Stilwell v. Carpenter. Although, while a judgment is held by an assignee having a lien thereon, the right of the debtor on recovering a cross-judgment against the original creditor to claim a set-off is, in so far, suspended; yet, on the satisfaction of the lien claimed by the third person, the right of set-off arises; and this notwithstanding that the latter judgment was recovered after the assignment was made. Parol evidence of the existence of a judgment is sufficient to establish it in support of a right of set-off, unless objection to that mode of proof is taken at the trial. Neither an action to set aside a sheriff's sale and deed on the ground that the judgment on which it was founded was previously paid, nor an action to vacate a decree or judgment for fraud of a party in procuring it, is obnoxious to the objection that it is an attempt to review a judgment or decree by a new action. A release to the debtor, by the pledgor of a judgment, while the judgment is subject to the lien of the pledgee, is effectual to discharge the whole liability of the debtor upon the judgment whenever the lien of the pledgee is satisfied. Designating a party in the title of the action as "A. B., executor of S. B., deceased," not using the word "as," or its equivalent, is merely a description of the person. If the title of the action does not declare the character in which the plaintiff sues, it may be supplied from the body of the complaint.* * That plaintiff could join both capacities, see Day v. Stone, 15 Abb. Pr. N. S. 137, and cases cited. After an action had been brought for an accounting and the protection of the trust fund, until plaintiff could secure administration, she obtained administration, and this fact defendant set up by answer, to defeat the action. Held, that the action need not be abandoned, and that plaintiff's omission to aver the taking out of letters, &c., could be supplied from defendant's answer, and she was entitled to full relief (Haddow v. Lundy, 59 N. Y. 320). A judgment against one sued as an individual does not bind him as a trustee, and is not an estoppel in a subsequent action in which he appears in his representative capacity (Rathbone v. Hooney, 58 N. Y. 463). Whether it may charge him as trustee, with notice, compare Burr v. Bigler (16 Abb. Pr. 177). If the summons and complaint had showed that plaintiff appeared only as executrix, &c., an amendment would have been necessary (Austin v. Munro, 47 N. Y. 360, affi'g 4 Lans. 67). As to what allegations show appearance in official capacity, see Griggs v. Griggs, 56 N. Y. 504; 66 Barb. 287. Stilwell v. Carpenter. The plaintiff was designated in the title executrix, &c., and the complaint stated that in the will she was named executrix and sole devisee. Held, that she could sustain the action in both capacities. The objection that a plaintiff cannot sue both as executor and devisee, both in his individual capacity and as a representative or trustee,-if sustainable at all, cannot be first taken on appeal. A court of equity may set aside the judgment or decree of another court when it has been obtained by the fraud of the party. For such purpose fraud intervening in the proceedings by which the judgment was obtained, occurring in the very concoction or procuring of the judgment, and not known to the opposite party at the time, and for knowing which he is not chargeable with neglect or inattention, must be shown. A pleading by one who is an executor, in a case where he may recover in his individual capacity, is not demurrable because he, while describing himself as executor, does not allege appointment (Murray. Church, 1 Hun, 49). See, on the subject of description of parties, the cases collected in 5 Abb. N. Y. Dig. 2nd ed. pp. 86, 170, 171, 187, 202, T 1764; 4 Id. 661, 670, 672, 675; Haddow v. Lundy, 59 N. Y. 320; Kingsland v. Ryckman, 5 Daly, 13; Shuttleworth v. Winter, 55 N. Y. 624. The rule requiring the character of the party to appear, like most of the other rules of allegation in pleading, is founded upon these considerations: 1. The adverse party is entitled to notice of the questions he is to come prepared to try. 2. The court is to be provided with a definite issue within which to present the case to the jury. 3. The record is to be so expressed that the judgment recovered may show what was determined between the parties, so as to close the controversy to the extent of defined limits. 4. In the case of representative parties, the last reason is additionally important, for the rights or remedies of beneficiaries who are not parties to the action may be embarrassed by uncertainty as to the scope and effect of the judgment. 5. To these it may be added that the question of capacity is material on the question of costs. But notwithstanding these considerations, it is well settled that the action does not fail because of being brought in the individual capacity, where the cause of action accrued on a contract made with the representative as distinguished from one devolving on him in that capacity by the creation of the trust or representative relation. VOL. II.