General Principles;-Judgments of Courts of other States and of the United States. As to the Time within which such actions the parties in any other State, yet if it appears may be brought, see LIMITATIONS. by the record that the defendant was not served with process, and did not appear in 10. Judgments of Courts of other States and person, or by attorney, such judgment is void. of the United States. 218. Judgment where jurisdiction exists is conclusive. A duly authenticated record of a decree rendered in a court of equity of another State having jurisdiction of the parties, enjoining a judgment-creditor from suing on his judgment, on the ground of fraud therein, is a conclusive defence against the prosecution in a court of this State, of a suit upon the judgment referred to in the deCt. of Appeals, 1854, Dobson v. Pearce, 12 N. Y. (2 Kern.), 156; S. C., 1 Abbotts' Pr., 97. cree. 219. Such decree is conclusive upon the parties everywhere and in every forum where the same matters are drawn in issue; not indeed as an injunction, but as a judgment of a court of another State. Ib. 220. Merits. In an action on a judgment of another State, no evidence to impeach the judgment on the merits is receivable. [6 Wend., 447; 4 Cow., 292; 1 Ohio, 260.] Ct. of Appeals, 1858, Hatcher v. Rocheleau, 18 N. Y. (4 Smith), 86. [Reviewing many cases.] Supreme Cl., 1831, Shumway v. Stillman, 6 Wend., 447. To the same effect is a previous decision in S. C., 4 Cow., 292; S. P., 1818, Borden v. Fitch, 15 Johns., 121; 1821, Andrews v. Montgomery, 19 Id., 162. N. Y. Superior Ct., 1828, Harrod v. Barretto, 1 Hall, 155. To the same effect is a further decision in S. C., 1829, 2 Id., 302; Wilson v. Niles, Id., 358. Supreme Ct., 1830, Starbuck v. Murray, 5 Wend., 148; 1835, Bradshaw v. Heath, 13 Id., 407. 225. If it is stated in the record that defendant appeared, he may deny it. Supreme Ct., 1830, Starbuck . Murray,* 5 Wend., 148; 1831, Shumway v. Stillman, 6 Id., 447; 1841, Long v. Long, 1 Hill, 597; 1849 [citing many cases], Noyes v. Butler,* 6 Barb., 613. Compare Pawling . Willson, 13 Johns., 192. 226. But this must be explicitly and clearly shown, for every presumption is in favor of the judginent. N. Y. Surr. Ct., 1857, Black v. Black, 4 Bradf., 174; S. C., sub nom. Black's Case, 4 Abbotts' Pr., 162. 227. Constructive notice. Where, by the statute of the State in which judgment was recovered, service of process might be made personally or by leaving a copy at defendant's 221. Where jurisdiction of the subject and of the person has been acquired, and judgment rendered, in the court of a sister State, without fraud, a court of this State can neither in-dwelling; and the sheriff's return in the suit, quire into the facts proved, nor the law applied to those facts, by which such court was governed. So held, though the alleged cause of action was a still earlier judgment recovered against the defendant without personal service, and while he was a non-resident. N. Y. Superior Ct., 1858, Rocco v. Hackett, 2 Bosw., 579. 222. The rule that a judgment on the merits is conclusive as to a ground which was not, but might have been, proven and insisted upon in the action in which it was recovered,-applied to a foreign judgment. Baker v. Rand, ⚫ 13 Barb., 152. 223. Execution. In an action on a foreign judgment, it is not necessary to account for the result of the execution issued thereon. [6 Wend., 453.] Supreme Ct., 1849, Noyes v. Butler, 6 Barb., 613. 224. Want of jurisdiction. Though a judgment of a court of general jurisdiction in any confirmed by other evidence, showed such service by copy; and it also appeared that the defendant had actual notice of the existence of the suit,-Held, that the judgment was valid here. Ib. Compare infra, 235. 228. Where the foreign judgment-record does not show that the court acquired jurisdiction of the person of the defendant, the plaintiff cannot prove, by parol evidence, in aid of the record, that the court did obtain jurisdiction. Supreme Ct., 1849, Noyes v. Butler, 6 Barb., 613. 229. Judgment on attachment. A judg ment recovered in another State against a defendant not being within such State, in an action commenced by attachment of goods or debts, without any personal summons or actual notice to the defendant, does not bind him personally, and will not sustain an action * Approved in Sears v. Terry, 26 Conn., 278; State of the Union is equally conclusive upon | Judkins v. Union Mutual Ins. Co., 87 N. H., 470. General Principles;-Judgments of Courts of other States and of the United States. here. Supreme Ct., 1809, Kilburn v. Woodworth, 5 Johns., 37; 1816, Pawling v. Willson, 18 Id., 192. 