2 Grant (Penn.), 353. So, also, foreign judgments have been held to be within the statute on the theory that they are but prima facie evidence of debt, of no higher nature than a simple contract. Pease v. Howard, 14 Johns. 479; Walker v. Witter, Doug. 1; Harris v. Saunders, 4 Barn. & Cres. 411.

Judgments of sister States have also been held to be within the statute, but in some cases the statute of the State where the judgment was rendered was held to govern (Hubbell v. Coudrey, 5 Johns. 132; S. P., Bissell v. Hall, 11 Johns. 168), while in others, the statute of the State where the action on the judgment is brought has been applied. McElmoyle v. Cohen, 13 Peters (U. S.), 312; Brown v. Parker, 28 Wis. 21.

§ 11. Recovery, nature and amount. At common law a judgment does not carry interest. Thompson v. Morrow, 2 Cal. 99. Hence, in an action on a judgment of a sister State, the common law will be presumed to prevail, and no interest will be allowed. Thompson v. Morrow, 2 Cal. 99. But in some of the States interest is allowed. Johnson v. Tuttle, 17 Abb. Pr. (N. Y.) 315; Harrington v. Glenn, 1 Hill (S. C.), 79.

How far a recovery in trespass or trover operates as a transfer of title to chattels is not a settled point. Lovejoy v. Murray, 3 Wall. (U. S.) 1, 14, 15.

§ 12. Defenses. The presumptions are in favor of the validity of a judgment of a court of general jurisdiction. Reber v. Wright, 68 Penn. St. 471; Read v. The City of Buffalo, 4 Abb. Ct. App. (N. Y.) 22; S. C., 3 Keyes, 447; Drake v. Duvenick, 45 Cal. 455. When the record is silent as to what was done, it will be presumed that what ought to have been done was not only done, but rightly done. But when the record states what was done, it will not be presumed that something different was done. Hahn v. Kelly, 34 Cal. 407.

The plea of nul tiel record puts in issue the existence of the judg ment (Stevens v. Fisher, 30 Vt. 200), and puts the plaintiff to the proof of a full record of judgment. Wright v. Fletcher, 12 Vt. 431; Fitch v. Porter, 8 Ired. (N. C.) L. 511. This plea raises an issue to be tried by a jury. Bischoff v. Wethered, 9 Wall. 812. Nil debet is an answer to an action on a judgment. Indianapolis, B. & W. R. R. Co. v. Risley, 50 Ind. 60.

Payment may always be pleaded to a judgment. Gulick v Loder, 13 N. J. Law, 68; Cameron v. Fowler, 5 Hill, 306. But nul tiel record and payment cannot both be pleaded. Riley v. Riley, 20 N. J. Law,

114.

A defense which might have been made in the original suit is not

available in an action on the judgment. Noble v. Merrill, 48 Me. 140; Guinard v. Heysinger, 15 Ill. 288; Ellis v. Clarke, 19 Ark. 420; Flint v. Sheldon, 13 Mass. 443; Taylor v. Harris, 21 Tex. 438; Morris v. Boomer, 16 Wis. 547. So a party cannot set up as a defense to a judgment, matters on which he had based a petition therein which had been decided against him. Poorman v. Mitchell, 48 Mo. 45. On a similar principle, the consideration of the judgment cannot be inquired into. Brown v. Trulock, 4 Blackf. (Ind.) 429; Cottle v. Cole, 20 Iowa, 481.

So it has been held that proof of the payment of part of a claim prior to the entry of judgment was not available in an action on the judgment. Bird v. Smith, 34 Me. 63. But evidence of payments made after suit brought which the judgment creditor promised to apply in satisfaction, was deemed proper in Cameron v. Fowler, 5 Hill, 306; and when, as under the Code, law and equity are administered by the same tribunal, a state of facts which would entitle a judgment debtor to maintain an action in equity to set aside the judgment may be pleaded in an action on the judgment. Dobson v. Pearce, 12 N. Y. (2 Kern.) 156.

