"During the earlier years of his practice, he sometimes spoke to me of his aspirations, one of which was to be one of our chief justices. He was offered a judgeship afterward, but never could afford to accept.

"His professional income he spent lavishly. He gave away a great deal, and neglected, in many instances, to collect or to charge for his services. He was careless in payment, too, but never to the point of injustice. Having borrowed a sum of money when a young man, he retained it for many years, always paying interest, though it is certain he could have repaid the principal many times over if it had been necessary. Finally I, as the representative of one of the heirs of the lender, had occasion to ask for the money, and it was paid at once. When paying the interest he said to me on one occasion: 'You have had some trouble about this; I will give you your law,' and he did, both advice and service, when needed. I had occasion to know much of his benefactions, as I was sometimes his almoner. Some instances of his generosity I communicated to Mr. Brown when he was preparing his book.

"His love of study lasted through life, and he accounted it as one of his chief blessings. In speaking to me of his son one day, he held up his hand and said: 'I would give that finger if it would make him love study as I do.'

"The humorous side of his character has been to so great an extent that on which the public attention has been hitherto fixed, that it needs no illustration. But his evenness of temper is worth remark

ing. He was always agreeable, genial, companionable, playful even, toward those with whom he was intimate. I could never be long in his company without hearing some enlivening pleasantry.

"I do not think Mr. Choate was fitted to be a leader in politics. He was constitutionally timid and conservative. Given a leader, like Webster, he was a useful and zealous supporter. Let him have a question to argue, and if he felt that the country was his client, he waxed eloquent and sought eagerly for victory. During Webster's life-time he initiated no policy. The latter, on his death-bed, told Choate: 'You have a great future before you if you go with the party and direct them.' Choate could go with the party; he could even go against it; but the instinct of leadership was weak in him; to control the party was work to which he was not fitted, an up-hill labor.

"It is exceedingly difficult to describe or to characterize such a man. He was unlike any other I have known. Webster seemed to be a good deal like other folks, only there was more of him. But Choate was peculiar, a strange, beautiful product of our time, not to be measured by reference to ordinary men."

THE NEED OF REFORM IN OUR FEDERAL JUDICIAL SYSTEM.

AT

T the annual dinner of the Chicago Bar Association, on the 27th ult., Judge Dillon, of the United States Circuit Court, made these remarks:

"Such an association as this does not exist for its members alone. In this country our material interests are so closely interlaced as not to be marked or defined by municipal or State lines. Whatever good fruit you secure for yourselves, you inevitably secure for all.

"On such occasion as this, Mr. President, it ought not to be forgotten that there are many causes in this country which operate with great force to produce an imperfect system of jurisprudence; and, therefore, the duty of the lawyer and judge to guard, as far as possible, against such a result, is a duty of imperative obligation. I shall mention only one or two of these causes. One of them grows out of our duplex system of State and Federal Government, and is unavoidable. Forty State courts of last resort and as many Federal courts sitting in the same States with concurrent jurisdiction, cannot, without great learning and infinite care, build up a harmonious and symmetrical system of jurisprudence. The difficulty in the way of the judges is seriously increased by the burdensome and exacting pressure of their duties. They lack, in general, neither learning nor industry; their chief want is the want of time.

"I shall not speak of myself, but in illustration of what I am saying, I may, perhaps fitly, refer to the nature and extent of my judicial labors. The other circuits are in the same situation. The lawyers who practice in Judge Drummond's court need no information concerning his great labors.

"The trans-Mississippi Federal Circuit embraces seven States, and extends in an unbroken reach of territory from the British possessions on the north to

Louisiana and Texas on the south; from the Mississippi on the east to and including the Rocky Mountains on the west. It comprises the States of Minnesota, Iowa, Nebraska, Kausas, Missouri, Arkansas and Colorado. In each of these States there are two terms a year, and in one of them four terms, making sixteen terms annually. With the exception of Arkansas and Colorado, I have for the last eight years attended twice a year the terms of court in each of these States and in Arkansas and Colorado, since its admission, invariably once each year, and sometimes twice. The distances actually traveled are immense; not less than 10,000 miles a year. The distance from St. Paul, where one can almost cast a stone across the Mississippi to Arkansas, where the stream has broadened into a mighty and majestic river, bearing the commerce of twelve States, and on whose lordly bosom hostile fleets have contended, is vast. And the distance from the great city of St. Louis to where Denver serenely sits, sentineled and begirt by the lofty and snow-clad peaks of the Rocky Mountains, is scarcely less.

