and the damages are to be assessed by the jury. id. Tracy v. New York and Harlem Railroad Co. 9 Bosw. 396. And see Wood v. Orser, 25 N. Y. (11 Smith), 348. c. Possession-right of action.-No one can maintain the action who has not the present right of possession. Wood v. Orser, 25 N. Y. (11 Smith), 348. And after the ac tion has been commenced, the taking of possession by the plaintiff of the property sought, by finding it where the defendant chanced to leave it, does not impede or bar the claim of the former, and he may go on to judgment for damages. Tracy v. New York and Harlem Railroad Co. 9 Bosw. 396. See § 261 and notes. 278. [233.] (Am'd 1849, 1851, 1852.) Judgment upon issue of law or fact, to be upon direction of a single judge, or on report of referees, subject to review at general term. Judgment upon an issue of law, or of fact, or upon confession, or upon failure to answer (except where the clerk is authorized to enter the same by the first subdivision of section 246, and by section 384, and except where it may be given at the general term as provided in section 265), shall, in the first instance, be entered upon the direction of a single judge, or report of referees, subject to review at the general term, on the demand of either party, as herein provided. a. The direction. - Judgment upon a written offer of the defendant, pursuant to §385, although within the terms, is not within the spirit of this section, and does not require the direction of the judge. Hill v. Northrop, 9 How. 525. Where the order of the court directs a conditional judgment, it has been the long established practice for the clerk, on proof of non-compliance with the condition, to enter judgment according to the order. Hanna v. Dexter, 15 Abb. 135. Where there are two defenses set up in the answer, and one of them, being demurred to by the plaintiff, is held bad, judgment absolute should not be entered, but there should be an order to the effect that judgment shall be entered for the plaintiff, unless the defendant shall succeed on the issues of fact joined. Belknap v. McIntyre, 2 Abb. 366. Where there is an issue of law and an issue of fact joined in the case, no judgment for costs can be entered in favor of the party who prevails upon the issue of law, until the issue of fact is disposed of. id. Masters v. Barnard, 6 How. 113; S. C. 1 Code R. N. S. 407; People v. Feeter, 12 Wend. 480; Osborn v. Lawrence, 9 id. 445; Williams ads. Wright, 1 id. 277; Ford v. Crane, 6 Cow. 70. It is immaterial whether the proceedings, subsequent to the verdict, to enter judgment, are in the circuit or at special term; a judgment, in the first instance, is to be upon the direction of a single judge. Dart v. McAdam, 27 Barb. 187. But there is only one case in which a judge at chambers can grant a judgment, and that is under § 247 of the Code, where judgment may be given on a frivolous demurrer, answer or reply. In all other cases, judgment can be rendered only by the court when sitting as such. Aymar v. Chace, 12 Barb. 301; S. C. 1 Code Ř. N. S. 330. Where a judgment grants the plaintiff special relief, he cannot settle the form thereof ex parte, where the defendant has appeared in the suit. Wood v. Lambert, 3 Sandf. 724; S. C. 1 Code R. N. S. 214. b. Costs.-The court has not power to order judgment nunc pro tunc, as of a date prior to the actual judgment, to enable a party to affect the amount of his costs. Moore v. Westervelt, 14 How. 279; S. C. 6 Duer, 684. And see Crawford v. Wilson, 4 Barb. 504 Where the order of the court is that, if cer tain costs should not be paid by the plaintiff within a certain time after adjustment and demand, defendant might enter judgment of nonsuit, held, that on proof of non-compliance with the condition, the clerk might ente judgment absolute for a nonsuit. Hanna v Dexter, 15 Abb. 135. c. The report.-The Code of procedure pays the same respect to the decision of s referee, to whom all the issues are referred, as it does to that of a single judge. It orders judgment to be entered in the same manner, that is, by the clerk. Currie v. Cowles, 7 Rob. 3. The report in such a case does not require the confirmation of the court. id. Bihin v. Bihin, 17 Abb. 19, 27; McMahon v. Allen, 7 id. 1; Griffing v. Slate, 5 How. 205; S. C. 3 Code R. 213; Renouil v. Harris, 1 Code R. 125; S. C. 2 id. 71; 2 Sandf. 641. d. Penal bond.-In an action on an official bond brought in the name of an indi vidual, the judgment should not be for the amount of the penalty, but only for the amount of the damages and costs. O'Connor v. Such, 9 Bos. 318. And so on any bond conditioned for the payment of money. Howard v. Farley, 18 Abb. 260. But, in the supreme court, in Western Bank v. Sherwood, 29 Barb. 383, Judge MARVIN said: "The action on a penal bond is for the penalty, and the judgment, in form, is for the penalty." e. Executor.