Statement of case. claim appears ever to have been made by her. These circumstances seem to us to be of themselves sufficient to warrant the rejection of the claim. The ground taken by the Supreme Court at General Term, was that the case was one of a deposit and that no right of action accrued until demand, consequently, no demand having been shown, the statute of limitations never began to run. The cases of Payne v. Gardiner (29 N.Y. 146) and Boughton v. Flint (74 id. 476) are cited in support of this position. But in those cases there had been no such great lapse of time as appears in the present case, nor were the circumstances similar. Here there was no actual deposit. The origin of the transaction was an admitted indebtedness from Alexander Waldron to Sarah Byron which was actually due in 1828. She was, by reason of her coverture, unable to make any contract which should change the character of the indebtedness, and when her husband died, in 1840, her right to payment accrued. Independently of the statute of limitations and even if there were any obstacle to its application, the legal presumption of payment applied after the lapse of such a great number of years. In the case of Bean v. Tonnele (94 N. Y. 381), lately decided in this court, it was held that the presumption of payment after the lapse of twenty years was applicable to a simple contract indebtedness, and in the present case there are no facts or circumstances to rebut such presumption. . On all these grounds we are of opinion that the judgment of the Supreme Court should be reversed and the decree of the surrogate affirmed, with costs. All concur. Judgment reversed and decree affirmed. JOHN ROACH et al., Respondents, v. ISAAC F. DUCKWORTH, Appellant. Defendant loaned $6,000 to the A. I. Works, a corporation organized under the General Manufacturing Act (Chap. 40, Laws of 1848). B., a trustee 95 391 164 230 Statement of case. of the corporation, pledged as collateral for the loan bonds of the corporation to the amount of $6,000, owned by him and for which he had paid full value. The loan not having been paid, defendant sold the bonds at public auction for $640 to C., who thereafter commenced suit against plaintiff R., a trustee of the corporation, to enforce his liability because of a failure on the part of the officers to file annual reports as required by the act. Judgment was rendered in said action for the full amount of the bonds. This judgment C. settled and satisfied on payment to him by R. of $1,300. Defendant also commenced suit against R. and the other trustees, plaintiffs herein, to enforce their liability to him on account of the loan, and obtained judgment for the balance due after deducting the $640 received on sale of the bonds and some interest which had been paid. This judgment was affirmed on appeal by the General Term and by this court. This action was brought to restrain the collection of said judgment and the judgments for costs on appeal. It was alleged, and the court found, that the sale of the bonds to C. was a sham; that he purchased and prosecuted the action against R. solely for the benefit of defendant, which fact was unknown to plaintiffs until after the recovery of said judgment. Held (MILLER and DANFORTH, JJ., dissenting), that plaintiffs were not entitled to the relief sought; but as C. had the apparent right to satisfy his judgment, and as the $1,300 presumably was paid in good faith, defendant was bound thereby, and for that sum, less the costs in the C. judgment, he was to be charged as so much collected upon his collaterals, and for the balance of his loan he was entitled to pursue his remedy against the plaintiffs. It seems, therefore, that plaintiffs are simply entitled to be allowed as a payment upon defendant's judgment, the balance of the $1,300, after deducting the $640, which was allowed, and the costs recovered in C.'s action; and their remedy is simply to pay or tender the balance due upon defendant's judgment, and if he refuses to cancel the same, then to apply to the court by motion to compel a cancellation, or to stay execution; a suit in equity is not the proper remedy. (Argued January 18, 1884; decided April 15, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the first judicial department, entered upon an order made at the May term, 1883, which affirmed a judg ment in favor of plaintiffs, entered upon a decision of the court on trial at Special Term. This action was brought to restrain the collection of certain judgments. The material facts are stated in the opinion. Statement of case. L. L. Van Allen for appellants. Mr. Duckworth held the bonds as collateral to the loan, and only such amount as was realized on the sale of the collateral would apply toward the liquidation of the loan. (Young v. Stahelin, 34 N. Y. 258; Duden v. Waitzfelder, 16 Hun, 337.) The possession of a pledge does not suspend the right to proceed by action for the recovery of the debt in respect of which the pledge is taken. (Lawton v. Newland, 2 Stark. 