Hinman, J.
The object of injunctions to stay proceedings at law, is, to prevent injustice, by an unfair use of the process of a court. They are granted on the ground of the existence of facts, not amounting to a defence to the proceeding enjoined against, but of which courts of equity have jurisdiction, and which renders it against conscience that the party enjoined should be permitted to proceed in the cause. It is well settled, that this jurisdiction will be exercised, whenever a party, having a good defence to an action at law, has had no opportunity to make it, or has been prevented, by the fraud or improper management of the other party, from making it, and by reason thereof, a judgment has been obtained, which it is against conscience to enforce. Indeed, this falls directly within, and is but an illustration of, the general rule, that equity will interfere to restrain the use of an advantage gained [555]*555in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained, by the fraud, accident or mistake, of the opposite party.
The application of these principles to the facts in this case, is obvious. A suit was commenced in New-York, against the present plaintiff, by virtue of which, and of the process thereon, he was arrested, and such proceedings were had, that a judgment for about six hundred dollars was obtained against him, on a cause of action founded wholly on a contract, with which, personally, he had nothing to do; but was entered into by him, as the agent of the Norwich Foundry Company, a corporation with which the plaintiff in that suit had had previous dealings, and was well known to him, at the time, as the party with whom he was contracting. If this was all, the plaintiff would have no remedy, however unjust it might be, to compel him to pay that judgment. Still, as he was duly served with process in that suit, it was his duty to make defence in it ; and an injunction ought not to be granted to relieve him from the consequences of his own neglect.
It is found, however, that he not only had a good defence, but it was his intention to make it; and he would have made it, had he not been led, by the conduct of the attorney of the plaintiff in that suit, to suppose that the suit was abandoned. Very soon after the suit was instituted, the present plaintiff, then defendant, called on the attorney, and explained to him the circumstances under which the contract was made, and the mistake in suing him individually, instead of the company for whom he acted ; and when they parted, the attorney said, he would see the defendant again on the subject. This he did not do ; but shortly after, wrote him a letter, notifying and informing him, that nothing further would be done in relation to that suit, until some further notice should be given him. This, though not an abandonment of the suit, at the time, yet coming from the attorney of the plaintiff, after the information communicated to him, by the defendant, was an assurance on which it was very natural to rely ; and, after waiting a reasonable time, and receiving no further notice on the subject, we think he had a right to suppose the demand, as against him, personally, was given- up and abandoned. And it seems quite obvious, that the taking of judgment in [556]*556that case, without any intimation of an intention to do so, or any further notice in relation to the suit, or the subject matter of it, must operate as a surprise upon the defendant, which is tantamount to a fraud, and justly calls for the interposition of a court of equity. Indeed, that such is the result to which the bill and the facts found, by the committee, necessarily lead, is hardly questioned ; unless it is prevented, on the ground taken in some one or more of the technical objections, which have been suggested in the argument.
It is insisted, that under the constitution of the United States, requiring full faith and credit to be given to the judicial proceedings of other states, it is not competent to the court to impeach the judgment of the superior court of New-York ; it being shown, that that court had jurisdiction of the cause, by the regular service of process on the defendant in that suit. And cases are cited to sustain this position. This doctrine is correct enough, no doubt, properly understood and applied ; but it has no application here. There is no attempt to impeach the validity of the New- York judgment. In granting an injunction against proceedings at law, whether in a foreign or domestic court, there is no difference ; the court of equity does not presume to direct or controul the court of law; but it considers the equities between the parties, and acts upon the person, and restrains him from instituting or prosecuting an action. 2 Sto. Eq. § 875.
These are well settled principles; and, in view of them, the only question in the case, must be, whether the circumstances are such as to require of the court, that the defendant should be restrained from pursuing a judgment which he has obtained, in the manner in which he procured this, in New-York.
It is further claimed, that the corporation for which the plaintiff acted, in the making of the contract, on which the case in New-York was founded, had ceased to exist; and, as there was no principal to be bound by the acts of the agent, that the plaintiff was himself personally liable, although he professedly acted as agent of another.