-16 Stilwell v. Carpenter. The fraud must consist in something of which the complaining party by reason of fraud could neither avail himself in the court giving judgment, nor by suit to restrain the proceedings there. Concealment by withholding a fact essential to the determination of the suit is a ground for relief against a judgment recovered thereby, as well as fraud. If a party proceeded against in a court of special jurisdiction, such as the surrogate's court,-cannot obtain relief against fraud by reason of the limited powers of that court, it is his duty to bring an action in a court of equity to obtain such relief before a final judgment in the court of special jurisdiction. If, with knowledge of the facts constituting the fraud, he fails to do so, he cannot subsequently sustain an action for relief against the judgment of the court of special jurisdiction on the ground of the fraud on which it was founded. Where the evidence actually admitted without objection on the trial is in opposition to the allegations and admissions of the pleadings, the evidence will control in the appellate court.* The surrogate's court, on the question of a claim of a creditor against an estate, cannot try the validity of the judgments of other tribunals of competent jurisdiction, nor the right of the executors to set off against such judgment a judgment in favor of the decedent. The claim to set off one judgment against another is a matter of equitable cognizance. The surrogate cannot try a disputed claim of a third person against the estate. If the claim is a judgment of a court of competent jurisdiction, he cannot entertain the defense that the equitable title is in a debtor to the decedent. In general, a motion to set off a judgment must be made to the court which gave the judgment against the party moving for the set off. A decree is not to be deemed obtained by fraud because the successful party omitted to disclose a material fact, if the fact would not have been material had the adverse party proved a material fact known to him before the trial. Re-argument of appeal. * Compare on this point, Cochran v. Gottwald, 40 Super. Ct. (J. & S.) 442; Schreyer v. Mayor, &c., 39 Id. 1; Darling v. Brewster, 55 N. Y. 667; Campbell v. Seaman, 63 N. Y. 569, affi'g 2 Sup'm Ct. (T. & C.) 231. Stilwell. Carpenter. Charlotte Stilwell, executrix of the will of Sylvanus B. Stilwell, in January, 1869, brought this action against Jacob Carpenter and William H. Davis, to set aside a sheriff's deed and a surrogate's decree, on the grounds that the judgment on which the sheriff's sale was founded had been paid before the sale, and that the surrogate's decree was obtained by fraud of defendant Carpenter. The facts material to the appeal were as follows; In 1845, Jacob Carpenter and wife made a deed purporting to convey to Harris Wilson five houses and lots on Harrison street, in Brooklyn, by a deed dated June 17, 1845, which was absolute on its face, but on which was indorsed the following: "This deed to me from Jacob Carpenter and wife, conveying five houses and lots of ground, is to be held by me and not recorded till August 21, 1845, when I am to be at liberty to sell the same forthwith, and out of the purchase money retain the whole amount of the indebtedness of the said Jacob Carpenter to me, and to account to him for the balance without the necessity of having such balance liquidated in any manner before such sale, the said Carpenter having appointed me his trustee for the purpose above mentioned, with full power to sell said houses at the time mentioned without the necessity of resort to any court of law or equity to settle the rights of the parties in premises. "June 21, 1845. [Venue.] HARRIS WILSON. "On this twenty-seventh day of December, one thousand eight hundred and forty-eight, before me personally appeared Harris Wilson, to me known to be the same person described in and who executed the aforegoing declaration of trust and acknowledged before me that he executed the same for the purposes therein mentioned. "GEO. CARPENTER, Commissioner of Deeds." Stilwell v. Carpenter. Mary S., wife of Jacob Carpenter, acknowledged the deed in Queens county, on June 20, 1845, and Jacob Carpenter acknowledged it in the city of New York on June 21, 1845, but it was not recorded until December 28, 1848. In 1849, those five houses and lots, with a number of others, having been sold by the sheriff of Kings county under executions against Jacob Carpenter, were redeemed by Sylvanus B. Stilwell, as a creditor of Carpenter, and conveyed to him by sheriff's deed, under which Stilwell entered into possession of the property and collected the rents thereof. In 1850, Jacob Carpenter brought an action of ejectment against Stilwell in the city court of Brooklyn, in which it was adjudged that the sheriff's sale was void, and that Stilwell acquired no title under the sheriff's deed. This was affirmed in the court of appeals in June, 1854 (See Carpenter v. Stilwell, 11 N. Y. 61). Carpenter thereupon brought a number of actions against Stilwell for the recovery of the rents collected by him from these five houses and the other property included in the sheriff's deed. Stilwell, however, had purchased, in 1849, and then held judgments against Carpenter to a much larger amount than the amount of the rents claimed to have been collected by him. In 1854 the claims of Harris Wilson against Carpenter as security for which Wilson held the deed of the five houses before referred to, had been paid by Carpenter, but neither Stilwell nor his representatives had notice of such payment until the year 1864. Carpenter was insolvent at the time, and after such payment procured said Wilson to assign, December 4, 1854, to Gilbert, his (Wilson's) apparent claim against S. B. Stilwell for the rents of the said five houses, collected by Stilwell. Gilbert received and held the same at the request, and for the benefit of Carpenter, who was in |