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res, although persons in interest had no personal notice of the litigation, provided the court had jurisdiction of the res and the subject matter of the litigation.2 A foreign judgment in rem may be impeached collaterally by showing that it was procured by fraud, 3 or that it is void on its face or by local law.4


Rob. 3.

pronounced. Cushing v. Laird, 107 It has been held that an unsatisfied U. S. So; The Apollon, 9 Wheat. (U. judgment against a vessel is not a bar S.) 362; Crowdson v. Leonard, 4 to an action in personam against the Cranch (U.S.) 434; Bradstreet v. Nep- owners.

Toby v. Brown, 6 Eng. tune Ins. Co., 3 Sumn. (U. S.) 600; De (Ark.) 308. Compare The Griefswald, Mora V. Concha, 29 Ch. D. 268; Swab. 430. Hughes V. Cornelius, 2 Show. 232; Forfeitures. - A decree of condemna. Ld. Raym. 473; Big. on Estop. (4th tion or acquittal of goods in exchequer, ed.), 45, 213. But see Ocean Ins. Co. district court or other court having 7'. Francis, 2 Wend. (N. Y.) 64; Rad- cognizance of the forfeiture, is in rem. cliff 2. United States Ins. Co., 9 Johns. Big. on Estop. (4th ed.) 215, et seq.; (N. Y.) 277; Salem v. Eastern R., 98 Gelston v. Hoyt, 13 Johns. (N. Y.) 561; Mass. 431; Brigham v. Fayerweather, S. C., 3 Wheat. (U. S.) 246; Scott v. 140 Mass, 411; The Mary, 9 Cranch Shearman, 2 W. Black. 977. See also (L. S.) 126.

Whitney v. Walsh, i Cush. (Mass.) 29; A decree of acquittal does not es- Coffey v. U.S., 116 U. S. 436. tablish the claims of any particular A foreign condemnation of wreck or person where conflicting claims are not derelict and sale thereunder is conclupresented and passed upon. Cushing sive upon the title to the property. v. Laird, 107 U. S. 69.

Grant v. McLachlin, 4 Johns. (N. Y.) Foreign condemnations in admiralty 34. are conclusive upon the title to the 1. Thomas Southard, 2 Dana property. Bernardi v. Motteux, 2 Doug. (Ky.) 475; The Globe, 2 Blatchf. (U. 574; Hughes v. Cornelius, 2 Show.232; S.) 427; Banduc's Syndics v. Nichol2 Ld. Raym. 893; The Helena, 4 Ch. son, 4 Miller (La.) 81.

2. Freeman on Judg. (3rd ed.), 8 611; Such a judgment has been held con- Rose v. Himely, 4 Cranch (U. S.) 241. clusive of the facts on which it was See also The Mecca, 6 P. D. 106. based. Crowdson v. Leonard, 4 Cranch Where the record of a foreign judg(U. S.) 434. But not unless the record ment in rem is silent as to the jurisdicshows such grounds of condemnation. tional facts, jurisdiction will not be Stewart v. Warner, 1 Day (Conn.) 142; presumed. Com. v. Blood, 97 Mass. Baxter v. New England Ins. Co., 6 538; The Griefswald, Swabey 430. But Mass. 277; Dempsey v. Pennsylvania if the court had jurisdiction when the Ins. Co., 1 Binn. (Pa.) 299; Wagorm suit was commenced, it will be prev. New England Ins. Co., i Story (U. sumed, without evidence to the conS.) 157; Lothian v. Henderson, 3 Bos. trary, to have had jurisdiction to the & P. 499; Baring v. Clagett, 3 Bos. & end. Lockhart v. Locke, 42 Ark. 1. P. 201; Bolton v. Gladstone, 5 East Even a party not instituting the pro155; Bernardi v. Motteux, 2 Doug. ceedings may show that a foreign judg. 574; Hobbs v. Henning, 17 C. B., N. S. ment in rem was pronounced by a per. 791; Dalgleish v. Hodgson, 7 Bing. son or body of persons not having au495. And even then by some authori. thority to sit as court.

