and no other reason is alleged for bringing the action than that the judgment remains unpaid. It seems that the right to maintain such an action is not barred nor suspended by the issuing of an execution. On the other hand, the right of a creditor to an execution on the judgment is not suspended by the pendency of an action upon it;3 and it has been held that the commitment of (Tenn.) 458. Compare Lee v. Giles, I Bai. L. (S. Car.) 449; s. c., 21 Am. Dec. 476; Ligon v. McNiel, 6 Rich. (S. Car.) 377; Smith v. Belmont etc. Co., II Bush (Ky.) 390; Pitzer v. Russell, 4 Oreg. 124. An action on a justice's judgment was sustained, though brought during a stay of execution. McDonald v. Butler, 3 Mich. 558. Where the right to issue execution had terminated by lapse of time and the judgment was liable to be defeated as a cause of action upon the same ground, it was held that an action could be maintained upon the judgment when the judgment debtor neglected to plead the statute of limitations. Stuart v. Lander, 16 Cal. 372. Against County. Where a statute prescribes that no person shall sue a county without first presenting his demand to the supervisors for allowance, a judgment creditor must present his judgment as any other demand. If they refuse to allow it, he should ask for a writ of mandate to compel them to do so and not bring an action on the demand. Alden v. Alameda County, 43 Cal. 270. Interest. In actions on the judgments of sister States, it will not be presumed that the laws of such States allow interest on judgments. Thompson v. Monrow, 2 Cal. 99. Interest may be reckoned on a judgjudgment for costs when affirmed on certiorari. Whelpley v. Wash, 46 Mich. 25. See also Palmer v. Glover, 73 Ind. 529. In an action on a justice's judgment the damages may be counted on alone if the award of costs is excessive and illegal. Whelpley v. Wash, 46 Mich. 25. The identity of a person sued on a transcript of a foreign judgment may be presumed if his full name is identical with that of the party against whom it was recovered. Campbell v. Wallace, 46 Mich. 520. A judgment is a contract "express or implied" within the terms of a statute authorizing the issue of attachments on such contracts, whether it was founded on a contract or a tort. Gutta Percha etc. Co. v. Mayor, 108 N. Y. 276; s. c., 2 Am. St. Rep. 412. 1. Denison v. Williams, 4 Conn. 402. Ives v. Finch, 28 Conn. 112. Compare Pitzer v. Russell, 4 Oreg. 124. See also Hansford v. Van Auken, 79 Ind. 157. In some States leave of court must be obtained to prosecute an action on a domestic judgment. Watts v. Everett, 47 Ia. 269; McDonald v. Dickson, 85 N. Car. 248. See also Carpenter v. Butler, 29 Hun (N. Y.) 251. The rule does not apply to a judgment of a United States circuit court. Goodyear etc. Co. v. Frisselle, 22 Hun (N. Y.) 174. In North Carolina, where leave to sue on a judgment under the code is refused by the judge below, his decision upon the question whether "good cause" is shown is conclusive. Kendall v. Briley, 86 N. Car. 56; Warren v. Warren, 84 N. Car. 614. Where a simple judgment is obtained upon a note secured by mortgage, and a subsequent action is brought to foreclose the mortgage for the payment of the judgment, such subsequent action is not an action upon a judgment, as contemplated by the statute requiring leave of court to sue upon a judgment, and may be begun at any time at the option of the plaintiff. of the plaintiff. Matthews v. Davis, 61 Iowa 225. A judgment obtained in an action brought without leave of court founded on a judgment rendered in the supreme court was held invalid sixteen years after its rendition at the instance of the administrator of the judgment debtor. Farish v. Austin, 25 Hun (N. Y.) 430. 