Phillips v. Godfrey.

request, which they never returned, but actually consumed, and for which, if the plaintiffs' claim in this action is enforceable, the defendant has never been paid. This amount must necessarily be allowed to the defendant, and forms a good counterclaim.

IV. The judge, at special term, erred in overruling every proposition of fact or of law insisted on by the defendant. The judgment at special term should be reversed, and judg ment ordered for the defendant, and for a balance in his favor, against the plaintiffs, with costs.

Mead & Taft, for Respondents.

I. The recovery of the judgment, upon which this action was brought, in the State of Wisconsin, and that the court pronouncing it had jurisdiction of the defendant by actual and personal service of process upon him, and by his appearing in and defending the action, are proved by the exemplified copy of the judgment record. (Greenleaf on Evidence, vol. 1, § 504; Hatcher v. Rocheleau, 18 N. Y. R. 86, 90, 94.)

This judgment can only be impeached by showing want of jurisdiction in the court, or fraud; neither of which has been done in this case. (Rocco v. Hackett, 2 Bosworth's R., p. 579; Greenleaf on Evidence, vol. 1, § 504; Dobson v. Pearce, 2 Kernan's R., p. 156.) The defendant established no defense to the judgment.

II. The defendant established no other counterclaim 'than the one that was allowed.

The goods spoken of in the third division of the answer were paid for, except the balance for which the judgment was recovered before Justice Hinds, and which was allowed as a counterclaim.

The goods spoken of in the fourth division, are the same goods that are mentioned in the third. Judgment should be affirmed, with costs.

BY THE COURT. ROBERTSON, J.-The judgment upon which this action is brought, was obtained in a court of a sister

Phillips v. Godfrey.

State, upon due notice personally served therein upon the defendant, to defend the same. It is now proposed to enquire into the validity of it, collaterally in this action, and to assail its foundation by establishing that the cause of action set forth in the complaint in such action in which the judgment was obtained, was such as could not be sued upon in the courts of this State; in other words, to demur to such complaint. But, as the Constitution of the Federal Government requires full faith and credit to be given in every State to judgments of each State, when jurisdiction. has been obtained of the person, the objection is hardly worth noticing. The courts of this State have, it is true, jurisdiction only of causes of action recognized by its laws, but, among them, is a judgment obtained in a sister State. The right of action on a judgment needs neither promise nor consideration to create or support it.

The second objection seems to me equally frivolous. The judgment obtained by the defendant against the plaintiffs, concluded the plaintiffs on nothing except that they owed the price of goods bought; which is perfectly consistent with the defendant's being liable for damages for misrepresenting their quality or purity. The plaintiffs were not bound to recoup, and did not, but chose to avail themselves of the right of suing for this wrong. The defendant was probably not prevented from availing himself of the recovery of the judgment by him in Wisconsin, if it had been of any avail for the purpose, in answer to the claim of the plaintiffs against him; notwithstanding the latter was sued upon after his suit was begun and before judg ment had been obtained, as he could have set it up by plea puis darrein, or supplemental answer. At all events, it is too late now, after judgment has been obtained against him. I do not see any great hardship in the defendant's altogether losing the price of adulterated articles sold as pure; but that was a question disposed of by the courts of Wisconsin, with which we have nothing to do, except to enable the parties in whose favor judgment was rendered, to enforce it in this State.

Braynard v. Hoppock.

The judgment appealed from must be affirmed, with costs, to the respondents.

Ordered accordingly.

THOMAS L. BRAYNARD, Plaintiff and Respondent v. ELY HOPPOCK, Defendant and Appellant.

on the

1. A written contract by which H. agrees to advance to B. $1,500 brig Sophia loading in New York and bound for San Francisco," and by which B., for the use of the money, agrees to pay to H. twelve per cent. commission and seven per cent. interest, and as security to assign to H. policies on the ship, and on freight, and also to make a bill of sale of the ship, is usurious.

2. In a suit brought to obtain a re-assignment of the policies and brig, and recover the moneys collected by H. on policies assigned to him pursuant to the agreement, it is no objection to the right to recover, that the suit was not commenced until more than a year after the policies had been assigned to H.

(Before HOFFMAN, PIERREPONT and ROBERTSON, J. J.)