Snell v. ties a judgment of condemnation is not Faussatt, i Wash. (U. S.) 271; The conclusive evidence against all persons Griefswald, Swabey 430; The Flad of the facts on which it is founded. Oyen, i Ch. Rob. 135; The Hendrick & Durant v. Abendroth, 97 N. Y. 132; Maria, 4 Ch. Rob. 43. Ocean Ins. Co. v. Francis, 2 Wend. 3. Freeman on Judg. (3rd ed.), 8 612; (N. Y.) 64; Radcliff v. United States Big. on Estop. (4th ed.) 246. Ins. Co., 9 Johns. (N. Y.) 277; Vanden- 4. Freeman on Judg. (3rd ed.), 8 612. heuvel v. United Ins. Co., 2. Johns. As where it does not show any Cas. (N. Y.) 451; Smith v. Williams, monition or that any hearing was had, 2 Cai. Cas. (N. Y.) 110.

See also De or the formalities of the law were gone Mora v. Concha, 29 Ch. D. 268 (C. A.); through with. Big, on Estop. (4th ed.) Brigham v. Fayerweather, 140 Mass. 141. 244; Sawyer v. Maine Ins. Co., 12 Mass. 12 C. of L.- 10*4



XVI. SATISFACTION OF JUDGMENTS——(See PAYMENT; SUBROGATION).—Payment of the amount due under a judgment may be made to one of joint judgment creditors ;' to the next friend of an infant who has no guardian;2 to the judgment creditor's at. torney while his authority in the case remains unrevoked ;3 to an officer authorized by law to receive payment of judgments.4 Where the debtor has notice that a judgment has been assigned, payment must be made to the assignee ;6 and where the judgment creditor of record is only a nominal party, payment must be made to the real party in interest.

A judgment may be paid in anything of value which the creditor will accept.8 According to some authorities, a judgment is not discharged by the acceptance of part payment under a parol agreement to receive it in full satisfaction of the judgment, but

I 22.

291; Bradstreet v. Neptune Ins. Co., 3 Peterman, 21 Mo. App. 512. See also Sumn. (U. S.) 600.

Terrett v'. Brooklyn Improvement Co., But mere errors of law on the face 87 N. Y. 92; Kusler v. Crofoot, 78 of the proceedings will not be consid. Ind. 597; Shields v. Moore, 84 Ind. ered. Denison v. Hyde, 6 Conn. 508; 440; Presley v. Lowry, 26 Minn. 158. Moore v. Douglas, 4 Sandf. Ch. (N. Where a party, against whom there Y.) 184; Townsend v. Moore, 8 Jones exists a number of judgments which (N. Car.) 147; Williams v. Armroyd, 7 are barred by limitations, gives a mortCranch (U. S.) 423; Imrie v. Castrique, gage as additional or collateral secu8 C. B., N. S. 405; L. R., 4 H. L. 414. rity for the payment of such judg. See also Richards v. Barlow, 140 Mass. ments, they are not merged in the 218. But see Fitzsimmons v. Newport mortgage. Johnson v. Hines, 61 Md. Ins. Co., 4 Cranch (U. S.) 185.

1. Erwin v. Rutherford, 1 Yerg. On a note made by the complainant (Tenn.) 169. See also Roberts v. Rob- for the accommodation of the endorser, erts, 1 McMull. Ch. (S. Car.) 49. with the payee's (the defendant's)

2. Freeman on Judg. (3rd. ed.), $ 462, knowledge that it was made for accomand cases cited.

modation, the defendant recovered a 3. Brackett v. Norton, 4 Conn. 517; judgment at law. Afterwards, the de8. C., 10 Am. Dec. 179; Baltimore etc. fendant, without the complainant's R. Co. v. Fitzpatrick, 36 Md. 624; knowledge or consent, took the enWilkinson v. Holloway, 7 Leigh (Va.) dorser's notes, some of which were 277; Harper v. Harvey, 4 W. Va. 539. paid and others renewed and not paid,

4. Governor v. Read, 38 Al. 254; on which judgment was recovered. It Beard v. Millikan, 68 Ind. 231.

was held that the giving of time to the 5. See subtitle ASSIGNMENT.

endorser, by taking his notes, dis6. Guthrie v. Bashline, 25 Pa. St. So. charged the maker from liability on See subtitle AssIGNMENT OF JUDG- the original judgment. Westervelt v'. MENTS.

