Catón, J.
This was an action of debt upon a judgment rendered in the Supreme Court of the State of New York. The declaration is in the usual form, averring that the plaintiffs recovered a judgment on the day specified, in the Supreme Court of the State of New York, against the defendant, for his debt and damages adjudged, &c., with profert. The defendant pleaded, first, nul tiel record; second, a special plea, that the judgment was obtained by fraud, and, third, a plea of set-off. The plaintiffs took issue on the first plea, and demurred to the second and third, which demurrer was sustained by the court. The court then found the issue on the first plea for the plaintiffs, and rendered judgment for their debt and damages.
The first question presented is, that the declaration is insufficient, and that the demurrer to the plea should have been carried back and sustained to it. It is objected, that there is no averment—that the Supreme Court of New York is a court of general jurisdiction, or that it had special jurisdiction of the subject matter of that suit, and that there is no averment that the court had jurisdiction of the person of the defendant. It is not pretended that these averments are necessary in a declaration upon a domestic judgment of a court of general jurisdiction, nor do we think them necessary where the judgment is rendered in a court of a sister State of general jurisdiction; nor will we now say they are necessary even upon a strictly foreign judgment. While for many, if not for most, purposes, the several States of the Union are, as to each other, considered and treated as foreign States, yet it is not strictly so as to the judgments rendered by their several courts. I will not quote from the constitution and laws of the federal government, but from the opinion of this court in the case of Welch v. Sykes, 3 Gilman, 199. It is there said, “ Under the constitution of the United States, and laws made in pursuance thereof, the judgments in personam of the various States are placed on the footing of domestic judgments, and they are to receive the same credit and effect, when sought to be enforced in different States, as they, by law or usage, have, in the particular States where rendered.” We are then to treat this judgment, or give it the same effect, as if rendered by one of our own courts, or as if this were a proceeding in New York. We do not hesitate to declare that it is our duty to take notice that the Supreme Court of New York had jurisdiction of the subject matter; and the same presumptions arise in favor of the jurisdiction of the person, and of the regularity of the proceeding, that would arise upon a domestic judgment. How far those presumptions arise in favor of the jurisdiction of the person, it is not necessary now to discuss particularly, for that is a question rather of evidence than of pleading. Though it may be necessary, when used as evidence, that the record should show such facts as are necessary to give the court jurisdiction of the person of the defendant, or, at least, as raise a presumption of jurisdiction, yet it is not necessary that such facts should be set out in the pleading. It is only necessary to aver that, by the consideration of the court, a judgment was rendered against the defendant. The implication is, that it was a valid judgment, and that is sufficient to lay the foundation for the proof of every fact necessary to show that it was a valid judgment. .
It is argued that every fact which is necessary to be proved must be averred. This is not so to the extent contended. All proof must be in support of, and find its foundation in, the pleading, but every distinct fact need not be pleaded. That would be pleading the evidence. In the case above referred to, in 3 Gilman, and in the case of Bimeler v. Dawson, 4 Scam. 536, which were actions on judgments from other States, the pleadings are not set out in the reports; but I have examined the original files, and find that, in neither declaration, was there any averment that the court rendering the judgment had jurisdiction of the person of the defendant, but that they, like this declaration, follow the common precedents, averring generally the rendition of the judgment. It is true that, in those cases, the objection was not made, so that it was not expressly passed upon by the court, but they at least serve as approved precedents; and, from the counsel reported as engaged in them, we may well suppose the objection would have been taken had it been deemed tenable. We think the declaration sufficient.