230. The fact that the defendant was sued as bail, does not affect the case. Supreme Ct., 1811, Robinson v. Ward, 8 Johns., 86. 237. By the statutes of Missouri, all contracts which at common law were joint, are made joint and several, and suits may be maintained against any one or more of several jointdebtors. Held, that a recovery in an action in the courts of Missouri against one of several jointly indebted on a contract made in New York, was no bar to an action in the courts of this State upon the same contract, against 231. on service in this State. The same rule applies in case of judgment in another State obtained against a person in this State, on personal service upon him, here, | the other parties to it. Ib. of a rule to show cause, in the nature of a scire facias, to charge him personally with a prior judgment against him as trustee. Supreme Ct., 1811, Fenton v. Garlick, 8 Johns., 194. 238. Corporation. A judgment obtained in another State against a bank of that State and against its directors individually, upon process issued against the corporation only, and without service of process upon the di232. Appearance. If a defendant, proceed-rectors, is void as to them. Chancery, 1836, ed against as an absent debtor, in a court of Cunningham v. Pell, 5 Paige, 607. general jurisdiction of another State, appears and defends, he is concluded by the judgment, unless he pleads and proves that the court had no jurisdiction of the subject-matter of the proceeding. Supreme Ct., 1828, Wheeler v. Raymond, 8 Cow., 311. 233. As to whether an appearance, under process of attachment of goods, is a voluntary appearance which will give jurisdiction within this rule. Pawling v. Willson, 13 Johns., 192; Shumway v. Stillman, 6 Wend., 447. It ought not to be, but, on authority [9 Mass., 468], it is so. Supreme Ct., 1849, Noyes v. Butler, 6 Barb., 613. 234. Unauthorized appearance. The fact that the action was brought in plaintiff's name, without his authority, is no defence. N. Y. Com. Pl., 1852, Ward v. Barber, 1 E. D. Smith, 423; but compare Reed v. Pratt, 2 Hill, 64; Harrod v. Barretto, 2 Hall, 302. 235. A statute of the State in which such judgment was recovered, making service on one of several partners equivalent to service on all, and judgment against all on such service, valid against all,-cannot be deemed to have given the court jurisdiction of a partner not served who was not then or afterwards within that State, and did not submit himself to the jurisdiction of the court which rendered the judgment. N. Y. Superior Ct., 1829, Wilson . Niles, 2 Hall, 358. S. P., Chancery, 1836, Cunningham v. Pell, 5 Paige, 607. 236. The judgment of another State cannot be given any greater effect here than it has by law in the State where it was recovered. Ct. of Appeals, 1858, Suydam v. Barber, 18 N. Y. (4 Smith), 468; reversing S. C., 6 Duer, 34. 239. A decree of a probate court in Louisiana, transferring the property of the decedent, in the hands of a curator, to one claiming to be sole heir,-Held, not conclusive upon the rights of persons not before the court, either here or by the law of that State. Chancery, 1845, Sherwood v. Wooster, 11 Paige, 441. 240. Judgment against vessel. A creditor of an owner of a vessel, who has not by the laws of this State a lien upon it and the parties, the vessel, and the accruing of the debt having been in this State, cannot devest the title of the owner by following the vessel to another State, and resorting to its laws by a proceeding in rem to which the owner is not made a party. Such a proceeding is not a debt, claim, or lien, against the vessel, within the meaning of a covenant of a third party to pay such debts, &c. Supreme Ct., 1848, De Witt v. Burnett, 3 Barb., 89. 241. The validity of foreign divorces discussed. Vischer v. Vischer, 12 Barb., 640. 242. If a judgment of another State, against several, is entire, and is void as against one, for want of service on, or appearance by him, it is void as to all. [6 Pick., 247; 12 Johns., 484.] Supreme Ct., 1830, Holbrook v. Murray, 5 Wend., 161. 