4. What is the effect of a judgment against a co-trespasser?

It was formerly held to be a bar without a satisfaction, 2 Hen. & Mun., 358; but later authorities maintain that nothing but satisfaction will bar an action against his fellows.-Campbell v. Phelps, 1 Pick. Rep., 61. Flood v. Brown, 1 Rawle Rep., 121. Robinson v. Smith, 18 Johns. Rep. White v. Philbrick, 5 Greenl. Rep., 147.

459.

5. What is the rule where a judgment constitutes a part of a title, which is sought to be set up?

The defendant may show that it is fraudulent and void, unless where he is estopped from so doing by reason of being party or privy. Thus, where certain negroes had been purchased by the plaintiff under fraudu lent judgments in his favor, the court observed that they were primâ facie evidence of what they purport as a part of the plaintiff's title, but no more. Gregg v. Bigham, 1 Hill's S. C. Rep., 299. McElwee v. Sutton, 2 Bailey's S. C. Rep., 361. Sims v. Slocum, 3 Cranch, 300.

If the liability of defendant as endorser be established in a former action between the same parties, it is conclusive in another action.Wright v. Butler, 6 Wendell, 284. Wilson v. Mower, 5 Mass. Rep., 407.

A matter of controversy, settled by a court having jurisdiction of the subject, is conclusive; until reversed on error, the court cannot collaterally inquire into the merits of the judgment, in another action, even Saxton v. though fraud be alleged.-Homer v. Fish et al., 1 Pick., 436. Chamberlain, 6 Pick. Reports, 223. Livermore v. Herschell et al., 3 Ibid, 33. Smith v. Lewis, 3 Johns. Rep., 157.

A judgment recovered in a writ of entry in the name of one of several heirs, will not avail another heir in a suit for mesne profits.- White et al. v. Mosley et dl., 5 Pick. Reports, 230. Adams v. Pearson, 7 Ibid., 341. Allen v. Carter, 8 Ibid, 171.

The question must appear from the record to be the same.-Smith v. Sherwood, 4 Conn. Rep., 276. Lawrence v. Hunt, 10 Wendell's Rep., 80.

A judgment is not conclusive of a matter collaterally in question.— Jackson Ex. dem. Genet v. Wood, 3 Wendell's Rep., 27. 8 lbid, 9. 2 Bing, 377. Dyson v. Wood, 2 Barn. & Cress., 449.

But a judgment between the parties is conclusive, if the question is the same as in another action, although the debt is different.-Gardner v. Buckbee, 3 Cowen's Rep., 120. Estall v. Taul, 2 Yerger's Rep., 467.

6. What is the effect of a judgment in trespass or trover, upon the property in dispute?

The title of the goods is altered by the recovery, and is transferred to the defendant, and the damages recovered are, the value of the chattel so transferred. The books either do not agree, or do not speak with precision on the point, whether the transfer takes place in contemplation of law upon the final judgment merely, or whether the amount of the judgment must be first actually paid or recovered on execution. In

Brown v. Wotton, Cro. Jac., and Adams v. Broughton, Andrews' Rep., 18 Str., 1070, it was held that the property vested in the defendant by force of the judgment merely: this is the doctrine of many cases in the American Courts.-Marsh v. Pier, 4 Rawle's Rep., 273, in error. Murrell v. Johnson, 1 Hen. & Munf., 449. Floyd v. Brown, 1 Rawle's Rep., 121. Curtis v. Groat, 6 Johns. Rep., 168. Rice v. King, 7 Johns. Rep., 20. Carlisle v. Burley, 3 Greenlf., 250. But it seems the better opinion that a judgment without satisfaction does not change the property.-Osterhoat v. Roberts, 8 Cowen's Rep., 43. Jones v. McNeil et al., 2 Bailey's S. C Rep., 466. Where the court say if a recovery in trover operates as a sale, it is by implication of law; and that implication can only arise from the satisfaction of the value found. This is according to the doctrine of Lord Ellenborough in Drake v. Mitchell, 3 East's Rep., 251. And also according to the Civil and French Laws.-Dig., 6, 1, 35, 63. Pothier, Traité Droit de Propriété, No. 364, 2 Kent's Com., 388.

Where a judgment might be conclusive, if the party waives it in pleading, and puts in another plea and different issue, it is otherwise.Killheffer v .Herr, 17 Serg. & Rawle, 319. 3 Barn. & Ald., 945. Briscoe v. Stephens, 2 Bing., 213.

Where there are two actions commenced for the same cause in courts of concurrent jurisdiction, the first judgment will be a complete bar to further proceedings in the other court.-Carvin v. Dawson, 13 Serg. & Rawle, 246. Miles v. Bristol, 3 Barn. & Ald., 945. United States v. Nourse, 9 Peters' S. C. Rep., 8.

7. What is the rule where an erroneous judgment is called in question, in a court of concurrent jurisdiction?

That judgments of courts of competent jurisdiction, so long as they remain unreversed, are conclusive in respect to the matter decided between the parties.-United States v. Nourse, 9 Peters' S. C. Rep., 8.

