with summons by publication to defend after judgment, etc.,
by its express terms does not affect the title to land acquired
by a bona fide purchaser of land at a sale therein decreed.
Lawrence v. Hardy, 123.
3. Other States-Estoppel.-By virtue of the Constitution of the
United States and Acts of Congress in pursuance thereof,
the judgments of the courts of other States are put upon the
same footing as domestic judgments. Therefore, a judgment
of such other courts, standing unreversed, in the absence of
fraud or lack of jurisdiction, bars a recovery of the same
cause of action subsequently brought in the courts of this
State. Marsh v. Railroad, 160.
4. Other States- Pleadings- Demurrer— Merits— Estoppel.— A
general demurrer to the merits of the cause of action alleged
in the complaint is an admission of all matters of fact well
pleaded, and a judgment of a court of competent jurisdiction
of another State sustaining such a demurrer, in the absence
of fraud, will bar recovery for the same cause of action
brought in the courts of this State. Ibid.
5. Same-Additional. Allegations.-When a former judgment of a
court, standing unimpeached, sustaining a demurrer to a
complaint, is pleaded in bar of recovery, and it appears that
every phase and essential feature of the controversy has
been set out, that the cause and the parties are the same, a
position that certain material facts stated in the pending
action were not set out in the former one, cannot be sus-
tained. Ibid.
6. Other States-Jurisdiction-Parties-Subject Matter.-In an
action on a judgment recovered in a sister State, it is open
to defendant to allege and show a want of jurisdiction in
the court rendering the judgment, either of the subject matter
or the parties litigant, and this is allowable, though the
judgment sued on may recite jurisdictional facts. Mottu v.
Davis, 237.
7. Another State- Non-Residence-Summons-Service-Proof.—
A lack of jurisdiction of the person is not established by
showing, without more, that process was personally served on
a non-resident defendant while he was temporarily and of
his own volition within the jurisdiction of the court render-
ing the judgment. Ibid.
8. Other States-Fraud-Proof. In an action in the courts of
this State on a judgment rendered in a sister State it is open
to defendant to allege and prove fraud in the procurement
of the judgment, and the term fraud in this connection in-
cludes all such circumstances of fraud or imposition in pro-
curing the judgment as would induce and authorize the courts
of the original forum to interfere to prevent the enforcement
of an unconscionable recovery. Ibid.
9. Same Pleadings.-This defense of fraud involves an issue of
fact, and in order to be available it is not sufficient to aver
in general terms that a judgment was procured by fraud,
but the alleged facts must be set forth with sufficient fullness
and accuracy to indicate the fraud charged and to apprise
the offending party of what he will be called on to answer.
Ibid.
10. Contracts, Impairment of—Legislation Constitutional Law.—
While judgments are sometimes spoken of as contracts of
record, they are not in realty contracts, and are never so
considered in reference to the clause in the Federal Consti-
tution which forbids that contracts should be impaired by
State legislation. Ibid.
11. Gaming Contracts - Legislation - Other States
Conflict of
Laws-Res Judicata-Constitutional Law-"Full Faith and
Credit."-Where, in an action pending in the courts of this
State to recover on a judgment in a sister State, the Legis-
lature amended our statute on gaming by adding thereto :
"Nor shall the courts of this State have any jurisdiction to
entertain any suit or action brought upon a judgment based
upon any such contract," there can be no valid objection to
such legislation on the ground that same impairs the obliga-
tion of contracts, and it would seem that no such objection
can be made under Art. IV, secs. 1 and 2 of the Federal Con-
stitution, "the full faith and credit clause," etc., if it is ad-
mitted or clearly appears that the judgment sued on was
rendered on a transaction expressly forbidden by our statutes
on gaming, and that the question was not raised, investigated
or determined in the courts of the State in which the judg-
ment was originally rendered. Ibid.
On the facts indicated, if it appeared that the court of
the sister State rendering the judgment had jurisdiction of
the cause and the parties, and that the question whether the
transaction sued on was a gaming transaction had been ex-
pressly raised and determined adversely in that court, in such
case under Art. IV, sec. 1, the judgment of the sister State
would conclude the parties, the terms and very purpose of the
article being to prevent all question in the courts of one State
of the Union as to the validity of a cause of action which had
been presented and decided in the courts of another. Ibid.
