defendant has a good and substantial defense, but the facts should be stated that the court may determine therefrom the question of merits: King v. Stewart, 48-334; Jaeger v. Evans, 46-188. The filing of an affidavit of merits, after the motion to set aside the default has been overruled for want of such affidavit, is not sufficient to cure the defect: Thompson v. Savage, 43– 398. The provision requiring an affidavit of merits before a default shall be set aside, applies only to cases where the party is really in default, but where default has been entered by mistake or improperly, it should be set aside without such affidavits: Messenger v. Marsh, 6-491; Rice v. Griffith, 9-539; Boals v. Shules, 29-507; U. S. Rolling Stock Co. v. Potter, 48-56. Default should not be set aside where it is the result of the party's own negligence. The excuse in a particular case held not sufficient: Harrison v. Kramer, 3–543. taken: Thatcher v. Haun, 12–303. An answer should accompany the The defendant is not entitled to file his answer until the default is set aside: King v. Stewart, 48-334. Held, a sufficient excuse for setting aside a default, that the attorney of the party in default was so ill that forgetfulness of his employment in the case could not be imputed to him as negligence: Montgomery Co. v. Am. Em. Co., 47-91. The excuse shown for having made default, held sufficient in a particular case: McNulty v. Everett, 17-581. It would seem that the limitation of time within which a motion to set aside a default may be made, applies to judgments by default and not to simple defaults, and that the latter may be set aside at any time before or at the term when judgment is rendered thereon, whilst it might also be true that simple defaults taken in vacation are to be set aside at the commencement of the succeeding term: Harper v. Drake, 14-533. Where the defendant is ruled to answer by a certain day in vacation, if he is unable to do so then, for a good reason, he should do so as soon thereafter as possible, and on a motion to set aside a default for a failure The subsequent filing of an amended to answer, an excuse will not be suf- petition bringing in other parties, but ficient which applies to the failure to not changing the relief asked against answer on the day fixed, but does not the defendant in default, will not opapply to the failure to answer sub-erate to set aside a default: McDonald sequently, and before default was v. Donaghue, 30–568. compute R. 23151 SEC. 2872. When the action is for a money demand, and the amount of the proper judgment is a mere matter of computation, When clerk to the clerk shall ascertain the amount, but no fee shall be charged amount. therefor. When long accounts are to be examined, the court may c. 31, 1828refer the matter. In other cases the court shall assess the damages, 30, 1832. unless a jury be demanded by the party not in default. The proper amount having been ascertained by either of the above methods, judgment shall be rendered therefor. by the clerk, was left blank, to be A judgment by default admits the| Where the amount, to be computed averments of the, cause of action as alleged in the petition, and that something is due and payable. The only matter to be found in such case is the amount of damages: Whittey v. Douge, 9-597; but where the amount due upon a subscription of stock was dependent upon how many installments had been called for by the board of directors, etc., held that such facts must be proved to the court before it could assess the amount of recovery: B. & M. R. R. Co. v. Shaw, 5-463; B. & M. R. R. Co. v. Marchand, 5-468. Where a reasonable attorney's fee is provided for, it may be proved up and should be allowed, although the petition does not state the amount claimed on that account: Nelson v. Ecerett. 29-184. An attorney's fee is a part of the costs, and defendant in default as to the principal indebtedness cannot put in issue the amount of such fee | 14-391; Carleton v. Byington, 17–579; A party in default is not entitled to have the damages against him assessed by jury: Wilkins v. Treynor, A jurv trial is waived by default: See § 2814. SEC. 2873. The party in default may appear at the time of the assessment and cross-examine the witnesses against him, but for no other purpose. A party in default can only cross- of evidence by the opposite party: examine the witnesses against him Wright v. Lacy, 52-248. He has He cannot introduce evidence on his no right to offer evidence, address own behalf: Carleton v. Byington, the jury, nor ask instructions: Cook: 17-579; nor object to the introduction | v. Walters, 4-72. SEC. 2874. When the action is of an equitable character, the court, upon hearing the pleadings and proofs, and hearing the testimony offered, shall render such judgment as is consistent with the rules of equity. Where a bill is taken as confessed, plaintiff should not have any greater all definite and positive allegations relief against those in default than are to be taken as true without proof, against those who answer: Pearson but if the allegations are indefinite, r. David, 4-410; and in such case, if or the prayer is uncertain, the certain- the cause of action is not made out ty requisite to a proper decree must against those who appear, judgment be afforded by proof: Harrison v. should not be rendered against those Kramer, 3-543; Bolander v. Atwell, in default, but the action should be 14-35. dismissed as to them, also: Curtis v. Smith, 42–665. Where some of several defendants answer, and others make default, SEC. 2875. A defendant served by publication alone, shall be allowed at any time before judgment to appear and defend the action, and upon a substantial defense being declared, t me may be given on reasonable terms to prepare for trial. Plaintiff re security. 