Freeman vs. Stewart. use they are holden. Defendants then had an equitable interest in the lot and building subject to sale, and also the subject of a bill in equity for the perfection of the title before a sale by the marshal. It could not have been then claimed under the exemption law, for the defendant was not in the actual occupancy of it as a homestead. He was not then a householder in the occupancy of the premises within the meaning of the exemp tion law. By the law the lien of this judgment attached to the defendants' interest in this lot, and it was also subject to levy and sale upon the execution, as I before stated, and it might have been levied under that execution, before the defendant had moved upon it. The question arises now, in regard to the remedy of the plaintiff and also the rights of the defendants under the exemption law. The defendant moved into the house in September, 1855, after the return of the execution nulla bona. The original bill was filed November 23, 1854. Suppona was served November 29th. December 5th, injunction was allowed, and served on the 19th. A receiver was appointed January 6, 1855. The supplemental bill was filed May 7, 1855. On my In his answer the defendant says, "In my absence in the pinery, he (Francis) had deeded the lot to my wife. return, shortly after, I got a deed of it. I first saw it in the spring. I returned from the pinery in April last, the middle or latter part. My wife has since executed a deed to King and he to me, the last of April or first of May." The use and object of the judgment creditor's bill is to discover assets and to render the equitable property or interests and the choses in action of the defendant subject to his debts. In other words, it is to compel a defendant to do that which he in honesty to his creditors should do fully and freely to the officer serving the execution. If the defendant had turned out his interest in this house and lot to the marshal, subject to his right of exemption, the question as to the right would have been raised upon a motion to set aside the levy; and it would have been raised just as effectually and as favorably to the in Freeman vs. Stewart. terests of the parties as it is now by the defendant's refusal to assign it. The question. then arises out of the occupancy by the defendant and his family, before the filing of this bill. I have remarked that the judgment was a lien on the defendant's interest, which was subject to levy under the execution by the marshal. The defendant cannot conceal from the officer property which he was not occupying and then, in answer to the bill, say that "since the officer served me with the execution I have moved on the property, and I now claim it for my homestead exemption." To allow this, would be sanctioning a fraud upon the plaintiff. The homestead, by the law, must be claimed when the levy is made. When the levy might have been made, the defendant had not placed himself in a position to claim the exemption. The claim of exemption must have relation to the time when the execution was in the marshal's hands. No return of the property is made by the defendant to the marshal, or even in his answer to the original bill, and when a bill is filed expressly to have this lot and house appropriated by a decree of this court to the plaintiff's debt, it is too late for the defendant to interpose a claim of exemption. Whether a defendant can dispose of his estate and property, reducing it to the exemption limit, and then successfully claim an exemption, I shall not now determine. The case of Brackett vs. Watkins, 21 Wendell, 68, is opposed to such a proceeding. The court will instruct the master that this house and lot is to be assigned to the receiver. See further as upholding the text, Upman vs. Second Ward Bank, 15 Wisconsin, 449. If the judgment debtor sells the land, held as a homestead, or ceases to use it, the lien attaches and it may be sold to satisfy the judgment. Hoyt vs. Howe, 3 do., 752. Chattels levied upon are exempt if claimed early enough not to delay sale or necessitate new advertisements. Yost vs. Hefner, 69 Pennsylvania State, 68. Consult Pratt vs. Burr, post p. 33. -[Reporter. Bonnell vs. Weaver. ALEXANDER BONNELL ET AL. vs. F. M. WEAVER. CIRCUIT COURT.-DISTRICT OF WISCONSIN.-APRIL, 1856. 1. Judgment in vacation cannot be entered unless in pursuance of a positive statute, whose provisions must be fully complied with. 2. COGNOVIT.-In Wisconsin, the authority to confess the judgment must be in the statutory form, and be produced before the officer entering the judgment. 3. Equivalent provisions cannot be substituted by the court, for the positive statutory provisions. 4. VACATING JUDGMENT-COURT MAY ENTER NEW JUDGMENT.—It is competent for the defendant to move to vacate the judgment, and also for the court thereupon, the proper papers being before it, to render a new judgment and issue execution. MILLER, J.