-At common law, the judgment against an executor was never general as against one personally liable, but was always special; and there is nothing in the Revised Statutes, or in the Code, to dispense with the necessity of these special forms of judgment. Mills v. Thursby, 12 How. 385; S. C. 2 Abb. 432. The judgment should not be against the executors, personally; it should be against them as executors, to be levied out of certain assets. id. Bank of Cooperstown v Corlies, 1 Abb. N. S. 412. Where the judgment is for costs and disbursements, and there is no direction that the executor shall pay the costs personally, it can only be collected out of the assets in his hands. Dodge v. Crandall, 30 N. Y. (3 Tiff.), 294. And see § 317. § 279. [234.] Clerk to keep a judgment book. The clerk shall keep, among the records of the court, a book for the entry of judgments, to be called the "judgment book." § 280. [235.] Judgment to be entered into judgment book. The judgment shall be entered in the judgment book, and shall specify clearly the relief granted, or other determination of the action. a. Entry. The clerk, on being tendered his fee for entering judgment, is bound to enter it, although a fee for a previous service rendered remains unpaid. Purdy v. Peters, 15 Abb. 160; S. C. 23 How. 328. The clerk must make the entry in cases where the decision of the court is given in writing and filed under § 267, as in all other cases. Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226; S. C. 1 Code R. N. S. 380; Lentilhon v. Mayor, etc. of New York, id. 111; S. C. 3 Sandf. 721. And see Bentley v. Jones, 3 Code R. 37, 38; S. C. 4 How. 335. The delay of the clerk to enter a final decree in the judgment book does not affect its validity. Butler v. Lee, 3 Keyes, 70; S. C. 33 How. 251; Lynch v. Rome Gaslight Co. 42 Barb. 591. Where the actual entry of the judgment was delayed over two months, it appearing that the clerk had filed a request to enter a transcript, held, that this did not invalidate proceedings on execution, nor an order for the examination for the judgment debtor. Appleby v. Barry, 2 Rob. 689. Where a judgment, contingent on the performance of some condition, is rendered in an action, the entry of such judgment will be irregular, if made before the expiration of the time allowed for the performance of the condition. Butler v. Niles, 3 Rob. 644. It seems, a substantial compliance with the requirements in regard to docketing judgments is all that is absolutely necessary. Appleby v. Barry, 2 Rob. 689; Sears v. Burnham, 17 N. Y. (3 Smith), 445; Aff'g S. C. 2 Bradf. 394, sub nom. Sears v. Mack's Assignees; Stimson v. Huggins, 9 How. 86; S. C. 16 Barb. 658. The clerk may correct his own error and conform his entry to the decision which has been made by the court. Smith v. Coe, 7 Rob. 477. Where the clerk had before him, upon taxation, not only the minutes kept by the deputy clerk, but also the affidavit of such clerk that the court had ordered an allowance to be made, that was sufficient to authorize him to insert such allowance in the judgment. Ib. An agreement for staying the entry of judgment is unlawful, and cannot be enforced. Jay v. De Groot, 28 How. 107; Aff'g S. C. 17 Abb. 36 (n.) But the party aggrieved by the violation of such an agreement may have equitable relief. Ib. b. Judgment.-Although the Code of Procedure has attempted to abolish the distinctions between proceedings at law and in equity, it is plain that judgments at law and in equity cannot be assimilated. The final decree of a court of equity takes effect when it is made and declared by the court, and the record, when made up, is only evidence of the decree, and simply proves it, without adding anything to its validity. It is not necessary even to enroll it, except in those cases where it is required to be enrolled as preliminary to some further action, which the statute authorizes to be taken upon it only after enrollment. In common law actions, no judgment is pronounced except by the record which is made up in the clerk's office. Butler v. Lee, 33 How. 251; S. C. 3 Keyes, 70. It is not material whether the order of the court is reduced to form and receives the fiat. of the judge at the time the order is actually made, or at a subsequent period. Smith v. Coe, 7 Rob. 477. In an action tried by a court without a jury, the only authority for entering judgment is the decision of the judge who tried the cause; the clerk cannot include anything in the judgment not embraced in the decision. Loeschigk v. Addison, 19 Abb. 169; S. C. 3 Rob. 331; S. C. again, 4 Abb. N. S. 210; Chamberlain V. Dempsey, 14 Abb. 241; S. C. 9 Bosw. 212. The judgment need not adopt the findings of a referee upon the facts and law, as that of the court. Currie v. Cowles, 7 Rob. 3. c. Review. If the judgment is to be reviewed on appeal at general term on a case or exceptions, the appellant must procure an order of the court authorizing the case and exceptions to be annexed to and form part of the judgment roll. Anderson v. Dickie, 26 How. 199; S. C. 17 Abb. 83; 1 Rob. 700; Church v. Rhodes, 6 How. 281; Lynde v. Cowen hoven, 4 id. 327; S. C. 3 Code R. 7, sub nom. Lynde v. Couvenhoven; Renouil v. Harris, 2 Sandf. 