GENERAL TERM ABSTRACT.

FOURTH DEPARTMENT.

ARREST.

Discharge from imprisonment: when it operates to satisfy the judgment.-The defendant was arrested and committed to the jail of the county, on an execution against his body, issued upon a judgment in the supreme court. He prepared his papers to appeal from the judgment to the general term, but, before his appeal papers were perfected, he was released and discharged from the arrest and imprisonment, by the plaintiffs, on his executing to them a stipulation, as follows: "The plaintiffs in this cause having consented to release me from imprisonment, on my giving an undertaking on appeal in the usual form, to stay proceedings as provided by the code and practice, I agree that such release shall not affect or impair my liability on the judgment in this action, or my liability to arrest after the appeal shall have been decided and the stay inoperative; and in consideration thereof, I release and discharge the plaintiffs, and each of them, and their attorneys and agents, from all actions, causes of action and damages by reason of my arrest, and such discharge, or either of them." The defendant was thereupon discharged from imprisonment, and immediately thereafter perfected his appeal papers and served the same, which were, in all respects, sufficient to stay proceedings on the judgment pending the

fore demanded that the plaintiff be restrained from selling the third parcel of land on which his judgment was a lien until after he had resorted to the two first parcels, according to the terms and conditions of his mortgage, and that the complaint as to him should be dismissed. To this answer the plaintiff put in a reply, which was stricken out, on motion at special term, on the ground that the answer was not a counterclaim. On appeal by the plaintiff to the general term, held, that the answer was not a counterclaim within the meaning of section 150 of the code, but presented a question of marshaling securities or funds only. That it was not a claim arising out of the plaintiff's mortgage, nor against the plaintiff, nor connected with the subject of the action, and was therefore deemed to be in issue without a reply, which was properly stricken out. Strong v. Umlauf. Opinion by Johnson, J.

EVIDENCE.

The action was brought by the plaintiff, as administratrix, against the defendant, for negligently causing

the death of her husband. On the trial the defendant offered to prove by the plaintiff, who was a witness in her own behalf, on cross-examination, on what terms she had employed her attorney and counsel to prosecute the action for her. This was objected to on the part of the plaintiff as irrelevant and improper. The court overruled the objection and admitted the evidence, and the plaintiff answered that she had agreed to give him one-half of what might be recovered as his

term to have the judgment canceled and satisfied of record, on the ground that his arrest and voluntary discharge from imprisonment by the plaintiffs had satisfied and extinguished the judgment. The court at special term denied the motion, and the defendant appeals. Held, that the voluntary discharge of the defendant from his imprisonment, by the plaintiffs, notwithstanding the stipulation, operated to satisfy and discharge the judgment, and that such satisfaction was not rendered inoperative by the appeal. Order of special term reversed, and order asked for granted. Bonesteel and others v. Garlinghouse. Opinion by Johnson, J.

COUNTERCLAIM.

1. Striking out reply.-The plaintiff had a mortgage upon three separate parcels of land, executed by two mortgagors, one of whom owned two of the parcels in his own right, and the other owned the third parcel in his own right. By a provision in the mortgage the latter parcel was not to be sold to satisfy the mortgage debt until after resort had been had to the two first parcels.

The plaintiff brought his action to foreclose his mortgage upon the third parcel, and one only of the two first policies, omitting, in his complaint, all reference to the other parcel, and to the provision in the mortgage aforesaid.

The defendant, who was a judgment creditor of the owner of the third parcel, was made a party defendant, as one claiming some interest in the premises, but no relief was demanded against him. He appeared and put in an answer, setting up the said provision in the mortgage, and alleging, in substance,. that he was a judgment creditor of the owner of the third parcel subsequent to the mortgage; that his debtor had no property other than the parcel of land on which his judgment was a lien wherewith to satisfy his judgment; that the first two parcels were of value more than sufficient to pay and satisfy the mortgage debt. He there

evidence was irrelevant, having no legitimate bearing upon any issue in the action, and that as it was irrelevant, and the court could see, not only that it might, but probably did, raise a prejudice in the minds of the jury against the plaintiff and her attorney, which might have operated against her case with the jury, it was good ground for granting a new trial. Cook, adm'r, v. The New York Central Railroad Co. Opinion by Johnson, J.

HIGHWAYS.

Penalties for refusing to remove encroachments.Action to recover penalties given by statute for neglecting to remove alleged encroachments by commissioners of highways. The only evidence that the highway encroached upon was a laid out highway, according to the statute, was one order dated June 28, 1830, signed by two only of the highway commissioners, by which it did not appear that the third commissioner had been notified; or that he had attended the meeting of the commissioners, nor that any of the preliminary steps required by the statute for laying out a highway had been taken; and another order, dated September 5, 1840, signed by two of the highway commissioners, by which it appeared that the third commissioner had been notified to attend, but had not attended the meeting of the commissioners. This order recited that it had been made upon an application "to establish the old Allegany road as a highway." Held, that neither of these orders afforded evidence that the road in question had ever been laid out as a public highway according to the statute. That the first order was a nullity, and the second was a proceeding unknown to the statute, and consequently no action could be maintained to recover the penalties. Christy and others, com'rs, v. Newton. Opinion by Johnson, J.