Frech, 33 N. J. Eq. 451. 7. Thatcher v. Rockwell, 4 Cal. 375; Tender.-A second accommodation Triplett v. Scott, 12 III, 137; Hodson v. endorser of a bill of exchange against McConnel, 12 Ill. 170; McGregor v. whom and the first accommodation enComstock, 28 N. Y. 237.

dorser a joint judgment has been re8. The judgment creditor cannot af- covered, will be released from liability terwards revoke his acceptance. Lyon by a valid tender by the first endorser v. Northrop: 17 Iowa 314; Ives v. to the judgment creditor of the full Phelps, 16 Minn. 451; Weston v. Clark, amount of the judgment in a currency 37 Mo. 572; Witherby v. Mann, ii which the creditor was bound by law Johns. (N. Y.) 518.

to receive, but refused. Ewing v. But the taking of a note will not dis- Sugg, 12 Lea (Tenn.) 375. charge a judgment, unless it is agreed 9. Deland v. Hiett, 27 Cal. 611; that it is in satisfaction thereof. McCoy Fletcher v. Wurgler, 97 Ind. 223; v. Hazlett, 14 Kan. 430; Riggs v. Good. Garvey v. Jarvis, 54 Barb. (N. Y.) 179. rich, 74 Mo. 108; Sturdevant Bank v. Compare Reed v. Hibbard, 6 Wis. 175;

it may be discharged on part payment by the execution of an instrument under seal acknowledging the satisfaction of the judgment. An attorney2 or an officer authorized by law to accept payment of a judgment,3 has no general authority to accept payment in anything but money, or to satisfy the judgment on part payment.

Where there are several judgments against the same4 or differMiller v. Lilly, 84 Ind. 533; Jackson v. Smock v. Dade, 5 Rand. (Va.) 639; s. Olmstead, 87 Ind. 92; Hendrick v. c., 16 Am. Dec. 780; Wilkinson v. HolThomas, 106 Pa. St. 327. See also loway, 7 Leigh (Va.) 277; Abbe v. Walrath v. Walrath, 27 Kan. 395.

Rood, 6 McLean (U. S.) 107. But see 1. Beers v. Hendrickson, 45 N. Y. Jeffries v. Union Mut. Life Ins. Co., I 665; Braden v. Ward, 42 N. J. L. 518. McCrary (U. S.) 114

The rule of law that the payment of a The party claiming that an attorney less sum of money cannot be pleaded was authorized to accept less than the in satisfaction of a larger sum, is con- whole amount of a judgment in money fined to the case of the payment of or has the burden of proof. Portis v. agreement to pay a less sum of money, Ennis, 27 Tex. 574. merely, and does not apply to the case An attorney has no implied power to of the payment of a less sum of money satisfy a judgment by discharging the and some other thing. Thus, where a judgment debtor from custody under party paid $100 and gave a cow to one execution. Kellogg v. Gilbert, 10 in full satisfaction of a judgment Johns. (N. Y.) 26o; s. C., 6 Am. Dec. against him for $200, which was accepted 335; Simonton v. Barrell, 21 Wend. as such, and a receipt given him for the (N. Y.) 362. $200 in full, and the attorney of the The satisfaction of a judgment by plaintiff in the judgment sued out an an attorney who is a co-owner thereof, execution thereon, giving credit of $140 binds his interest and satisfies the judgon the same, under which the defend- ment to that extent. Roberts v. Nelson, ant's land, without any notice to him, 22 Mo. App. 28. was sold, it was held that the sale was 3. Ellis v. Smith 42 Ala.