641; S. C. 1 Code R. 125; S. C. Aff'd, 2 id. 71; and Rules 11, 12, 44, Supreme Court. § 281. [236.] (Am'd 1849, 1851, 1852.) Judgment roll. Unless the party or his attorney shall furnish a judgment roll, the clerk, immediately after entering the judgment, shall attach together and file the following papers, which shall constitute the judgment roll: 1. In case the complaint be not answered by any defendant, the summons and complaint, or copies thereof, proof of service, and that no answer has been received, the report, if any, and a copy of the judgment. 2. In all other cases, the summons, pleadings or copies thereof, and a copy of the judgment, with any verdict or report, the offer of the defendant, exceptions, case, and all orders and papers in any way involving the merits, and necessarily affecting the judgment. a. By whom furnished.-It is the duty of the clerk to attach together the papers which constitute the judgment roll. Earle v. Barnard, 22 How. 437; Heinemann v. Waterbury, 5 Bosw. 686; Renouil v. Harris, 2 Sandf. 641; S. C. 1 Code R. 125. It is optional with the successful party to furnish the roll or not. Heinemann v. Waterbury, 5 Bosw. 686. And an order of the court compelling the prevailing party to do so, will be reversed on appeal. id. The provisions regulating the making up and the filing of the judgment roll are not imperative, but directory. Stimson v. Huggins, 9 How. 86; S. C. 16 Barb. 658. b. Contents.-The affidavit founding the requisition to the sheriff, in an action for the recovery of personal property, is no part of the judgment roll. Kerrigan v. Ray, 10 How. 213. Where the party is arrested under § 288 of the Code, the affidavit and order of arrest should not be entered upon the record. Corwin v. Freeland, 6 N. Y. (2 Seld.), 560; Rev'g S. C. 6 How. 241. A "bill of costs,' "notice of adjustment," "affidavit of disbursements, and attendance of witnesses," do not constitute any part of a judgment roll. Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226; S. C. 1 Code R. N. S. 380. Where there have been two trials of a cause in the supreme court, the case and exceptions made upon the first trial should not be incorporated into the record at the close of the second trial. Wilcox v. Hawley, 31 N. Y. (4 Tiff.), 648. And see Schenectady and Saratoga Plank Road Co. v. Thatcher, 6 How. 226; S. C. 1 Code R. N. S. 380. Proof of the service of the summons is a part of the judgment roll where the defendant fails to answer. Macomber v. Mayor, etc. of New York, 17 Abb. 35; Thomas v. Tanner, 14 How. 426. But proof of service is no part of the record when the defendant answered the complaint either by answer or demurrer. Smith v. Holmes, 19 N. Y. (5 Smith), 271. When an issue of fact has been tried by a jury, a copy of the verdict is a necessary part of the roll. If the issue be tried before a referee, the report must be inserted. If the trial of the issue is by the court alone, the decision is a part of the roll. Thomas v. Tanner, 14 How. 426. The opinion should never be carried at length into the record. Ib. c. Omissions.- Omissions in the judgment roll do not invalidate the judgment. An omission to attach the original summons to the roll does not vacate the judgment. Hoffnung v. Grove, 18 Abb. 14, 142; S. C. 42 Barb. 548, sub nom. Hoffaring v. Grove; Calkins v. Packer, 21 id. 275. An omission to insert an order of reference in the roll does not make the judgment void. id. Nor does the omission of the summons and complaint. Martin v. Kanouse, 2 Abb. 390, 393. Nor is the judgment void because the roll does not contain a copy of the verdict. Cook v. Dickerson, 1 Duer, 679. Nor because it does not embrace a pleading stated to have been withdrawn by defendant before judgment, and to have been mislaid or lost Hatcher v. Rocheleau, 18 N. Y. (4 Smith), 86. A pleading, when amended, however, or a demurrer when abandoned, is not a part of the record. Brown v. Saratoga Railway Co. id. 495. But a paper containing neither process nor pleadings cannot be deemed a judg ment roll, and such a large omission in the record will fail to make the judgment a lien on the property of the debtor. Townshend v. Wesson, 4 Duer, 342, 354. d. Signature.