was prior to the execution in this cause. It appeared that the judgment in the Cumberland Pleas, on which the before mentioned execution had issued, was confessed before a Judge at his chambers, in vacation, that is, on the 18th of August, 1803, as of the term of June preceding. The judgment, in this cause was not obtained till May term, 1804, nearly a year after. It appeared, however, that the judgment in Cumberland was intended to be entered up, under the act of the legislature, passed the 20th of February, 1794, Pat. 454, which authorizes the appearance of the defendant in open court, and on motion of the plaintiff or his attorney, confessing a judgment. This being done in vacation, it was contended by Mr. White, on the part of the plaintiff in this court, that the statute not having been strictly pursued, the judgment was void, and so to be considered by this Court. It was also contended, on the same side, that the judgment was fraudulently obtained, and, therefore, void for that cause, and affidavits read in support of the fact. Mr. Crane, for the sheriff, contended, first, that the judgment in Cumberland was a valid judgment; that the case in 2 Lord Ray. 850, proved that a judgment might be entered in vacation by a Judge at his chambers, on confession; that the Common Pleas of Cumberland had recognized it as a judgment, a motion having been made to quash the execution issued on it, on the ground of defects in the judgment, which the Court had refused. [*]Mr. Leake, on the same side, said, that when the term begins, it continues on to the next term, and that a judgment entered in vacation, relates to the preceding term; that, therefore, the judgment in the Common Pleas of Cumberland, might be considered as a judgment entered in term, in support of which he cited 6 Mod. 184, 191. KIRKPATRICK, C. J.-Said that he considered the judgment in Cumberland wholly void; and, therefore, was of opinion, that the plaintiff was entitled to his motion, that the sheriff pay over the money to him. ROSSELL, J.-Was of the same opinion; he considered the judgment in the Cumberland Pleas, a mere trick. (a) PENNINGTON, J.-Said that he had the misfortune to differ in opinion with his brethren; he took it, that this court would not, in this summary way, on a collateral question, arising on motion, try the fact of fraud, in obtaining a judgment in another Court; nor would it treat a judgment of another court, as void, that was merely voidable. (a) Vide opinion, post. 398. This, then, brought up the inquiry as to void and voidable judgments; the law as to which, he took to be, that erroneous and irregular judgments obtained in a Court, having jurisdiction of the subject matter, are voidable only, and cannot be considered ipso facto void. But in cases where the Court rendering the judgment, hath no jurisdiction of the cause, and the whole proceeding is coram non judice, there is really no judgment; the proceeding, in such cases, is not only voidable, but wholly void. This principle he took to be illustrated by the following authorities; 10 Coke 76, Carth. 274, 2 Salk. 674. In the case under consideration, the Common Pleas of Cumberland had jurisdiction of the subject matter; an actual judgment was rendered and recorded in the book of judgments, and signed by a Judge. The book of judgments under our practice, he said. was in lieu of the judgment roll. The Court of Common Pleas recognized it as a judgment. This being a subsisting judgment, the sheriff [*] was bound to execute the writ of execution issued thereon; and this Court ought not, in his opinion, to jeopardize his interest by compelling him to pay the money twice over; for which reason he was of opinion that the rule be refused. Rule allowed. [*154] 15 CASES ADJUDGED IN THE SUPREME COURT OF JUDICATURE OF THE STATE OF NEW-JERSEY. FEBRUARY TERM, 1807. SHINN vs. EARNEST. ON CERTIORARI. Return of summons "lawfully served," by constable, error.(a) THE Constable returned the summons in this cause, lawfully served, without shewing the manner of service; there was no appearance of the defendant to cure this defect; no witnesses were examined—and the justice in his record, says: That after waiting a considerable time, he gave judgment in favor of the plaintiff; this must have been without evidence. These two causes having been assigned for error, and fully appearing on the record, the Court Reversed the judgment. [*] SCOTT vs. ELDRIDGE. ON CERTIORARI. Demand on agreement, must state it to be mutual. THE state of demand before the justice, was as follows: March 13, 1806, John Scott, Dr. for which sum, she agreed to assign cedar swamp, bought by said Scott. to Abigail Eldridge, twenty dollars, away her right in a certain piece of This state of demand was objected to, as insufficient to support an action; for that the agreement of Abigail Eldridge, the plaintiff below, to sell her right, could not bind (a) Vide ante. *58, *63, *84, *95. 