General Principles;-Validity and Force;-As to Others. goods, he cannot contest the legality of the seizure over again, but the owner, in his turn, may set up the sentence of acquittal as a bar to that inquiry. [12 Vin., 95; A. b, 22, 1; 2 Wm. Bl., 977.] Ct. of Errors, 1816, Gelston | v. Hoyt, 13 Johns., 561; affirming S. C., Id., 141. To similar effect, Chancery, 1815, Gelston v. Hoyt, 1 Johns. Ch., 543. 33. That a decree in a suit in personam, is binding and conclusive only on the parties. Ct. of Errors, 1830, Van Bokkelin v. Ingersoll, 5 Wend., 315. of defendant in not moving to set aside a judgment, do not affect the right of junior judgment-creditors to move against the judgment, if it is void against them. Supreme Ct., Sp. T., 1858, Bridenbecker v. Mason, 16 How. Pr., 203. 39. Notary. A judgment recovered against a bank, for a default of its notary, does not conclude the latter as to the amount of damages, especially if he did not have notice and an opportunity to defend. Supreme Ct., 1826, Bank of Utica v. Childs, 6 Cow., 238. 40. A judgment of preclusion in quo war; 34. A judgment against a surviving joint-ranto against parties assuming to act as a cordebtor does not establish the indebtedness poration,-Held, conclusive on strangers. A. against the representatives of the deceased V. Chan. Ct., 1846, Thompson v. N. Y. & debtor. Chancery, 1843, Smith v. Ballantyne, Harlem R. R. Co., 3 Sandf. Ch., 625. 10 Paige, 101; 1844, Leake & Watts Orphan House. Lawrence, 11 Id., 80; affirmed, Ct. of Errors, 1845, 2 Den., 577. 41. Impeaching. A judgment-creditor cannot impeach a prior judgment, on the ground that the contract, as indemnity for which it was confessed, was, perhaps, within the prohibition of a statute, which objection the par cery, 1820, Parker v. Rochester, 4 Johns. Ch., 329. 35. Judgment of sister State. In an action for breach of covenant to pay all liens, &c., against a vessel, a record of a foreign judg-ties to the prior judgment do not raise. Chanment upon a proceeding against the vessel, under a statute of another State into which the vessel subsequently went, is not evidence against the defendant, he not having been a party to, nor having had notice of the foreign | proceeding. Supreme Ct., 1848, De Witt v. Burnett, 3 Barb., 89. 36. Several parties to note. A judgment by an indorsee against maker and indorser, which is paid by the latter, who takes back the note, does not merge the right of action of the indorser against the maker, upon the note; nor is the judgment res judicata between the two latter. The effect of a joint judgment is the same as if separate suits had been brought. Brooklyn City Ct., 1854, Kelsey v. Bradbury, 12 N. Y. Leg. Obs., 222. 37. Sureties who had no notice. In general, none but parties or sureties are concluded by a judgment. The sureties in an official bond, which is simply conditioned that their principal shall faithfully execute his office, are not bound, as to the grounds of liability, by a recovery against their obligee, in an action of which their principal, but not themselves, had notice. [Citing 24 Wend., 35; and distinguishing 1 Hill, 56; 3 T. R., 374; 2 Duer, 449.] Ct. of Appeals, 1857, Thomas v. Hubbell, 15 N. Y. (1 Smith), 405. 42. If one who has confessed judgment, voluntarily waives his right to set up usury, a subsequent purchaser of the land upon which the judgment is a lien, cannot impeach it for usury. So held, where the judgment-debtor filed a bill for relief, but afterwards consented to a decree dismissing it with costs. cery, 1821, French v. Shotwell, 5 Johns. Ch., 555. Compare Shufelt v. Shufelt, 9 Paige, 187. Chan 43. Purchasers pending suit. A decree in a suit between A. and B., declaring that a cause of action sued upon at law belongs to B., will be enforced against a purchaser of it, pendente lite, from A. V. Chan. Ct., 1846, Jackson v. Losee, 4 Sandf. Ch., 381. 44. A purchaser of land pending a suit, is bound by the decree. [5 Johns., 93.] And if he were brought in as a party he would be bound by previous proceedings. [Mit. Pl., 68, 74; 1 Atk., 89; 6 Mad., 59; 2 Bligh, P. C., 593, note; 2 Atk., 174.] Supreme Ct., 1856, Harrington v. Slade, 22 Barb., 161. 45. In an equitable action in rem, relative to real property, the interest of a purchaser from one of the defendants during the pendency of the suit, is barred by the decree, although such purchaser may not have been made a party. This rule includes the assignee of a bankrupt or insolvent debtor appointed after Laches the commencement of such action against his Consult, also, INDEMNITY; and PRINCIPAL AND SURETY. 