243. United States courts. If a party sues at law in a circuit court of the United States, and the defendant files a bill, on the equity side of the court, which is partly an original bill, and obtains a decree, but without personal service of the subpoena, the plaintiff in the first suit, being a non-resident and not appearing, the decree can have no operation Judgment in Actions at Common Law;-Practice on obtaining Judgment. beyond the jurisdiction of the circuit court, in personam. Chancery, 1835, Bates v. Delavan, 5 Paige, 299. 244. The effect of a judgment in rem depends on different principles than that of a judgment in personam. In so far as the thing in respect to which the judgment is had, and its proceeds, wherever they may afterwards be found, the judgment is conclusive if the property, whether real or personal, was within the jurisdiction of the foreign country, and the court proceeded to judgment according to its own municipal laws. Citation or appearance of the parties is not material as in the case of judgment purely in personam. A. V. Chan. Ct., 1846, Monroe v. Douglas,* 4 Sandf. Ch., 126. So held, also, on demurrer. [1 Chitt. Pl., 457.] Supreme Ct., 1828, Van Tine . Crane, 1 Wend., 524; and see Bank of Orange v. Brown, 3 Id., 158. 251. When an issue of fact on a plea in abatement is found for the plaintiff, the judgment is final. Supreme Ct., 1829, Haight v. Holley, 3 Wend., 258; 1831, McCartee v. Chambers, 6 Id., 649. 252. And the same jury must assess the These principles applied in a peculiar case. damages. [2 Saund., 24, a. n. 3.] Supreme Ib. 245. Action to vacate judgment. A proceeding in the courts of a sister State, confessedly illegal,-e. g., a decree of divorce,cannot, in the absence of any allegation of injurious consequences flowing from it to the plaintiff, or of any attempt here to enforce it, or assert rights under it, be made the foundation of an action in this State simply to have such proceeding declared void. Supreme Ct., Sp. T., 1858, Hill v. Hill, 28 Barb., 23. As to the Constitutional provision respect ing judgments of other States, see CONSTITUTIONAL LAW, 98-100. Ct., 1831, McCartee . Chambers, 6 Wend., 649. 253. In replevin, defendant pleaded both non cepit and an avowry, and the verdict for the plaintiff was on the first issue only. Held, that, as the intention of the jury could not be mistaken, it was a proper case for judgment for the plaintiff on the whole record. [2 Burr., 698; 9 Mass., 316.] Supreme Ct., 1817, Thompson v. Button, 14 Johns., 84. 254. Several pleas. Where there are pleas of the general issue and of infancy, a judgment for plaintiff on a verdict on the first issue only, is erroneous. Supreme Ct., 1845, Bay v. Gunn, As to the Mode of authentication, see 1 Den., 108. EVIDENCE, 1538-1545. 255. The plea of an executrix was plene administravit excepting a judgment; the plain II. JUDGMENT IN ACTIONS AT COMMON tiff replied-1. That it was voluntarily con LAW. 1. Practice on obtaining Judgment. 246. On demurrer. That plaintiff may sign judgment on insufficient general demurrer. Miller v. Doyle, Liv. Jud. Op., 9. 247. Judgment on one count, on demurrer by one of several defendants, inures to benefit of all. Dillinger v. Crabtree, Anth. N. P., 365. 248. Judgment on a report of referees, upheld by relation back to the confirmation of the report. Sing v. Annin, 10 Johns., 302. 248 a. If entered within ten days from delivery of report, irregular. [Rule 45.] 1846, Hill v. Watson, 2 How. Pr., 153. fessed after suit commenced; and 2. That it was fraudulent. The defendant took issue upon the fraud alone, and had a verdict. Held, that as the issue, so found, was immaterial, judgment should be given. Supreme Ct., 1835, Gould v. Ray, 13 Wend., 633. 256. Judgment as security. Judgment is not to be allowed to go as security on an affirmative motion, against a party regularly seeking to set aside a verdict or report, upon the merits, though he is insolvent. Supreme Ct., 1827, Wilson v. White, 7 Cow., 477. 257. After judgment entered on a verdict, the court will not set the verdict aside, or hear a motion for a new trial. A stay of 249. Plea puis darrein. Of the mode of proceedings should be obtained in such cases. Supreme Ct., 1800, Van Rensselaer v. Dole, 1 Decree affirmed, Ct. of Appeals, 1851, 5 N. Y., 447. Johns. Cas., 239; Case v. Shepherd, Id., 245. VOL. III.-34 Judgment in Actions at Common Law;-Practice on obtaining Judgment. 