unprotected, it appeared that it was properly covered at the time plaintiff was employed by the defendant, and that during the work the covering was broken, and that on that very day plaintiff called the attention of defendant's superintendent to the defect, and that he promised that it should be remedied that night; that next morning, no protection having been provided, plaintiff again spoke to the superintendent, who said that he would fix it at noon, and directed plaintiff to continue his work, but to take care of himself till noon; and that plaintiff resumed his work, but during the morning lost his balance, fell upon the machinery, and had his leg crushed, it was held that the danger was temporary in its character, and not incidental to plaintiff's employment, and he is not precluded from maintaining his action by the fact that, though he knew of the danger, he nevertheless returned to his work in immediate proximity to it; and it was error to take the case from the jury. McGrath, J., says inter alia:

As was said in Greene v. Railway Co., 31 Minn. 248, 17 N. W. Rep. 378: "If the emergencies of a master's business require him temporarily to use defective machinery, we fail to see what right he has in law or natural justice to insist that it shall be done at the risk of the servant, and not his own, when, notwithstanding the servant's objection to the condition of the machinery, he has requested or induced him to continue its use under a promise thereafter to repair it." Mr. Cooley, in his work on Torts, (sections 555, 559), says: "It has been often-and very justly-remarked, that a man may decline any exceptionally dangerous employment; but if he voluntarily engages in it he should not complain because it is dangerous. Nevertheless, where one has entered upon the employment and assumed the incidental risks, it is not reasonable to hold that other risks, which he is directed by the master to assume, are to be left to rest upon his shoulders merely because he did not take upon himself the responsibility of throwing up the employment, instead of obeying the order. Many considerations might reasonably induce the servant to hesitate u der such circum

stances. In many cases the consequences might be very serious should he refuse to obey a lawful com. mand of the master; any command may not be clearly and manifestly unlawful which directs the doing of nothing beyond the general scope of the business. The servant who refuses to obey must consequently expect to take upon himself the burden of showing a sufficient cause for the refusal. However clear the case might be to him, it might not be easy to make a showing satisfactory to third parties, who would naturally assume that the order was given in good faith, and that the master understood better than another the risks to be encountered in his business. The serv. ant also, it may reasonably be assumed, would to some extent have his fears allayed by the commands of a master, whose duty it would be not to send him into danger, and who might therefore be supposed to know, when he gave the command, that the dangers were not such or so great as the servant had apprehended" "It is also negligence for which the master may be held responsible, if, knowing of any peril which is known to the servant also, he fails to remove it in accordance with assurances made by him to the servant that he will do so. This case may also be planted on contract, but it is by no means essential to do so. If the servant, having a right to abandon the serv. ice because it is dangerous refrains from doing 80 in consequence of assurances that the danger shall be removed, the duty to remove the danger is manifest and imperative, and the master is not in the exercise of ordinary care unless or until he makes his assurances good. Moreover, the assurances remove all ground for argument that the servant by continuing the employment engages to assume its risks. So far as the particular peril is concerned, the implication of law is rebutted by the giving and accepting of the assurance; for nothing is plainer or more reasonable than that parties may, and should, where practicable, come to an understanding between themselves regarding matters of this nature." Deering on Negligence, § 196, says: "Where injury results from anything that is incident to the employment, but from a temporary peril, to which he is exposed by the negligent positive acts of the employer, he can recover." 1 Shearman & Redfield on Negligence, § 209, say; The servant cannot avoid responsibility "if he continues to work for any considerable time, knowing these facts, without being induced by his master to believe that a change will be made, and without making any complaint of such defects, or calling the attention of his master to them." The doctrine laid down by these authors is supported by a long line of well-considered cases. In Greene v. Railway Co., supra, plaintiff was in the service of defendant as locomotive engineer on a train ruuning between Minneapolis and Albert Lea. On reaching the former place in the morning with his train, upon examining his engine he discovered that the "chating irons" between the engine and tender were partly broken off. He immediately reported the fact on the "repair-book" to the foreman of the round-house, whose duty it was to have the repairs made, and to direct what engine should go out. On returning in the evening to go out with his train he found the engine out, but not repaired. On inquiring of the foreman why the repairs had not been made, the reply in substance was that he had not had time. On plaintiff suggesting that he did not like to take out this engine; that it was not safe; the foreman replied that he was short of engines to do the work of the road, and had no other to send out, and added: "Proceed with that, and you can get it fixed at Lea, if you have time; if not, I will