2. Linton v. Hurley, 114 Mass. 76; Wilson v. Hatfield, 121 Mass. 551; Hale v. Angel, 20 Johns. (N. Y.) 342; Boyd v. Mann, 9 Baxt. (Tenn.) 349; Whittemore v. Carkin, 58 N. H. 576. 3. Moor v. Towle, 38 Me. 133; Cushing v. Arnold, 9 Met. (Mass.) 23; McDonald v. Dickson, 85 N. Car. 248. the debtor to prison under the execution cannot be pleaded in discharge of the action.1 A pending scire facias to revive a judgment cannot be pleaded in abatement of an action on the judgment.2 An action may be maintained on a judgment, although an appeal or writ of error is pending, unless proceedings to enforce it have been stayed by filing a sufficient bond.3 6 An action will not lie upon a judgment which appears, by the record, to have been satisfied,4 or which is void,5 or the enforcement of which has been enjoined, nor, ordinarily, upon a judgment obtained by the attachment of property without personal service of process. It has been held that where the record is lost or destroyed it must be restored by a direct proceeding for that purpose before an action can be maintained.8 As a general rule, no defence can be interposed to an action on a judgment which might have been presented as a defence to the original action.9 Under the codes, however, such fraud as would entitle a judgment debtor to relief in equity may be interposed as a defence to an action on the judgment,10 and whenever a judg 1. Moor v. Towle, 38 Me. 133. 2. Payment of one judgment satisfies both. Čarter v. Colman, 12 Ired. L. (N. Car.) 274. 3. Taylor. Shew, 39 Cal. 536; Suydam v. Hoyt, 1 Dutch. (N. J.) 230; Faber v. Hogey, 117 Mass. 107; S. C., 19 Am. Rep. 398; Woodward v. Carson, 86 Pa. St. 176; Dawson v. Daniel, 2 Flip. (U. S.) 301. Compare Paine v. Cowdin, 17 Pick. (Mass.) 142. It has been held that pending a writ of error the plaintiff cannot take out an execution on his second judgment. Benwell v. Black, 3 T. R. 643. Compare Dawson . Daniel, 2 Flip. (U. S.) 301. See also Heckling v. Allen, 15 Fed. Rep. 196. 4. Pratt . Jones, 22 Vt. 341. An action can be maintained on a dormant domestic judgment in Kansas, if commenced one year after the judgment is dormant. Baker v. Hummer, 31 Kan. 325. 5. Needham 7. 536. See subtitle. Thayer, 147 Mass. Nor can a void judgment be confirmed or enforced by a subsequent proceeding instituted for the purpose in a court of equity. Ray v. Ray, 1 Idaho 566. 6. Blair v. Caldwell, 3 Mo. 353. 7. Kane v. Cook, 8 Cal. 449; Easterly v. Goodwin, 35 Conn. 273; Banta v. Wood, 32 Iowa 473; Durand's Succ., 24 La. An. 352; Eastman v. Wadleigh, 65 Me. 251; s. c., 20 Am. Rep. 695. 8. Foulk . Colburn, 48 Mo. 230; Walton v. McKesson, 64 N. Car. 77; Compare Freeman on Judg. (3rd. ed.), § 4326 and cases cited. 9. Ellis. Clarke, 19 Ark. 420; Allgood v. Whitley, 49 Ala. 215; McAllister v. Singer Mfg. Co., 64 Ga. 622; Bird v. Smith, 34 Me. 63; Biddle v. Wilkins, I Pet. (U. S.) 692. The defendant in an action on a judgment cannot show that the judgment was obtained by perjury. Demeritt v. Lyford, 7 Fost. (N. H.) 541. A person cannot justify disobedience of an injunction except by showing that the court had no jurisdiction to grant the injunction. People v. Sturtevant, 9 N. Y. 263. An action on a domestic judgment cannot be defended on the ground that the court had not jurisdiction of the person of the defendant. Dungan, 35 N. J. L. 391; Kittredge v. Martin, 141 Mass. 410; Pacific Pneumatic Gas Co. v. Wheelock, So N. Y. 278. The only remedy against an irregular or erroneous judgment is to have it set aside or reversed. Townsend v. Cox, 45 Mo. 401; Hawes v. Hatheway, 14 Mass. 233: 10. Duringer v. Moschino,93 Ind. 495; Clark v. Little, 41 Iowa 499; Carneal v. Wilson, 3 Litt. (Ky.) So; Mandeville v. Reynolds, 68 N. Y. 528. See also Hopkins v. Woodward, 75 Ill. 62. It has been held that one regularly ment is sought