Page:Federal Reporter, 1st Series, Volume 6.djvu/472

 460 FEDERAL REPORTER. �put in her answer to the petition of appeal, and was fuUy heard by the court in her efforts to sustain the decision of the chancelier. �These facts abundantly appear from the records of the proceedings in the state court, which the defendant George S. Johnson has annexed to his plea. �It is true the complainant denies that she appeared to the action, or ever authorized any one to appear for her. But there are two answers to this: (1) She is not allowed to contradict the record by paroi testimony in the pending suit. It is conclusive as to every material fact stated in it. Such contradiction was attempted in this district in the case of Fieldy. Gibhs, 1 Pet. 156, where, to a declaration on a judg- ment, the defendant pleaded that no process was served upon him to answer the plaintiff in the suit on which the original judgment was founded; that he never appeared to the action, nor did he ever consent to any of the proceedings, or author- ize any person to consent for him. The plea was demurred tp; a^nd on examining the record of the judgment it appeared that the defendants Martin and Joel Gibbs had been attached to answer the plaintiff; that both the defendants appeared by John P. Eipley, their attorney, and pleaded several pleas. The record further stated that, in eyery succeeding stage of the cause until the judgment was rendered, both defendants appeared by the same attorney. Judge Washington said that it was ,not competent for the defendants to plead in bar that they had not been serrad with process, and did not appear by attorney, for such plea contradicted the record, which was contrary to the universal rule of law, to-wit, that nothing could be assigned for error, nor could any averment be ad- mitted, that contradicted a record. (2) But, without demur- ring to the plea, the parties went to their proofs, and the weight of the testimony is against the complainant on the issue of fact. Mr. Wilson, the counsel who was employed by her, gives a fuU and circumstantial account of the circum- stances under which he was retained to represent her and her adult children in the action, and his evidence leaves no room ��� �