JUDGMENTS. WHEN A DEFENDANT MAY RECOVER JUDGMENT OVER. Continued.
reason of the use of defective materials, and the want of proper skill on the
part of the plaintiffs in the construction of the vault, in consequence of which
it fell down. It seems, in such case, if the damages sustained by the defend-
ant by reason of a non-compliance with the contract on the part of the plaintiff
exceed the amount which the plaintiff would otherwise be entitled to recover,
the defendant may recover such excess in the same action. Springdale Cem.
Asso. v. Smith et al. 252.

WHEN A JUDGMENT IS VOID.

6. A judgment is never void when the court has jurisdiction of the subject
matter, and the parties, although it should be erroneous; especially if the
defendant has had actual and timely notice. Per Mr. JUSTICE BREESE, in
Hammond v. The People, &c. 446.

OF JUDGMENTS WHERE A PARTY IS SUED BY A WRONG NAME. See MISNOMER,
1, 4, 5.

JUDGMENT BY CONFESSION.

JURISDICTION OVER THEM.

1. Of courts of law. Courts of law exercise an equitable jurisdiction over
judgments entered by confession upon bonds or notes, accompanied by war-
rants of attorney; and it will be exercised liberally in proper cases. Hall v.
Jones, 38.

OPENING SUCH JUDGMENTS.

2. To let in a defense. Such judgments are often opened, for the purpose
of letting in a defense the party was precluded by accident, fraud, or other-
wise, from making at the proper time. Ibid. 38.

3. Upon what condition. But in such case the judgment itself is not
vacated until the merits are determined in favor of the defendant. Ibid. 38.

4. Variance between declaration and judgment. Where the note upon
which judgment is confessed, the warrant of attorney under which the con-
fession is made, the cognovit and the judgment, all correspond in amount, a
variance in that regard between the declaration and the judgment will not
avail on a motion to vacate the judgment. Ibid. 38.

5. Within what time application should be made. Such applications should
be made at the earliest opportunity. They have slight claims to a favorable

consideration after the lapse of years. Ibid. 38.

6. And after a lapse of nearly three years, and the delay unaccounted for,
much will be presumed to sustain the judgment, especially when no merits are
shown. Ibid. 38.

7. Signing cognovit without authority. Where the name of an attorney was
signed to a cognovit by a third person, without his knowledge, the cognovit
will be held valid until repudiated by the attorney whose name is signed to it.
Ibid. 38.

OF THE PROOF OF THE EXECUTION OF POWER TO CONFESS.

8. What is sufficient. A note was executed by Hall & Brother. A power
of attorney to confess a judgment upon the note was written on the same
paper, and executed by one of the makers of the note only. On the back of

JUDGMENT BY CONFESSION.

OF THE PROOF OF THE EXECUTION OF POWER TO CONFESS. Continued.
it was this affidavit: "Charles Patten, being first duly sworn, doth depose
and say that he is well acquainted with the handwriting of Hall & Brother,
and that he believes the signatures to the within note and power of attorney,
to be true and genuine." This was held to be sufficient proof of the execu
tion of the power of attorney. It was immaterial, for such a purpose, how
the affiant acquired his knowledge of the handwriting; it was sufficient that
he swore that he was well acquainted with it. Hall v. Jones, 38.

9. Presumption that it was proven. But when a judgment is confessed in
open court, it is a legal presumption that the authority to confess it was
judicially passed upon by the court. Ibid. 38.

HOW FAR A CONFESSION OF JUDGMENT operates as a release of errors. See
RELEASE OF ERRORS.

JUDGMENTS IN OTHER STATES.

HOW FAR CONCLUSIVE HERE.

1. If a court of another State having jurisdiction over the subject and
parties, has rendered a judgment, such judgment will bind the party against
whom it is rendered, and he will not be permitted to look into the transaction,
in an action brought on the judgment, in order to show that such judgment
should not have been rendered. Lawrence v. Jarvis et ux. 304.

2. Such judgment will have the same credit, validity and effect in every
other court in the United States, which it has in the State where pronounced,
and whatever pleas would be good to a suit thereon in such State, and no
others, can be pleaded in any other court in the United States. Ibid. 304.

3. The elements necessary to give the judgment this effect, are, jurisdiction
in the court over the subject and over the person. These are open to inquiry,
and if it appears that either was wanting, the judgment is not conclusive, and
the fact may be pleaded in an action brought on the judgment. Ibid. 304.