"The dockets are crowded with causes, original and appellate, of great variety and importance, civil and criminal, at law and in equity, in admiralty and in bankruptcy. And this is only typical of the condition of the other circuits. With so much work and with so little time for deliberate and sedate consideration, mistakes must be numerous. But the fault lies not so much with the overworked judges, as with the faulty system which imposes such vast labors upon them. The State judges generally are almost equally over

burdened. Hence we inevitably have a constantly increasing mass of decisions, State and Federal, many of which must be erroneous, and which, while standing as precedents, bear pernicious fruits.

"Judges, State or Federal, do not forget the weighty advice of old Bulstrode, so quaintly expressed in the dedication of his second volume, in the time of the Commonwealth, over two hundred years ago, That as laws are the anchors of the republic, so the judicial reports are as the anchors of the laws, and, therefore, 'ought to be well weighed before put out.' Judges do not forget this advice, but the trouble is that they find it impracticable, for want of time, to follow it. The result is, that the Supreme Court has nine hundred cases on its calendar, and, with all the industry of its judges, is three years in arrears.

Feeling, as I have felt for years, the force of the trials, private and public, which inevitably spring out of this condition of things, I have learned with extreme satisfaction that so far as the Federal courts are concerned, an eminent citizen of this State, who for many years adorned its bench, until he was transferred to the Supreme Court of the United States, and who is now a senator in Congress, is actively lending the weight of his great character and ripe experience to a needed reform.

"And the only practical point to the remarks which I am having the honor to make in this distinguished presence is, that I trust the Bar Association of this imperial city will pronounce its judgment in favor of the proposed legislation of Senator Davis, and warmly aid him in securing its adoption."

RECOVERY OF MONEY PAID ON INCOMPLETE ILLEGAL CONTRACT.

UNITED STATES CIRCUIT COURT, NORTHERN DISTRICT OF NEW YORK, DECEMBER, 1877.

KNOWLTON V. CONGRESS AND EMPIRE SPRING COM

PANY.

When payments are made upon an illegal contract and the parties are in pari delicto, a recovery can be had as for money had and received, where the illegality is in the contract itself and that contract is not executed. In such case there is a locus pænitentiæ, the delictum is incomplete and the contract may be rescinded by either party.

A corporation in which plaintiff was a stockholder and trustee illegally instituted proceedings to increase its stock, plaintiff participating in such proceedings and subscribing for stock. By the agreement of subscription it was provided that payments on the new stock should be made to the corporation as called for by the directors, and that in case of failure to pay within sixty days, the party failing should forfeit all previous payments. Plaintiff paid the first call but failed to pay the second, and a forfeiture was declared against him, but before any scrip was issued for any of the increased stock the project to increase the stock was abandoned. Held, in an action thereafter brought to recover the money paid on the first call, that the locus pœnitentiæ was still open to plaintiff and he might recover. Knowlton v. Empire Spring Co., 57 N. Y. 518, dissented from.

rectors and stockholders, instituted proceedings for an increase of its capital, and the subscription agreement was prepared and executed in furtherance of that object. It has been assumed in the arguments of counsel that these proceedings were illegal, as in contravention of the statute under which the defendant was organized, and constructively fraudulent as to the public and all stockholders not assenting thereto, and the decision of the case in the State courts has been adjudicated upon this assumption. The plaintiff was a stockholder and trustee of the defendant, and participated actively in these proceedings.

The subscription agreement provided that the subscribers should pay the defendant for the new shares in installments as called for by the directors, and, upon failure to pay any call for sixty days, should forfeit all sums theretofore paid upon the subscription. Plaintiff paid the sum in controversy upon the first call under the subscription, but failed to respond to subsequent calls for more than sixty days. After a resolution had been passed by the directors forfeiting plaintiff's rights for delinquency, but before any scrip was issued for the new stock, and while the proceedings were inchoate, the stockholders resolved to abandon the project to increase the stock, and pursuant to this action the directors adjusted with parties who held receipts for payments under the subscription by giving them the bonds of the defendant issued for that purpose.