remedy it when you get back." The plaintiff did so, and on the way collided with another train (for which he does not appear to be responsible), and in attempting to escape was caught between the engine and tender, the defects in the "chafing irons" causing the engine to override the tender, and close up the gangway through which he was attempting to escape. In Manufacturing Co. v. Morrissey, 40 Ohio St. 148, plaintiff was working upon a jointer which was out of repair. In Clarke v. Holmes, 7 Hurl. & N. 937, plaintiff was employed to oil dangerous machinery. When he entered upon the service certain of the machinery was fenced, but the fencing became broken by accident. In Hough v. Railroad Co., 100 U. S. 213, there was a defect in the locomotive which plaintiff had in charge.' "There can be no doubt," say the court, "that where a master has expressly promised to repair a defect the servant can recover for an injury caused thereby, within such a period of time after the promise as it would be reasonable to allow for its performance, and, as we think, for an injury suffered within any period which would not preclude all reasonable expectation that the promise might be kept." In Railroad Co. v. Duffield, 12 Lea, 63, plaintiff was supplied with a defective hammer to drive railroad spikes. He testified: "Of course, I was obliged to see that the hammer was broken. Any man what wasn't blind could see the condition of the hammer. I knew when I saw it that it wouldn't do to drive spikes with, and that is why I spoke to the section boss about it." In Furnace Co. v. Abend, 107 Ill. 44, a locomotive foot-board was defective, from which deceased fell, while oiling the engine. In Parody v. Railway Co., 15 Fed. Rep. 205, the injury was occasioned by a defective draw-bar. In Lanning v. Railroad Co., 49 N. Y. 521, the court say: "Where the servant has full and equal knowledge with the master that the machinery or materials employed are defective, or that the fellow-servant is incompetent, and he remains in the service, this may constitute contributory negligence; but if it appears that the master has promised to amend the defect, or other like inducement to remain has been held out to the servant, the mere fact of his continuing in the employment does not of itself, as matter of law, exonerate the master from liability, but the question of contributory negligence is one of fact for the jury." See, also, Pieart v. Railway Co. (Iowa, 1891), 47 N. W. Rep. 1017; Kane v. Railway, 128 U. S. 91, 9 Sup. Ct. Rep. 16; District of Columbia v. McElligott, 117 U. S. 621, 631, 6 Sup. Ct. Rep. 884; Railway Co. v. Drew, 59 Tex. 13: Patterson v. Railway Co., 76 Pa. St. 389; Mehan v. Railroad Co., 73 N. Y. 585; Booth v. Railroad Co., Id. 38; Coombs v. Cordage Co., 102 Mass. 572-578; Greenleaf v. Railway Co., 33 Iowa, 53. This principle has been recognized and approved by this court. In Railway Co. v. Bayfield, 37 Mich. 205, the servant was justified in obeying the orders of his superior. Justice Cooley (page 212) says: "The risk was not fairly upon the servant's shoulders," and again: "We agree with the Supreme Court of Pennsylvania, that-when a servant, in obedience to the orders of his superior, incurs the risks of machinery which, though dangerous, is not so much as to threaten immediate injury, or where it is reasonably probable that it may be safely used by extraordinary caution or skill, the case is not to be regarded as one of concurring negligence;" citing Patterson v. Railway Co., 76 Pa. St. 389-394. In Swoboda v. Ward, 40 Mich. 420-422, the court, after laying down other general rules, says: "If the servant, with full knowledge of the facts, and understanding the risks occasioned thereby, in the absence of any promise by the master to remedy the same, consents to and re

mains in the master's employ, then he voluntarily incurs such increased risks." See, also, Lyttle v. RailCo. (Mich.), 47 N. W. Rep. 571; Jones v. Railway Co., 49 Mich. 573, 14 N. W. Rep. 551, recognizes the right of the servant to show that he did not consent or agree to the change or performance of extra duties, and that he did not freely and voluntarily enter upon a discharge of new duties imposed. The new duties in that case involved extra hazard.

It is insisted, however, that the dangerous condition and character of this machinery was known to plaintiff, and that he was guilty of concurring negligence in approaching it; that he did not excercise ordinary care, and might have gone around on the other side of the rollers, and thus have avoided the danger. Knowledge of the existence of a defect or danger, while it is evidence of contributory negligence, is not conclusive. In the cases already referred to the existence of the danger, was known to plaintiff, and in all of them it is held that the question of defendant's contributory negligence is for the jury. See Coombs v. Cordage Co., 102 Mass. 572-578.