Heard June 8, decided June 30, 1861.

APPEAL by the defendant from a judgment against him rendered January 14, 1854, for $2,303.25, on a trial before Mr. Justice HOFFMAN, without a jury.

This action was commenced in November, 1851, and the complaint sets forth, in full, a written contract dated May 16, 1850, between the plaintiff and defendant, by which the latter agreed to advance to the former $1,500,"on the brig Sophia,' Harwood master, now loading in New York, and bound for San Francisco," and the plaintiff, for "the use of" that sum, thereby "agreed to pay said Hoppock twelve per cent. commission, and interest at seven per cent. per. annum from date, until the said amount is paid to said Hoppock in New York." Braynard also thereby agreed to transfer to Hoppock, an insurance policy on the brig for $8,000, also insurance policy on freight, bills of lading of the cargo, "together with bill of sale on vessel for $1,500," and consign the brig to J. B. Biddleman in San Francisco,

Braynard v. Hoppock.

who was to do her business, charge customary commissions, and remit to Hoppock, from net proceeds of vessel's account the said $1,500, and twelve per cent., commission "and interest, and interest added, until the funds can be placed in said Hoppock's hands in New York."

It also sets forth in full a further written contract between the same parties, (attached to the foregoing one,) dated December 5, 1850, which recites that Hoppock has advanced to Braynard "$366.06, on the brig Sophia, for repairs and expenses incurred in the Island of St. Catharine," for the "use of" which sum Braynard thereby "agreed to pay said Hoppock fifteen per cent. commission, and interest at seven per cent. per annum, until the said amount is paid to said Hoppock in New York," which "agreement (as it states) is to be governed by the same regulations (regarding policies of insurance, bills of lading, &c.) as the agreement to which this is attached," viz: the said agreement of May 16, 1850.

It also alleged that the plaintiff had assigned to the defendant two policies on the ship, one on the freight of its cargo, (describing them,) and had made and delivered to him a bill of sale of said ship; that defendant had received moneys on the policies, and that Biddleman had sold the ship and cargo, and collected the proceeds thereof, and prayed that defendant account for and pay to plaintiff "all the proceeds of the sale of the said brig and her cargo, freight and earnings received by him;" also the moneys received on the policies of insurance, and that he re-assign the brig and the policies to the plaintiff. The summons is dated November 17th, the verification of the complaint November 18th, and of the answer December 27, 1851, and of the reply January 17, 1852.

During the trial evidence was given by three witnesses, without objection, to the effect that "a reasonable compensation or commission upon advances upon vessel, freight or cargo, from New York to San Francisco," is not less than 12 per cent. One witness, on cross-examination, said "the commission is large on account of the hazardous

Braynard v. Hoppock.

nature of the business. If the borrowers gave their individual securities, of course it would make a difference. We have refused to advance for fifty per cent."

The judge found as facts, that the said agreements were made; that Hoppock advanced the $1,500 under the first agreement, and also the sum of $300 under the second one. That Braynard, in pursuance of said contract of May 16, 1850, assigned to Hoppock two several policies of insurance on the brig, for $4,000 in the aggregate, and a policy on the freight of the brig for $4,000, and made and delivered to him a bill of sale of the brig; and that Hoppock took no personal obligation of the plaintiff for the re-payment of the money.

He also found that the defendant received on the 14th of November, 1851, on one of the two policies on the brig $862.15, and on the other the further sum of $862.15; and, on the policy on freight on the 8th of May, 1852, the further sum of $1,853. The judge held the transactions usurious, and that the plaintiff was entitled to recover said three sums with interest; to a re-transfer of the policies, and of the brig, and of defendant's interest therein, and ordered judgment accordingly, with costs.

The defendant duly excepted "to the decisions and conclusions of law," and appealed from the judgment to the general term.

Charles W. Sandford, for Appellant.

I. The agreement created no personal liability on the part of the plaintiff for the re-payment of the money advanced, and no bond or note was given therefor. The agreement must be corrupt, or it is not usury. The loan was solely an advance upon the property. There was, therefore, no usury in the transaction. (Chesterfield v. Janssen, 1 Atk. 340; Robin v. Tremaine, Croke James, 507; Comyn on Usury, 39.)

II. The interest was only to be paid out of the remittances from California.