No bonds were tendered to the plaintiff. He demanded repayment of the money paid upon the subscription, and, being refused, brought this action.

If the subscription agreement was valid the plaintiff can have no redress, but must be held to his stipulation to forfeit the payment for his delinquency in responding to subsequent calls. The defendant had become entitled to the plaintiff's money by the terms of the subscription agreement at the time it concluded to abandon the scheme for increasing its capital, and, however hard and inequitable it may seem that defendant should retain this money, while abandoning the project for which it was received, its legal right so to do is clear. On the other hand, if the subscription was executed as part of an illegal scheme, it is void in all its conditions and the defendant can take nothing under color of the forfeiture stipulated for. The sole question in any view, therefore, is whether the plaintiff will be permitted to recover money paid in partial performance of an illegal transaction. The defendant has no right to the money unless that of possession under circumstances which deny to the plaintiff the assistance of the court in reclaiming it.

Certain propositions applicable to the present case are not debatable.

Courts of justice refuse to entertain any application to enforce a contract or transaction which is immoral or subversive of public policy, or in contravention of a statute. Where the transaction has been consum

to shares of corporate stock. The facts appear in the opinion.

WALLACE, J. This case comes here by removal from the State court after a decision adverse to the plaintiff by the Commission of Appeals, reversing the judgment of the Supreme Court in favor of plaintiff, and ordering a new trial. 57 N. Y. 518.

The plaintiff seeks to recover $13,980 paid by him to the defendant upon a subscription for shares of its capital stock. The defendant, by the action of its di

ties to it are in pari delicto, neither will be permitted to recover money or property delivered to the other in furtherance of it.

When the law which the transaction contravenes is designed for the coercion of one party or the protection of the other, or where one party is the principal offender and the other acquiesces by constraint of cir cumstances, the parties are not in pari delicto, and the lesser offender will be relieved, although the illegal transaction has been consummated.

So far there is no diversity of opinion among textwriters or in the reported cases. Another proposition of controlling importance in this case, advanced by all the commentators and sanctioned by many decisions. has been denied by the high authority of the Commission of Appeals, which is, that when the contract or transaction is but partially performed, there is a locus pænitentiæ, and either party may rescind.

In deciding the present case the Commission of Appeals (Dwight, Commissioner, dissenting) have held that money paid by one party in part performance of an illegal transaction cannot be recovered back where both parties are in pari delicto, and that no distinction exists as to the right of recovery between cases of partial and of entire performance.

Notwithstanding the great respect which I entertain for the authority of the Commission of Appeals, I am constrained to differ from the conclusion thus reached, and must hold in the language adopted by Mr. Justice Bradley (Thomas v. City of Richmond, 12 Wall. 355): "A recovery can be had as for money had and received, where the illegality consists in the contract itself and that contract is not executed; in such case there is a locus pœnitentiæ, the delictum is incomplete and the contract may be rescinded by either party." This statement of the law finds support in the early case of Walker v. Chapman, Lofft. 342, where the plaintiff had paid money to procure a place in the customs, but which he did not get, and brought suit to recover back the payment, and Lord Mansfield decided in his favor; and upon the authority of this case, in the subsequent 'case of Lowrey v. Bourdiew, Doug. 468, which was an action to recover a premium paid upon an insurance which was merely a gaming contract, but was brought after the event had happened upon which the insurance was to be paid, Buller, J., said: "There is a sound distinction between contracts executed and executory," and the plaintiff was defeated because the agreement was not executory. In Tappenden v. Randall, 2 Bos. & P. 466, au action was maintained to recover a payment upon an illegal contract, Heath, J., after adverting to the distinction between executed and executory contracts, stated by Justice Buller, saying: "I think there ought to be a locus pœnitentiæ, and that a party should not be compelled to adhere to his contract." In Hazelton v. Jackson, 8 B. & C. 221, Littledale, J., says: "If two parties enter into an illegal contract and money is paid upon it by one to the other, that may be recovered back before the execution of the contract, but not afterward," and a recovery was allowed on this ground. Other cases which proceeded upon this same rule are, Aubert v. Walsh, 4 Taunt. 277; Bush v. Place, id. 291; Bone v. Eckless, 1 Hurlst. & Norm. (Exch.) 925.