-In Decker v. Judson, 16 N. Y. (2 Smith), 439, 450, the language of the court, DENIO, J., in regard to a judgment record was: "It was not signed by the clerk, a formality which by the judiciary act was essential to constitute a judgment record. Laws of 1847, ch. 280, § 53." But it is said that the Code seems to dispense with any signing of the roll. Macomber v. Mayor, etc. of New York, 17 Abb. 35, 45. In Artisan's Bank v. Treadwell, 34 Barb. 553, it was held that signing is not indispensable to the validity of the roll. But see Townshend v. Wesson, 4 Duer, 342; Van Orman v. Phelps, 9 Barb 500; Manning v. Guyon, 1 Code R. 43; Williams v. Wheeler, 1 Barb. 48 ; and 2 R. S. (373), 360, § 11. e. Appeal.-A judgment roll should contain a case or exceptions, if the party wishes to appeal; but it is not understood that this is absolutely necessary to the appeal. Conolly v. Conolly, 16 How. 224. But in case of the omission of a regular case or exceptions, the appellant is confined to such errors as appear upon the face of the record strictly. id. See, as to this subject, Wilcox v. Hawley, 31 N. Y. (4 Tiff.), 648; Oldfield v. New York and Harlem Railroad Co. 14 N. Y. (4 Kern.), 321; Dain v. Wyckoff, 18 N. Y. (4 Smith), 47; Magie v. Baker, 14 N. Y. (4 Kern.), 435; Smith v. Grant, 15 N. Y. (1 Smith), 590. Where judgment was taken by default, but the record presented no proof of the fact of default, is not a matter of appeal; it is a mere irregularity. Catlin v. Billings, 16 N. Y. (2 Smith), 622. f. Irregularities-variances.—A substantial compliance with the requirements of a statute having reference to the object of the legislature in affording information to all who might be affected by the judgment, is all that is necessary. Sears v. Burnham, 17 N. Y. (3 Smith), 445; Appleby v. Barry, 2 Rob. 689. Where there was a variance between the order of dismissal of the complaint as entered in the minutes and that contained in the judgment roll, held, that the variance was a mere irregularity, which could only be taken advantage of, if at all, within one year after perfecting judgment. Martin v. Lott, 4 Abb. 365. A variance between the record and the execution may be amended, or, if immaterial, may be disregarded. Townshend v. Wesson, 4 Duer, 342, 353; Swan v. Saddlemire, 8 Wend. 676; Jackson v. Walker, 4 id. 462. § 282. [237.] (Am'd 1851, 1867, 1869.) Judgment, in what cases, and how to be docketed. Upon filing a judgment roll upon a judgment directing, in whole or in part, the payment of money, it may be docketed with the clerk of the county where the judgment roll was filed, and in any other county upon the filing, with the clerk thereof, a transcript of the original "docket," and shall be a lien on the real property, in the county where the same is docketed, of every person against whom any such judgment shall be rendered, and which he may have at the time of the docketing thereof in the county in which such real property is situated, or which he shall acquire at any time thereafter, for ten years from the time of docketing the same in the county where the judgment roll was filed. But the time during which the party recovering or owing such judgment shall be or shall have been restrained from proceeding thereon by any order of injunction, or other order, or by the operation of any appeal, shall not constitute any part of the ten years aforesaid, as against the defendant in such judgment, or the party obtaining such orders or making such appeal, or any other person who is not a purchaser, creditor or mortgagee in good faith. But whenever an appeal from any judgment shall be pending, and the undertaking requisite to stay execution on such judgment shall have been given, the court in which such judgment was recovered may, on special motion, after notice to the person owning such judgment, or to his attorney, and to the sureties to such undertaking, on such terms as such court shall see fit, by order, exempt from the lien of such judgment the whole of the real property upon which said judgment is a lien, or a specific portion thereof to be described in such order, and direct an entry to be made by the clerk on the docket of such judgment that the same is "secured on appeal," except that in case only a specific portion of such property is exempted from such lien, such order shall direct an entry to be made on such docket that the same is "secured on appeal as per order of the court, dated —," specifying the date of such order; and thereupon such judgment shall cease during the pendency of such appeal to be a lien upon the property so exempted as against purchasers and mortgagees in good faith. I. DOCKETING. a. Manner-right.