Depeyster, 3 Id. 345; Williams v. Merle, 25 Id. 604, and note, where the rule and exceptions are fully considered. The principal case is cited and followed in Quinn v. Davis, 78 Pa. St. 18, where D. deposited a piano for storage with K., who bought and sold second-hand furniture at auction and received goods on storage; K. had the piano sold at auction, and Q. bought it bona fide, at a fair sale, without knowing who was the owner; held, D. could recover the piano from Q.

ALLEN V. MACLELLAN.

[12 PENNSYLVANIA STATE, 328.]

DECREE OF DIVORCE OBTAINED BY FRAUD MAY BE VACATED AT SUBSEQUENT TERM by court of common pleas, although a marriage was contracted on its faith, and issue born.

ORDER VACATING DECREE OF DIVORCE FOR FRAUD IS CONCLUSIVE AFTER EXPIRATION OF TIME FOR APPEAL, although the record does not show that proof of fraud was made.

CERTIFICATE from nisi prius. Assumpsit against maker of promissory note. The note had been made December 5, 1845, in favor of Lucretia Bleecker, and was indorsed by her second husband, Wheatley, to the plaintiff, on January 16, 1846. The right of the plaintiff depended upon Wheatley's authority to indorse the note as the husband of the payee. A libel for divorce had been filed in 1845 in the court of common pleas of Philadelphia, by Lucretia Bleecker, alleging desertion and cruel treatment, and a decree of divorce was entered November 22, 1845. Wheatley, on the faith of this decree, married Mrs. Bleecker, on the twelfth of January, 1846, and an issue was born on November 4th of the same year. On February 13, 1846, Bleecker applied to the court to vacate the decree, the application denying the allegations of the libel, and averring that the libelant had been previously guilty of adultery. Notice of the application was served at the reputed residence of the libelant, the libelant being at the time absent from the state. On the seventh of March, 1846, the court ordered the decree annulled, on the ground that it was obtained by fraud and imposition on the court, but the record did not show that any proof had been made, or that the libelant appeared. The court gave judgment for the plaintiff.

W. L. Hirst and Lambert, for the appellant.

Randal, contra.

By Court, GIBSON, C. J. The case which most distinctly recognizes the power of a spiritual court to vacate its sentence

when obtained by imposition is Prudham v. Phillips, stated in Meadows v. The Duchess of Kingston, 2 Amb. 763, and rather more fully in 1 Harg. Tracts, 456, note. It was tried before Chief Justice Willes in 1737; and, though a nisi prius decision, it was quoted with approbation by Lord Apsley. To show by analogy that the sentence in a suit of jactitation of marriage is conclusive in a common-law action, the chief justice took a distinction founded on the common-law principle, that a party to a fraudulent judgment can reverse it only directly, but that a stranger may reverse it collaterally, by pleading and evidence. "Who ever knew," he said, "a defendant plead that a judgment against him was fraudulent? He must apply to the court; and if both parties colluded, it was never known that either of them could vacate the judgment. Here the defendant was party to the sentence; and whether she was imposed upon, or she joined in deceiving the court, this is not the time and place for her to redress herself. She may, if she has occasion, appeal, or apply to the proper judge." So was it with the legitimate husband in the case under consideration. The time for appeal had gone by, and he applied to the only tribunal that was open to him. Chief Justice Willes does not intimate how it ought to proceed on the application; but it must necessarily be by summary examination and order. In Bac. Abr., Error, I. 6, the remedy for a surreptitious judgment at common law, is said to be a writ of error coram nobis; but Ronney v. Robinson, 2 Roll. Abr. 724, which is cited for it, leans the other way. If a clerk of the king's bench, it was there said, enter judgment against an order by a judge of the court, it may be vacated at a subsequent term. If by writ of error, it would have been unnecessary to say anything about the time; and the meaning undoubtedly is, that such a judgment may be vacated after the term, just as if the record were still in the breast of the court. That case shows that the principle of Prudham v. Phillips, 2 Amb. 763, is a general one, and applicable alike to ecclesiastical sentences and common-law judgments. It has no relation to the doctrine of amendments, which make the record speak a language it did not speak before: the vacation is a new and independent judgment, of which the recorded entry is its appropriate evidence. If it can be entered only on a writ of error, what is to be done with a surreptitious sentence of an ecclesiastical court, to which no such writ lies? As imposition on it would else be without the means of correction, it must necessarily have a power of summary revision. Facts put in

AM. DEC. VOL. LI-39

issue as they may be, by the pleadings in error, are triable by jury; but as there is no jury in such a court, there is the less objection to summary proceeding by it. There is certainly

more reason for it than there was in Ronney v. Robinson, 2 Roll. Abr. 724. True, a statute has given the common pleas jurisdiction in libel for divorce; but it has not made it a court of record in any other aspect than the one in which it had before been considered. Its proceedings in divorce are not according to the course of the common law-at least where a feigned issue is not directed-and no writ of error lies to remove its sentence, whatever may be its power to remove the record of such an issue. In every other respect, the remedy is by appeal, as it is in the ecclesiastical courts.