The same doctrine has been recognized in our own courts. White v. Franklin Bank, 22 Pick. 184; Nellis v. Clark, 4 Hill, 424; Morgan v. Groff, 4 Barb. 526. And in the latest English case, Taylor v. Bowers, 34 L. T. Rep. (N. S.) 938, decided in the Court of Appeal in 1876, the plaintiff was permitted to recover property transferred to defraud creditors where the scheme was not fully carried out, Mellish, L. J., saying: "If money is paid or goods delivered for an illegal purpose, and that purpose is afterward abandoned and repudiated, I think the person paying the money or delivering the goods may recover; but if he waits until the illegal transaction is carried out, or seeks to enforce it, he cannot maintain his action."

In opposition to these authorities there is not a single case, of which I am aware, sustaining the conclusion of the Commission of Appeals. The cases cited in support of that conclusion, in the opinion of Lott, Chief Commissioner, are: Perkins v. Savage, 15 Wend. 412; Bell, ex parte, 1 M. & S. 751; Howson v. Hancock, 8 Term, 575; Bush v. Place, 6 Cow. 431, and Saratoga County Bank v. King, 44 N. Y. 92. In none of these cases did the question arise whether the plaintiff could succeed in an action in disaffirmance of an unexecuted illegal contract.

In conclusion, I concur in the dissenting opinion of Dwight, Comm'r, "That the rule is well stated in 2 Comyn on Cont. 109; if the contract continues executory and the party paying the money be desirous of rescinding it, he may do so and recover back his deposit." A different rule would hold out an inducement to parties to an illegal transaction to persevere in their efforts to violate the law.

That the transaction in furtherance of which the payment was made has never been consummated is clear. Before any stock was issued the scheme to issue it was rescinded by the defendant. The real question is, was the locus pœnitentiæ open to the plaintiff at the time he brought this suit. He had declined to respond to the second call when the defendant rescinded. Can there be any doubt that up to the time of the abandonment of the scheme by the defendant the plaintiff could have resorted to a court of equity and restrained further proceedings and vacated the proceedings already taken? The cases are numerous where courts of equity have interfered to prevent the consummation of a wrong upon the motion of a party who was instrumental in its inception. It is laid down by Judge Story (1 Eq. Jur., § 298), that "where the agreements or other transactions are repudiated on account of being against public policy, the circumstance that the relief is asked by a party who is particeps criminis is not in equity material. The reason is that the public interest requires that relief should be given, and it is given to the public through the party. And in these cases relief will be granted not only by setting the agreement or transaction aside, but also in many cases by ordering a repayment of any money paid under it." See, also, Nevill v. Wilkinson, 1 Brown's Ch. 473, note "a." If the plaintiff had received the fruits of the illegal transaction, in equity as at law, he could not have recovered his payment, but until then not only could he have been heard, but restitution would have been made to him.

The locus pœnitentia was open to the plaintiff so long as he was in a position to resort to a court of equity, and surely it was not closed to him by the action of the defendant in rescinding the illegal scheme.

After that action on the part of the defendant the plaintiff took the only steps he could take in repudiation of the transaction by demanding his money and bringing his suit. He is not to be denied relief upon the theory that the delictum was complete.

It is claimed that no payment was in fact made of the sum sought to be recovered by plaintiff. A dividend of four per cent had been declared by the defendant to its stockholders, among them to Sheehan, who transferred his interest to the plaintiff, and the dividend, instead of being paid in money, was credited, by an agreement, as a payment of the first call under the subscription. Stockholders who did not subscribe for the new stock were paid in money.

The evidence does not justify the inference the

the dividend was a fictitious or fraudulent one. The defendant has treated the dividend as though actually paid, not only in crediting it as a payment, but in its dealings with the other stockholders, and it is now too late to question its validity.

The plaintiff bought it of Sheehan and paid for it in full. His rights are the same as though he had borrowed the money of Sheehan to make the payment of the call.

Judgment is ordered for plaintiff for $13,980, with interest from February 20, 1866.

LIABILITY OF MUNICIPAL CORPORATIONS FOR FLOODING, CAUSED BY STREET IMPROVEMENTS.

SUPREME COURT OF RHODE ISLAND, MARCH, 1877.

INMAN V, TRIPP.

Where a city, by the manner in which it grades a street, collects the water from a wide area and empties it charged with the street filth upon plaintiff's adjoining land, and into his cellar and well, it is liable for the damage done plaintiff thereby.