72; South Sea Co. v. Duncombe, 2 Strange, 919; Scott v. Parker, 12 B. [41 E. C. L.] 809; Mason v. Bogg, N. Y. & Cr. 443.) On the sale at public auction, Duckworth had the right to bid in the bonds himself and sue in his own name, and if he recovered judgment and then discharged it of record without receiving any thing, such recovery and discharge would be no bar to the collection of his judgment on the original debt. (Bryan v. Baldwin, 52 N. Y. 232.) The Croker suit was properly brought. The legal title to the bonds being in him, he was the real party in interest, and it made no difference whether Duckworth was to be benefited or not. (Sheridan v. Mayor, etc., 68 N. Y. 30; Eaton v. Alger, 47 id. 347; Allen v. Brown, 44 id. 228; Devol v. Barnes, 2 N. Y. Week. Dig. 384.) The decision of a court of competent jurisdiction upon the same point is conclusive when the same point comes up again in controversy between the same parties directly or indirectly. (White v. Coatsworth, 6 N. Y. 137-143; Demarest v. Darg, 32 id. 281; Gates v. Preston, 41 id. 114.) George W. Van Sicklen for respondents. Where a party was ignorant, at the time of the trial, of the fact which renders. a verdict at law contrary to equity, chancery will relieve him and will issue an injunction. (Lansing v. Eddy, 1 Johns. Ch. 49; Foster v. Wood, 6 id. 87.) Or where he was prevented from availing himself of the defense by fraud or the act of the opposite party. (Foster v. Wood, 6 Johns. Ch. 87; Williams v. Lockwood, Clarke, 172; Stilwell v. Carpenter, 59 N. Y. 414, 423; Marine Ins. Co. v. Hodgson, 7 Cranch, 336; Hamel v. Grimm, 10 Abb. 150; Ross v. Wood, 70 N. Y. 8.) A SICKELS VOL. L. - 50 Statement of case. "bill of review" may be brought upon discovery of new matter. (Story's Eq., § 412.) A party against whom a judgment has been obtained by fraud is not barred from his right of action to set aside the judgment for the fraud unless it appears that he had, at the time of such judgment, knowledge of the facts constituting the fraud. (Baker v. Spencer, 47 N. Y. 562 ; Dobson v. Pearce, 12 id. 157, 165; Cairo & F. R. R. v. Titus, 32 N. J. Eq. 397; Winthrop v. Lane, 3 Desauss. 310, 331; Byers v. Surget, 19 How. [U. S.] 308; Mead v. Bunn, 32 N. Y. 275; Warner v. Blakeman, 43 id. 487; Verplank v. Van Buren, 11 Hun, 328; 76 N. Y. 247; U. S. v. Throckmorton, 98 U. S. 65; Wells' Res Judicata, § 499; Pearce v. Olney, 20 Conn. 544; Wierick v. De Toya, 7 Ill. 385; Kent v. Richards, 3 Md. Ch. 392; Smith v. Lowry, 1 Johns. Ch. 320; De Louis v. Meely, 2 Iowa, 55; Brooks v. O'Hara, 8 Fed. Rep. 529.) A judgment recovered in another court in an action by an agent is a bar to another suit for the same cause of action brought by the principal. (Kent v. H. R. R. R. Co., 22 Barb. 278; Doty v. Brown, 4 N. Y. 71; Goddard v. Benson, 15 Abb. 191.) All demands due on the same contract at the time when the action is commenced and required to be included in it are to be held and considered barred on the recovery of judgment for a part. In other words, they are held to create but one cause of action. (Jex v. Jacob, 8 N. Y. Week. Dig. 557; Bendernagle v. Cocks, 19 Wend. 207, 289; Davies v. Mayor, 93 N. Y. 250; Secor v. Sturges, 16 id. 548, 554.) The fact that Duckworth joined some of the co-trustees as defendants with John Roach in his second suit against the latter does not help him. (Robertson v. Smith, 18 Johns. 459, 484; Willings v. Consequa, 1 Peters, 301; Perry v. Martin, 4 Johns. Ch. 569, note; Benson v. Paine, 9 Abb. 28.) Even if Duckworth obtained nothing by his first judgment in Croker's name, that judgment was still a bar to his Common Pleas suit and judg ment. (Benson v. Paine, 9 Abb. 28; Robertson v. Smith, 18 Johns. 459; King v. Hoare, 12 M. & W. 494; Streatfield v. Halliday, 3 T. R. 782; Ten Year Book, 27 H. 8; 6 Pl. 27; Note to Cabul v. Vaughan, 1 Wms. Saund. 291.) On a Statement of case. motion to set aside a judgment for fraud, the court should not inquire into the merits of the action or be influenced by considering whether opening the judgment would result in gain or loss to the defendant. (People, ex rel. Taylor, v. Mayor, 11 Abb. 66; Guckenheimer v. Angevine, 81 N. Y. 394, 397.) The decision of the motion in Croker v. Roach having been affirmed upon appeal, upon the merits, both by the General Term and the Court of Appeals, and without any leave to this defendant, Duckworth, to renew, is res judicata in favor of plaintiffs. (Riggs v. Purssell, 74 N. Y. 370, 373; Dwight v. St. John, 25 id. 203; Spellman v. Ferry, 74 id. 448, 451; Rogers v. Rochester, etc., R. R., 21 Hun, 44; Hennessy v. Patterson, 22 id. 145.) Where words of qualification such as "without prejudice," or other terms indicating a right or privilege to take further legal proceedings on the subject, accompany a decree, it is presumed not to be rendered on the merits. (Durant v. Essex Co., 7 Wall. 107; Walden v. Bodley, 14 Pet. 156; Hughes v. U. S., 4 Wall. 237; Bigelow v. Winsor, 1 Gray, 306; Foote v. Gibbs, id. 412; Perine v. Dunn, 4 Johns. Ch. 140, 142; Lindsay v. Lynch, 2 S. & L. 10; Woodlam v. Hearn, 7 Ves. 222; Kelsey v. Murphy, 26 Penn. St. 78.) The denial of a motion is not res judicata nor a bar to an action to obtain the same relief. (Howell v. Mills, 53 N. Y. 322, 334; Simson v. Hart, 14 Johns. 63; Dickinson v. Gilliland, 1 Cow. 481, 495; Van Rensselaer v. Sheriff, id. 501, 513.) If the Court of Common Pleas had absolutely denied Mr. Roach's motion, he would still have had the right to bring this action in equity for relief. (Metcalf v. Williams, 24 Alb. L. J. 496; Borden v. Fitch, 15 Johns. 121; Dobson v. Pearce, 12 N. Y. 156, 165; Kerr on Fraud and Mistake, 293, 294; O'Mahoney v. Belmont, 62 N. Y. 133, 145.) An action to restrain collection of the judgment is better practice than a motion in the former action for a stay of proceedings. (Beards v. Wheeler, 76 N. Y. 213, 214; Miller v. Earl, 24 N. Y. 110, 112; Watt v. Rogers, 2 Abb. 261; N. Y. & H. R. R. v. Haws, 56 N. Y. 175; Frink v. Morrison, 13 Abb. 80, S+; Dunham v. Waterman, 17 N. Y. 9, 15; Flower v. Lloyd, |