A judgment may be impeached for fraud. Rogers v. Rogers, 15 B. Monr. (Ky.) 364; Whetstone v. Whetstone, 31 Iowa, 276; Cowin v. Toole, id. 513; Amory v. Amroy, 3 Biss. (C. C.) 266; Davis v. Davis, 61 Me. 395; Coffee v. Neely, 2 Heisk. (Tenn.) 304; Ward v. Quinlivin, 57 Mo. 425; Dobson v. Pearce, 12 N. Y. (2 Kern.) 156.

So, a judgment rendered by a court not having jurisdiction of the parties, and of the subject-matter is void. Dorsey v. Kendall, 8 Bush (Ky.), 294; Starbuck v. Murray, 5 Wend. 148; Sears v. Terry, 26 Conn. 273. A judgment pronounced by a tribunal having no authority to determine the matter in issue, is necessarily and incurably void and may be shown to be so in any collateral or other proceedings in which it is drawn in question. Gilliland v. Sellers' Adm'r, 2 Ohio St. 223; Morse v. Presby, 5 Foster, 299; Eaton v. Badger, 33 N. H. 228; King v. Poole, 36 Barb. 242; Blair v. Cummings, 39 Cal. 667; Williamson v. Berry, 8 How. (U. S.) 492. See Crepp v. Durden, 1 Smith's L. Cas. 824. But if the judgment be one of a court of superior jurisdiction, all the jurisdictional facts will be presumed in its favor. Potter v. Merchants' Bank, 28 N. Y. (1 Tiff.) 656; Wells v. Waterhouse, 22 Me. 131; Withers v. Patterson, 27 Tex. 491; Reynolds v. Stansbery, 20 Ohio, 344; Freeman on Judgments, § 124; ante, 188, § 6. But this presumption extends only to those matters in reference to which the record is silent. If facts are stated from which a want of

jurisdiction can be shown, the judgment is void. Clark v. Thompson, 47 Ill. 25; Hahn v. Kelly, 34 Cal. 391.

Jurisdiction of the party defendant can be acquired only by notice to him, or by his consent and voluntary appearance, and when there has been no valid notice or appearance, the judgment is a nullity. Nelson v. Rockwell, 14 Ill. 375; Wingate v. Haywood, 40 N. H. 437; Harris v. Hardeman, 14 How. 334. If the record recites an appearance by attorney, this recital is conclusive in a proceeding upon the judgment. Brown v. Nichols, 42 N. Y. (3 Hand) 26; Hamilton v. Wright, 37 N. Y. (10 Tiff.) 502; Carpentier v. Oakland, 30 Cal. 439. See Dunlap v. Cody, 31 Iowa, 260; 7 Am. Rep. 129; contra, Bodurtha v. Goodrich, 3 Gray, 508.

Whether, when the record of a court of general jurisdiction recites matters showing that the court had jurisdiction of the parties and the subject, these recitals can be contradicted by extrinsic evidence, is a question upon which the decisions remain in conflict.

In the following cases it has been held that the record imports absolute verity and cannot be contradicted by extrinsic evidence (Westcott v. Brown, 13 Ind. 83; Hall v. Williams, 6 Pick. 232; Zepp v. Hager, 70 Ill. 223; Farr v. Ladd, 37 Vt. 156; Eastman v. Waterman, 26 id. 494; Aultman v. McLean, 27 Iowa, 129; Penobscott R. R. Co. v. Weeks, 52 Me. 456; Hotchkiss v. Cutting, 14 Minn. 537); but in the following cases a contrary opinion has prevailed. Edwards v. Toomer, 14 S. & M. 75; Smith v. The State, 13 id. 140; Goudy v. Hall, 30 Ill. 109; Webster v. Reid, 11 How. (U. S.) 437; Baldwin v. Kimmel, 16 Abb. Pr. (N. Y.) 353; Newcomb v. Dewey, 27 Iowa, 381; Pennywit v. Foote, 27 Ohio St. 600; Christmas v. Russell, 5 Wall. 290; Hoffman v. Hoffman, 46 N. Y. (1 Sick.) 30; 7 Am. Rep. 299.

A judgment rendered by a judge who is disqualified by consanguinity is utterly void. Chambers v. Clearwater, 1 Abb. Ct. App. 341; 1 Keyes, 310.