The validity of a sentence rendered by a court of competent jurisdiction, cannot be inquired into collaterally.-Camfranc v. Dufour, 11 Mar. Lou. Rep., 604.

If an execution issues under an erroneous judgment, the party who acts under it is justified, for the judgment is the act of the court.

As to third persons, whatever is done under an erroneous judgment while it remains in full force, is valid and binding.-Bank of the United States v. The Bank of Washington, 6 Peters' S. C. Rep., 8. In this case, the defendants in an execution paid to the agent of the plaintiff the amount of the debt, and gave a verbal notice that it was their intention to sue out a writ of error to reverse the judgment. This was afterwards done and the judgment reversed; the agents of the plaintiff paid over to him forthwith the amount received, and the defendants instituted a suit against the agents to recover the sum paid to them. Held that they could not recover.-Cited, 1 Stra., 509. 1 Ver., 195. 2 Salk., 587.

The errors of the court do not invalidate its judgments. A judgment or execution irreversible by a superior court, cannot be declared a nullity by any authority of law; if it has been rendered by a court of competent

jurisdiction, with authority to use the process it has issued, it must remain the only test of the respective rights of the parties to it. If the validity of a sale under its process can be questioned for any irregularities preceding the judgment, the court which assumes such power places itself in the position of that which rendered it, and deprives it of all power of regulating its own practice or modes of proceeding in the progress of

suits.

If not warranted by the constitution or laws of the land, our most solemn proceedings can confer no right which is denied to any judicial act under color of law, which can properly be deemed to have been done coram non judice; that is, by persons assuming the judicial function in the given case, without lawful authority.

The line which separates error in judgment from usurpation of power, is very definite; and is precisely that which denotes the cases where a judgment or decree is reversible only by an appellate court, or may be declared void collaterally, when it is offered in evidence in an action concerning the matter adjudicated, or purporting to have been so. In the one case it is a record importing absolute verity; in the other mere waste paper. Voorhees v. The Bank of the United States, 10 Peters' S. C. Rep., 449. Blaine v. The Charles Carter, 4 Cranch, 328. Wheaton v. Sexton, 4 Wheaton, 506. Thompson v. Tolmie, 2 Peters' S. C. Rep., 162. Elliott v. Piersoll, 1 Peters' S. C. Rep., 340. Taylor v. Thompson, 5 Ibid, 370. United States v. Arredondo, 6 Ibid, 720. Kempe's Lessee v. Kenedy, 5 Cranch, 173. Hartshorn v. Wilson, 2 Ohio Rep., 268. Humphry v. Wood, Wright's Ohio Rep., 566.

A judgment given on erroneous evidence is valid until reversed.— Clark's Heirs v. Braham's Heirs, 4 N. S. Mar. Lou. Rep., 411. Dufour v. Camfranc, 11 Ibid, 604. Ex parte Tobias Watkins, 3 Peters' S. C Rep.,

193.

8. What is the rule as to pleading judgments?

That judgments need not be pleaded specially, or by way of estoppel, and a judgment for the same cause of action may be given in evidence, under the general issue.

A former judgment may be given in evidence, accompanied by parol proof showing the grounds of the judgment, if the latter do not appear on the record.-Shaffer v. Stonebraker, 4 Gill. & Johns. Rep., 343. Wood v Jackson, 8 Wendell's Rep., 9. Stafford v. Clark, 2 Bing., 102.

Verdicts must be pleaded specially, where relied on as conclusive. There is a difference between the effect of judgments and verdicts, when in former suits. When a verdict is given in evidence merely, and is not pleaded by way of estoppel, it is not clear that it is ever conclusive. Not so with judgments; they are conclusive, when given in evidence in many cases. Betts v. Starr, 5 Conn. Rep., 552. Church v. Leavenworth, 4 Day, 277. Standish v. Parker, 2 Pick.

9. What is the rule as to the conclusiveness of judgments in criminal cases ?

The fifth amendment of the constitution of the United States prescribes that no person shall be held to answer for a capital or other infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land and naval forces, or in the militia when in actual service, in time of war or public danger; nor shall any person be subject for the same offence, to be twice put in jeopardy of life or limb; nor shall he be compelled, in any criminal case, to be a witness against himself; nor be deprived of life, liberty or property, without due process of law nor shall private property be taken for public use, without just compensation. These provisions relate only to the Federal Government, and are restrictions upon it; but the same principles form a part of the common law, and are transcribed into the constitution and jurisprudence of every state.-Commonwealth v. Raby, 12 Pick. Report, 583. Bowden, 9 Mass. Rep., 494. The People v. Goodwin, 18 Johns. Rep. United States v. Perez, 9 Wheaton, 579.

V.

But a judgment of acquittal in a prosecution against several defendants charged with committing an offence jointly, is no bar to a prosecution against each severally. An acquittal ascertains no facts as a conviction does. Maybee v. Avery, 18 Johns. Rep., 352. 2 Dana's Rep., 242.