258. On a verdict subject to the opinion of the court, no stay is necessary. Supreme Ct., 1815, Jackson v. Case, 12 Johns., 431. 259. Case or exceptions. A party having a verdict may perfect his judgment immediately; but if the adverse party, intending to move for a new trial, &c., within four days after the entry of the rule for judgment, obtains and serves a certificate of probable cause, and follows it up by serving a case or bill of exceptions in regular course, the effect of it will be to vacate the judgment so entered. [Rules 30, 56.] N. Y. Superior Ct., 1847, Lobdell. Livingston, 1 Sandf., 661. 260. On a verdict subject to the opinion of the court, plaintiff must prepare the case, and have it settled. Supreme Ct., 1800, Eagle v. Alner, 1 Johns. Cas., 332; Percival v. Jones, Id., 393; S. C., Col. & C. Cas., 104. 261. If, without sufficient excuse, he fails to do so, defendant is entitled to judgment on motion. Supreme Ct., 1815, Jackson v. Case, 12 Johns., 431. 262. Such verdict is so far a special verdict that plaintiff opens the argument. Supreme Ct., 1801, Jackson v. Murray, 2 Johns. Cas., 219. To the same effect, 1800, Eagle v. Alner, 1 Id., 332. 263. And if the court are equally divided, judgment must go according to the verdict; but they may order a further argument. Supreme Ct., 1804, Van Dyck v. Van Beuren, 2 Cai., 103. 264. Interest. On such verdict, the court may give interest in their discretion, as the jury might. Supreme Ct., 1818, Amory v. McGregor, 15 Johns., 24. 265. Pending a stay of proceedings on a verdict, a case having been made, the plaintiff should not be permitted to enter up judgment before the decision. Supreme Ct., 1805, Bird v. Pierpont, 3 Cai., 106. 266. Stay. On such verdict the postea is stayed till the question is determined, and the verdict is then entered for either party, according to the decision. [2 Tidd., 808.] Supreme Ct., 1831, Jackson v. Fitzsimmons, 6 Wend., 546. 267. An order to stay proceedings is necessary after case made, to prevent the entering judgment and issuing execution. Supreme Ct., 1829, Savage v. Hicks, 2 Wend., 246. 268. Assessment of damages. On a default, the court have power to assess damages without issuing a writ of inquiry; and, it seems, that they might do so without the intervention of a jury. Supreme Ct., 1808, McCollum v. Barker, 3 Johns., 153. 269. In an action on a bond given by the putative father for the support of a bastard, there is no assessment of damages, but judgment is to be had for the penalty. Supreme Ct., 1819, People v. Relyea, 16 Johns., 155. 270. The proceedings on a writ of inquiry, &c., on return of a record from the Court of Errors, should be continued on the roll; which is done by annexing the further papers. Supreme Ct., 1824, Jackson v. Rathbone, 3 Cow., 373. 271. Trebled damages. Where the declaration recites a repealed statute instead of the one in force, the damages cannot be trebled. Supreme Ct., 1828, Hubbell v. Rochester, 8 Cowo., 115. 272. If the jury find the defendants guilty of trespass within an act giving treble damages, they are to assess single damages, and it is then the duty of the court to treble them, and render judgment that the plaintiff recover, as damages, a sum treble the amount found by the jury. Supreme Ct., 1841, King v. Havens, 25 Wend., 420. To similar effect, 1811, Newcomb v. Butterfield, 8 Johns., 342; 1823, Livingston v. Platner, 1 Cow., 175. 273. Interlocutory judgment cannot be entered until default previously entered. Supreme Ct., 1798, Oudenarde v. Van Bergen, Col. & C. Cas., 53; and see 2 Rev. Stat., 356, §§ 1-4. 274. The former practice in England and in this State, in respect to the entry of interlocutory judgment against a defendant making default to plead, pending the trial of the issue against his co-defendant,-reviewed. Catlin v. Latson, 4 Abbotts' Pr., 248; S. C., sub nom. Catlin v. Billings, 13 How. Pr., 511. 275. Scire facias. Judgment by default on, how entered. Spencer v. Webb, Col. & C. Cas., 194. 276. Action of debt. No nominal damages are given in a judgment by default in debt, but the debt and costs only. Supreme Ct., 1825, People v. Hallett, Cow., 67. 277. In ejectment, where the appearance is only for a part, the plaintiff may take judg ment by default as to the other part. Supreme Ct., 1814, Langendyck v. Burhans, 11 Johns., 461; 1820, Jackson v. Lyons, 18 Id., Judgment in Actions at Common Law;-Practice on obtaining Judgment. 