The first special plea avers that the plaintiffs, knowing that they had no just cause of action against the defendant, commenced the suit in the Supreme Court of New York, to which he appeared and filed a plea of set-off; and that, after the issues were formed, the cause was referred to a referee, according to the practice of that court, before whom the parties appeared for trial, when the defendant had his witnesses present, by whom he could have established his set-off to a greater amount than he owed the plaintiffs. That terms of settlement were then agreed upon, by which the defendant was to pay the plaintiffs a certain nominal sum of money in satisfaction of their claim, and they should dismiss their suit, which sum the defendant was to pay as soon as he could make the necessary arrangement with his father, who lived in Cortland county, a distance of three hundred miles. That, on the faith of this agreement, the defendant dismissed his witnesses, and went to his father to complete the arrangement, but that, during his absence, and before he could, by reasonable diligence, complete the arrangement with his father and return, the plaintiffs brought the cause to trial before the referee, and, by false testimony, established a claim before him of $10,-343.76, which amount the referee reported in their favor, and against the defendant, for which a judgment was subsequently rendered against him with damages, interest, costs, &c. And the plea further avers that, in this, the plaintiffs acted fraudulently. To this plea a demurrer was sustained, and we think very properly. In this, there is no such fraud set out as would vitiate a judgment. The agreement for the settlement of the suit was matter properly cognizable before that court, and should have been interposed for the purpose of postponing the trial before the referee, or should have been objected to the report, when judgment was moved thereon; or, if for any cause the defendant could not then present the objection, he should, at the earliest opportunity, have applied to that court to open or set aside the judgment, and enforce the agreement to settle, or to let him in with a defence. Instead of doing this, he waits till he is sued on that judgment in another tribunal, and in another State, and then substantially asks that a new trial be granted him in the original cause. We are referred to a great many authorities declaring that fraud will vitiate any judgment. That is so, undoubtedly, when properly understood, but it is not every unfair act that constitutes such a fraud as will render a judgment or even a contract void. Even in case óf a contract, the fraud which will render it void, must be in the execution and not in the consideration, as where the party is fraudulently induced to sign one paper supposing it to be another. Had the judgment been fraudulently entered up for a greater amount, for instance, than was awarded by the court, the defendant might every where insist that he was not bound by it. The plea was bad.
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Catón, J.
This was an action of debt upon a judgment rendered in the Supreme Court of the State of New York. The declaration is in the usual form, averring that the plaintiffs recovered a judgment on the day specified, in the Supreme Court of the State of New York, against the defendant, for his debt and damages adjudged, &c., with profert. The defendant pleaded, first, nul tiel record; second, a special plea, that the judgment was obtained by fraud, and, third, a plea of set-off. The plaintiffs took issue on the first plea, and demurred to the second and third, which demurrer was sustained by the court. The court then found the issue on the first plea for the plaintiffs, and rendered judgment for their debt and damages.
The first question presented is, that the declaration is insufficient, and that the demurrer to the plea should have been carried back and sustained to it. It is objected, that there is no averment—that the Supreme Court of New York is a court of general jurisdiction, or that it had special jurisdiction of the subject matter of that suit, and that there is no averment that the court had jurisdiction of the person of the defendant. It is not pretended that these averments are necessary in a declaration upon a domestic judgment of a court of general jurisdiction, nor do we think them necessary where the judgment is rendered in a court of a sister State of general jurisdiction; nor will we now say they are necessary even upon a strictly foreign judgment. While for many, if not for most, purposes, the several States of the Union are, as to each other, considered and treated as foreign States, yet it is not strictly so as to the judgments rendered by their several courts. I will not quote from the constitution and laws of the federal government, but from the opinion of this court in the case of Welch v. Sykes, 3 Gilman, 199. It is there said, “ Under the constitution of the United States, and laws made in pursuance thereof, the judgments in personam of the various States are placed on the footing of domestic judgments, and they are to receive the same credit and effect, when sought to be enforced in different States, as they, by law or usage, have, in the particular States where rendered.” We are then to treat this judgment, or give it the same effect, as if rendered by one of our own courts, or as if this were a proceeding in New York. We do not hesitate to declare that it is our duty to take notice that the Supreme Court of New York had jurisdiction of the subject matter; and the same presumptions arise in favor of the jurisdiction of the person, and of the regularity of the proceeding, that would arise upon a domestic judgment. How far those presumptions arise in favor of the jurisdiction of the person, it is not necessary now to discuss particularly, for that is a question rather of evidence than of pleading. Though it may be necessary, when used as evidence, that the record should show such facts as are necessary to give the court jurisdiction of the person of the defendant, or, at least, as raise a presumption of jurisdiction, yet it is not necessary that such facts should be set out in the pleading. It is only necessary to aver that, by the consideration of the court, a judgment was rendered against the defendant. The implication is, that it was a valid judgment, and that is sufficient to lay the foundation for the proof of every fact necessary to show that it was a valid judgment. .