38. Junior judgment-creditors. General Principles;-Validity and Force;-Merging the Original Contract. assignor. Supreme Ct., 1858, Cleveland v. Boerum, 27 Barb., 252; affirming S. C., 23 Id., 201; 3 Abbotts' Pr., 294. 46. At most, the assignee in such case might move within the year after decree, for irregularity in not making him a party. [2 Rev. Stat., 859; 3 Barb. Ch., 371.] Ib. 47. Purchaser of land pending action for possession, when liable. 2 Rev. Stat., 342, § 19. D. Merging the Original Contract. 48. Equitable rights. A judgment upon a contract, technically merges the demand, but not in so complete a sense that the courts cannot look behind it for the purpose of protecting equitable rights of the parties, especially in cases of insolvency and bankruptcy. [12 Pick., 572.] Ct. of Appeals, 1850, Clark v. Rowling, 3 N. Y. (3 Comst.), 216. To the same effect, Supreme Ct., 1823, Wyman v. Mitchell, 1 Cow., 316; 1848 [citing 19 Johns., 153], Dresser v. Brooks, 3 Barb., 429. Chancery, 1848, Johnson v. Fitzhugh, 3 Barb. Ch., 360; and see Raymond v. Merchant, 3 Cow., 147. 49. Collateral judgment. A collateral security of a higher nature,—e. g., a bond and warrant of attorney,-on which judgment is entered, does not extinguish the original contract, so long as the judgment remains unsatisfied. [1 Chitt. Pl., 96; 3 East, 251; 2 Leon., 110; Bac. Abr., tit. Extinguishment (D.); 6 Cranch, 264.] Supreme Ct., 1817, Day v. Leal, 14 Johns., 404. 50. A judgment confessed for the same debt secured by a chattel mortgage, as collateral to the mortgage, does not extinguish the mortgage. Supreme Ct., 1848, Butler v. Miller,* 5 Den., 159. 51. Rights of pledgee of mortgage. H. being indebted to M., assigned to him a mortgage as collateral security. Upon default in the mortgage, H. and M. joined in a foreclosure action in which a judgment of sale was had, and the premises were bought in by M. for less than the amount of the debt secured by the assignment. Held, that M. took the premises subject to an equity of redemption in H.; and that the judgment did not bar the right of H. to com The judgment was affirmed, Ct. of Appeals, 1848, 1 N. Y. (1 Comst.), 496, without however deciding this point as matter of law. VOL. III.-33 pel M. to account for the proceeds of the property after reimbursing himself the indebtedness secured by the assignment. Ct. of Appeals, 1857, Hoyt v. Martense, 16 N. Y. (2 Smith), 231. S. P., Chancery, 1828, Slee v. Manhattan Co., 1 Paige, 48. 52. Award of compensation. An award to a mortgagee by name, for the amount of his mortgage, made in the proceedings under the Central Park Act of 1853, having been duly confirmed, is in law a special judgment, merging the mortgage, after which a foreclosure of the mortgage cannot be had. Supreme Ct., Sp. T., 1856, Shephard v. Mayor, &c., of N. Y., 13 How. Pr., 286. 53. Joint-debtors. A judgment against one of several joint-debtors, merges the debt as to all. Supreme Ct., 1821, Robertson v. Smith,* 18 Johns., 459. Ct. of Appeals, 1858, Suydam v. Barber, 18 N. Y. (4 Smith), 468. 54. A judgment confessed by one partner, for a partnership liability, extinguishes it. So held, where the liability was a contingent one for future indorsements. Supreme Ct., Sp. T., 1849, Averill v. Loucks, 6 Barb., 19. 55. A creditor who has recovered judgment against one of two joint-debtors upon his individual obligation, executed as a security for the joint debt, cannot afterwards maintain an action against both debtors. So held, on a review of conflicting authorities. N. Y. Com. Pl., Sp. T., 1859, Benson v. Paine, 17 How. Pr., 407; S. C., 9 Abbotts' Pr., 28. To the same effect, Supreme Ct., 1845, Peters v. Sanford, 1 Den., 224. 56. Collateral. The principle that a judgment against one of several partners for a partnership debt extinguishes that debt, is not applicable to a case where one partner unites with a third person in giving a note for such a debt, which, by agreement, is made and accepted by the creditor as a mere collateral security; and in such case a judgment on the note does not affect the original indebtedness, even as to the partner who signed it. Supreme Ct., 1854, Hawks v. Hinchcliff, 17 Barb., 492. As to the effect of a judgment in merging the Grounds of arrest existing in respect to the original cause of action, see ARREST, 236238. *See this case in table of CASES CRITICISED, Vol. I., Ante. General Principles;-Substance and Effect of Judgments and Decrees for Special Relief. As to their effect as Estoppels and as Evidence, see those titles. 