1 Halst. 130. [*156] 1 South, 108. Scott the defendant, unless he agreed to purchase the right of her. The state of demand ought, therefore, to have set out an agreement on the part of Scott to purchase the right to pay the twenty dollars for it, for which defect in the state of demand, the Court reversed the judgment. Woodruff Att'y Gen. for plaintiff. PARKER'S Administrators vs. FRAMBES, ON CERTIORARI, In action for vexatious suit, circumstances of vexation must be charged. Execution without judgment. (a) FRAMBES was plaintiff before the justice, and brought his action against the administrators to recover cash alledged to be paid by him, and other expenses in consequence of the intestate's having commenced a vexatious suit against him in the Common Pleas. The state of demand was $51 33; no circumstances of [*] vexation in the commencement of the suit in the Common Pleas, were set out. The items of the account were for cash laid out, time and expenses for himself and horse, &c. about the suit. There was a jury trial, and verdict for plaintiff for $47, no judgment entered thereon, but execution issued. The Court being of opinion, in the first place, that the state of demand was wholly insufficient to ground an action on; and second, that no judgment having been rendered, it was error to issue execution; that, therefore, the whole proceeding before the justice must be set aside, and rendered null and void. It was not, therefore, necessary to decide the question, whether the action would lie against administrators, it being founded on a tort of the intestate, which question was also raised in the case. Pearson for plaintiff. LOFTON and NAILER vs. CHAMPION. CERTIORARI. Demand insufficient. No judgment.(b) THE state of demand delivered the justice, was as follows; May 2d, 1805, I, as overseer of the road, do find damage done on the road from John Bodine to Nicholas Sooyes, by Eli Lofton and Joseph Nailer, by which I bring this action, against them, my demand is sixty dollars. $60. Elias Champion, overseer of the road. Vide post. *318, *319, *529, *848, *944, *977.-ED. The cause was tried by a jury, who found a verdict for the plaintiff before the justice, for $41 55. On this verdict the justice rendered no judgment, but issued [*] execution. It appeared by the proceedings sent up by the justice, that the real controversy between the parties was about the performance of a contract, respecting the grubbing and clearing a piece of road described in the state of demand; it was contended on the part of the plaintiff in certiorari, that the state of demand was insensible and insufficient; and that as no judgment had been rendered, execution could not legally be issued; and the Court being of that opinion, ordered the proceedings before the justice, to be made null and void. Read, for plaintiff. Administrators of HARRIS, dec'd vs. S. J. & C. CLARK. ON CERTIORARI. Assignment of sealed bill, implies no warranty.(a) THIS was an action brought against the plaintiffs in certiorari, who were the defendants before the justice, to recover the amount of a sealed bill given by one Robert Montgomery, to the intestate, dated the 4th October, 1791, and alledged to have been indorsed by the plaintiffs' intestate, James Harris, in his life time, to the defendants below, who set out in their state of demand, that they had prosecuted Montgomery, and could not recover the money; and thereupon came back on Harris in his life-time, who refused to pay, and now on his administrators, he being dead. The bill was for $22 77, to which they added fourteen years intérest, making in all, $45 55, for which sum, lacking five cents, the jury found a verdict in their favor. The Court were clearly of opinion, that the defendants in error [*] were not entitled to recover against the administrators of Harris, and White, for plaintiff. Reversed the Judgment.* BAIRD vs. HOLEMAN. ON CERTIORARI. THIS action was brought by the defendant in certiorari, against the plaintiff in certiorari. The state of demand delivered the justice, is as follows: (a) Vide post. *212.-ED. *See Garretsie vs. Van Ness, Ante. *20. |