The maxim that no man shall be twice charged with the same offence, to be applicable, it must appear by the plea to be the same offence, both in fact and in law; accordingly, a conviction for a high misdemeanor, to wit, for an assault with an attempt to kill, is no bar to an indictment for murder resulting from the same act.-Commonwealth v. Newell, 6 Mass. Rep., 249. Commonwealth v. Raby, 12 Pick. Rep., 503.

10. What is the effect given to an award made by arbitrators?

The award is a bar to all subjects submitted and adjudicated upon by the arbitrators. Whitmore v. Whitmore, 2 N. H. Rep., 26. Brickhouse v. Hunter, 4 Hen. & Mun. Report, 363. Ligon v. Ford, 5 Munf., 10. Bradt v. Wray et Ux., 2 Caines' Rep., 96. Treves v. Treves, 4 Mon. Rep., 47.

Where a principle of law is submitted to arbitration, and the arbitrators award upon it, the award is binding, notwithstanding it may be contrary to law.-Smith v. Smith, 4 Rand. Rep., 95.

An award has the same effect as the verdict of a jury, and no more.Duer v. Boyd, 1 Serg. & Rawle, 208. Dixon's Lessee v. Morehead, Addi. Rep., 216. Calhoun's Lessee v. Dunning, 4 Dall., 120. Barlow v. Todd, 3 Johns. Rep., 368. Shepard v. Watrous, 3 Caines' Rep., 266. Wheeler v. Varhoughton, 13 Johns. Rep., 311. Park v. Halsey, 2 Root, 100.

OF THE LIEN CREATED BY JUDGMENT.

The modern doctrine is, that not merely the purchaser of goods must know of the judgment, but, knowing of the judgment, must purchase with the view and purpose of defeating the creditor's execution. The question of fraud depends upon the motive. The simple fact of an exe

cution lying dormant in the sheriff's hands for a year, without an actual levy, by taking inventory, by designation or otherwise, will not constitute a lien as against a bona fide purchaser.-Beals v. Gurney, 8 Johns. Rep., 446. Bliss v. Ball, 9 Ibid., 132.

1. When does a lien by judgment commence upon property?

The judgment becomes a lien as soon as docketed.-How et Ux., 1 Paige's Chan. Rep., 125. White v. Carpenter, 2 Ibid., 266. Morris et al. v. Mowitt et al., 2 Id., 586. Jackson v. Bradford, 4 Wendell's Rep., 619. Mower et Ux. v. Kipp, 2 Edw. Cha. Report, 165. Little v. Harvy, 9 Wen dell, 157.

There are exceptions to this. In Kentucky a judgment is not a lien until execution is sued out and put into the sheriff's hands, and there is no distinction between real and personal property.-Laws of Ken. Dig., 1, 513. Tabb v. Harris, 4 Bibb., 29. Daniel v. Cockpen's Exrs., 4 Bibb., 532. Bank of U. S. v. Tyler, 4 Peters' S. C. Rep., 366.

In Louisiana a judgment becomes a lien only from the time it is recorded in the office for the recording of mortgages, in the parish where the property is situated-Lou. Code of Practice, Article 545. Ingham v. Thomas, 6 Lou. Rep., 82. Williams v. Hallowhay, 11 Id., 516.

In Virginia the lien of a judgment depends upon the right to sue out execution. Scriba et al. v. Deanes et al., 1 Brock. Rep., 166. Bank U. S. v. Winston's Ex., 1 Brock., 252.

2. What is the effect of a judgment upon an estate for years?

A judgment is no lien upon an estate for years.-Vredenburgh v. Morris, 1 Johns. Cases, 223.

3. What is the effect of a judgment upon after purchased lands?

Lands purchased after judgment have been sometimes held as not bound by the judgment.-Roads v. Symms et al., 1 Ham. Ohio Rep., 281. Phelps v. Butler, 2 Ohio Condens. Rep., 331. Calhoun v. Snyder, 6 Binn., 145. But the better opinion is, that judgments do bind after acquired lands, and consequently affect them in the hands of a purchaser.-Nitcher v. Selim, 8 Serg. & Rawle, 440. Ridgley v. Gartrell, 3 Har. & McHen., 449. Stow v. Tifft, 15 Johns. Rep., 464.

One in possession of lands, under a contract of purchase, has an interest in them which is bound by judgment.-Jackson v. Parker, 9 Cowen's Rep., 73. Kreisted v. Avery, 4 Page's Ch. Rep., 9.

A purchaser at a sheriff's sale takes the land without the incum brance of a former judgment, unless the sale be made subject to such judgment.-Commonwealth v. Alexander, 14 Serg. & Rawle, 257. Bank of America v. Fitzsimmons, 3 Binn. Rep., 358. Semple v. Burd, 7 Serg. & Rawle, 200. Sandford v. Roosa, 12 Johns. Rep., 162.

The lien on land relates back to the commencement of the term at which the judgment was obtained.-The Mohawk Bank v. Atwater, 2 Paige's Ch. Rep., 54. Mutual Ins. Co. v. Stewart, Mun. Rep., 539