398; 1828, Underwood ads. Jackson, 1 Wend., Cow., 423; 1 Johns. Cas., 410], Crawford v. 95. Wilson, 4 Barb., 504. 278. If the defendant succeeds as to the part for which he appears, he is entitled to judgment. Supreme Ct., 1820, Jackson v. Lyons, 18 Johns., 398. 279. In ejectment, where the plaintiff's title ends before trial, he may nevertheless have judgment (with a perpetual stay of the writ of possession), so as to enable him to recover the mesne profits and costs. Supreme Ct., 1820, Jackson v. Davenport,* 18 Johns., 295. 280. Execution. Where one of two plaintiffs dies after judgment, execution may issue without scire facias as well in ejectment as in a personal action; but it must be in the joint names of both. Supreme Ct., 1840, Howell v. Eldridge, 21 Wend., 678. As to judgments in Ejectment, see, also, 2 Rev. Stat., 303. 281. Where plaintiff dies after verdict in his favor, defendant is not entitled to a stay till | an administrator is appointed, but judgment is to be entered as if he was living. Supreme Ct., 1825, Springsted v. Jayne, 4 Cow., 423. 282. Where, after plea of confession, one of the plaintiffs dies, judgment entered without motion in the name of the original parties, at any time within two terms after the plea, is not irregular. Supreme Ct., 1836, Gilbert v. Corbin, 18 Wend., 600; and see CONFESSION OF JUDGMENT, 55-57. 283. If the defendant dies in vacation, a judgment entered by default, at the next term, is void; and therefore no lien. It cannot relate back to a term prior to that in which it is entered. Supreme Ct., 1825, Griswold v. Stewart, 4 Cow., 457. To similar effect, 1824, Bennett v. Davis, 3 Id., 68. 284. Death of party pending delay. Where a party has a verdict, or obtains a nonsuit, and is delayed by a case or bill of exceptions, and dies while the matter is sub judice, the court will, upon common-law principles, and without regard to the lapse of time, allow the judgment to be entered up as of a term or time when the party was alive. The statute does not apply in such case. Supreme Ct., 1834, Ryghtinyer v. Durham, 12 Wend., 245; 1836 [citing 2 Tidd, 965; 7 Bing., 237], Spalding v. Congdon, 18 Id., 543; 1845, Gurney v. Parks, 1 How. Pr., 140; 1848 [citing, also, 4 The judgment was affirmed, 20 Johns., 587. This rule applied in the case of a trial by the court without a jury, where, after delay, the suit was dismissed. Elle v. Moyer, 8 How. Pr., 244. 285. But this rule should not be applied where, as is generally the case on demurrer, the judgment is not final, but leave to plead is allowed. In such case the suit is abated, and the plaintiff must take his remedy against the personal representatives. Supreme Ct., 1839, North v. Pepper, 20 Wend., 677. Consult, also, ABATEMENT AND Revival. 286. On receiving a cassetur billa, vel breve, defendant may enter judginent for costs without motion in court. Ct. of Errors, 1834, Provost v. Johnson, 12 Wend., 289. 287. Executors. That judgment for costs against executors, &c., cannot be entered without an order of the court. Supreme Ct., 1844, Knapp v. Curtiss, 6 Hill, 386. 288. But this is not ground for a writ of error. Supreme Ct., 1834, Mulheran v. Gillespie, 12 Wend., 349. As to judgments against Executors, &c., see Costs; and EXECUTORS AND ADMINISTRATORS. 289. Judgment non obstante veredicto can only be on the merits. Supreme Ct., 1819, Macomb v. Wilber, 16 Johns., 227; 1831, Otis v. Hitchcock, 6 Wend., 433; 1841, Bellows . Shannon, 2 Hill, 86. To similar effect, N. Y. Com. Pl., 1843, Swedensterned v. Rowe, 1 N. Y. Leg. Obs., 327. 290. That where defendant pleads a discharge, which, being subsequent to the contract sued on, is no defence, and the plaintiff, instead of demurring, replies fraud, and goes to trial upon that issue, and a verdict against him is given upon it, the court may give him judg ment notwithstanding the verdict. Supreme Ct., 1820, Burdick v. Green, 18 Johns., 14. 291. The defendant cannot move for judg ment non obstante veredicto. Supreme Ct., 1830, Smith v. Smith, 4 Wend., 468; Schermerhorn v. Schermerhorn, 5 Id., 513; 1841, Bellows v. Shannon, 2 Hill, 86. N. Y. Superior Ct., 1829, Phoenix v. Stagg, 1 Hall, 635. 292. But such motion may be treated by the court as a motion in arrest. Supreme Ct., 1830, Schermerhorn v. Schermerhorn, 5 Wend., 513. 293. But where defendant had pleaded ex |