13. Same-Issues Fraud-Jurisdiction. In the present case, be-
ing an action to recover on a judgment rendered in favor of
plaintiff and against defendant in the State of Virginia, it
appearing that personal service of process on defendant was
had in the State of Virginia, and that said defendant appeared
and by proper pleas raised the question whether the claim
declared on arose on a gaming transaction and on inquiry duly
had the question resolved against defendant, the parties are
thereby concluded as to such question; and it appearing, fur-
ther, that the plea of fraud is not sufficiently averred, the only
remaining issue arising on the pleadings is on the jurisdic-
tion of the court, and the cause is sent back for the proper
decision of such issue. Ibid.
14. Justice's Court-Appeal-Docketing-Laches-Void Appeal.—
An appeal from a judgment of a justice of the peace must be
docketed at the next ensuing term of the Superior Court com-
mencing ten days after the notice of appeal, and an attempted
docketing at a latter term is a nullity. Revisal, 307-8. Mac-
Kenzie v. Development Co., 276.
15. Verdict Non Obstante-Pleadings.—While the common law rule
has been relaxed so that a judgment non obstante veredicto
may sometimes be granted the defendant, it is only when the
pleadings entitle him to it irrespective of the verdict. Shires
v. Cotton Mills, 290.
16. Verdict Non Obstante — Discretionary Power - Appeal and
Error.-When the trial judge has erroneously held that the
defendant is entitled to judgment non obstante veredicto, he
has exercised no discretionary power, and judgment upon the
verdict in plaintiff's favor will be rendered in the Supreme
Court. Ibid.
17. Issues, Material — Issues Set Aside - -Discretion- Appeal and
Error. The setting aside of material issues found by the jury
in favor of a plaintiff, which, in connection with the other
issues, would entitle him to recover, and giving judgment on
the verdict as it then stood for defendant, does not involve
matters resting within the sound discretion of the trial judge.
but those of "law or legal inference," from which an appeal
lies; and error in setting aside the issues being found by the
Supreme Court a judgment for plaintiff will be ordered.
Drewry v. Daris, 295.
18. Appeal and Error-Sureties-Contribution-Procedure-Final.
-Ordinarily, a court is not permitted to determine the rights
to contribution between the sureties on a bond until there has
been payment made in excess of the rightful proportion; but
as the matter presented in this appeal was the lower court
directing execution on a judgment theretofore obtained
against the principal and sureties on his bond, the order of
the lower court sufficiently partakes of the nature of a final
judgment for the Supreme Court to express its opinion. Com-
missioners v. Dorsett, 307.
19. Irregular-Irregular Process-Justice of the Peace-Procedure,
-To set aside a judgment of a justice of the peace by de-
fault for irregularity upon the ground of irregular service of
summons, the complaining party must proceed in due time to
move before the justice to that end. Billings v. Joines, 363.
20. Executions-Lands-Purchase Price-Homestead Exemption.—
A judgment debtor cannot claim his homestead exemption in
lands upon which execution has been issued under a valid
judgment on his note given for their purchase price and so
certified in the transcript docketed in the Superior Court.
Ibid.
Fraud Allegations Necessary.― To invalidate a
judgment for fraud it is necessary to allege the facts consti-
tuting the fraud with sufficient certainty and fullness to
apprise the opposing party of what he is called upon to
answer; and in an action fo restrain an execution issued
thereunder, the mere allegations that the judgment is fraud-
ulent, illegal and void, and that the transcript, execution and
levy and all other proceedings are illegal, are insufficient.
Ibid.
22. Issues, Inconsistent-Verdict.-The exception by appellant to a
judgment rendered on the verdict in favor of appellee, on the
ground of inconsistent issues, cannot be sustained when it
appears that appellee was entitled to his verdict on the
answer of the jury as to each. Stern v. Benbow, 460.
23. Evidence-Findings by Court—Irreconcilable_ Findings-Appeal
and Error-Procedure.-When the judge, in the trial court,
who by agreement of the parties was to have found the facts,
sets out certain evidence which is conflicting and irreconcil-
able, finds it all to be true and renders judgment thereon, it
is reversible error, and the judgment will be set aside. Guy
v. Casualty Co., 465.
24. Same-Insurance-Health Policy-Notice of Sickness.—When
the defense to an action to recover an indemnity for sickness
under a health insurance policy is that notice was not given
as required by the policy, and the judge, under an agreement
of the parties, in finding the facts sets out evidence tending
to show that plaintiff was incapacitated by the sickness to
notify the defendant, or cause it to be notified, and evidencé
per contra, the court on appeal will set aside his judgment in
favor of defendant on the evidence, and order a new trial.
Ibid.