There is no foundation for this claim. The finding of the committee, indeed, shows, that the corporation failed to elect a board of directors, annually, as they should have done ; and that, after January, 1841, there was no subsequent election, [557]*557until 1845; the board elected in 1841, in the mean time, acting until the election in 1845: and that the certificates required, from time to time, to be deposited with the town-clerk, were signed by the treasurer, instead of the president and secretary, as they should have been. But this court has repeatedly decided, that the neglect of a corporation to perform some corporate duty required by their charter, although sufficient to produce a forfeiture of corporate rights; yet, before such forfeiture is judicially determined, it cannot be taken advantage of collaterally. Derby Turnpike Co. v. Parks, 9 Conn. R. 522. 536. Kellogg v. Union Co. 12 Conn. R. 7.
Again, it is claimed, that the record of the judgment rendered in New-York, shows, that the defendant in that suit, appeared, and was in fact present in court, at the time judgment was rendered against him ; and as it is an agreed fact, that he was duly served with process, it is insisted, that this record of the defendant's appearance, is conclusive; and that no evidence can, properly, be admitted to contradict the record, in this respect, without directly impugning the full faith and credit which is due to the record.
What force there might be in this objection, if the appearance mentioned in the record necessarily meant, that the defendant in that suit was actually present in court, when said judgment was rendered, and said "nothing in bar or preclusion of said action," it is unnecessary to determine. We are satisfied, that no such meaning can be given to the record of the defendant's appearance in that case.
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Hinman, J.
The object of injunctions to stay proceedings at law, is, to prevent injustice, by an unfair use of the process of a court. They are granted on the ground of the existence of facts, not amounting to a defence to the proceeding enjoined against, but of which courts of equity have jurisdiction, and which renders it against conscience that the party enjoined should be permitted to proceed in the cause. It is well settled, that this jurisdiction will be exercised, whenever a party, having a good defence to an action at law, has had no opportunity to make it, or has been prevented, by the fraud or improper management of the other party, from making it, and by reason thereof, a judgment has been obtained, which it is against conscience to enforce. Indeed, this falls directly within, and is but an illustration of, the general rule, that equity will interfere to restrain the use of an advantage gained [555]*555in a court of ordinary jurisdiction, which must necessarily make that court an instrument of injustice, in all cases where such advantage has been gained, by the fraud, accident or mistake, of the opposite party.
The application of these principles to the facts in this case, is obvious. A suit was commenced in New-York, against the present plaintiff, by virtue of which, and of the process thereon, he was arrested, and such proceedings were had, that a judgment for about six hundred dollars was obtained against him, on a cause of action founded wholly on a contract, with which, personally, he had nothing to do; but was entered into by him, as the agent of the Norwich Foundry Company, a corporation with which the plaintiff in that suit had had previous dealings, and was well known to him, at the time, as the party with whom he was contracting. If this was all, the plaintiff would have no remedy, however unjust it might be, to compel him to pay that judgment. Still, as he was duly served with process in that suit, it was his duty to make defence in it ; and an injunction ought not to be granted to relieve him from the consequences of his own neglect.
It is found, however, that he not only had a good defence, but it was his intention to make it; and he would have made it, had he not been led, by the conduct of the attorney of the plaintiff in that suit, to suppose that the suit was abandoned. Very soon after the suit was instituted, the present plaintiff, then defendant, called on the attorney, and explained to him the circumstances under which the contract was made, and the mistake in suing him individually, instead of the company for whom he acted ; and when they parted, the attorney said, he would see the defendant again on the subject. This he did not do ; but shortly after, wrote him a letter, notifying and informing him, that nothing further would be done in relation to that suit, until some further notice should be given him. This, though not an abandonment of the suit, at the time, yet coming from the attorney of the plaintiff, after the information communicated to him, by the defendant, was an assurance on which it was very natural to rely ; and, after waiting a reasonable time, and receiving no further notice on the subject, we think he had a right to suppose the demand, as against him, personally, was given- up and abandoned. And it seems quite obvious, that the taking of judgment in [556]*556that case, without any intimation of an intention to do so, or any further notice in relation to the suit, or the subject matter of it, must operate as a surprise upon the defendant, which is tantamount to a fraud, and justly calls for the interposition of a court of equity. Indeed, that such is the result to which the bill and the facts found, by the committee, necessarily lead, is hardly questioned ; unless it is prevented, on the ground taken in some one or more of the technical objections, which have been suggested in the argument.