63. In an action concerning the separate property of a married woman in which the As to their effect as Res Adjudicata, see husband is joined, it is improper to render FORMER ADJUDICATION. judgment against him in personam. N. Y. Com. Pl., 1856, Walker v. Swayzee, 8 Abbotts' Pr., 136. As to matters peculiar to Particular causes of action or grounds of equitable relief, see their respective titles, referred to under CAUSE OF ACTION; and Equity. 64. Title to office. In an action brought by the people and a claimant, to try the title As to the effect on the rights of Sureties, to a public office, upon the rendition of a regsee PRINCIPAL AND SURETY. 2. Substance and Effect of Judgments and Decrees for Special Relief, in Various Cases. 57. A decree cancelling an instrument should not be made unless the court sees clearly that no person but parties to the suit can claim upon it; otherwise the decree should be for a perpetual injunction against those parties. A. V. Chan. Ct., 1839, McEvers v. Lawrence, Hoffm., 172. ular judgment of ouster against the officer and in favor of the claimant, the officer becomes ousted, and the party declared to be entitled, upon taking the official oath and filing bonds when required, becomes eo instanti invested with the office. Supreme Ct., Chambers, 1852, Welch v. Cook, 7 How. Pr., 282; followed, 1858, People v. Conover, 6 Abbotts' Pr., 220. 65. In an action in the nature of a quo warranto, brought against an alleged intruder 58. In what cases of setting aside a deed as upon a public office, the judgment of the fraudulent, it is proper to direct a reconvey-court, if for the plaintiff, can only be a judgance. Dey v. Dunham,* 2 Johns. Ch., 182. 59. Foreclosure. The mortgagor is primarily liable on his bond for the debt; and the decree in a foreclosure-suit, where a guarantor is made a defendant, should provide for a substitution of the guarantor to the amount of a deficiency, in case it is paid by the latter or collected from his property. Chancery, 1845, Jones v. Stienbergh, 1 Barb. Ch., 250; and see FORECLOSURE, 221. 60. Against committee of lunatic. A decree or order directing a committee of an habitual drunkard to pay a debt, ought not to provide that the creditor might file another bill to enforce payment; for the former decree may be summarily enforced. Chancery, 1840, Beach v. Bradley, 8 Paige, 146. ment of ouster and for costs. If the plaintiff has a claim for damages against the defendant to recover the fees collected by the latter, or otherwise, that claim must be asserted in a separate action. Supreme Ct., Circuit, 1856, People v. Snedeker, 3 Abbotts' Pr., 233. 66. The decree on a bill to redeem should limit a time for redemption, and direct the bill to be dismissed with costs, if the money is not paid by that time. Chancery, 1838, Waller v. Harris,*7 Paige, 167; and see Quin v. Brittain, Hoffm., 353. 67. Where a decree of the Court of Errors gave a certain time to redeem, but did not declare the effect of an omission to redeem, the chancellor, on petition, made an order declaring its construction to be to bar redemption, unless made within the time, and extending the time. Chancery, 1846, Sherwood . Hooker, 1 Barb. Ch., 650. 68. Specific performance. In an action by a vendor for specific performance, the judgment against defendants, for payment, should 61. In an action against husband and wife for an ante-nuptial debt of the wife, the judgment should be special, pursuing the language of the statute. N. Y. Superior Ct., Sp. T., 1853, Foote v. Morris, 12 N. Y. Leg. Obs., 61. 62. The fact that a judgment against a mar-require it upon the plaintiff's executing and ried woman to be collected out of her separate property, is imperfect in not directing the mode of enforcing the lien, does not render the judgment, so far as it goes, invalid or irregular. Supreme Ct., Sp. T., 1855, Chapman v. Lemon, 11 How. Pr., 235. Reversed on another point, 15 Johns., 555. delivering to the defendants (or filing in court for them, if they refused to receive it) a deed. Supreme Ct., 1857, Lowber v. Mayor, &c., of N. Y., 5 Abbotts' Pr., 484; S. C., 26 Barb., 262; 15 How. Pr., 123. * The decree was affirmed on other points, Ct. of Errors, 1888, 20 Wend., 555. General Principles;-Judgments by Confession. 