to be enforced by an action to the detriment of a third person, he may impeach it for fraud or collusion.1 At common law an action could not be maintained on a judg ment against the executor or administrator of one of joint judgment debtors.2 A good defence by one of joint defendants in an action on a judgment operates for the benefit of all the defendants.3 At common law, an action on a judgment must be brought in the name of the legal owner, but, under the statutes of many States, it should be brought in the name of the real party in interest.5 6 7 XII. ASSIGNMENT OF JUDGMENTS.-An assignment of a judgment need not be under seal, nor even in writing, to be mutually binding upon the parties to the assignment; but the intent to assign the judgment must be clearly shown.8 A method for assigning judgments, provided by statute, is generally to be regarded as merely cumulative. Where a judgment relates to specific land, a conveyance of the land by the judgment creditor operates as an assignment of the judgment.10 The assignment of a cause of action arising from the violation of a contract oper sued and served and who answered in the suit and was present at the trial cannot set up in defence to an action on the judgment a promise made by the plaintiff before the original suit was brought that the judgment would not be used against defendant. Greene v. Hallenbeck, 32 Hun (N. Y.) 469. 1. Parkhurst v. Sumner, 23 Vt. 538. 2. United States 2. Cushman, 2 Sumn. (U. S.) 310. But a judgment against an executor in one State will support an action against a native executor in another. Turley v. Dreyfus, 33 La. An. 885. Although a judgment against an administrator will not support an action against another administrator in another State. Creswell v. Slack, 68 Iowa 110. 3. Pratt v. Dow, 56 Me. 81. In Michigan, a justice's judgment, though joint in form, is not in law a joint obligation binding both defendants alike, if only one was served, and it does not merge the debt so as to preclude suing both over again. The one who was not served is not personally bound and cannot be until he is sued on the original obligation. The judgment, therefore, may be sued as an individual obligation against the one who was served and the case may be discontinued as to the other. Holcomb v. Tift, 54 Mich. 647. 4. Triplett v. Scott, 12 Ill. 137. 5. Greene v. Republic F. Ins. Co., 84 N. Y. 572. 6. Mitchell v. Hockett, 25 Cal. 539; Ford v. Stuart, 19 Johns. (N. Y.) 342; Stoddard v. Benton, 6 Col. 508; Wood v. Wallace, 24 Ind. 226. 7. Clark v. Moss, 11 Ark. 736; Steele v. Thompson, 62 Ala. 323; Briggs v. Dorr, 19 Johns. (N. Y.) 95; Bartlett v. Yates, 7 Jones (N. Car.) 615. But see Parker v. Bacon, 26 Miss. 425; Winberry v. Koonce, 83 N. Car. 351. 8. Thomas v. Porter, 3 Bush(Ky.) 177. Parol evidence is admissible to explain whether an ambiguous marginal entry upon the record of a judgment is an assignment or a satisfaction. Emory v. Joice, 70 Mo. 537 The assignment of a judgment is not vitiated by mistakes in the description if it can be shown what judgment was intended. Griffin v. Camack, 36 Ala. 695; Aylesworth v. Brown, 10 Barb. (N. Y.) 167; Bank v. Warren, 7 Hill (N. Y.) 91; People v. Fleming, 2 N. Y. 484. For sufficient assignment of a judgment held by a corporation, see Klemme v. McLay, 68 Iowa 158. National Banks.-A national bank has power to assign a judgment in its own favor. Emory v. Joice, 70 Mo. 537. 9. Burgess v. Cave, 52 Mo. 43. 