Aicardi properly set aside in equity. Neal v. v. Robbins, 41 Ala. 541; Mitchell v. Handley, 116 Ill. 418.

Hackett, 25 Cal. 539; Codwise v. Field, A quit-claim deed by the owner of a 9 Johns. (N. Y.) 263. judgment purporting to release to the Money paid to a justice to be apjudgment debtor the lien of the judg- plied upon a judgment in garnishment ment on land described in the deed, cannot be used to satisfy a different does not satisfy said judgment so as to judgment against the same party, even avoid a sale thereunder to a purchaser though the time had expired during without notice, actual or constructive, which the fund could be bound by the of their lease. Huff v. Morton, 83 Mo. proceedings in garnishment. Nor can 399.

a justice's docket entry that money It has been held that the entry of paid into court is in satisfaction of satisfaction by one of two judgment a particular judgment make him: creditors, upo.a part payment thereof liable to the judgment creditor for the only, may be set aside on the applica- money, if it was actually meant to be tion of the other judgment creditor. applied upon

different judgment. Haggin v. Clark, 61 Cal. 1.

McDonald v. Lewis, 42 Mich. 135. 2. Chapman v. Cowles, 41 Ala. 103; 4. As separate judgments upon an Jones v. Ransom, 3 Ind. 327; McCar- original and collateral obligation. Craft ver v. Nealey, 1 Iowa 360; Trumbull v. v. Merrill, 14 N. Y. 456. Nicholson, 27 Ill. 149; Rounsaville v. Where one only of two judgments, Hazen, 33 Kan. 71; Garthwaite v. by the record shown to be for the same Wentz, 19 La. An. 196; Jewett '. cause of action, purports to have been Wardleigh, 32 Me. 110; Lewis v. discharged, one purchasing land subWoodruff, 15 How. Pr. (N. Y.) 539; ject to the lien of the judgments buys Beers v. Hendrickson, 45 N. Y. 665; at his peril, and if it subsequently apBenedict v. Smith, 10 Pai. (N. Y.) pears that the discharge was inadvert126; Lewis v. Gramage, 1 Pick. (Mass.) ently entered, the judgment creditor 347; Vail v. Conant, 15 Vt. 314; may enforce his undischarged judg.


ent persons for the same cause of action, the satisfaction of one judgment discharges all.

Courts of law? as well as of equity have the power to satisfy judgments by setting off against them other judgments rendered by the same or different courts. But this power will not be exercised except where substantial justice can be rendered.4

At common law, a judgment was presumed to have been paid


ment, although the purchaser acted 238; Simpson v. Hart, 14 Johns.(N. Y.) upon the presumption that the dis- 63; Kimball z'. Munger, 2 Hill (N. Y.) charge of one judgment was equivalent 364; Burns v. Thornburgh, 3 Watts to the discharge of the other. Burgett (Pa.) 78; Williams v. Evans, 2 McCord v. Paxton, 99 Ill. 288.

(S. Car.) 203; Duff v. Wells, 7 Heisk. 1. First Nat. Bank v. Indianapolis (Tenn.) 17; Rix v. Nevins, 26 Vt. 384. etc. Co., 45 Ind. 5; Sherman v. Brett, 7 But see Riddle's Appeal, 104 Pa. St. Wis. 139. Compare Meixell v. Kirk

171. patrick, 29 Kan. 679. See also Board - 4. Colquitt v. Bonner, 2 Ga. 115; man v. Acer, 13 Mich. 77; Browser's Temple v. Scott, 3 Minn. 419; AlexanAppeal, 101 Pa. St. 466.

der r'. Durkee, u12 N. Y. 655; Baker v. The rule is the same, although the Hoag, 6 How. Pr. (N. Y.) 201; Brown judgment paid is smaller than the v. Hendrickson, 39 N. J. L. 239; Meaother. Cox r'. Smith, 10 Oreg. 418; dor v. Rhyme, 11 Rich. (S. Car.) 631; Breslir v. Peck, 38 Hun (N. Y.) 623. Low v. Duncan, 3 Strobh. (S. Car.)

