4. What is the effect of a revival of a judgment by scire facias?

It creates no new lien. If the plaintiff wishes to continue his lien without sale, then he must have a fresh judgment docketed. So, if the plaintiff levy a fi. fa. on personal property, it is an extinguishment of the lien afterwards, in respect to the lands of the judgment debtor.-Ex parte Peru Iron Co., 7 Cowen's Rep., 540. Graff v. Kipp, Ibid, 619. Kipp, Ibid, 619. Ex parte Lawrence, 4 Cowen's Rep., 417.

5. What is the effect of stay of execution as regards the lien ?

In Virginia, a judgment with a stay of execution creates no lien on land until the plaintiff has a right to sue out execution.-Scriba, Scropal & Sturman v. Deanes et al., 1 Brock. Rep., 166. The lien of a Judgment on which execution is stayed, dates, not from rendition of the judgment, but from the time when execution may be sued out.—Bank of U. S. v. Winston's Ex., 2 Brock. Rep., 222.

A stipulation not to take out execution against the body or personal property of the defendant, in confessing judgment, does not prevent the judgment operating as a lien upon his real estate.-Van Rensselaer v. The Sheriff of Albany, 1 Cowen's, 501.

The judgment of another state, regularly obtained, when the defendant had been served with process, or had otherwise appeared, is conclusive evidence of the debt, but the defendant must have had due notice, or have actually appeared to give validity to the judgment when sued on here.-Patterson v. Mayfield's Curator, 10 Lou. Rep., 220. 10 Ibid, 381. Morgan v. The Police Jury of Point Caupée, 11 Lou. Rep., 162. Fontelet et al. v. Sloo, 8 Lou. Rep., 294.

The correctness of a judgment rendered in another state, by a court of competent jurisdiction, cannot be inquired into before the courts of this. -Poole v. Brooks, 10 Lou. Rep., 18. Tipton v. Mayfield's Curator, 10 Lou. Rep., 193. Mills v. Duryee, 7 Cranch, 481. Thomas v. Robinson, 3 Wendell, 267.

6. What effect will a judgment have upon the rights of a garnishee whose debt to the judgment debtor is not yet due?

The attaching creditor cannot acquire greater rights against the garnishee, than the debtor himself possesses.--Okey et al. v. Miss. & Ala. Railroad Co., 13 Lou. Rep., 570.

OF RELIEF IN EQUITY.

1. What is the rule as to the power of a court of equity to grant relief against a judgment at law?

That a court of equity has power to grant relief against deeds and judgments, not only when obtained by fraud and imposition, but also when regularly obtained, if there are circumstances of extraordinary hardship or great inadequacy of consideration. But the court will not go behind

the record to inquire by what means the judgment was obtained at law.― McDonald v. Nelson, 2 Cowen's Rep., 193. Winchester v. Jackson & Evans, 3 Hayw. Rep., 305. 2 Vern. Rep., 146. 1 Ves. Jun., 133. 14 Ves., 31. Sch. & Lef. 201. 1 Collecta Jur., 23. 1 Woodes, 166. 3 Black. Com., 54. Parke's His. Chan., 80. Har. Law Tracts, 321. 4 Reeve's His. of Law, 370. 3 Swanst., 24.

A decree in chancery is equally conclusive as a judgment at law, and in cases of concurrent jurisdiction, the court first having jurisdiction must determine it. Hopkins v. Lee, 6 Wheaton, 109. Wintingham v. Wintingham, 20 Johns., 295. Scriba et al. v. Deanes et al., 1 Brock. Rep., 166.

A judgment entered against the sheriff under a mistaken opinion of the clerk, that the bail piece was insufficient, the counsel having agreed that it might be filed, is relievable against in equity.-1 Wash. Rep., 254.

A court of equity has jurisdiction to relieve against a gaming debt, although the party has failed to defend himself at law and gives no good reason for such failure.-Skipwith v. Strother, 3 Rand. Rep., 214. Gill. v. Webbe's Admin., 4 Mon., 299. Clay v. Fry, 3 Bibb., 248.

Relief will be granted in equity, on the ground of the concealment of material facts, by a party, in consequence of which he recovered at law. Fish v. Lane, 2 Hayward's Rep., 342.

In a case which involves trust and confidence, in which it appears reasonable to allow the complainant the benefit of the defendant's oath, relief may be given in equity, although the party neglected to make the proper defence at law.-Spencer v. Wilson, 4 Munf. Rep., 130.