9 G. A. ch. 150. May move for new trial after judgment. R. 3160. C. '51, 1835. SERVICE BY PUBLICATION. SEC. 2876. When judgment by default is rendered against a defendant who has not been personally served, the court, before issuing process to enforce such judgment, may, if deemed expedient, require the plaintiff to give security to abide the future order of the court as contemplated in the following section. SEC. 2877. When a judgment has been rendered against a defendant or defendants served by publication only and who do not appear, such defendants, or any one or more of them, or any person legally representing him or them, may, at any time within two years after the rendition of the judgment, appear in court and move to have the action re-tried, and, security for the costs being given, they shall be admitted to make defense; and thereupon the action shall be re-tried as to such defendants as if there had been no judgment; and upon the new trial, the court may confirm the former judgment or may modify or set it aside, and may order the plaintiff to restore any money of such defendant paid to him under it and yet remaining in his possession, and pay to the defendant the value of any such property which may have been taken in attachment in the action or under the judgment and not restored The filing of the motion here provided for, with the clerk, within a proper time is a sufficient "appearance in court even though filed in vacation, and though the time therefor has expired before a term of court commences: Conklin v. Johnson, 34266. Upon the filing of such, motion the defendant is entitled to a re-trial of the entire proceeding: Fleming's heirs v. Hutchinson, 36–519. Upon the re-trial depositions which were taken upon a notice filed with the clerk as provided in § 3753, are admissible. The fact that there was no cross-examination by defendant will not exclude them: Watson v. Russell. 18-79. Where, upon a re-trial, no sufficient defense is found to the action, the original judgment should be confirmed. It is not necessary that plaintiff again introduce evidence which he had before produced in taking the default, as for instance the note sued on: Morton v. Coffin, 29–235. The provisions of this section are applicable where the party is served by publication with notice of the application by an executor to sell real estate under $ 2389. Such party may, in the time and manner here provided, have an order of sale, made in pursuance of such application and notice, set aside: Hus on v. Huston, 29-347; but these provisions are not applicable to divorce suits; and whether they are not limited in their application to actions in rem, quære: Gilruth v. Gilruth, 20-225. A defendant personally served outside of the state cannot claim the benefit of this section: McBride v. Harn, 52-79. A defendant served by publication only, cannot appeal until he has moved for a re-trial as here provided (see § 3168): Berryhill r. Jacobs, 19-346; but an affirmance on appeal for failure to make such motion will not deprive the party of the right to still make the motion, if within proper time: S. C., 20-246. Section held not applicable in a particular case: Hulverson v. Hutchinson, 39-316. erty not Sec. 2878. The title of a purchaser in good faith to any prop- Title to property sold under attachment or judgment, shall not be affected by affected. the new trial permitted by the preceding section, except the title R. 23163. of property obtained by the plaintiff and not bought of him in good faith by others. Section applied: Union Bank of Maryland v. Ames, 37–672. C. '51, 1836. defendant. SEC. 2879. The plaintiff may, at any time after the judgment, Copy of judg cause a certified copy thereof to be served on a defendant served men served on by publication only, whereupon the period in which such defend- R. 3161. ant is allowed to appear and have a new trial shall be reduced to six months after such service. SEC. 2880. The service of the copy of the judgment shall be, Manner of. whether made within or without the state, actual and personal R. 3162. by delivery of copy, and made and returned as in case of original notice. SEC. 2881. ment: when No personal judgment shall be rendered against a Personal judg defendant served by publication only who has not made an ap- rendered. pearance. But a personal judgment shall be rendered against a k. 5164. defendant, whether he appear or not, who has been served in any mode in this code provided other than by publication, whether served within or without this state. Service by publication or by person- | al service without the state, upon one who is not a citizen or resident, con fers no jurisdiction either as to the person or property of such non-resident, other than is acquired in rem: Darrance v. Preston, 18-396. As personal service without the state only stands in place of notice by publication, no personal judgment can be rendered thereon: Bates v. C. & N. W. R. Co., 19-260; and see notes to § 2621. R. 4105, 4109. LIENS. SEC. 2882. Judgments in the supreme, district or circuit court Of judgments of this state, are liens upon the real estate owned by the defendant at the time of such rendition, and also upon all he may subsequently acquire for the period of ten years from the date of the judgment. C. 51, 2489. 