Every judgment against a married woman, which does not show upon its face her liability, is a void judgment. Swayne v. Lyon, 67 Penn. St. 439; Morse v. Toppan, 3 Gray, 411; Griffith v. Clarke, 18 Md. 457; Higgins v. Peltzer, 49 Mo. 152. This is on the ground that a judgment creates a debt and can therefore be taken only against one capable of contracting a debt. Morse v. Toppan, 3 Gray, 411. But the plea of infancy is a personal plea, which may be waived, and a judgment against an infant is not, therefore, void. Smith v. McDonald, 42 Cal. 484; Freeman on Judgments, § 151.

As to lunatics, however, the rule is that judgments taken against

them are neither void nor voidable.

Norton v. Harding, 3 Oreg. 361; Wood v. Bayard, 63 Penn. St. 320; Foster v. Jones, 23 Ga. 168.

ARTICLE II.

OF ACTIONS UPON DECREES.

Section 1. In general. Some doubt has been expressed as to whether an action at law will lie upon the decree of a court of equity. Hugh v. Higgs, 8 Wheat. (U. S.) 697; Stover v. Hinkley, cited in Post v. Neafie, 3 Cai. 37, n. But it seems to be now well settled, that in every instance in which an action of debt can be maintained upon a judgment at law for a sum of money awarded by such judg ment, the like action can be maintained upon a decree in equity which is for an ascertained and specific amount, and nothing more. Pennington v. Gibson, 16 How. (U. S.) 65, 77; Chandler v. Warren, 30 Vt. 510; Ames v. Hoy, 12 Cal. 11; Sadler v. Robins, 1 Camp. 253; Warren v. McCarthy, 25 Ill. 95; Post v. Neafie, 3 Cai. 22; Dubois v. Dubois, 6 Cow. 496.

So an action at law can be maintained upon a decree of a court of admiralty, awarding a specified sum as salvage (Brown v. Bridge, 106 Mass. 563); but it must appear from the decree that it was the intention of the court to render a personal judgment. Seligman v. Kalkman, 17 Cal. 152.

A bill in equity may be brought to carry a former decree into execution. This happens generally in cases where parties having neglected to proceed upon the decree, their rights under it become so embarrassed by a variety of subsequent events that it is necessary to have the decree of the court to settle and ascertain them (Story's Eq. Pl., § 429; Linton v. Potts, 5 Blackf. [Ind.] 396, 399); but the principles governing such cases do not seem to be distinctly defined.

CHAPTER LXXXVIII.

LANDLORD AND TENANT.

ARTICLE I.

TENANCY, HOW CREATED.

Section 1. In general. It will be difficult to do justice to the subject of this chapter, without repeating to some extent what has been said in treating of the action of ejectment as between landlord and tenant, yet an effort will be made to avoid such repetition.

Tenancy is a holding or a mode of holding an estate. Modern usage limits the application of the term to a holding of real property by one party, in subordination to another, who has or claims a superior right. The person having or holding the temporary possession of the estate is called the tenant; the person under whom he holds, the land. lord.

The terms "real property" include not only lands, or corporeal hereditaments, but commons, ways, fisheries, franchises, estovers, annuities, rent charges, and all other incorporeal hereditaments; any or all of which may be the subject of a lease.

In order to create the relation of landlord and tenant nothing is essential except a contract, express or implied, between the parties, for the possession of such property, and the reservation to the landlord of some reversionary interest therein. The consideration is usually a stated rent, but mere favor, or something paid at the inception of a tenancy, is sufficient to sustain it. See Hunt v. Comstock, 15 Wend. 665; Osborne v. Humphrey, 7 Conn. 335.

§ 2. Tenancy by implication. The law will, in general, imply a tenancy, whenever one party occupies land by permission of another who owns or has a superior right to it. Thus an occupation pending the execution of a lease; or under a conditional agreement for a purchase if title can be made; or under a proposition to either lease or purchase on specific terms, not followed by notice of election to purchase, constitutes the occupier a tenant. Hamerton v. Stead, 5 D. & R. 206; 3 B. & C. 478; Doe d. Newby v. Jackson, 2 D. & R. 514; 1 B. & C. 448; Hartwell v. Black, 48 Ill. 301; Harris v. Frink, 49 N. Y.