TRESPASS on the case brought by Willard F. In

man and another against Benjamin Tripp, Treasurer of the city of Providence, heard under the subjoined agreement:

"The plaintiff offers to prove the following facts: That, at the time of the grievances alleged in his declaration, he was the owner of an estate on the northerly side of Public street, in the city of Providence, with a dwelling-house, barn, and other buildings and improvements thereon. That said city, prior to said time, caused the grade of said Public street, which was a public highway, to be changed, and that the highway commissioners cut down a portion of a way, called Updike street, at its junction with Public street, whereby the surface water, which had collected in a pond at the corner of Greenwich and Daboll streets, was carried through Mawney street, a public street and highway, and into and through said Updike street upon Public street, and thence flowed upon the estate of the plaintiff, located at the lowest point on said Public street, and filled his cellars and well, and destroyed his property, and otherwise caused him great annoyance and injury. The plaintiff also offers to prove that, prior to said time, said city also changed the grade of Broad street, which crosses Public street, and thereby caused the surface water which came on said Broad street, which formerly had not flowed into Public street, to be turned into Public street, which water also flowed along said street, and into and upon the plaintiff's estate, doing him similar injury. That he presented his claim to the city counsel more than thirty days before this suit was commenced, and no compensation has been made to him for said injuries. If, upon these facts being proved, the plaintiff can maintain his action, the cause is to stand for hearing before the court upon the question of damages, otherwise judgment is to be entered for the defendant." Charles H. Parkhurst, for plaintiff. Nicholas Van Slyck, city solicitor, for defendants. DURFEE, C. J. The city of Providence is a municipal corporation capable of suing and being sued like any other corporation. The question is, whether, being such a corporation, it is liable to be sued for the injury to prove which the testimony is offered. There can be no doubt that an action would lie against a

private corporation or individual for a similar injury; for the right to fight surface water certainly does not go so far as to justify a man's draining the puddles of his own land into the well and cellar of his neighbor. Why, then, will not the action lie against the city? The answer given is, that the water was not discharged upon the plaintiff's premises from land belonging to city, but from a public street, and was so discharged in consequence of a change of grade or surface in that and other streets, made by the city under the authority of the statutes of the State. And it is argued that a public corporation, acting for the public within the limits of its authority, is not liable, unless made liable, by statute, for the damages resulting to individuals from its acts.

It is perfectly well settled that a town or city is not liable, unless made so by statute, for damages resulting to an abutting owner from a mere change in the grade or s' rface of a highway made by such town or city, if the change does not extend beyond the limits of the highway. Such a change may occasion great inconvenience, and oblige the owner to incur great expense to adjust his houses or lands to the new grade or level; but, nevertheless, he must bear the inconvenience and expense, if they come, without compensation; for no right of his is invaded so long as the change does not create a nuisance, and is confined strictly within the limits of the highway. The loss which he suffers from such a change is damnum absque injuria. 2 Dillon on Mun. Corp., § 783. Many of the cases cited for the defendant are cases in which this doctrine is sustained. In the case at bar, the defendant asks us to go further: for in the case at bar the plaintiff complains not of what has been done in the streets, but of what has happened upon his own land, in consequence of what has been done in the streets. See St. Peter v. Denison, 58 N. Y. 416, 423. His property has been invaded, and the question is, whether he is entitled to any remedy against the city for the invasion. There are cases which hold, or seem to hold, that no action lies against a city even for such an injury. Wilson v. Mayor, etc., of New York, 1 Den. 595; Clark v. City of Wilmington, 5 Harr. (Del.) 243. The ground of these decisions is, that the city cannot be answerable at law for the consequences of an act which it is legally authorized or required to perform. But we think this doctrine, the abstract truth of which cannot well be gainsaid, is misapplied when it is held to sanction an invasion of private property, even though the invasion is only consequential. Let us consider the doctrine as it applies to the case at bar. The city of Providence is required to keep its streets in proper repair, and is authorized, in the discharge of this duty, to grade them and to alter their grades. Whatever, therefore, is done by the city in the discharge of this duty or in the exercise of this authority, must be deemed to be rightfully done, so long as there is no encroachment upon private property. But does it follow from this, that the city has the right to grade its streets so as to collect the water from a wide area, some of it from distant puddles or ponds, and bring it, charged with all the miscellaneous filth of the streets, to the margin of the plaintiff's land, and then empty it upon his land, and into his cellar and well? The statute should not be unnecessarily construed to sanction any such result. And so long as it is in the power of the city to make drains and culverts, as well as to alter grades, it is not necessary to give the statute such a construction. Or, if it is necessary, then the statute is, so far, unconsti