THE POWER OF THE COURT OF EQUITY TO GIVE RELIEF AGAINST A JUDGMENT AT LAW.

The courts of the States where there is no code, and of the United States have concurrent jurisdiction at law and in equity. This jurisdiction is with few exceptions exercised by the same court known as the court of original jurisdiction. The court of equity grew up from the necessity to provide for a remedy and to grant relief, where there was no adequate remedy at law.

One of the powers of the court of equity is to modify, restrain, vacate or enjoin the enforcement and collection of a judgment obtained in a court at law. When the court of equity exercises this power, it does not assume to exercise appellate jurisdiction, nor to set aside the law; but to decree what is equitable and to prevent the rigid rules of law from doing an irreparable wrong.

A court at law may render a judgment against a party on a debt which has been paid, or when the defendant has a good defense on the merits and was not present to make a defense from sudden sickness, or from unavoidable accident, or from misrepresentations or acts of the opposite party, or when the court had no jurisdiction upon a false return of the officer, showing service when none was made, or for a much larger sum than is actually due through a mistake or misapprehension of the facts, or by consent of counsel without authority or knowledge of the de

fendant, or against the defendant who colludes with the plaintiff to cheat an honest creditor of such defendant.

When a judgment has been obtained under any of the foregoing circumstances, equity will give relief. But equity will not give relief to retry the issue already tried, nor when the alleged reasons, as perjury of the witnesses, have not been judicially or conclusively established, nor when the judgment is not shown to be unjust, and its payment unconscionable, nor where no defense was made by reason of the negligence of the defendant.

The question is, when may a court of equity interpose its power against a judgment at law, by whom may it be done, and for what reasons? Other questions also arise; whether another court of equal jurisdiction may exercise this power? When a motion for a new trial has been made and denied in a court at law, what force is given to that decision? Is there any distinction to be made in the exercise of this power, as against a foreign or domestic judgment? The party seeking relief in a court of equity from a judgment rendered against him must show, and subsequently establish one of four reasons before equity will interfere and grant relief:1

1st. He must show that the judgment rendered against him is against equity and good conscience.

2d. That he had no opportunity to make a defense, and that he has a good defense on its merits.

3d. That he was prevented from making his defense by accident or mistake, or by fraud or improper conduct of the opposite party.

4th. That he was without fault on his part.

The mistake to warrant the interposition of equity must be one of fact. Courts will not recognize a mistake of law as a general rule. A mistake of law can usually be corrected by writ of error to an appellate court.

Α

1 Carrington v. Holabird, 17 Conn. 537; Norton v. Woods, 5 Paige Ch. 249; Insurance Company v. Hodgson, 7 Cranch, 333; Borland v. Thornton, 12 Cal. 440; Miller v. Morse, 23 Mich. 365: Gray v. Barton, 62 Mich. 186; Crim v. Handley, 94 U. S. 652; Embry v. Palmer, 107 U. S. 11; Brown v. Hurd, 56 Ill. 317; Horn v. Queen, 5 Neb. 472; Robinson v. Wheeler, 51 N. H. 384; Burton v. Wiley, 26 Vt. 432. In Metcalf v. Williams, 104 U. S. 93, it is held that the reasons why a court of equity will give relief are to prevent a party from being deprived of his rights, through circumstances beyond his control, and when the remedy at law is lost or refused.

3

judgment for a larger sum than is actually due is ground for relief. Equity will also interfere where the mistake is one of fact made by the court. The parties seeking the relief must show that the enforcement and payment of the judgment would be inequitable, or would work an irreparable injury, or would be against good conscience. It must be affirmatively established that the judgment is wrong, and that a similar one is not likely to follow. When a judgment has been obtained without jurisdiction, or without proper service of process, a court of equity should set aside the judgment, i. e.: If a court has rendered a judgment upon a false return of the officer, which shows service, when none in fact was made,6 or if the return of process shows service on the defendant on Saturday, when such service was made on Sunday, the officer having falsified his return, or if the court had assumed jurisdiction, under a statutory provision for constructive service, upon void proceedings, believing them to be regular.8