-Where the judgment was against several defendants, settling the amount which each should contribute, but further adjudging, that in case of insolvency of any of the parties defendant, the plaintiff be allowed to collect the deficiency or deficiencies against the other defendant or defendants, not to exceed a certain sum, held, that the judgment might be docketed for the full amount of the ultimate contingent liability. Rankin v. Sacchi, 16 Abb. 368. Where a judgment was docketed correctly in all respects, but the initial of the middle name, and the docket was afterward corrected on motion, held, that the judgment took priority as a lien from the original docketing, as against a subsequent judgment obtained before the correction. Geller v. Hoyt, 7 How. 265; and see Aylesworth v. Brown, 10 Barb. 167. The test of the right to docket a judgment is the right to issue an execution upon it immediately. DeAgreda v. Mantel, 1 Abb. 130. Where the judgment directs the sale of mortgaged premises and the payment of a deficiency, such deficiency cannot be known until after the sale and report thereon, and, therefore, the docketing of the judgment cannot take place until that time. id. Cobb v. Thornton, 8 How. 66. In regard to docketing judgments or transcripts thereof against stockholders in banking corporations, see Laws of 1863, ch. 372, § 6. b. Time-priority.-All judgments filed and docketed by a clerk out of office hours, although some may be entered before others, II. a. Extent.-The lien of a judgment does not attach upon the mere legal title to lands existing in the defendant, where the equitable title is in another person. Lounsbury v. Purdy, 18 N. Y. (4 Smith), 515; Aff'g S. C. 16 Barb. 376, and 11 id. 490. And if a purchaser, under the judgment, has notice of the equitable title, before purchase and actual payment of the purchase money, he will not be protected as a bona fide purchaser. id. Averill v. Loucks, 6 Barb. 19. Judgments do not become liens on leasehold property, unless the lessee (the judgment debtor) is in possession; and, if the lessee transfers his lease to another party, without taking possession of the premises, the lien of the judgment never attaches. Crane v. O'Connor, 4 Edw. Ch. R. 409. Judgments recovered against the husband and wife, and for a cause of action accruing after marriage, do not bind the wife's separate estate. Tisdale v. Jones, 38 Barb. 523. If land is sold under the first judgment, the lien of subsequent judgments is on the surplus in the order of their priority. Averill v. Loucks, 6 Barb. 470. must take effect and become liens equally at the next office hour after such docketing. France v. Hamilton, 26 How. 180; Wardell v. Mason, 10 Wend. 573; Laws of 1860, ch: 276; 5 R. S. 285, § 25. The date and the order of the lien is a question of time, depending on the day and hour of docketing the judgment. Blydenburgh v. Northrop, 13 How. 289. Judgments against the estate of a deceased person take precedence in the order of their date, and not in the order of their docketing. Hamed's Case, 4 Abb. 270. The en actments prescribing a docketing of the judg ment with the county clerk, in order to make it a lien on real estate, have not dispensed with the docket by the clerk of the court rendering the judgment, nor modified its legal consequences in relation to the distribution of the estate of a deceased person. id. A party may file transcripts of the judgment after perfecting his appeal. Bulkley v. Keteltas, 1 Code R. N. S. 119; S. C. 3 Sandf. 740. See Supreme Court Rule, 35. c. United States judgment.-Judg ments and decrees, rendered in the United States courts, duly recorded, need not be docketed in the several counties of the district; but they are a lien on all the real estate of the judgment debtor, located within the district; and, in this respect the lien of a United States judgment takes effect differently from a State judgment. Crandell v. Cropsey, 10 N. Y. Leg. Obs. 1; Lombard v. Bayard, WALLACE, J., 196, 7 vol. Penn. Law Jour. 250. LIEN. b. Payment.-If the amount of the judg ment be paid by one who is not a party and not liable thereon, the judgment will be extinguished or not, according to the desire of the person paying. Harbeck v. Vanderbilt, 20 N. Y. (6 Smith), 395; Alden v. Clark, 11 How. 209. But where one of several defendants jointly liable under the judgment pays to the other party the entire sum, the judgment becomes thereby extinguished, whatever may be the intention of the parties to the transaction. Harbeck v. Vanderbilt, supra; Bank of Salina v. Abbot, 3 Denio, 181; Ontario Bank v. Walker, 1 Hill, 653. But see opinion of JAMES, J., in Alden v. Clark, 11 How. 209. Where the judgment was in an action on a promissory note, against maker and indorser, and the indorser paid the judgment, held, that this was not an extinguishment of the judgment as against the maker, and that the indorser might collect the judgment out of the property of the maker. Corey v. White, 3 Barb. 12. And on a judgment against principal and surety, the latter may pay the amount of the judgment and enforce it against the |