2485, [As amended by 17 G. A., ch. 129, § 1, striking out the words "or in the district or circuit court of the United States, if rendered within this state, as they occur in the original section between the words "state" and "are" in the second line. The other sections of the act are inserted following $ 2885.] The lien of a judgment attaches, A mortgage being personal pronot to the naked legal title of proper-perty, a judgment against the morty, but to the interest which the gagee does not become a lien upon debtor has therein: Blaney v. Hanks, the property covered thereby: Scott 14-400; Patterson v. Linder, 14-414; v. Mewhirter, 49-487. Churchill v. Morse, 23-229. A judgment becomes a lien upon the interest in real estate owned by the debtor, equitable as well as legal: Lippincott v. Wilson, 40–425; Blain v. Stewart, 2-378; and as between the parties it is immaterial whether such interest appear of record or not: Denegre v. Haun, 13–240; Lathrop v. Brown, 23-40. Such equitable interest may be sold on execution under such judgment: Crosby v. Elkader Lodge, 16-399; but a purchaser at a sale thereof takes only such interest as the defendant actually has. The lien is not such as to affect the legal title of one holding bona fide, without notice of the equity: Harrison v. Kramer, 3-543; Hultz v. Zollars, 39-559. And a junior judgment creditor taking advantage of the proceeding provided by $$ 3150 et seq., may acquire, by reason of his greater diligence, a superior lien upon such property: Bridgman v. McKissick, 15-260. A judgment is a lien upon an equitable interest of the debtor in property conveyed by a trust deed, and the surplus in the hands of the trustee may be seize 1 thereunder, but the lien'does not attach to such surplus until steps are taken to subject it to the payment of the judgment: Cook v. Dillon, 9-407. A vendor's lien is not such an interest in real estate, without a judgment against the purchaser, that it can be enforced against such real estate. Equitable proceedings, or proceedings by garnishment, must be resorted to for that purpose, and until such proceedings are commenced the purchaser of the real estate may discharge the lien by payment to the vendor: Baldwin v. Thompson, 15-504; Woodward v. Dean, 46-499. A judgment is a lien upon a leasehold interest in real estate: First Nat'l Bank, etc., v. Bennett, 40–537. A judgment against a firm is not a lien upon real estate equitably belonging to it, but held in the name of one partner: Stadler v. Allen, 44 -198. The lien of a judgment rendered upon a partnership debt, if prior in time to one on an individual debt, is not postponed to the latter. The rule that individual creditors are to have priority as to individual property applies only in equity: Gillaspy v. Peck, 46-461. The lien of a judgment does not attach to property which is exempt from sale on execution thereunder. So held, in case of a homestead: Lamb r. Shays, 14-567; Cummings r. Long, 16-41; and also in case of the public buildings of a city ($3048): City of Davenport v. Peoria M. & F. Ins. Co., 17-276. A judgment on a debt contracted prior to the time that property assumes the homestead character, although rendered after that time, is a lien on such property, certainly as to persons chargeable with notice of the character of the debt; and if one claims under a homestead right, he is bound to ascertain when such right began; Hale v. Heaslip, 16-451; and see notes to $1992. A judgment lien does not take precedence of prior equities and unrecorded instruments: Seerers v. Delashmutt, 11-174; Wellington v. Tizzard, 15–495; Porker v. Pierce, 16– 227; Hays v. Thole, 18-51; Hoy r. Allen, 27-208. If the instrument is recorded before sale under the judgment, the purchaser at such sale is affected with notice thereof, and an assignee of a judgment stands in no better position than the original | an execution issued after the expira- As between the judgment debtor and a purchaser under execution on such judgment, the purchaser may show by the pleadings or record in the action that the judgment attached as a lien on the property purchased by him, though from the face of the judgment that fact does not appear: Markham v. Buckingham, 21–494. tion of the ten years only operates as A judgment may be enforced against The lien of a judgment expires in ten years and cannot be revived or continued after that time by any proceeding on the judgment: Denegre v. Haun. 13-240; but although the lien ceases, the judgment itself is not barred until the expiration of twenty years ($2529. ¶ 6), and during that time an execution may be issued and a sale had thereunder (§ 3025); but SEC. 2883. When the lands lie in the county wherein the judg- When attach. ment was rendered, the lien shall attach from the date of such rendition. As to lien of judgments in federal courts, see 17 G. A., ch. 129, inserted following § 2885, and note thereto. R. 2 4106. effected. SEC. 2884. If the lands lie in any other county, the lien does In another not attach until an attested copy of the judgment is filed in the county how office of the clerk of the district court of the county in which the R. 4107. land lies. As to whether the judgments of a district court of the United States are liens in another county than that where rendered, until a transcript is filed as here provided, quære: Lathrop v. Brown, 23-40. As to making judgments of justices liens in another county, see § 3567, and notes. As to sending transcript of judgment to another county, see § 3031, and notes. C. 51, 22187. R. 2 4108. SEC. 2885. Such clerk shall, on the filing of a transcript of the Duty of clerk. judgment in his office, immediately proceed to docket and index C. 61, 22188. the same in the same manner as though rendered in the court of his own county. The clerk of the court where a an execution thereon: Seaton v. Hamtranscript is filed has no power to issue | ilton, 10–394. LIENS OF JUDGMENTS IN FEDERAL COURTS. [Seventeenth General Assembly, Chapter 129.] [Sec. 1 amends § 2882, which see.] may be made a SEC. 2. Judgments in the district or circuit court of the United How judgment States, if rendered in this state, may be made liens upon the real lică estate owned by the defendant, and also upon all he may subsequently acquire, for the period of ten years from the date of the judgment, by filing an attested copy of the judgment in the office of clerk of the state district court of the county in which the land |