majority">By the Court, Peabody, J.

The plaintiffs in their complaint say, that in August, 1847, the defendant Tibhitts obtained a judgment against the plaintiff Blunt, and two others, on anote given by them to Delavan, for about $2800. That in April, 1848, Tibhitts filed a bill in chancery to enforce said judgment, to which Blunt set up as a defense that the note on which the judg- >, ment had been recovered was made and delivered to Delavan *20to procure the release of Blunt from a contract he had made with Delavan, which he had been induced to make by fraudulent representations of said Delavan. The fraudulent representations were set out in the complaint, and it is also stated that said fraud was not discovered until after the judgment had been recovered. It is also stated that the judgment in fact belonged to said Delavan. That judgment in that second suit, brought to enforce the judgment recovered in the first, was entered for the defendant Blunt, in February, 1854, to the effect that the answer was true, and dismissing the complaint with costs; from which no appeal has been taken. The plaintiffs also say that Blunt, in July, 1848, made to the plaintiff James Monroe a general assignment of his property, for the benefit of creditors'; and they demand,- as relief, that the judgment against Blunt be canceled or opened, and that a perpetual injunction be granted against the collection of it, and other general relief. The complaint, after stating the fraud by which the defendant Blunt was entrapped, proceeds to state that the question of fraud on the part of Delavan has been decided in a suit, the substance of which is set forth; from which it appears that it has become res adjudicata between Blunt and Delavan. The suit in which it was decided was, to be sure, between Tibbitts and Blunt, but the court decided that it was prosecuted in the name of Tibbitts for the benefit of Delavan ; and by rendering judgment for the defendant in that suit, for a cause which was matter of defense only between Blunt and Delavan, it is certain that they must have decided that the judgment, in the hands of Tibbitts, was subject to that matter of defense, which is all that is necessary for the plaintiff in this case. Tibbitts was plaintiff in the suit in which the judgment was recovered. He was also plaintiff in the suit brought to enforce it; and whether Delavan was the real plaintiff in interest or not, he, as" well as the nominal plaintiff, was . bound by the adjudication there had, not only as to the result of that suit, but also as an adjudication of the rights of the owner of the judgment, whether he or Tibbitts were that owner, *21which concludes him not only in that suit but elsewhere, (Southgate v. Montgomery, 1 Paige, 41. Calkins v. Allerton, 3 Barb. 171. 7 id. 494. 4 Hill, 119.) The defense to the claim on the note is adjudged to be good and sufficient in law, and a court of equity in a direct proceeding by the plaintiff on the judgment, against the judgment debtor, having adjudged to that effect has dismissed with costs, on that ground, a bill to enforce it. This decision involved the decision of several minor questions : (1st.) That the matter set up as constituting fraud was sufficient in law to have defeated the recovery ; (2d.) That the fraudulent representations were made ; (3d.) That the evidence was discovered after the judgment against Blunt was recovered, and too late to be interposed as a defense in that suit; (4th.) That no unreasonable delay had been suffered by Blunt, after the discovery of the fraud, in availing himself of it; and (5th.) That the relations between Tibbitts and Delavan were such that the fraud was available to defeat the claim when made by Tibbitts, as it would have been if it had been made by Delavan. Whether this last point was so found on the ground that the suit was prosecuted by Delavan in the name of Tibbitts, or on some other ground, is not important. It is sufficient that the claim on the judgment was adjudged to be liable to this defense, in the hands of Tibbitts. With those matters judicially ascertained we may look to the defendants to show cause why the judgment should not be canceled. Their demurrer is general, that the complaint “ does not state facts sufficient to constitute a cause of action” against them, and they have not indicated by points what are the grounds on which they rely to sustain it. Nor is there before us any reason by way of opinion or otherwise for the decision in the court below, allowing the demurrer. The length of time that was suffered to elapse after the discovery of the fraud, before the attempt by Blunt to avail himself of it, to accomplish the end sought by this suit, to wit, the cancellation and extinguishment of the judgment, may be a sufficient ground in their estimation, and it *22would be in ours, perhaps, but for the fact that he did, immediately on the discovery of it, commence to assert it legally, to defeat the claim on the judgment. The suit on the judgment was commenced in April, 1848, and in that, suit this new matter was set up as a defense. That defense was litigated till the 4th of February, 1854. The existence of the facts, and their sufficiency in law to defeat the claim, were then being litigated throughout that time, and those questions were in doubt until the decision in that case. The question arises whether, under those circumstances, laches can be imputed to Blunt in omitting to bring this suit until after the decision in that. The whole matter of law and fact was then in issue between the same parties in that suit. To have commenced this action would have done no good, apparently, and would have increased litigation and expense. The result in the suit first decided would have concluded the parties in the other, and rendered the whole question res adjudicaba. The defendants here cannot suffer any damage which might otherwise follow from the lapse of time, such as the loss and fading out of evidence : for the question was immediately litigated between the parties, and the evidence could have been, and so far as we can see was, immediately called into the case, and not only put in a condition to be preserved, but the result of it was actually obtained by an adjudication which is now entirely available here ; and whatever it might have been, would be available to either party conclusively in this suit, or any other brought for the same puiqDOse. Under these circumstances, the defendants cannot complain of delay in commencing this suit. Indeed, it is very doubtful if a court of equity would have allowed the two suits to proceed together, the questions to be tried in the two being the same, and between the same parties. It would probably have restrained the proceedings in one until the decision in the other should have been attained ; and if a suit had been brought by Mr. Blunt, that would probably have been the one to be restrained ; certainly it would if it had been commenced after the other, which it might have *23been, without the least danger that the plaintiff could suffer on the ground of laches, as to it. This suit is properly brought by the plaintiffs. Blunt himself might bring it. He is interested in having the judgment canceled. The Monroes might, if not as representing the rights of Blunt, certainly as representing the property.on the title to which the judgment was a cloud, and generally as representing the rights of other creditors of Blunt to the fund assigned, between whom and. the owner of the judgment in question that fund was to be distributed, and the shares of the cestuis que trust whose interests they were bound to protect be thereby diminished; and they may unite as plaintiffs, I think, at any rate, without exposing themselves to harm from a demurrer. The judgment below should be reversed, and judgment entered for the plaintiffs in this suit, with costs.

[New York General Term,November 2, 1857.

Mitchell, Gierke and PeoihoAy, Justices.]

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