Thomas v. Newton ( 1817 )

WASHINGTON, Circuit Justice.

That the defendant has attempted to practise a gross fraud in this case, is incontestable, nor can it be denied but that Alorris is entitled to redress. The difficulty consists in providing the proper remedy. After the defendant had delivered up possession to Morris, and that too for a valuable consideration, he had no power to confess judgment; it was a fraud which no court will suffer to prevail. The obvious remedy is to set aside the judgment and the execution, and to order possession to be re-delivered to the person, who, under the process thus improvidently issued was turned out; which if disobeyed, such disobedience will be punished as a contempt, or a writ of restitution may be awarded. But the difficulty is as to retaining the cause on the docket in the name of Newton, who is desirous to withdraw from the defence, and will be liable to the costs. For the court can by no means permit the name of Alorris to be substituted for that of Newton, which would enable the new defendant to oust the jurisdiction whicn had once attached. But, as an ejectment is a fictitious action, and can be so moulded by the court as to further the ends of justice, and as Newton is the last person who has any right to complain of the restraint imposed upon him, not to confess judgment so as to defeat the right of Alorris; tne court will not permit him to do so, but they will at the same time direct Alorris to give security to indemnify Newton against the future cost of the suit, and they will merely restoie the cause to the situation in which it was at the time the judgment was confessed. Rule made absolute.