10. Wright . Parks, 10 Iowa 342. ates as an assignment of a judgment recovered thereon,1 but the assignment of a cause of action or verdict founded on a personal tort is not operative as an assignment of a judgment subsequently recovered or entered thereon in the name of the assignor.2 A judgment founded upon a tort may be assigned.3 In some States a judgment may be levied upon and sold under execution. As against the judgment debtor, and without his consent, a part only of a judgment cannot be assigned.5 The assignment of a judgment transfers the cause of action upon which the judgment is founded, with all beneficial incidents connected with the judgment, including the right of the judgment creditor to enforce its satisfaction.8 At common law, how 1. Wright v. Parker, 10 Iowa 342; Weire v. Davenport, 11 Iowa 49; Robinson v. Weeks, 6 How. Pr. (N. Y.) 161; Hudson v. Morriss, 50 Tex. 595; Dugas v. Matthews, 9 Ga. 510; s. c., 54 Am. Dec. 361. A cause of action founded on an in jury to property is assignable. Robinson v. Weeks, 6 How. Pr. (N. Y.) 161. 2. Lawrence v. Martin, 22 Cal. 173. But see Pratt 7. Wertheimer, 39 Hun (N. Y.) 463. See ASSIGNMENTS, vol. 1, p. 832 et seq. 3. Charles . Haskins, 11 Iowa 329; Risley v. Phoenix Bank, 11 Hun (N. Y.) 484; Kessel v. Albetis, 56 Barb. (N. Y.) 362; Ford v. Stuart, 19 Johns. (N. Y.) 342; Bridge v. Johnson, 5 Wend. (N. Y.) 342; Moore v. Howell, 94 N. Car. 265. 4. Ochiltree v. Missouri etc. R., 49 Iowa 150; Safford v. Maxwell, 23 La. An. 345; Adams v. Hackett, 7 Cal. 187. Compare Wilson . Matheson, 17 Fla. 640. But the proper practice and the only method of subjecting a judgment to the payment of the judg ment creditor's debts in other States seems to be to garnish the judgment debtor. Osborn v. Cloud, 23 Iowa 104; s. c., 92 Am. Dec. 413; McBride v. Fallon, 65 Cal. 301. 5. Love v. Fairfield, 13 Mo. 300; Loomis v. Robinson, 76 Mo. 488. Where fractional parts of the same judgment debt are successively assigned to different persons, and the proceeds of the sale of the property bound by the judgment are insufficient to pay them all, they take pro rata, and not in the order of their assignment. Moore's Appeal, 92 Pa. St. 309; Moore v. Robinson, 35 Ark. 293. 6. Vila v. Weston, 33 Conn. 50; Ellsworth v. Caldwell, 18 Abb. Pr. (N. Y.) 20; Bolen v. Crosby, 49 N. Y. 183; Pratt v. Wertheimer, 39 Hun (N. Y.) 463. The assignment of a void judgment was held to carry with it the debt upon which it was based. Brown v. Scott, 25 Cal. 189. 7. Such as the benefit of an appeal bond. Ullman v. Kline, 87 Ill. 268. But as to bond in attachment, compare Forrest:v. O'Donnell, 42 Mich.556. The rights of the assignee of a judgment are not affected by the fact that he paid less than its face for it. Harmon v. Hope, 87 N. Y. 10. Though he be the trustee of a corporation against which the judgment was rendered. Inglehart 7. Thousand Island Hotel Co., 32 Hun (N. Y.) 377· 8. Burns v. Bangert, 16 Mo. App. 22; Applegate v. Mason, 13 Ind. 75. A transfer of a judgment "so far as the same now remains unpaid" does not pass to the transferee the right of the assignor to set aside a partial satisfaction of the judgment. Adams v. Friedlander, 37 La. An. 350. A judgment creditor cannot be abridged of his right to enforce his claim against any land of the debtor by an agreement of the latter with a purchaser to pay the judgment out of a particular tract. Wilson v. Wilson, 3 Del. Ch. 183; Clark . Wright, 24 S. Car. 526. A judgment debtor cannot contest an action by the transferee of a judgment on the ground of fraud in the transfer, unless he shows that he was injured thereby. Long v. Klein, 35 La. An. 384. Irregularity or invalidity in the assignment of a judgment will not impair the title of a purchaser at a sale under execution issued on the order of the assignee. Emory v. Joice, 70 Mo. 537. ever, the assignee of a judgment could not maintain an action thereon in his own name, but was entitled to sue in the name of his assignor.2 This rule has been changed by statute in many States and the assignee either may or must bring the action in his own