Entry of Satisfaction by Payment.- 195; Burns 7. Thornburgh, 3 Watts

In some States at least the court in (Pa.) 78; Connable v. Buckland, 2 Aik. which judgment is rendered may enter (Vt.) 221. satisfaction thereof upon proof that the After it has accrued the right of setsame has been paid. Felt v. Cook, 95 off cannot be destroyed by an assignPa. St. 247; Gorusch v. Thomas, 57 ment. Pierce v. Bent, 69 Me. 381; Md. 334; Lough v. Pitman, 26 Minn. Makepeace v. Coates, 8 Mass. 451; 345.

Williams 1. Evans, 2 McCord (S. Car.) In the absence of statutory authority, 203; Wells v. Clarkson, 5 Mont. 336. a court has no jurisdiction to cancel a See also subtitle ASSIGNMENT OF judgment motion based upon JUDGMENTS. Nor can the right be grounds existing prior to its rendition. destroyed by a fraudulent assignment Brett v. Myers, 65 lowa 274.

made at any time. Russell v. Conway, 2. Pierce v. Bent, 69 Me. 381; Scher- 11 Cal. 93; Morris v. Hollis, 2 Harr. merhorn v. Schermerhorn, 3 Cai. (N. (Del.) 4; Hurst v. Sheets, 14 Iowa 322. Y.) 190; Kimball v. Munger, 2 Hill (N. In some cases, judgments in favor of Y.) 364; Brown v. Warren, 43 N. H. individuals may be set off against judg. 430; Brown v. Hendrickson, 39 N. J. L. ments against the same persons jointly 239; Coxe v. State Bank, 3 Halst. (N. with others. Allen V. Hall, 5 Met. J.) 172; Best v. Lawson, i Miles (Pa.) (Mass.) 263; Pierce v. Bent, 69 Me. 11; Duncan v. Bloomstock, 2 McCord 386; Simpson v. Hart, 14 Johns. (N. Y.) (S. Car.) 318; s. C., 13 Am. Dec. 728. 63; Wright v. Cobleigh, 23 N. H. 32; Compare Webster v. McDaniel, 2 Del. Brown 2'. Warren, 43 N. H. 430. Ch. 297. But the question may be too If, after the breach of a warranty of complicated to be adjusted in a court title to land by the establishment of an of law. Story v. Patten, 3 Wend. (N. adverse title paramount to that warY.) 331.

ranted, the warrantee purchases such 3. Skrine v. Simmons, 36 Ga. 402; paramount title, he has the right to Quick v. Durham, 115 Ind. 302; Bal. maintain an action against the warlinger v. Tarbell, 16 Iowa 491; Prior v. rantor for money paid to his use; but a Richards, 4 Bibb (Ky.) 356; Palmeteer circuit court has no power to order a v. Meredith, 4 J. J. Marsh. (Ky.) 74; judgment obtained by the warrantor Ames v. Bates, 119 Mass. 397; New against the warrantee for the purchase Haven Co. v. Brown, 46 Me. 418; money of the land to be credited with Chandler v. Drew, 6 N. H. 469; Brown the amount paid out by the warrantee v. Warren, 43 N. H. 430; Stilwell v. for the paramount title, the claim there. Carpenter, 2 Abb. N. Cas. (N. Y.) for not having been reduced to judg.

after twenty years from the time of its rendition. The presumption arises after a less period in some States.2 It may ordinarily be rebutted.3 In connection with other circumstances, a prima facie presumption of payment may arise after a less period than that provided by law.4

A judgment which has been satisfied by payment cannot be restored or kept alive to secure other liabilities.

A judgment which has been paid is absolutely extinguished, although the payment was made by a person other than the judgment debtor, unless such person took an assignment of the judgment or was compelled to pay it to protect his own rights.? A surety who pays a judgment against his principal may be sub

Ct. 423.

ment against the warrantor, and being (N. Y.) 165; Van Loon v. Smith, 103 unliquidated as to him. Turner v. Mc- Pa. St. 238. Adory, 58 Miss. 27.