76. Continuing security. A confession of judgment or other security may be held as a continuing security for indorsements and advances, if this is contemplated by the original agreement for it. Supreme Ct., Sp. T., 1849, Averill v. Loucks, 6 Barb., 19. 69. Where a bill is filed by the purchaser N. Y. Superior Ct., 1850, Paton v. Westervelt, against the vendor for a specific performance, 2 Duer, 362; S. C., 12 N. Y. Leg. Obs., 7. it is proper for the decree to give the necessary directions to compel the complainant to perform. The court will, if the vendor asks, insert a provision that, if the purchaser refuses to accept the conveyance and pay the purchase money, the premises may be sold by a master, and the purchaser pay the deficiency, if any. Or the court may decree that, if he does not pay within the time fixed, he shall be barred of his right to a specific performance. Chancery, 1889, Clark v. Hall, 7 Paige, 382. 77. To authorize the entry of judgment on a bond and warrant, the authority must be found in the warrant, to enter it in the form in which it is proposed to enter it. The creditor's assignee cannot enter it in his own name. Supreme Ct., Sp. T., 1854, Oakley v. McCotter, For Other cases on this subject, see ConFESSION OF JUDGMENT; and for Further illustrations of the same principles, see ASSIGNMENT FOr Benefit of CreDITORS; CHATTEL MORTGAGE; and Fraudulent Conveyance. 70. Under the Code, in an action against a vendor, for specific performance, where his 12 N. Y. Leg. Obs., 91. defence is that he has no title, the court may, under the Code, order a reference to ascertain the plaintiff's damages, and give judgment in the alternative, for specific performance or damages, instead of dismissing the complaint, and turning the plaintiff over to his action for damages. Supreme Ct., Sp. T., 1859, Steven- 4. Filing and Docketing Judgments and Deson v. Buxton, 8 Abbotts' Pr., 414. 3. Judgments by Confession. 71. Infant. A judgment confessed by an infant and another, is void as to the infant, and will be vacated on motion. Supreme Ct., 1826, Bennett v. Davis, 6 Cow., 393. 72. Judgments confessed by an infant and habitual drunkard, on an account for articles which were not necessaries, set aside at the suit of the committee. L'Amoureux v. Crosby, 2 Paige, 422. Compare INSANE PERSONS, 111-115. 73. Fraudulent judgment. A judgment confessed for $25,000 on a debt of about 3,000, in trust to apply the excess collected to the payment of creditors thereafter to be designated by the debtor, is fraudulent and void. Chancery, 1830, Sewall v. Russell, 2 Paige, 175. 74. A judgment confessed for a debt not then due and payable, and fully secured upon real estate, being intended to cover the personal property of the debtor, is fraudulent as to creditors. Chancery, 1836, Burns v. Morse, 6 Paige, 108. crees for the Payment of Money. 78. Signing and Filing. Clerk to indorse time of filing record of judgment. No judgment valid so as to authorize proceedings thereon until signed and filed. 2 Rev. Stat., 360, § 11. 79. No judgment to affect lands, &c., or have preference against other creditors, purchasers, or mortgagees, until record filed and docketed. 2 Rev. Stat., 360, § 12. 80. A judgment making an actual partition fixes the rights of the parties in the land, and severs their interests, as of the time when the report of the commissioners is confirmed, though filing the record is delayed, for the record is merely evidence. The provisions of 2 Rev. Stat., 360, §§ 11, 12,-requiring judgments to be filed before proceedings thereon can be authorized, and to be docketed before they can have preference,-do not apply. Supreme Ct., 1850, Van Orman v. Phelps, 9 Barb., 500. 81. If several judgments are filed on the same day, and the affidavits leave it in doubt as to the precise time of the day, they will be treated as filed at the same time, and equal as to the date of lien. Supreme Ct., 1811, Adams v. Dyer, 8 Johns., 347. Compare Waterman v. Haskin, 11 Id., 228. 75. Several creditors. The fact that a judgment is confessed to secure a debt to an- 82. Under the statute making judgments other creditor, as well as one due the plaintiff, liens from the times of filing the rolls, and redoes not render it void. [6 Barb., 346; 3 quiring the clerks to note the times, it is propet Barb. Ch., 293; 6 Johns., 165.] So held, in that the hour of filing should be noted, and the an action against the sheriff for false returns. | conrt will inquire into the fractions of a day, General Principles;-Filing and Docketing Judgments and Decrees for the Payment of Money. when necessary, to determine their priority. Supreme Ct., 1823, Lemon v. Staats, 1 Cow., 592. defendant's middle name, corrected, and the judgment declared a lien from the date of the original docketing. Geller v. Hoyt, 7 How. 83. Hour of filing required to be entered. 