4. A court may obtain jurisdiction of the person in various modes, by per-
sonal service of process, by the entry of the appearance of the party himself
without process, or, by an attorney of the court appearing and defending.
Ibid. 304.

5.

Where the record of a judgment rendered in another State sets forth that
the defendant did appear by attorney, nothing can be alleged against that fact;
but the authority to appear may be contested by plea and proof. Ibid. 304.
6. The record reciting the appearance of the defendant by attorney, affords
presumptive evidence that the court had jurisdiction of the defendant's per-
son, and the authority of the attorney is also presumed. Ibid. 304.

7. In an action upon a judgment obtained in another State, it may be inter-
posed as a defense that the judgment was obtained by fraud. Ibid. 304.

8. But it is incumbent on a party setting up such a defense to prove it.
Ibid. 304.

9. A judgment in another State is conclusive as to the amount of the debt;
therefore a plea of nil debet is not a proper plea in an action on such judgment.
Ibid. 304.

JUDICIAL NOTICE. See EVIDENCE, 1.

JUDICIAL SALES.

DIVISIBILITY OF PROPERTY.

On sales under mechanics' liens. See MECHANICS' LIEN, 1, 2, 3.

JURISDICTION.

OF GRUNDY COUNTY COURT.

In cases of divorce. The statute conferring jurisdiction upon the county
court of Grundy county "in all civil cases, suits and actions and proceedings
when the amount due and claimed, or the value of the property, shall not
exceed the sum of $1,000,” does not confer jurisdiction upon that court to grant
divorces. Heatherwick v. Heatherwick, 73.

IN CHANCERY. See CHANCERY, 1, 3, 4.

WANT OF JURISDICTION—WAIVER. See CHANCERY, 2.

ESSENTIAL TO GIVE CONCLUSIVE EFFECT to judgments in other States. See JUDG-
MENTS IN OTHER STATES, 3.

JURISDICTION OF THE PERSON.

How obtained. See JUDGMENTS IN OTHER STATES, 4.

When presumed. See PRESUMPTIONS.

OF COURTS OF LAW, over judgments by confession. See JUDGMENT BY CON-
FESSION, 1.

JURY.

OF RECONSIDERING THEIR VERDICT, ETC.

1. It is within the power of the Circuit Courts to permit a jury to retire,
after having brought in a verdict in all respects formal, for the purpose of cor-
recting an error in computation, or for the purpose of reconsidering their
verdict. Martin v. Morelock, 485.

2. A verdict is not considered valid and final until pronounced in open
court. Either party has the right to have the jury examined by the poll
before the verdict is recorded. Ibid. 485.

3. Before it is recorded, they may vary from the first offer of their verdict,
and the verdict which is recorded will stand. Ibid. 485.

4. And there is no difference whether the verdict is brought in sealed, or
delivered verbally, by the foreman. Ibid. 485.

5. A direction to the jury to seal up their verdict and separate, does not
dispense with their personal attendance in court when the verdict is opened,
and if any of them dissent, the verdict cannot be recorded. Ibid. 485.

6. It is an undoubted right of a jury to inform the court, before their ver-
dict is recorded, that a mistake has been committed, or to ask generally, that
they may be permitted to retire and reconsider their verdict, the one agreed
upon not being satisfactory to them. Ibid. 485.

7. If the jury do not ask to reconsider, it would seem proper that the court,
of its own motion, should direct them to retire and reconsider the verdict, on
expressing their dissatisfaction with the one to which they may have ignorantly
or inadvertently agreed. Ibid. 485.

8. Conversing with attorneys about their verdict, before it is read in court. A
jury were directed, upon the agreement of parties, to seal up their verdict and
deliver it to the officer, and separate. They did so, and before the verdict was
opened and read in court, a portion of the jury had conversations with the
attorney of the plaintiff, in whose favor the verdict was found, in relation to it.
Upon the verdict being read in court, the jury expressed their dissatisfaction
with it, saying they had made a mistake in the computation of interest. They
were directed to retire and consider further of their verdict, which they did,
and returned a second verdict for a larger sum. It was held, the conversation
had by the jurors with the plaintiff's attorney, pending the verdict, amounted
to such misbehavior on the part, both of the jurors and the attorney, as to
vitiate the second verdict. Martin v. Morelock, 485.

