ON THE LAW OF JUDGMENTS. INCLUDING ALL FINAL DETERMINATIONS OF THE RIGHTS By A. C. FREEMAN, THIRD EDITION, REVISED AND GREATLY ENLARGED. SAN FRANCISCO: BANCROFT-WHITNEY CU. LAW PUBLISHERS & LAW BOOKSELLERS. Entered according to Act of Congress, in the year 1873, BY A. L. BANCROFT & COMPANY, In the office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1874, BY A. L. BANCROFT & COMPANY, In the office of the Librarian of Congress, at Washington. Entered according to Act of Congress, in the year 1881, BY A. L. BANCROFT & COMPANY, In the office of the Librarian of Congress, at Washington. PREFACE. THE author of this book believes that its publication is amply justified by the importance of the subject of which it treats, by the frequency with which a correct understanding of that subject is essential to a proper and consistent administration of the law, and by the absence of any other work which even professes to treat of the matters considered in this. A judgment is not invariably "the end of the law." Perhaps nothing so fairly demonstrates the persistence of litigants as their constant efforts to escape the consequences of prior defeats. Scarcely a term passes in any of the courts of last resort, in this country or in England, in which it does not become necessary to determine the effect of some prior adjudication. An examination of the reports will convince any one that there are but few branches of the law which had been more frequently before the courts than the Law of Judgments. Whoever, for the first time, gives his special attention to this branch of the law, will be less surprised at the number of the decisions, than at the assurance with which the most irreconcilable conclusions have been announced. Cases have frequently been disposed of in accordance with principles which the Court evidently regarded as indisputable, but which, in fact, were in direct conflict with the law as understood in most of the other States. Nor can this be deemed remarkable, when we remember that no attempt had been made to collate the various decisions constituting the Law of Judgments. This work, though not formally subdivided in that manner, consists of seven parts: Part first, including chapters one to seven, shows of what the Record or Judgment Roll is composed, and states the various classifications and definitions of Judgments and Decrees, and the rules applicable to Entries and Amendments, and to the Vacation of Judgments at Common Law, and under the Code. Part second, consisting of the eighth chapter, is devoted to the law in regard to Jurisdictional Inquiries in collateral proceedings. The ninth and tenth chapters constitute the third part, and are designed to show what persons are bound by the judgment, by reason of their privity with the parties or their interest in the subject of litigation, or through the operation of the law of lis pendens. Part fourth treats of the important incidents attending judgments, viz.: Merger, Estoppel and Lien; of the assignable qualities of judgments, and of their admissibility as evidence. Part fifth considers proceedings to revive judgments scire facias, and to enforce them as causes of action or defense, with the rules of pleading applicable to those proceedings. The sixth part contains the chapters or Relief, Reversal and Satisfaction; showing for what causes a judgment may be avoided in equity-what are the effects of its reversal by some appellate tribunal—and what are the means and circumstances which produces its satisfaction. The seventh and last part treats of the different kinds of judgments, and the rules peculiar to each. In the hope that, at least by its arrangement and citation of authorities, it may aid in the proper determination of cases yet to arise, and may, by producing a more thorough knowledge of the law, assist in the prevention of needless litigation, this work is respectfully submitted to the members of that profession for whose benefit it was prepared. SACRAMENTO, CAL., January, 1873. PREFACE TO SECOND EDITION. THE author has endeavored to merit the kindness with which the first edition of this work was received, by making the second as complete as possible. To accomplish this result, he has consulted a large number of authorities, and has made considerable additions to the text. Particular pains has been taken to embody in this edition, the substance of the decisions published since the completion of the work as it was first given to the world. The prior decisions have also received attention, and have repaid it by contributing materially to the increase both of the text and of the table of cases. The Canadian reports, which, until recently, were not within the author's reach, have also been examined, and have been cited as freely as those of the other American courts. From these various sources the number of the citations has been augmented nearly twenty-five per cent, and it is hoped and believed that the value of the work has been increased in a like ratio. SACRAMENTO, CAL., August 1, 1874. |