granted by the court, the practice is usual and convenient. If, how ever, the case is one, in which the imposition of conditions might be justifiably asked for, this step will not be prudent, and an attorney who takes it, without the instructions of his client, does so at his own peril, in the event of its being shown that the latter has sustained any loss or disadvantage in consequence. See Clussman vs. Merkel, 3 Bosw., 402. In Church vs. Rhodes, 6 How., 281, relief of a peculiar and special nature was administered. The defendant had there moved for a rehearing of a referee's report, on which judgment had been entered, as provided for by section 272 of the Code of 1849. Pending that proceeding, the amendments of 1851 were passed, which took away his remedy in this respect, and, in the mean time, the period for appealing had run out. The court, under these circumstances, allowed a motion to be made, to take the judgment off the roll pro formâ, in order to its immediate re-entry, with a view to restore the defendant's right to a review, by appeal, under this unusual state of things.

(a.) WHEN REFUSED.

But, as a general rule, a judgment will not be vacated, in order to its re-entry, for the purpose of extending the right of a party to appeal. See Marsten vs. Johnson, 13 How., 93; Humphrey vs. Chamberlain, 1 Kern., 274.

Nor, where there are no real merits in the defence proposed to be put in, or such defence is clearly untenable or unconscionable. See Dwight vs. Webster, 32 Barb., 47; 19 How., 349; 10 Abb., 128; Hawes vs. Hoyt, 11 How., 454; King vs. Merchants' Exchange Company, 2 Sandf., 693; Plumb vs. Whipples, 7 How., 411; Mulligan vs. Brophy, 8 How., 155; Morris vs. Slatery, 6 Abb., 74.

Nor, when the applicant is chargeable with laches in making the application. See White vs. Featherstonhaugh, 7 How., 357; Toole vs. Cook, 16 How., 142; Fake vs. Edgerton, 6 Duer, 653; Bogardus vs. Livingston, 7 Abb., 428. See also Lee vs. Watkins, 13 How., 178; 3 Abb., 243; Whitney vs. Kimball, 6 Bosw., 690.

§ 275. Opening, where Service by Publication.

This relief is a matter of special provision, under the concluding clause of section 135, with the exception of cases of divorce, and it may be obtained, either by the actual defendant, or by his representatives. Sufficient cause must be shown, and the existence of an actual defence. upon the merits made manifest. This done, the opening is a matter of quasi right, though it rests in the discretion of the court. Terms may be imposed, and the application must be made, within one year after

notice of the judgment, and within seven years after its rendition. If delayed beyond either period, it will no longer be admissible, and the judgment will stand absolute.

This motion must be distinguished from a motion to open a judgment of this description, on the ground of irregularity, which rests on different grounds, and demands the application of different principles.

The application for this purpose must be made on motion, on the usual notice, grounded on affidavit. That affidavit should show upon its face the following requisites:

1. The date of entry of judgment, and the nature of the action.

2. Unless apparent on the previous statement, that such must be the case, it must be shown affirmatively, that notice of the judgment has not been received by the applicant, until within one year previous to the application, and the actual date and mode of receipt of such notice may be stated.

3. Good cause must be shown, on the face of the affidavit, why the applicant should be allowed to defend. The usual affidavit of merits should, in all cases, be incorporated or annexed; and, in addition, the existence and nature of the defence proposed to be put in, should be shown by distinct and definite allegation. It may be also convenient, and will be the better practice, to prepare and submit with the moving papers, the form of the proposed answer.

The affidavit, so prepared, should be sworn to by the actual applicant, whenever practicable, or, if not, then by his attorney or agent, stating fully, the reasons why it cannot be made by the former.

The consideration of the essentials of this application has been already in part touched upon, in book III., chapter III., section 56, under the head of service of this nature.

It is clear, though not provided for by the section, that it is competent for the plaintiff to oppose the application, and to rebut the case made out by the defendant, either as regards the showing of good cause to defend, or otherwise. In Dykers vs. Woodward, 7 How., 313, leave to defend was refused, the answer served, clearly presenting no valid opposition to the plaintiff's case.

The court is expressly authorized to impose, on the granting of the application, such terms as may be just, and the allowing the judgment, and any consequent proceedings, to stand as security, is a condition that may be reasonably asked for. See Carswell vs. Neville, 12 How., 445. And, where the defendant is a non-resident, security for costs may of course be required.

If a defence be allowed, the cause proceeds to a trial in the usual course, as on an original joinder of issue.

Restitution is expressly provided for by the section, in the event of

that defence proving successful. And, by rule 25, additional security is now provided, by the undertaking required to be taken, before judgment is originally awarded, and which, in default of such restitution, is enforceable by the defendant in the usual manner.

§ 276. Satisfaction of Judgment.

The last matter to be considered, with reference to the subject of judgments, is the proceedings for their satisfaction of record, when paid or otherwise discharged.

The Code does not contain any provisions on this subject, which is still regulated by those of the Revised Statutes. The latter have been already referred to, and cited, so far as it is necessary, in chapter I. of the present book, section 248.

A satisfaction-piece must be prepared, and signed by the judgmentdebtor or his representatives, and acknowledged before a commissioner, or other party competent to take the acknowledgment of deeds, and then lodged with the clerk of the court in which the judgment is

entered.

Within two years from the entry of judgment, the attorney of record is also competent to acknowledge satisfaction. At the expiration of that period, his authority ceases altogether. It is also capable of revocation by the party, in the mean time.