-These three suits were commenced by attachment, with affidavits annexed, and before the marshal had taken an inventory, the defendant gave to the plaintiff's in such case a cognovit, whereby he confessed the debt and consented that a judgment might be entered immediately and an execution be issued upon the judgment. There was no express authority from the defendant to the clerk to enter the judgments in vacation, but they were entered in vacation, and executions were issued and served by seizing the defendant's goods in store. The defendant has moved the court that the entry of judgments in these cases be vacated and the executions set aside for the reason that the judgments are irregular and void. The reason is not specified, but we understand that these judgments were entered on the docket in vacation without lawful authority. Revised Statutes, 534, 535 and 536, are copied from the statutes of the state of New York, called the Revised Statutes of that state, in 1829. Section 13, provides that "Judgments may be entered in vacation as in term upon a plea of confession Bonnell vs. Weaver. signed by an attorney of such court, although there be no suit then pending between the parties, *** if the following provisions be complied with, and not otherwise." Then the provisions are specified, which are not pursued in these cases. The reading of this section is this: "Although there be no suit then pending between the parties, judgments may be entered in the supreme or in any court of record in vacation as in term upon a plea of confession signed by the attorney, if the following provisions be complied with, and not otherwise." The federal courts, in pursuance of acts of Congress, recognize the laws of the states in regard to the entering and recording of judgments and these liens. They are rules of property which the federal courts must observe. It would work great confusion to have one set of laws regulating property as to its title in this court and another in the state court. then pursue in this particular the statutes of the state. We A judgment is the sentence of the law pronounced by the court; but the court can only be held in term time as may be prescribed by law, and for the purpose of entering judgments has no existence in vacation; consequently, a judgment cannot be entered in vacation unless in pursuance of a positive statute, whose provisions must be complied with. Under the old system in New York, judgments were entered in vacation upon cognovit, but whether before or after the first term does not appear.1 I have not been able to find a case since the Revised Statutes of 1829, but in 1840 (Laws of 1840, page 334, §23) it is provided that "judgments may be entered and perfected at any time in term or vacation." We have no such provision in this state. In England, judgments may be perfected after the term, even in vacation, and may be entered even without declaration. The following points are ruled here: 1. No statute is necessary to enable the court to enter a 'Arden vs. Rice, 1 Caine's Reports, 498; Hogeboom vs. Genet, 6 Johnson, 325. Bonnell vs Weaver. judgment, although the court will follow the forms of practice prescribed by statute as the rules of this court in the absence of a statute. 2. As the court is only in legal existence to exercise judicial power at such times as may be prescribed by law, a posi tive statute is necessary to authorize an entry of a judgment in vacation. And then it is only a nominal judgment or stat ute lien. 3. To make a judgment entered in vacation valid against the defendant, all the forms prescribed by law must be substantially complied with. 4. The cognovits in these cases are not a compliance with the provisions of the statute. They are not signed by an attorney of this court. The authority for confessing such judgments was not in any proper instrument, nor was the authority produced to the officer signing the judgment. 5. A court of law cannot substitute equivalents for positive statutory provisions, when the statute directs that these provisions shall be observed, and not otherwise. 6. These cognovits are confessions of the debt and an authority to the court to enter judgment immediately; that is, whenever they are brought into court. They are no more than if the defendant came into court in his own proper person and acknowledged judgment ore tenus. 7. It is competent to the defendant to move that these judgments be vacated. 8. The court can now proceed after the vacation of the judgments, to render judgments upon those cognovits and to issue executions. 9. The court cannot now determine whether these plaintiffs have any rights by reason of the verbal arrangements stated in the affidavit of Mr. Van Dyke, to the exclusion of the other execution creditors. But if such right be claimed, it will have to be ascertained after the proceeds of sale are brought into court |