JUDGMENT, RELIEF FROM. WHILE PERJURY of the plaintiff in testifying falsely upon an issue disclosed by the complaint will not, of itself, entitle defendant to relief from a judgment procured thereby, if the facts testified to were not peculiarly or exclusively within the knowledge of the plaintiff, yet such perjury may be considered in connection with other circumstances tending to disclose a fraudulent scheme on the part of the defendant to put it out of the power of the plaintiff to defend the action, and as giving color to his prior acts, which are alleged to have been fraudulent.

Suit to set aside a decree of divorce. The statute (Gen. Stats. 1878, c. 66, sec. 285), referred to in the opinion of the court, declares that, in all cases where judgment has been or shall be obtained in any court of record by means of perjury, subornation of perjury, or any fraudulent act, practice, or representation of the prevailing party, an action may be brought by the party aggrieved to set aside the judgment at any time within three years after the discovery by him of the perjury, or of the other fraudulent act or practices upon which he relies.

Arctander & Arctander, for the respondent.

W. H. Adams, for the appellant.

433 CANTY, J. The defendant demurred to the complaint, on the ground that it did not state a cause of action, and this is an appeal by him from an order overruling the demurrer. The action is brought under the General Statutes of 1878, chapter 66, section 285, to set aside a judgment of divorce. The 434 complaint alleges that the parties were married in Denmark in 1879, and lived and cohabited together until May 4, 1892. That they then resided in Minneapolis, in this state. That for the purpose and with the intent of fraudulently procuring a divorce from her, and of preventing her from defending against the action for the same, he persuaded her to go back to Denmark to remain for a year or two, for the benefit of her health, and sent her to Denmark accordingly. That as a part of the same fraudulent scheme, and for the purpose of preventing her from returning to the state to defend such action, he failed to furnish her any funds whatsoever after September, 1892, and that she was then in Denmark, without friends, relatives, or any means. That he then commenced an action for divorce against her in Hennepin county, in this state, alleging impotency as the ground of divorce, and caused the summons and complaint to be served on her in Denmark on October 6, 1892. That on the copy there served on her was then written the following statement, signed by him: "In case of divorce being granted to me in this action, I agree to pay

and allow the defendant, Hedvig A. Colby, the sum of $25 per month so long as she may need the same or remain single. C. M. Colby," but that nothing of the kind was ever attached to, or made a part of, the original papers. That he made this a part of the copies of the papers so served for the fraudulent purpose of inducing her to believe that such allowance would be made for her by the court, but that, in fact, he never procured, or intended to procure, any order or judgment for any such allowance. That at the time of the service of the papers on her, she was not acquainted with the meaning of the term "impotent," which he well knew, and he then fraudulently represented to her, by a letter written and sent to her, that the cause for which he was seeking such divorce was the barrenness of plaintiff, and no other cause. That she was thereby induced to believe that the fact that she was barren, and had borne no children to him, was a sufficient ground for divorce in Minnesota, and she was then far from any person who sufficiently understood the English language to inform her, or who could inform her, in any of these matters. That all of these fraudulent artifices, and some others alleged, were practiced with the intent, and for the purpose, of inducing her not to defend the divorce action, and, by reason of the same, she was induced not to defend against the same.

435 That on November 19, 1892, she being in default for want of an answer, he appeared before the district court, and, after being duly sworn, testified that she was, and ever since said marriage had been, impotent, and incapacitated for sexual intercourse. That all of said testimony was wholly false, as he then well knew, and that she never was impotent. That thereupon the court ordered judgment divorcing the parties, which judgment was entered on that day, and was obtained by said perjury and said fraudulent acts and practices.

That plaintiff arrived in this state May 4, 1894, three days before the commencement of this action, and then for the first time learned that said action for divorce was not on the ground of barrenness, and that no provision had been made for her support or maintenance by said judgment. That since September, 1892, he has contributed nothing to her support, except the sum of twenty-five dollars.

We are of the opinion that the complaint states a cause of action under said section 285. If she was sent away and left without means in a distant country for the purpose of preventing her from defending the divorce action intended to be commenced, and the other artifices alleged were practiced for the same

purpose, it is clearly a case where that statute will apply. By reason of the confidential relations of the parties, and the dependent position of the wife, the husband has opportunities for procuring judgment against her by fraud which are not possessed by one stranger as against another.

It was a year and seven months after the time the papers were served on her in the divorce suit before she commenced this action, and it is urged by appellant that she is guilty of laches in failing to act more promptly. Under all the circumstances of the case as alleged, we cannot so hold as a question of law. It does not very clearly appear from the allegations of the complaint that she was unable, during all of this time, to learn the true state of affairs, or return and act in the matter, yet it may fairly be implied from the allegations that such was the case that her helpless and destitute condition continued.

It is further urged by appellant that the complaint does not state a cause of action on the ground of perjury, or show facts which entitle her to relief on that ground. We are of the same opinion. It was held in Hass v. Billings, 42 Minn. 63, that where 436 the pleadings disclose the fact to be proved so that the opposite party knows what the pleader will attempt to prove, and "is not under any necessity to depend on the other to prove the fact as he himself claims it," an action will not lie under the statute to set aside a judgment procured by perjury committed in proving such fact. We are of the opinion that the rule applies as well when the judgment is thus obtained when the defendant is in default as when he is not. In this divorce case, the complaint did disclose what the plaintiff would attempt to prove, and they were not facts peculiarly or exclusively within his knowledge. But the allegations of the complaint in the present case which aver that the charge of impotency and the evidence to prove it were both willfully false is still material, as throwing light on the alleged fraudulent scheme to put it out of her power to defend the action, as showing a motive for that scheme and the fraudulent practices in carrying it out, as tending to show his fraudulent intent in those practices, and as giving a coloring to his prior acts, all of which are matters to be considered on the trial of the action. The case of Bomsta v. Johnson, 38 Minn. 230, does not support the appellant's contention in any of these respects. These are all the points raised worthy of consideration. The order appealed from is affirmed.