9. And it was considered immaterial, with a view to their effect upon the
validity of the verdict, what the nature of those conversations was; it was
sufficient that they were had. Ibid. 485.

LANDLORD AND TENANT.

TENANCY AT WILL.

1. When it exists. The most that can be inferred from an executory con-
tract of purchase of land, is a permission to the vendee to enter while the
conditions are maturing, as a tenant at will, and occupy as such. Dean v.
Comstock, 173.

TENANT AT SUFFERANCE.

Mortgagor in possession after condition broken. See MORTGAGE, 16.
TENANT CANNOT CLAIM ADVERSELY TO LANDLORD.

2. If a tenant, after renting premises, acquires rights adverse to his land-
lord, he is bound to surrender the property before he can be permitted to
assert them. Brown v. Keller, 152.

TENANT HOLDING OVER.

3. Presumed to be wrongful. Where a leasing is for a specific time, and
the tenant holds over after the expiration of the term, there being no evidence
to the contrary, the presumption is that the holding over was wrongful.
Ibid. 152.

NOTICE TO QUIT.

4. When necessary and when not. When a mortgagee elects to consider
his mortgagor in possession after condition broken, as his tenant, he is a tenant
at sufferance and not entitled to notice to quit. Jackson v. Warren, 331.

5. When a tenant holding over claims the premises adversely to his land-
lord, he is not entitled to notice to quit before an action of forcible detainer can
be maintained against him. Brown v. Keller, 152.

TENANT CANNOT WAIVE POSSESSION, so as to render it adverse to his landlord.
See FORCIBLE ENTRY AND DETAINER.

MORTGAGOR IN POSSESSION AFTER CONDITION BROKEN.

His relation to the mortgagee, as his tenant. See MORTGAGE, 16.

LARCENY.

VERDICT, ON CONVICTION— its requisites as to finding value of property stolen.
See VERDICT, 1.

LAWS.

OF THE PASSAGE OF LAWS.

Private or local laws-of the title thereof. See CONSTITUTIONAL LAW, 1, 2.

LEVY.

WHAT IS SUBJECT TO LEVY AND SALE.

Interest of one partner for his individual debt. See EXECUTION, 1.

LIEN.

VENDOR'S LIEN.

1. Not assignable. The law does not authorize the assignment or transfer
of a vendor's lien to the purchaser of notes given for the purchase-money.
Keith et al. v. Horner, 524.

2. Such a lien is not assignable, even by express language. The lien is
personal, and can only be enforced by the vendor. Ibid. 524.

3. Will pass on death of vendor. This lien would, no doubt, pass, on the
death of the vendor, to his representatives; but it is not the subject matter
of sale and transfer by contract. Ibid. 524.

4. Waiver by taking other security. No lien exists in a vendor of land who
has taken a note, with security, for the purchase-money. Burger et al. v.
Potter et al. 66. ▾

REVIVOR OF LIEN IN CHANCERY.

5. After a vendor of land has waived his lien by taking a note, with
security, for the purchase-money, it cannot, as a general principle, be revived
by a court of equity. Ibid. 66.

в

DISCHARGE OF LIEN OF A PRIOR MORTGAGE.

6. How effected. A mortgage was given upon several tracts of land. Upon
the death of the mortgagor, his devisees sold and conveyed one of those tracts.
Afterwards, the mortgage was foreclosed in equity without the subsequent
purchaser being made a party to the suit. All the lands were sold, en masse,
by the master, under the decree of foreclosure, for the whole amount of the
debt. It was held, the sale was void as to the tract so purchased from
the devisees, their grantee not being a party to the suit for foreclosure, but as
to the residue of the lands, was valid, and operated to satisfy the debt, and
discharge the tract held by the grantee of the devisees from the mortgage.
Ohling et al. v. Luitjens, 23.

PRIOR LIEN FOR PURCHASE-MONEY-MERGER. See MERGER.

MECHANICS' LIEN, and herein of the adjustment of all other co-existing liens. See
MECHANICS' LIENS.

LIMITATION.

REMEDY BARRED BY LAPSE OF TIME, aside from the statute.

Vacating judgments by confession. An application to vacate a judgment
entered by confession, or to open the judgment to let in a defense, which the
party had been precluded from making at the proper time, should be made at