25. Public Schools.-A public schoolhouse cannot be sold under
execution, except with legislative authority, and a judgment
in favor of a sub-contractor, or those furnishing materials for
its construction, would be in vain, and the courts will there-
fore not render such a judgment. Hardware Co. v. Schools,
507.
26. Lands-Levy-Quieting Title-Injunction. The plaintiff show-
ing title to lands by deed expressing a valuable consideration,
made and recorded prior to an attachment levied thereon by
a judgment debtor of his grantor, may maintain his action to
quiet title under the provisions of chap. 763, Publie Laws of
1903, amending chap. 6, sec. 1, Public Laws 1893, now Revisal
(Pell's), sec. 1589; and when defendant has answered alleg-
ing fraud of plaintiff in the procurement of his deed, an in-
junction will lie restraining the sale under the levy until the
issue of title can be determined. Crockett v. Bray, 615.
27. Suspended-Reasonable Period-Power of Court.-The power
of a court having jurisdiction of a cause to suspend judgment
temporarily on conviction of a criminal for some special pur-
pose or for some determinate and reasonable period of time
was recognized at common law and ordinarily obtains at the
present day in courts of general jurisdiction and holding
terms at stated periods. State v. Hilton, 687.
28. Same--Consent of Defendant Implied.--The power of the courts
to suspend judgment in criminal cases should only be upheld
when sanctioned by usage, and where the consent of the de-
fendant was expressly given or would be implied from the
fact that the order was made in defendant's presence with-
out his objection, and that its evident purpose was to save
defendant from a more grievous penalty permitted or required
by law. Revisal, secs. 1293, 1294. The history and reason
for the power of the court to suspend judgment, and its
present application, discussed by HOKE, J. Ibid.
29. Suspended-Terms-Compliance-Discharge-Subsequent Sen-
tence-Power of Court.-When it appears that defendant had
pleaded guilty to the offense charged in the indictment and
the judgment was suspended upon his payment of costs and
his giving bond to appear at court from term to term to show
good behavior, sentence may not be imposed after an indefi-
nite suspension of judgment, when every condition attached
to the order has been complied with, the fine and costs paid,
the defendant discharged by order of court and the cause
removed from the docket. Ibid.
30. Same-Discontinuance.--In this case it appeared that defend-
ant was charged with unlawfully selling spirituous liquor
without a license under three separate indictments and
pleaded guilty as to each; he was sentenced under one to pay
a fine and costs; in the second, judgment was suspended upon
payment of costs; in the third, prayer for judgment was con-
tinued and he was required to appear from term to term to
show good behavior. The defendant, having complied with
the orders made in each case, was eventually discharged by
the order of court, and the causes went off the docket. Held,
this, in substance, if not technically, amounted to a discontin-
uance, without power of the court to subsequently impose the
sentence appealed from; and a judgment imposing such sen-
tence, being without warrant of law, is void, and will be
arrested and the prisoner discharged. Ibid.
31. Spirituous Liquors-Motion to Arrest-General Law-Result
of Election Judicial Notice-Indictment.-A motion in arrest
of judgment after conviction by defendant of violating the
State prohibition laws, chap. 71, Public Laws 1908, extra
session, for that the bill failed to charge that the election
provided for had been held and resulted in favor of prohibi-
tion, will not be sustained. The courts take cognizance of an
election of this general character, and also of the proclama-
tion of the Governor which, under the provisions of the act,
had the effect of determining the result of the election. State
v. Swink, 726.
JUDICIAL NOTICE. See Statutes, 28.
JUDICIAL POWERS. See Corporation Commission, 9.
JUDICIAL SALES. See Sales, 7, 9, 17, 18, 19.
JURISDICTION. See Sales, 7, 9; Equity, 12: Judgments; Corpora-
tion Commission, 7, 8; Removal of Causes, 1.
1. Superior Courts-Parol Trusts-Equity.-When it is alleged
that plaintiff's deceased father had created a parol trust
under a deed in her favor in certain of his real and personal
property, and that he had subsequently executed a paper
writing declaring the trusts, which defendants had destroyed.
the action is properly cognizable in the Superior Court, to
enforce the trusts declared, whether the writing be a deed or
a will, and it can give relief in its equity jurisdiction; and
leave given the plaintiff to probate the paper as a deed, or
will, under penalty of dismissal, is erroneous. Ricks v. Wil-
son, 46.
2. Executors and Administrators-Fiduciary Capacity-Sale to
Make Assets-Suit of Creditors.-It is a fiduciary duty of the
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