It is insisted, that under the constitution of the United States, requiring full faith and credit to be given to the judicial proceedings of other states, it is not competent to the court to impeach the judgment of the superior court of New-York ; it being shown, that that court had jurisdiction of the cause, by the regular service of process on the defendant in that suit. And cases are cited to sustain this position. This doctrine is correct enough, no doubt, properly understood and applied ; but it has no application here. There is no attempt to impeach the validity of the New- York judgment. In granting an injunction against proceedings at law, whether in a foreign or domestic court, there is no difference ; the court of equity does not presume to direct or controul the court of law; but it considers the equities between the parties, and acts upon the person, and restrains him from instituting or prosecuting an action. 2 Sto. Eq. § 875.
These are well settled principles; and, in view of them, the only question in the case, must be, whether the circumstances are such as to require of the court, that the defendant should be restrained from pursuing a judgment which he has obtained, in the manner in which he procured this, in New-York.
It is further claimed, that the corporation for which the plaintiff acted, in the making of the contract, on which the case in New-York was founded, had ceased to exist; and, as there was no principal to be bound by the acts of the agent, that the plaintiff was himself personally liable, although he professedly acted as agent of another.
There is no foundation for this claim. The finding of the committee, indeed, shows, that the corporation failed to elect a board of directors, annually, as they should have done ; and that, after January, 1841, there was no subsequent election, [557]*557until 1845; the board elected in 1841, in the mean time, acting until the election in 1845: and that the certificates required, from time to time, to be deposited with the town-clerk, were signed by the treasurer, instead of the president and secretary, as they should have been. But this court has repeatedly decided, that the neglect of a corporation to perform some corporate duty required by their charter, although sufficient to produce a forfeiture of corporate rights; yet, before such forfeiture is judicially determined, it cannot be taken advantage of collaterally. Derby Turnpike Co. v. Parks, 9 Conn. R. 522. 536. Kellogg v. Union Co. 12 Conn. R. 7.
Again, it is claimed, that the record of the judgment rendered in New-York, shows, that the defendant in that suit, appeared, and was in fact present in court, at the time judgment was rendered against him ; and as it is an agreed fact, that he was duly served with process, it is insisted, that this record of the defendant's appearance, is conclusive; and that no evidence can, properly, be admitted to contradict the record, in this respect, without directly impugning the full faith and credit which is due to the record.
What force there might be in this objection, if the appearance mentioned in the record necessarily meant, that the defendant in that suit was actually present in court, when said judgment was rendered, and said "nothing in bar or preclusion of said action," it is unnecessary to determine. We are satisfied, that no such meaning can be given to the record of the defendant's appearance in that case.
By the statutes of New-York, as they existed at the time this judgment was rendered, it was provided, that "upon the service of a capias ad respondendum upon any person, which does not require the defendant to be held to bail, he may indorse his appearance on such writ, or if he refuse to do so, the sheriff may return the writ personally served. And upon such writ being returned, with the appearance of a defendant indorsed, or, of his having been personally served, the clerk of the court shall enter the appearance of the defendant, upon whom the same was served; and thereafter, proceedings may be had against such defendant, as if he had actually appeared. 2 Rev. Stat. of N. Y. part 3. chap. 6. P. 347, 8.
Under this statute, it was obviously competent for the [558]*558plaintiff in that suit, to have obtained his judgment in New-York, without the appearance of the party, defendant, m person ; and yet, the record would be the same as if there had been an appearance in fact; because it is made the duty of the clerk, under the circumstances mentioned in the statute, to enter the appearance; and it is there provided, that the same proceedings may be had, as if there had been an actual appearance.
It was, without doubt, under this statute, that that judgment was obtained ; because it is found, by the superior court, that the plaintiff did not appear in said action, unless, indeed, the record is conclusive evidence to the contrary. But a record is never conclusive evidence of a fact, which is either not true, or which is as probably false as true. It is, no doubt, a rule in New-York as in England, that there must be an áp-pearance, in order to obtain a judgment. This appearance, however, in very many cases, is a mere fiction, provided for by statute, in order to avoid the effect of a technical rule ; and should not be permitted to work injustice, contrary to the truth of the fact. It was formerly a fiction of law, that all judgments were rendered on the first day of the term ; but, in practice, they very seldom were so in fact. And in England, they are frequently signed in vacation ; and it has always been held, where the purposes of justice require it, that the true time of obtaining judgment, may be shown.
Upon the whole, then, we are satisfied, that none of the objections of the defendant, in this application, ought to prevail.
We, therefore, advise the superior court, to grant a perpetual injunction against the defendant’s further prosecuting his action of debt on the judgment recovered in New-York.
In this opinion the other judges concurred.
Perpetual injunction granted.