INJUNCTION.

Prescriptive right.- Appeal from order dissolving injunction. The plaintiffs were owners and proprie

tors of a basin in the city of Rochester, connected with the Erie canal, known as "Childs' Basin," which was quite valuable as an appurtenant to their mills and otherwise. The defendant was a canal commissioner having charge of the western division of the Erie canal, and was proceeding, under a resolution of the canal board, to cut off the basin from the canal, and deprive it of water, by means of a permanent wall which would perpetually sever the basin from the canal. The plaintiffs commenced their action to prevent the erection of the wall, and procured, on their verified complaint, a temporary injunction. In their complaint they alleged positively that the basin was constructed contemporaneously with the canal, and had been used by the plaintiffs and those from whom they derived title, in connection with the canal, for a period of over forty years. The complaint also alleges upon information and belief that the plaintiffs had the right to have their basin connected with the canal by grant and prescription from the State.

Upon an order to show cause, the preliminary injunction was dissolved, on the complaint and papers on which it was granted. On appeal from the order to the general term, held, that the allegation of title by grant and prescription from the State, being upon information and belief only, was not sufficient to authorize an injunction. Held, further, that the facts positively stated of use and possession, under claim of right and title, raised no legal presumption of title by prescription; because title by prescription can only be presumed of such rights as may be created by grant, and are consistent with the presumption of a grant.

That, as by the constitution and laws of the State no right could be granted of any interest in, or to, any of the canals of the State, the presumption must be, that the plaintiffs and their grantors held by virtue of a permission from a canal commissioner, under the provisions of the statute (1 R. S. 248, § 177), to be held during the pleasure of that officer, that being the only right which could be given. Burbank and others v. Fay and others. Opinion by Johnson, J.

JUDGMENT.

When judgment may be made a lien on the real property of a third person.—When a judgment debtor, who is insolvent, gratuitously contributes his money or property, which he has earned and owns, to the erection of buildings, or other improvements on the real property of another, with the knowledge and consent of such other, leaving nothing in his own hands out of which creditors can satisfy their just demands, a court of equity has power, in an action for that purpose, to compel the party thus receiving the benefit of the insolvent's money or property, to respond to the creditors of the insolvent for the amount so received, and to fasten the judgment of a creditor upon such real estate, to the extent to which the insolvent's funds have been invested in it, by way of lien, and subject it to the sale on the judgment, if necessary, to obtain the amount so invested in satisfaction of the judgment. Otherwise, where the insolvent has gratuitously bestowed his labor and skill merely, on which the creditor has no lien or claim. The rule is the same, whether the third person is the wife of the insolvent or a stranger. Johnson v. Schafer. Opinion by Johnson, J.

his debts, which contained this clause in addition to the usual promise in a note: "And I, Amy Ames, do hereby charge, and create a lien and claim, on my separate real and personal property, to secure the payment of the above-mentioned note." The husband had no property, and the action was brought in equitable form to charge the wife's property, which consisted of four or five cows and their offspring. It did not appear, except from the terms of the note, upon the trial, that the defendant had any separate estate when she gave the note, and there was no finding on that question by the referee. The referee held that a charge had been created, which was adjudged and decreed, and a receiver appointed to sell the property, or enough thereof, to pay and satisfy the debt. On appeal by the defendant from the judgment to the general term, it was claimed by her counsel, that as there was no evidence or finding that the defendant had any separate estate when she signed the note, to which a charge could attach, no charge had been created. That the charge, if any had been created, was upon property the defendant then had, and not upon property she might acquire thereafter. But, held, that the note itself was prima facie evidence that the defendant then had separate property which was capable of being charged. And if it were not, the charge would attach, and might be fastened upon any separate property she might have at the date of the trial. That as the charge was not limited to any particular portions or items of property, she had devoted all that she then had, and all she might subsequently acquire, to the satisfaction of that debt, so long as it should remain unpaid. Judgment affirmed. Todd v. Ames. Opinion by Johnson, J.

PAYMENT.

1. Money paid by mistake. The plaintiff entered into a contract with the defendant for the purchase of two certain lots, within fixed and visible boundaries, and was to pay therefor the price and sum of $40 per acre, the quantity of land to be ascertained by survey and measurement. The parties agreed upon a surveyor to measure and ascertain the quantity of land. The surveyor thus selected made a mistake, either in measuring the land or in computing the quantity afterward, and gave to the parties as the result, nine acres and thirty one hundredths of an acre more than was actually contained within the boundaries of the two lots.