But after a fair and full trial at law, equity cannot relieve, except the defence is of an equitable nature.--Overton v. Searcy, Cook's Report, 36. Winthrop v. Lane, 3 Dessau., 323. Gatlin v. Kirkpatrick, 1 Car. Law Rep., 534. Appleton v. Harwell, Cook's Rep., 242.

And in all cases, in order to induce a court of equity to relieve against a judgment at law, it should appear that justice requires its interposition, and that the party was prevented from obtaining it by the legal forms of pleading or by some fraud or mistake.-Kinkaid v. Cunningham, 2 Munf. Rep., 1. Foushee v. Lee, 4 Call, 270. Click v. Gillespie, 4 Hay

wood's Rep., 7.

Where one obligation forms the consideration to another, and one of the parties without performing, removes from the state, having assigned the obligation to him, the other party may be relieved in equity against a judgment recovered by the assignee.—Aldridge v. Birney, 7 Monroe,

345.

The obligor in a penal bond may confess judgment, and then resort to equity for relief against all above what ought to have been assessed for a breach of the condition.-Burnham v. Gentrys, 4 Monroe, 355.

2. What is it necessary for a purchaser to show, in order to entitle him to relief in equity against a judgment at law, on the ground of a defect in the vendor's title to the land?

He must prove an actual eviction, or superior title in some other per

son; it is not enough merely to allege such defect or want of title.-Yancey v. Lewis, 4 Hen. & Munf., 390. Gourlland v. Wright, 5 Munf., 295.

Equity will not relieve against a judgment on a forthcoming bond, on the ground that the bond was forfeited in consequence of a slave having run away, who by the condition was to be forthcoming.-Cole v. Fenwick, 1 Gilmer's Rep., 134.

Where there are two judgments, and a surety, bound by the elder, pays it off, equity will substitute him in place of the creditor whose debt he has paid, and give him the benefit of his lien. The equity of the surety is superior to that of the second incumbrancer.-Watts v. Kincey at Ur., 3 Leigh., 293. 3 Dana's Ky. Rep., 611. Dixon's Administrator v. Campbell.

3. Is the interest of a mortgage vendible under execution?

It is not.-1 Dana's Ky. Rep., 24. Cooper etc. v. Martin etc. Junior incumbrancers, known to the senior mortgagee, should be parties to his bill for a foreclosure.-1 Ibid., 25. Ibid.

The holder of the junior mortgage, or incumbrance, or of the equity of redemption, is not bound by a decree of foreclosure, to which he was no party, and will be allowed to redeem the estate, although the senior mortgagee had no notice of such claim.-1 Ibid., 25. Ibid.

Junior mortgagee, made party to the bill of the elder, for foreclosure, and failing to defend, will be barred.-1 Ib., 27. Ib.

A mortgage to one of several sureties, avails them nothing.-1 Ibid., 28. Ibid.

ARREST OF JUDGMENT.

1. What is the invariable rule in regard to the arrest of judgment?

That whatever is alleged in arrest of judgment must be such matter as would have been, upon demurrer, sufficient to overturn the action or plea. But the rule will not hold e converso, that everything that may be alleged as cause of demurrer, will be good in arrest of judgment.-2 Tomlin's Dictionary, 292.

2. What is the effect of arresting a judgment?

It is the same as quashing an indictment before trial.-The People v. Carborus, 13 Johns. Rep., 141.

The arresting of judgment upon an indictment for felony, is not a bar to a second indictment for the same offence, although the second indictment is precisely similar to the first.-Ibid.

A judgment in a criminal cause cannot be arrested for a variance between the indictment and the proof.-The People v. Onondaga Sess., 1 Wendell, 296.

A judgment in an action of slander, for charging the plaintiff with altering a note, will not be arrested, because the plaintiff avers in his dec

laration, that the note charged to be altered is a true note; such averment being equivalent to the ordinary averment of innocence of the crime imputed. Harman v. Carrington, 8 Wendell, 488.

After a verdict has been recorded it may be set aside, if the court, in making the proper inquiries of the jury, shall ascertain that it is founded upon an illegal principle, or if the jury did not agree upon any one ground.-Don v. Fenno, 12 Pick. Rep., 525.

3. May a judgment be arrested for a fault in the issue, where the pleadings are otherwise correct?

It may. Thus, if the issue be immaterial, so that the court cannot discover, from the finding upon it, for which party judgment ought to be given, judgment will be arrested. But generally, in such case, a repleader will be awarded, except, it seems, it will not be awarded to a party who tenders an immaterial issue.-Crane v. Newell et al., 2 Pick. Rep., 322. Gould's Pl., 506. 8 Bing. Rep., 435.