2 Pr., 265. Rev. Stat., 360, § 13. 84. Judgments do not gain priority by being delivered to the clerk before 9 A. M., the hour when the clerks are by statute required to open their offices; but are to be filed as of that hour when delivered earlier. Supreme Ct., 1833, Wardell v. Mason, 10 Wend., 575; S. P., Rule 9 of 1858. 88. Docket in each county. Judgments and decrees not a lien unless docketed in the county where the lands lie.* Laws of 1840, 334, ch. 386, § 25. 89. Previous suits. A judgment of the Supreme Court, recovered before the act of 1840 (q. v., supra, 88), is not affected by that act, but continues a lien upon lands throughout the State; and its revival by scire facias since that act took effect does not render & second docketing necessary, so far as respects the original debt and costs. Chancery, 1846, Clark v. Dakin, 2 Barb. Ch., 36. 90. Judgments recovered after the act of 1840, must be docketed in the county clerk's office to be a lien, without reference to wheth er the action was commenced before the stat ute or not. Supreme Ct., 1843, Erp. Becker, 4 Hill, 613. 85. Correct docket essential to lien. Under 2 Rev. Stat., 360, § 12,-declaring that no judgment shall affect real property or have preference over other judgment-creditors, until docketed, the common-law lien of a judgment does not attach until docketing; and as the lien is entirely regulated by statute, equity cannot extend it. Under the provision of § 13, -that the clerk is to enter judgments in an alphabetical docket,-each judgment should be entered under the letter corresponding with the surname of the judgment-debtor; 91. A judgment for deficiency, if any shall and entering a judgment against A. B. under shall arise on a sale, cannot be docketed till letter A is not a substantial compliance with after a sale. [8 Paige, 480; 10 Id., 116.] The the statute. The fact that it was the clerk's test of the right to docket a judgment is the error does not avail the party. Chancery, right to issue execution upon it immediately. 1847, Buchan v. Sumner, 2 Barb. Ch., 165. N. Y. Superior Ct., Sp. T., 1854, De Agreda 86. Mistake in docket. On a distribution". Mantel, 1 Abbotts' Pr., 130. To the same of surplus of proceeds of sale of real property effect, Supreme Ct., Sp. T., 1852, Cobb v. under a surrogate's order for payment of debts, Thornton, 8 How. Pr., 66. one of the creditors claimed payment of a 92. That the decree of a surrogate, for judgment recovered in the late Common Pleas the payment of money, may be docketed and of Tompkins county, 15th March, 1841, and enforced by execution against the property of docketed in May, 1842, by filing a transcript the administrator, as a judgment at law. N. Y. in New York. The judgment was erroneously Surr. Ct., 1855, Sherwood v. Judd, 3 Bradf., docketed as having been recovered March 15, 419. 1842, instead of 1841. The surrogate allowed 93. Judgments in partition may be recordthis judgment, giving it priority over a judged in county clerk's office. Laws of 1846, 205, ch. 182, § 2. ment recovered and docketed in New York in 1847. Held, that, as it was not shown that the latter creditor had been in any way prejudiced by the error in the docket, it should be disregarded. [19 Wend., 90; 3 Cow., 39, note.] The provisions of the statute respecting the docketing of judgments are directory, and omissions or variances which work no prejudice are immaterial. Ct. of Appeals, 1858, Sears. Burnham, 17 N. Y. (3 Smith), 445; affirming S. C., sub nom. Sears v. Mack, Bradf., 394. 2 94. Local courts. Judgments of the N. Y. Superior Court and Common Pleas, and of mayors' courts, to be docketed. Laws of 1840, 334, ch. 386, §§ 28, 29; Code of Pro., § 282; and as to docket of Common Pleas judgment, see Laws of 1844, 91, ch. 104, § 6. 95. Judgments of United States courts, how to be obtained and docketed by certain coun * In Crandell ads. Cropsey (U. S. Dist. Ct., 1851, 10 N. Y. Leg. Obs., 1), it was held that this statute did not apply to judgments of the United States courts, which in themselves create a lien co-extensive with the district of the court in which they are recovered. And see Lombard . Bayard, 7 Penn. 87. An error in the docket in the initial of L. J., 250. |