The plaintiff and defendant both supposed and believed that the measurement and computation were correct, and the plaintiff paid for the entire quantity as thus ascertained at the price of $40 per acre. He went into possession and occupied the land for some time, and then sold it. The mistake as to the quantity was discovered after this sale by the plaintiff.

The action was to recover back the money thus paid, for the excess over and above the true quantity of land, as for money had and received by the defendant to and for the plaintiff's use. The action was tried before a referee, where the plaintiff recovered. On appeal by the defendant from the judgment to the general term, held, that the money was paid by the plaintiff under a mistake of facts, and not being due to the defendant upon the contract, he could not in equity and good conscience retain it. And that the law in such a case presumed a promise by the defendant to repay it, and created between the parties the relation of debtor and creditor. Judgment affirmed. George v. Tallman. Opinion by Johnson, J.

2. Payment of debt to a third person, when no defense. -The plaintiff sued as bearer of two promissory notes, made by defendant, and payable to Jemima Gould or bearer. The defense was payment to the administrator of the estate of Mrs. Gould, who was deceased.

Mrs. Gould for some time previous to her death had lived with the plaintiff, under an agreement that the plaintiff should support her during life, and at her death have all her separate estate, which consisted in great part of the notes in question. A few days before her death Mrs. Gould caused witnesses to be called, and in their presence delivered the notes in question to the plaintiff, as her property, and in fulfillment, on her part, of so much of her agreement. The plaintiff received the notes, and had kept them in her possession from that time. The defendant refused to pay the notes to the plaintiff, but paid the amount due thereon to the administrator of Mrs. Gould's estate, who was the defendant's attorney, and took a bond to indemnify him therefor. It appeared that previous to the commencement of the action claims against the estate had been presented to the administrator, to nearly one-half the amount of the notes, but whether they were genuine and valid claims did not appear. The defendant was not a creditor of the estate.

The referee decided that the payment to the administrator was no payment of the notes, and ordered judgment for the plaintiff for the amount of the notes. On appeal to the general term by the defendant, held, that the defendant had paid the administrator in his own money, and had not thereby paid the notes in the hands of the plaintiff. That, as he was not a creditor of the estate, he was in no situation to defend for the benefit of creditors of the estate, if any there were, and could not be heard to litigate in their behalf, in an action against him by a holder of the notes, who had an unquestionable title as against Mrs. Gould in her life-time, and her personal representatives after her decease. Judgment affirmed. House v. Grant. Opinions by Talcott and Johnson, JJ.

PRACTICE.

Application to be relieved from payment of alimony under decree for divorce by default. - The plaintiff, in an action against the defendant, obtained a decree, dissolving the marriage contract between them, by default. The decree gave her as alimony $300 per annum, to be paid by the defendant in advance each year, and required the defendant to give security for its payment. No right was reserved to either party in the decree to make future applications to the court on the subject of the allowance. The defendant made default in the payment of the first year's alimony, and an attachment was issued against him for contempt on that ground. The attachment was served, and the defendant obtained an order staying proceedings to enable him to make an application to the court to be relieved from the payment of alimony. The motion was made, founded upon affidavits, showing the defendant's inability to make the payments, or to give the security, and asking the court to modify the decree in regard to alimony and to relieve him from the attachment and further liability to pay.

The affidavits on the part of the defendant were controverted by counter affidavits on the part of the plaintiff, and the matter was referred to take proofs and report to the court.

On the hearing before the referee it appeared that the defendant had, some years before the commence

ment of the action, left this State, and abandoned the plaintiff and gone to the State of Ohio, where he had procured a divorce from the plaintiff and married another woman in that State, with whom he had returned to this State and was living, which was the adultery complained of in the action. He had two children by this second marriage, with their mother, to support, and had no property of his own. While the reference was pending, and before the proofs were finally taken, the defendant's father, who was a farmer in independent circumstances, died, leaving a will, by which he gave the defendant nothing, but gave to the defendant's wife by the second marriage a considerable portion of his estate in her own exclusive right. The defendant, by reason of permanent ill health and permanent lameness, was unable to labor, or to earn thereby enough for his own support, and had no property of any value in his own right. The court at special term, on the foregoing facts, denied the motion and continued the attachment. On appeal to the general term, it was insisted by the defendant's counsel: 1. That the order was not appealable; and, 2. That if appealable the court had no power to grant the relief asked for, in this form, from a final decree. Held, 1. That the order was appealable, as involving a substantial right. 2. That the decree should properly have contained a provision giving either party the right to make future applications to the court in respect to the alimony allowed. That this right was given by statute, and was also necessarily inherent in the very nature of such a decree for future payments; and that a party could not, by entering up his decree in an improper form, deprive the other party of a right which he would otherwise have. That had the decree been in proper form, the relief asked for could only have been obtained in this form by motion or petition. That, as the decree was by default and the defendant could not appeal from it, he would be deprived of all remedy unless he could have it in this form. 3. That upon the proofs, the plaintiff was entitled to the relief asked for in his motion. The order of the special term was thereupon reversed, and an order granted relieving the defendant from the attachment, and modifying the decree by striking out the allowance and inserting a provision, giving to the plaintiff the right to apply at any time in future for such allowance as the court should decree proper to make, upon any change in the pecuniary circumstances, or the physical condition of the defendant, on his paying the costs of the motion, the reference and the attachment. Lamport v. Lamport. Opinion by Johnson, J.