name.3 The assignee of a judgment takes it subject to all equities existing between the parties to the action, whether he had notice of their existence or not, including the right of a party to have the judgment set off against another judgment.5 The rights of the assignee are not subject to equities existing in favor of third persons of which he had no notice when the assignment was made.6 1. Edmonds v. Montgomery, 1 Iowa 143; Reid v. Ross, 15 Ind. 265; Elliot v. Waring, 5 Mon. (Ky.) 239; s. c., 17 Am. Dec. 69. So of a scire facias to revive the judgment. Mayor v. Trustees, 7 Ga. 204; Forbes v. Tiffany, 4 Ind. 204; McKinney v. Mehaffey, 7 W. & S. (Pa.) 276. 2. Weir v. Pennington, 6 Eng. (Ark.) 745. In an action by an assignee of a judgment, an averment of the assignment of the judgment is necessary, and a denial of the averment necessarily presents a material issue. Hughes v. Brewer, 7 Col. 583. 3. Steele v. Thompson, 62 Ala. 323; Charles 7. Haskins, II Iowa 329; Moore v. Nowell, 94 N. Car. 265. So of a scire facias to revive. Clark v. Digges, 5 Gill (Md.) 109; Murphy v. Cochran, Hill (N. Y.) 339. See also Porter v. Shaw, 98 Mass. 505. Where a judgment paid by the surety is assigned without consideration to another for the benefit of the surety, such assignee holds the legal title as trustee for the surety, and the law regards him as the real party in interest, entitled to enforce the collection of the judgment. Learing v. Berry, 58 Iowa 20. 4. Northam v. Gordon, 23 Cal. 255; Lattomus v. Garman, 3 Del. Ch. 232; Scott v. Harkins, 32 Ga. 302; Rawson v. McJunkins, 27 Ga. 432; Rea v. Forrest, 88 Ill. 275; Hughes v. Trahern, 64 Ill. 48; McJilton v. Love, 13 Ill. 486; Burson v. Blair, 12 Ind. 371; Robeson v. Roberts, 20 Ind. 155; Stout v. Vankirk, 10 N. J. Eq. 78; Traphagen v. Lyons, 38 N. J. Eq. 613; Jordan v. Black, 2 Murph. (N. Car.) 30; Brisbin v. Newhall, 5 Minn. 273; Shelton v. Hurd, 7 R. I. 403; Downer v. Bank, 39 Vt. 25; Blakesley v. Johnson, 13 Wis. 530. See also Leonard's Appeal, 94 Pa. St. 168; Scott's Scott's Appeal, 123 Pa. St. 155. Upon reversal of the judgment, the assignee who has purchased property under his own execution loses his title thereto. Reynolds v. Harris, 14 Cal. 667. A release of a property mortgaged from the lien of a judgment cannot be set up against one who in good faith purchased the judgment without notice, actual or constructive, to put him on enquiry as to the release. Mellon's Appeal, 86 Pa. St. 475: 5. Hobbs v. Duff, 23 Cal. 596; Merrill v. Souther, 6 Dana (Ky.) 305; Bent . Pierce, 69 Me. 381; Graves v. Woodbury, 4 Hill (N. Y.) 559; Duncan v. Bloomstock, 2 McCord (S. Car.) 318; s. c., 13 Am. Dec. 728. Other cases deny the authority to set off one judgment against another after an assignment, unless the assignor was insolvent at the time the assignment was made. Henderson v. McVay, 32 Ala. 471; Davis v. Milburn, 3 Iowa 168. The rights of the assignee are not limited by secret agreements inconsistent with the judgment. Davis v. Barr, 9 S. & R. (Pa.) 137. It has been held that an assignee of a judgment is protected against a set off not reduced to judgment and having no connection with the judgment assigned. Ullman v. Kline, 87 Ill. 268. Where, for a valuable consideration, the owner of a judgment sells and attempts to assign it upon the record, but by mistake makes the assignment upon the wrong record, there is an equitable assignment, and the assignee may have the judgment set off against one held by the judgment debtor against him. Frybarger v. Andre, 106 Ind. 337. 6. Wright v. Levy, 12 Cal. 257; Hale v. First Nat. Bank, 50 Iowa 642; Starr v. Hoskins, 26 N. J. Eq. 414; McCotter v. McCotter, 16 Abb. Pr. (N. Y.) 265; Murray v. Lilburn, 2 Johns. Ch. (N. Y.) 442; Hendrickson's Appeal, 24 Pa. |