When lodged with the clerk, satisfaction is entered by him at once in the judgment-book. If the judgment be docketed in any other county, or in the same, when the court is of limited jurisdiction, and its judgments are not docketed in the county clerk's office, a transcript or transcripts of the satisfaction, should be applied for, and docketed in each county in which the judgment is subsistent as a lien. The entry of a reversal or vacatur of the judgment, when made by the clerk, on lodgment of the order for that purpose, may be docketed in other counties, by means of a transcript obtained in the same manner.

And, when the judgment has been satisfied, and execution issued to the sheriff of any other county than that in which the judgment is entered, the party paying the amount is entitled to demand from such sheriff, a certified copy of the execution, and of his satisfaction indorsed thereon. When obtained, this must be lodged with the clerk of the county of original entry; and, when so lodged, it has the same effect as the entry of an ordinary satisfaction. See chapter 6 of 1860, p. 13.

When the judgment is satisfied, by execution issued to the sheriff of the same county, the clerk makes the entry, on the filing of his returu, of which transcripts can then be obtained, and filed in other counties, or otherwise, in the manner above stated.

The sheriff's fee for such a transcript is twenty-five cents. The commissioner's fee for taking an acknowledgment, the same amount. The clerk's fee for entering satisfaction is twelve and a half cents, and for each transcript delivered by him, twelve and a half cents.

If, after payment of a judgment, the party subsequently refuse to sign the necessary papers for entering satisfaction, so as to discharge all liens thereunder, he may be compelled to do so, by an application to the court, on affidavit of the facts. The affidavit must, however, show an offer to pay all reasonable expenses, at the time that such papers are tendered for his signature, to which he is of course entitled. It is, however, highly inexpedient to delay the entry of satisfaction, on the payment of a judgment of whatever nature. By far the wiser practice is to do so at once, and that, in every county in which the judgment has been docketed. An usual course in these cases, is for the satisfactionpiece to be prepared on the part of the defendant, and the signature of the plaintiff's attorney obtained, and his acknowledgment taken, at the time of settlement, which saves any further trouble, and also any expense, except the usual commissioner's fees on that acknowl edgment.

Where there is any doubt or conflict of evidence, a judgment should not be set aside, on motion of a subsequent lien holder, on allegation that it is satisfied. He should be left to his action for that purpose. See Frink vs. Morrison, 13 Abb., 80.

The execution and acknowledgment of a satisfaction-piece, if unexplained, is conclusive evidence that the judgment has been paid, in money, or some equivalent. Wright vs. Smith, 13 Barb., 414.

An attorney has no authority to sign a satisfaction-piece, for any other consideration than an actual payment of money in full. If he attempts it in any other form, his client may repudiate the arrangement, however bona fide in its making, and the satisfaction may be vacated. Lewis vs. Woodruff, 15 How., 539.

Payment of a justice's judgment to the justice, entitles the defendant and all other parties, to treat the debt as satisfied, and the plaintiff cannot repudiate the transaction. Dexter vs. Broat, 16 Barb., 337. So also as regards a tender to the plaintiff. Same case.

Imprisonment of the defendant in execution is, pro tanto, a satisfaction of the debt, whilst it continues, and a consent to let him go at large will work an absolute discharge of the judgment. Bank of Beloit vs. Beale, 20 How., 331; 11 Abb., 375 (379).

An executory agreement to accept payment for a judgment in a specific manner, when performed, will of course be a discharge, and may operate as a stay in the interim; but, if there be a partial failure of performance, the party will, on such failure, be remitted to his original

rights of enforcement. Haggerty vs. Simpson, 1 E. D. Smith, 67. See likewise Crosby vs. Wood, 2 Seld., 369.

So long as a judgment remains satisfied of record, and until the satisfaction is actually vacated, no proceeding can be grounded upon it, under any circumstances. Ackerman vs. Ackerman, 14 Abb., 229.

(a.) VACATING SATISFACTION.

Where, after formal satisfaction of a decree in chancery, it subsequently appeared that the lands, by sale of which the amount had been raised, were not salable, and that no title was obtained by the purchaser, the previous entry of satisfaction was vacated, and a new execution ordered to be issued. Suydam vs. Holden, Seld. Notes, 7th of October, 1853, p. 16. See also Field vs. Paulding, 3 Abb., 139; 1 Hilt., 187.

And, where the consideration on which satisfaction had been entered. had wholly failed, by reason of the invalidity of a substituted judgment, it was held that such failure might entitle the creditors to have such satisfaction vacated, or removed from the record. Hammond vs. Bush, 8 Abb., 152 (169).

And a satisfaction of judgment, entered by the client on a private arrangement, in fraud of his attorney's lien for his costs and compensation, will be vacated. Rooney vs. Second Avenue Railroad Company, 18 N. Y., 368.

Where, however, the application on the part of the attorney was unreasonably delayed, the court refused to interfere. Winans vs. Ma

son, 33 Barb., 522; 21 How., 153.

If entered by the attorney without authority, the satisfaction may be vacated. Vide Lewis vs. Woodruff, supra.

(b.) OTHER POINTS.

The mere payment of a judgment does not preclude an appeal, unless such payment has been made, by compromise and agreement to settle the controversy. See Wells vs. Danforth, 1 C. R. (N. S.), 415. An entry of satisfaction procured by the defendant himself, might, however, have a different effect.

As to the power to keep a judgment alive, by means of an assignment, for the benefit of a person not a party to the record, by whom it has been paid, see Harbeck vs. Vanderbilt, 20 N. Y., 395.

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