4. What is the rule where one of the counts in the declaration is bad, and a verdict be given generally?

The rule is well settled, in case of a verdict, and general damages, when one count is bad in substance, that the judgment must be reversed, except where it can be amended by the certificate of the judge, so as to show that the damages were assessed on the good counts alone.Dryden v. Dryden, 9 Pick. Rep., 546. Chandler v. Hart, 10 Wendell, 487. 5 Greenlf. Rep., 446.

In criminal cases, one good count is sufficient to support a general verdict of guilty.-The People v. Cutting, 1 Johns. Rep., 322.

A declaration which sets out a defective title is not cured by a verdict. The general rule is, that if in the count there appears to be a good title to make the demand, which is defectively set out, the verdict may cure the defect. But a verdict will not cure a bad title. Moore v. Boswell, 5 Mass. Rep., 306.

If an absolute judgment be rendered when the petition prays only for a conditional one, it is good ground for a reversal.-Sprigg v. Beaman, 6 Lou. Rep., 66.

Where the judgment of a court admits of two constructions, that one will be adopted which the court should have rendered on the facts and law of the case.-Trepagnier v. Williams, 4 Lou. Rep., 100.

The extra-judicial finding of the jury will not vitiate. As where they find the whole issue and more, the latter will be considered surplusage.-Bacon v. Callender, 6 Mass. Rep., 304.

may

A plaintiff may remit the surplus damages; and in some cases the record be sent back for that purpose. So he may enter a nolle prosequi as to part of the counts, even after judgment is entered.-Chichester v. Cande, 6 Cowen, 40. Spackman v. Byers, 6 Sergeant & Rawle, 385. Mead et al. v. Buckner, 2 Lou. Rep., 286.

A judgment rendered in a suit cures all previous irregularities therein, in relation to all parties who had no complete and vested rights in the

subject-matter of the suit at the time the judgment was rendered.-Coxe v. White, 2 Lou. Rep., 424.

When an act creating an offence is repealed, even after judgment in the inferior courts, the judgment must be reversed, if it has not been affirmed before the repeal. It is otherwise when the remedy only is changed by the new law.-State v. Johnson, 12 Lou. Rep., 547.

The court

The damage may be inserted in the verdict after the jury have separated; but the record cannot be amended after the term. will amend a mistake of the clerk in assessing damages, after the term.Lee v. Curtiss, 17 Johns. Reports, 86. Beekman v. Bemis, 7 Cowen, 29. Chamberlain v. Crane, 4 New Hamp. Reports, 115. Atkins v. Sawyer, 1 Pickering, 353.

WHEN A JUDGMENT WILL OPERATE AS A BAR TO AN ACTION FOR THE SAME CAUSE.

1. What is the general rule as to when a judgment will be a bar to a subsequent action?

The general rule is: 1. That the judgment of a court of concurrent jurisdiction directly upon the point, is as a plea, a bar, or as evidence conclusive between the same parties, upon the same matter directly in question in another court: 2. That the judgment of a court of exclusive jurisdiction directly upon the point, is, in the like manner, conclusive upon the same matter, between the same parties coming incidentally in question, in another court.

But, neither the judgment of a concurrent nor exclusive jurisdiction, is evidence of any matter which came collaterally in question, though within their jurisdiction; nor of any matter incidentally cognizable; nor of any matter to be inferred by argument from the judgment.-Bradshaw v. Heath, 13 Wendell, 419.

Where the former judgment has not been rendered upon the merits, issue may be taken upon the fact, the judgment being pleaded in bar; and on the trial of such issue, evidence will be admitted to show what passed on the former trial.-Jackson v. Swartout, 8 Johns. Rep., 383. [See Res Judicata, Post.]

OF DISCHARGE OF JUDGMENTS.

1. What will amount to a discharge of a judgment?

A levy on personal property to an amount sufficient to satisfy the judgment is, per se, a discharge.-Jackson v. Brown, 7 Cowen's Rep., 18. Ex parte Lawrence, 4 Cowen's Rep., 417. Ladd v. Blunt, 4 Mass. Rep., 403. Hoyt v. Hudson, 12 Johns. Rep., 207.

A judgment before a justice of the peace, upon a judgment before another, does not extinguish the judgment first obtained.-Briggs v. Thompson et al., 20 Johns. Rep., 294.