It must be shown by the bill and competent evidence that the defendant has a good defense to the action upon the merits of the case, otherwise relief will be denied. When the defendant was misled or deceived by the plaintiff as to his liability, or as to the fact of the rendition of a judgment or its enforcement against him, or was prevented from obtaining security from a co-defendant by the deceit of the plaintiff, when such co-defendant was solvent, or when delay was caused through the acts or misrepresentations of the plaintiff, so that the defendant could not make a proper defense, by reason of the death or removal of material witnesses, equity has granted relief.10 When a party is ignorant of

21 High on Inj. (3d Ed.) § 222; Chase v. Manhardt, 1 Bland. (Tern.) 333.

3 Kohn v. Lovett, 43 Ga. 179.

4 Moore v. Gamble, 1 Stock. Ch. (N. J.) 245; Insurance Co. v. Hodgson, 7 Cranch, 332; Phillips v. Pullen (16 Atl. Rep. 9), 50 N. J. L. 469; Saunder's Appeal, 6 Atl. Rep. 712; Harnish v. Bramer, 71 Cal. 155.

5 Gregory v. Ford, 14 Cal. 139.

6 Knowles v. Gas-light Co., 19 Wall. 58; Thompson v. Whitman, 18 Wall. 457-469.

7 Hausworth v. Sullivan, 9 Pac. Rep. 798, 6 Mont. 203.

8 Earle v. McVeigh, 91 U. S. 507; Borden v. Fitch, 15 Johns. 141.

9 Hair v. Lowe, 19 Ala. 224; Pearce v. Olney, 20 Conn. 544; Ableman v. Roth, 12 Wis. 81; White v. Crow, 110 U. S. 183; Kelleher v. Boden, 55 Mich. 295.

10 Mack v. Doty, Har. Ch. (Mich.) 366; Burpee v.

the facts which constitute a good defense at law, until judgment is rendered against him, he may have relief in equity."1 When the proofs show that there was an oral agreement between counsel for the parties, on account of the sickness of one, not to push the case for trial; but subsequently a judgment was obtained without his knowledge, and in his absence, and without any opportunity to put in a defense, the defendant is entitled to equitable relief. 12 When a party, through collusion, suffers a judgment to be obtained against him, and a levy to be made on his property, equity will set it aside, if the court is satisfied that it was done to defraud an honest creditor of such defendant.18 Equity has granted relief to the sureties on a replevin bond, where the judgment has been rendered against the principal on the bond through the collusion of the plaintiff and defendant, when the purpose of such judgment was to conclude the sureties from making a defense in a subsequent action on the bond, the sureties having been kept ignorant of the original suit and judgment. Courts in equity have refused to give relief where it appeared that the issues would be simply retried in equity," or when the ground of relief is the perjury of witnesses on the trial of the case at law; when such perjury has not been established by judicial determination, or by documentary evidence; 16 or when a party failed to make a

Smith, Walk. Ch. Mich. 327; Roberts v. Miles, 12 Mich. 297. In this case Roberts was indorser of a note, and was prevented from obtaining security from the maker while solvent, through the respresentations of the holder, that he was not liable, as the note had been settled, nor would he be pursued after rendition of judgment, and was not until maker failed. Equity granted a perpetual injunction of the enforcement of the judgment against Roberts. Viele v. Hoag, 24 Vt. 46; Crim v. Handley, 94 U. S. 652. In Rickle v. Dow, 39 Mich. 91, judgment was obtained by misrepresentations upon a note which had been paid. In Wright v. Hake, 38 Mich. 525, a judgment was rendered by collusion between the plaintiff and defendant who was principal on a replevin bond to preclude the sureties. U. S. v. Throckmorton, 98 U. S. 61; Metcalf v. Williams, 104 U. S. 93.

11 Wales v. Bank, Har. Ch. 308; Lansing v. Eddy, 1 Johns. Ch. 51; Roberts v. Miles, 12 Mich. 297. 12 Whitcomb v. Gandy, 37 Fed. 735.

13 Edson v. Cumings, 52 Mich. 52.

14 Parkhurst v. Summer, 23 Vt. 538; Church v. Barker, 18 N. Y. 466; Lothrop v. Southworth, 5 Mich. 448; Story on Eq. Jur., §§ 700, 702.

15 Miller v. Morse, 23 Mich. 365; Cottle v. Cole, 20 Iowa, 482.

16 Gray v. Barton, 62 Mich. 186; Cleveland Iron Min. Co. v. Husby, 72 Mich. 61.