It may seem an arbitrary act to expunge a sentence of divorce, with a stroke of the pen, bastardize after-begotten children, involve an innocent third person in legal guilt, and destroy rights acquired in reliance on a judicial act, which was operative at the time: and under this first impression, I would have decided as did the judge at nisi prius. But the legitimate husband also has rights; and if any one must suffer from the invalid marriage, it is he who procured it. By the terms of the contract he took the lady for better for worse; and having assumed at least her moral responsibilities, he stands as to hardship in her place. He therefore has no right to complain. The children, who are the fruit of the connection, are the only persons who have it, if indeed to have been brought into the world in any circumstances, can give such a right; but their condition is not worse than that of the dishonored husband. There is no injustice, therefore, in a proper exercise of the power assumed in this instance; and the apparent danger of excess in the use of it vanishes when it is viewed in connection with a principle, which requires the record to exhibit the ground of every judgment. Possibly there may have been no sufficient ground exhibited in this case; but even if there were not, the order to vacate would be only erroneous, and unimpeachable after the expiration of the period for reversing it by appeal. In stating, however, the charge of imposition, without the facts and circumstances to sustain it, the court has perhaps stated enough to justify their action upon it. Confidence must be reposed in the wisdom and justice of the tribunals; and hence the maxim, that all things are presumed to have been rightfully done in courts of record. The indorser of the note in suit before us had no property in it; and the plaint iff has no title.

Judgment for plaintiff reversed, and judgment rendered for defendant.

DECREE OF DIVORCE OBTAINED BY FRAUD, VACATED: Harding v. Alden, 23 Am. Dec. 549; Boyd's Appeal, 38 Pa. St. 243, citing and following the principal case. But in Greene v. Greene, 2 Gray, 366, the principal case was distinguished; and held a decree of divorce from the bond of matrimony, although obtained by fraud and false testimony, can not be set aside on an original libel filed at a subsequent term.

JONES V. JONES.

[12 PENNSYLVANIA STATE, 350.]

EVIDENCE TO SHOW THAT LEGISLATIVE DIVORCE WAS GRANTED FOR CAUSES OVER WHICH COURTS HAVE JURISDICTION, and that therefore the legislature had no power to grant it, under the constitution, is inadmissible. EVIDENCE AS TO MANNER OF PROCEEDING OR AGENCIES EMPLOYED by any member of the legislature, in procuring an act of divorce, is admissible. EJECTMENT. The lands in controversy had descended to the wife, the plaintiff in the action, after she and the defendant had been married, in 1821. The plaintiff, to sustain her title, introduced an act of the assembly, passed in 1845, which read as follow. "Be it enacted, etc., that the marriage contract entered into between Joseph P. Jones and Charlotte S., his wife, late Charlotte S. Styer, of the county of Montgomery, be and the same is hereby annulled and made void, and the parties released and discharged from the said contract, and from all duties and obligations arising therefrom, as fully and effectually and absolutely as if they had never been joined in marriage; provided, the children of the said Joseph P. Jones and Charlotte S., his wife, shall enjoy all the rights and privileges of children born in lawful wedlock." The record of an action of divorce, in 1842, by the wife against the husband, in which a verdict had been rendered for the latter, was then offered in evidence by the defendant. The defendant also offered to prove that the petition of Mrs. Jones, with certain affidavits and documents, praying an act divorcing her from her husband, was presented to the legislature by one of her counsel, who was at the time a member; and that the act of the assembly was procured by fraud, falsehood, undue means, and without notice, and by the misrepresentations of the member referred to. All this evidence of the defendant was rejected, and error was assigned. The record, above referred to, is given in the opinion.

H. Freedley and G. R. Fox, for the plaintiff in error.

McMurtrie and Mulvany, contra.

By Court, COULTER, J. The case presents for the judgment of the court a question of property between two individuals. In reaching that question, however, it is absolutely necessary to consider the social relation of the parties, and to estimate its effect on the question of property. One party invokes the protection of a clear and explicit provision of the constitution. And to reach that, we must, if necessary, go over an interposing act of assembly. In England, parliament has frequently annulled the contract of marriage for adultery. There is, perhaps, more reason for the practice there than existed in this state for the exercise of a similar power by the legislature; because parliament is a court. Lord Coke says it is the highest and most honorable court in the kingdom. But that high court proceeds with the utmost circumspection, examines witnesses to prove the adultery, and in cases where the guilty parties have not left the realm, requires that there shall also have been a trial in the common-law courts for criminal conversation, and damages recovered, and also that a sentence of divorce in the spiritual court should have been decreed, which can only divorce a mensa et thoro; hence the necessity of the intervention of parliament to divorce a vinculo, whose power, only, is adequate to that end. But in this state the legislature seems to have acted on the ground that it was an exercise of legislative power, and therefore not requiring a judicial examination. We think, however, that this doctrine may be well questioned.

A divorce annuls a civil contract between two individuals, of a higher and more imposing nature, and of more emphatic emphasis on the whole structure of society, than the voluntary contracts by deed or by parol. And there flows from the severance of the contract, a divestiture of property from one and a reinvestment of it in the other. It is in fact a judgment in a dispute between two individuals, the justice of which must depend upon facts in relation to which both parties ought to have an opportunity to be heard. But however questionable the power might have been under the constitution of 1790, the amended constitution of 1838, did expressly prohibit its exercise by the legislature, wherever the courts then had or should thereafter be vested with power; from which an implication results of a power to annul the marriage contract in the non-enumerated cases. The legislature has therefore a limited power, with an express