No particular kind of evidence is re1. Morrow v. Robinson, 4 Del. Ch. quired to rebut the presumption that 521; Tennessee v. Virgin, 36 Ga. 390; a judgment of a court of record has Willingham v. Long, 47 Ga. 545; Miller been paid and satisfied at the expiration 7. Smith, 16 Wend. (N. Y.) 425; Cope of twenty years after the rendering v. Humphries, 14 S. & R. (Pa.) 15; Bid- thereof, but any legal evidence having dle v. Girard Nat. Bank, 109 Pa. St. a tendency to show that such judgment 349; Tobin 1. Myers, 18 S. Car. 324. has not been paid or satisfied is compeSee also Barnard v. Onderdonk, 11 Ab. tent; and if the evidence furnished is such N. Cas. (N. Y.) 349.

as to produce conviction that the judgPalen v. Bushnell, 58 N. Y. Supr. ment has not been paid or satisfied, it is

sufficient to rebut the presumption. After a judgment was recovered in a Walker v. Robinson, 136 Mass. 28o. certain court, the court was made a 4. Baker v. Stonebraker, 36 Mo. 338; court of record. It was held that the Wherry v. McCammon, 12 Rich. Eq. judgment was to be treated as the judg- (S. Car.) 337; Kinsler v. Holmes, 2 S. ment of a court of record and that there Car. 483; Leiper v. Erden, 5 Yerg. was therefore no presumption of its (Tenn.) 97; Husky v. Maples, 2 Coldw. payment before the expiration of twenty (Tenn.) 25; Thompson v. Thompson, 2 years from the date of its rendition. Head (Tenn.) 405; Goldhawk v. Duane, Camp v. Hallawan, 42 Hun (N. Y.) 2 Wash. (U. S.) 323; Renwick v. 628.

Wheeler, 4. McCrary (U. S.) 119; It has been held that the provision of Fuller v. Lendrum, 58 Iowa 353; Porter the New York statute making the stat- v. Nelson, 121 Pa. St. 628. ute of limitations applicable to an action 6. Averill v. Loucks, 6 Barb. (N. on a justice's judgment after six years Y.) 19; Winslow v. Clark, 2 Lans. (N. does not preclude the docketing of the Y.) 380. judgment in the county court after that 6. Truscott v. King, 6 N. Y. 147; time and the issuing of execution Troup v. Wood, 4 Johns. Ch. (N. Y.) thereon. Rose v. Henry, 37 Hun (N. 228; Craft v. Merrill, 14 N. Y. 456. Y.) 397. Compare Lindgren v. Gates, Compare Pierce v. Black, 105 Pa. St. 26 Kan. 135; Williams v. Williams, 85 342. See also Brown v. Vancleave, 86

Ky. 381. 2. Anderson Settle, 5

Sneed Costs.—Entry of payment of the debt (Tenn.) 202; McDaniel v. Goodall, 2 and interest does not satisfy the judgColdw. (Tenn.) 391.

ment to prevent the collection of costs. 3. As to the evidence necessary to re- Altman v. Klingensmith, 6 Watts (Pa.) but the presumption, see Boardman v. 445. De Forest, 5 Conn. 8; Burt v. Casey, 7. Null v. Moore, 10 Ired. (N. Car.) 10. Ga. 179; Denny v. Eddy, 22 Pick. 324; Sandford v. McLean, 3 Pai. (N. (Mass.) 533; Knight v. Macomber, 55 Y.) 117; s. c., 23 Am. Dec. 773; Head Me. 132; Bissell v. Jawdon, 16 0. St. v. Gervais, Walker (Miss.) 577; S. C., 12 498; Yarnell V. Moore, 3 Coldw. Am. Dec. 577; St. Francis Mill Co. v. (Tenn.) 173; Mower v. Kip, 2 Edw. Ch. Sugg, 83 Mo. 476.

N. Car. 383


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