USURY.

H. borrowed money of R. for the purpose of paying a debt which he then owed to the Bank of Attica, and secured the payment of the loan by bond and mortgage. R. knew, at the time he loaned the money, that H. intended to use it to pay his indebtedness to the bank, and that it was so used. R. was a stockholder in the bank and president thereof. The debt to the bank was claimed to have been usurious. The action was to foreclose the mortgage. On the trial the referee refused to find whether the debt of H. to the bank was usurious, on the ground that it was wholly immaterial. On appeal to the general term, held, that even if the indebtedness of H. to the bank was infected with usury, it could not affect the validity of the bond and mortgage. That a debtor had the legal right to pay an usurious debt, and borrowing money of a third person for the purpose of paying it could not make the new loan

Guaranty of payment.-The owner and holder of a promissory note transferred it to the plaintiff, and, at the same time, indorsed thereon the following: "I guarantee the payment of the within note to C. Edgerton or order.-Isaac Clay." In an action on the guaranty, held, first, that no consideration for the guaranty need be alleged; second, that, as the guaranty was absolute, no averment of demand and notice was necessary. Clay v. Edgerton (Ohio), 422.

action against the co-sureties for contribution, the latter alleged, in defense, that they had never been served with process, nor appeared in the action on the bond; that the plaintiff had appeared for them without authority, and suffered judgment to be entered, to defraud them; that he had, without their knowledge, entered into a special contract with the relators in that action to pay the judgment out of funds then in his hands, belonging to the principal on the bond, and, in consideration of such agreement, received an extension of one year's time on said judgment; that but for such extension of time the judgment could have been made out of the property of the principal. Held, that these facts did not constitute a defense to the action. Bagott v. Mullen (Ind.), 351.

1. Contribution between: jurisdiction. The parties were sureties on an official bond, upon which judgment had been recovered and paid by the plaintiff. In an

* From vol. 2, American reports.

2. The defendants further alleged that they signed the bond, out of which the liability arose, at the request of the plaintiff. Held, that they were, nevertheless, liable to contribution. Ib.

3. Notice of principal's default.-A., B. and C. executed to the plaintiff, a bank, a joint and several bond, in the penalty of $15,000, with a condition reciting that A. had become a member of a certain firm, rendering it probably necessary for him to use more funds in the business than he had at command, and which he proposed to borrow, and then proceeding thus: "Now the foregoing bond is to be in force, and binding upon us, according to its terms, for the full amount of any loans and advances the said bank may make to said A., in connection with his said business, not to exceed in amount $15,000, for which sum, by the foregoing bond, we acknowledge ourselves his sureties, and, in case of his failure to pay any such loans or advances as aforesaid, that the same shall and may be collected off us. Unless such loans and advances are made to said A. in his business aforesaid, upon the faith of this bond, the same is null and void," etc. The plaintiff alleged that, on the faith of this bond, and for the purposes therein specified, it loaned A. a sum of money on the checks of two other parties, indorsed by A., and that these checks were protested for non-payment. Held, that the bond was not an overture to guaranty by the sureties, but an actual undertaking. McMillan v. The Bull's Head Bank (Ind.), 323.

4. Held, also, that B. and C. were sureties, and not guarantors, and, therefore, not entitled to notice of loans made on the credit of the bond, and of the default of the principal debtor. Ib.

5. The surety is bound with his principal as original guarantor, and his obligation to pay is equally absolute, irrespective of any notice of the principal's default, while a guarantor is an individual contractor, to answer only for the consequence of the default of the principal, and is therefore entitled to notice of such defaults. Ib.

TEN-HOUR LAW.

Day's work under ten-hour law. - Under a statute providing that, in all contracts for or relating to labor, ten hours of actual labor shall be taken to be a day's work, unless otherwise agreed by the parties, the plaintiff worked for the defendant from November to April, each day from sunrise to sunset, under an agreement for $2.50 a day, without any agreement as to how many hours should constitute a day's work. The plaintiff brought suit to recover $2.50 for each actual day's work; the defendant claimed that he was entitled to $2.50 for each ten hours' work only. Held, that it was for the jury to determine whether or not the work done by the plaintiff in a day was, by the understanding and