It is argued that every fact which is necessary to be proved must be averred. This is not so to the extent contended. All proof must be in support of, and find its foundation in, the pleading, but every distinct fact need not be pleaded. That would be pleading the evidence. In the case above referred to, in 3 Gilman, and in the case of Bimeler v. Dawson, 4 Scam. 536, which were actions on judgments from other States, the pleadings are not set out in the reports; but I have examined the original files, and find that, in neither declaration, was there any averment that the court rendering the judgment had jurisdiction of the person of the defendant, but that they, like this declaration, follow the common precedents, averring generally the rendition of the judgment. It is true that, in those cases, the objection was not made, so that it was not expressly passed upon by the court, but they at least serve as approved precedents; and, from the counsel reported as engaged in them, we may well suppose the objection would have been taken had it been deemed tenable. We think the declaration sufficient.
The first special plea avers that the plaintiffs, knowing that they had no just cause of action against the defendant, commenced the suit in the Supreme Court of New York, to which he appeared and filed a plea of set-off; and that, after the issues were formed, the cause was referred to a referee, according to the practice of that court, before whom the parties appeared for trial, when the defendant had his witnesses present, by whom he could have established his set-off to a greater amount than he owed the plaintiffs. That terms of settlement were then agreed upon, by which the defendant was to pay the plaintiffs a certain nominal sum of money in satisfaction of their claim, and they should dismiss their suit, which sum the defendant was to pay as soon as he could make the necessary arrangement with his father, who lived in Cortland county, a distance of three hundred miles. That, on the faith of this agreement, the defendant dismissed his witnesses, and went to his father to complete the arrangement, but that, during his absence, and before he could, by reasonable diligence, complete the arrangement with his father and return, the plaintiffs brought the cause to trial before the referee, and, by false testimony, established a claim before him of $10,-343.76, which amount the referee reported in their favor, and against the defendant, for which a judgment was subsequently rendered against him with damages, interest, costs, &c. And the plea further avers that, in this, the plaintiffs acted fraudulently. To this plea a demurrer was sustained, and we think very properly. In this, there is no such fraud set out as would vitiate a judgment. The agreement for the settlement of the suit was matter properly cognizable before that court, and should have been interposed for the purpose of postponing the trial before the referee, or should have been objected to the report, when judgment was moved thereon; or, if for any cause the defendant could not then present the objection, he should, at the earliest opportunity, have applied to that court to open or set aside the judgment, and enforce the agreement to settle, or to let him in with a defence. Instead of doing this, he waits till he is sued on that judgment in another tribunal, and in another State, and then substantially asks that a new trial be granted him in the original cause. We are referred to a great many authorities declaring that fraud will vitiate any judgment. That is so, undoubtedly, when properly understood, but it is not every unfair act that constitutes such a fraud as will render a judgment or even a contract void. Even in case óf a contract, the fraud which will render it void, must be in the execution and not in the consideration, as where the party is fraudulently induced to sign one paper supposing it to be another. Had the judgment been fraudulently entered up for a greater amount, for instance, than was awarded by the court, the defendant might every where insist that he was not bound by it. The plea was bad.
It was admitted on the argument that the plea of set-off would not be good at the common law, and we think it equally clear that it is not warranted by our statute. That provides, that a defendant, “ in any action brought upon any contract or agreement, either express or implied, having claims or demands against the plaintiff, may set up the same and have them allowed him upon the trial.” We cannot agree with counsel, that a judgment is a contract, within the meaning of this statute. It is the conclusion of the law upon the rights of the parties, and it is not very common that it is entered up by the agreement of the unsuccessful party, but the reverse is generally the case. In this statute the words, “ action,” “contract” and “agreement,” are used in their ordinary sense, and not with the intention of embracing every imaginable litigation upon every cause of action. A judgment is no more a contract than is a tort. In one sense it is true that every member of society impliedly agrees to pay all judgments which may be regularly rendered against him; and, in the same sense, does he impliedly agree to make amends for all torts which he may commit. No one will pretend that actions for torts are within the spirit and intent of the statute, and yet they are certainly as much so as are actions upon judgments. In Keaggy v. Hite, 12 Ill. 101, it was decided by this court, that a set-off could not be allowed in an action of trover; and in Woodbury v. Manlove, 14 Ill. 216, it was decided that a scire facias, to foreclose a mortgage, was not within this statute; and in Sketoe v. Ellis, 14 Ill. 75, it was decided that a - tenant could not set off a claim against his landlord on a distress for rent, although wé have decided that the finding of the court upon that proceeding, under our statute, is a judgment, and conclusive between the parties. We have no doubt the demurrer was properly sustained to this plea, without noticing any of the objections which were urged to its merits.
The judgment of the Circuit Court must be affirmed.
Judgment affirmed.