Gilfillan, C. J., absent on account of sickness, took no part.

JUDGMENTS PROCURED BY FRAUD OR PERJURY-RELIEF FROM.-Equity has jurisdiction to set aside a former judgment for fraud only in those cases where the perjury or fraud consists of extrinsic collateral acts, not examined and determined in the former action: Friese v. Hummel, 26 Or. 145; 46 Am. St. Rep. 610. This subject is fully discussed in the extended note to Pico v. Cohn, 25 Am. St. Rep. 165.

DIVORCE PROCURED BY FRAUD OR PERJURY - RELIEF FROM.-Courts have the same power over judgments in divorce suits as in other cases, and will vacate and set aside a decree that has been obtained by fraud or imposition: Adams v. Adams, 51 N. H. 388; 12 Am. Rep. 134; Rush v. Rush, 46 Iowa, 648; 26 Am. Rep. 179; Wisdom v. Wisdom, 24 Neb. 551; 8 Am. St. Rep. 215; Brown v. Grove, 116 Ind. 84; 9 Am. St. Rep. 823, and especially note. Where a man obtains a decree of divorce from his wife at a former term of court by false testimony, on a libel of which she had no actual notice, and knowledge of which he fraudulently kept from her, and of which the court had only apparent jurisdiction, founded on his false allegation of domicile, the court will vacate the same: Edson v. Edson, 108 Mass. 590; 11 Am. Rep. 393. See the discussion of this subject to be found in the extended note to Greene v. Greene, 61 Am. Dec. 459.

ESTES V. LOVERING SHOE COMPANY.

[59 MINNESOTA, 504.]

BANKS AND BANKING.-A check is within the provisions of the statute providing that, in actions upon promissory notes or bills of exchange by an indorsee, possession of the note or bill is prima facie evidence that it was indorsed by the person by whom it appears to be indorsed.

BANKS AND BANKING.-A CHECK IN THE POSSESSION OF A PARTY in a city distant from the bank upon which it is drawn, five or six days after its date, is not stale and overdue, so as to subject an indorsee in good faith and for value to an equitable defense existing in favor of the drawer.

Action against the defendant, a corporation, upon a check drawn by it on the Merchants' National Bank of St. Paul, in favor of A. J. Moore, of Boston, Massachusetts, and by him indorsed and delivered to the plaintiff in the action, in Denver, Colorado, some five or six days after its date. Moore procured this check by giving to the defendant his checks on a bank in Boston, which checks, upon being presented, proved to be worthless. At the trial, the checks were offered in evidence without proof of the genuineness of Moore's indorsement, and were, against the objections of the defendant, received. The jury was, by the court, instructed to return a verdict in plaintiff's favor. The defendant thereafter moved for a new trial, which being denied, he prosecuted this appeal.

William G. White, for the appellant.

Holcombe & O'Reilly, for the respondent.

507 COLLINS, J. Plaintiff's action was to recover the amount of two checks, drawn October 26, 1893, by defendant corporation, at its place of business in St. Paul, Minnesota, upon a local bank, and made payable to the order of one A. J. Moore. The latter, it was claimed, for value received, duly indorsed and delivered them to plaintiff, about five days after they were drawn, at his (plaintiff's) place of business in Denver, Colorado. Under the direction of the court below, a verdict was returned for plaintiff.

On two points the evidence was conclusive: 1. That the checks were obtained by Moore by means of false and fraudulent practices and representations, and without consideration; 2. That plaintiff, in good faith, received them from Moore, the payee, with his name already written upon the backs thereof, giving him in cash their 508 full face value. The checks, with the purported indorsements, were received in evidence over defendant's objection that no proof had been offered of the genuineness of the payee's signatures or purported indorsements.

Aside from any consideration of the fact that the payee personally presented these checks with his name already written upon the back of each, and thus obtained the amount thereof from plaintiff, we are of the opinion that a check comes within the purview of the General Statutes of 1878, chapter 73, section 89, which provides that, in actions brought on promissory notes or bills of exchange by the indorsee, possession of the note or bill is prima facie evidence that the same was indorsed by the person by whom it purports to be indorsed.

While in some respects checks differ from inland bills of exchange and the differential qualities are pointed out in Harrison v. Nicollet Nat. Bank, 41 Minn. 488, 16 Am. St. Rep. 718 -they are negotiable instruments much used, and growing in use, in business transactions, and possessing about all of the characteristics of inland bills. They have been defined as, in legal effect, inland bills of exchange drawn on bankers, and payable to a bearer (or order) on demand (Byles on Bills, 7th Am. ed., 1), and as bills with some peculiarities or a species of bills: 2 Daniel on Negotiable Instruments, 584. In view of the close relationship between these instruments, and the fact that the statutory rule should be the same in actions brought on bills of exchange, strictly speaking, and checks, we think that the latter are covered by the statute under consideration.