tutional and void, and cannot protect the city from liability. Suppose the statute authorized the city in so many words to do what the plaintiff claims has been done, can there be any doubt that it would be unconstitutional, as authorizing the taking of private property for public use without just compensation? Certainly, property is taken, to some extent, when its beneficial use is destroyed or impaired in this way, as well as when its owner is directly and formally excluded from its enjoyment. Pumpelly v. Green Bay Co., 13 Wall. 166; Eaton v. Boston, C. & M. R. R. Co., 51 N. H. 504. And if a statute could not in so many words authorize the grievances complained of, it could not any better authorize them by the employment of general and indefinite terms.

The view which we have taken has the support of respectable authority. Indeed, it is proved by the general current of recent decisions. Thus, in Illinois, in Nevins v. City of Peoria, 41 III. 502, it was held that a city may elevate or depress its streets as it thinks proper, but if in so doing it turns a stream of mud and water upon the grounds and into the cellar of one of its citizens, or creates in his neighborhood a stagnant pond that brings disease upon his household, it should not be excused from paying for the injuries it has directly brought. A city, say the court, has no more power over the streets than a private individual has over his own land; and it cannot, under the specious plea of public convenience, be permitted to exercise that dominion to the injury of another's property, in a mode that would render a private individual responsible in damages without being responsible itself. This decision has been reaffirmed in several subsequent cases. City of Aurora v. Gillett et al., 56 Ill. 132; City of Aurora v. Reed, 57 id. 29; City of Jacksonville v. Lambert, 62 id. 519.

So, in Wisconsin, the same point has been similarly decided. Pettigrew v. Village of Evansville, 25 Wis. 223. And the court held that, if a city wishes to acquire the right to turn a stream of water upon the property of an individual to his injury, it must do so by an exercise of the power of eminent domain, and by the payment of full compensation, as the Constitution requires.

The Supreme Court of Michigan, in a careful decision recently delivered by Cooley, C. J., affirms the same doctrine. Ashely v. The City of Port Huron, 15 Alb.

defendant contends that, such a remedy being given, it is the only remedy. Where a statute creates a new right or liability, and at the same time gives the remedy, it has been held that the remedy given is the only remedy. The liability here incurred was not created by the statute. It would have existed, and a right of action on it would have existed, if the statutory provisions referred to had never been enacted. The remedy given, therefore, supposing it to be applicable, must be regarded in this respect as cumulative, not exclusive.

The defendant contends that the city is not liable for the acts complained of, or some of them, because they were done by the highway commissioners. We think, however, that the changes complained of, prima facie at least, must be regarded as the act of the city, which is answerable for the repair of the streets, and which, moreover, unlike towns in respect of surveyors, is specially authorized to prescribe the duties of the highway commissioners. See City Charter, § IX, clause 4; Public Laws, ch. 965, Act of January 26, 1872. The city has prescribed their duties by ordinance, specifying certain duties, and requiring them to perform generally the duties of a surveyor of highways, with a proviso, however, that they shall be "always subject to the orders of the city council." City Ordinances, ch. 36, § 17. Their official acts, therefore, however it might be in the case of a surveyor of highways, must be presumed to be, in legal effect, the acts of the city. And see Conrad v. Trustees of the Village of Ithaca, 16 N. Y. 158; Eastman v. Meredith, 36 N. H. 284, 293.

We think the testimony offered is admissible. The case, therefore, must stand under the agreement for an assessment of damages.

INVALIDITY OF PASSIVE TRUSTS.

NEW YORK COURT OF APPEALS-DECEMBER 4, 1877.

VERDIN V. SLOCUM.

A will, devising lands to executors in trust, contained this: "I direct my said trustees to permit and suffer my son, W. B. S., to have, receive and take the rents, issues and profits thereof, for the term of his natural life, and after his decease I give," etc. Held, that the son took a life estate in the lands upon which the lien of a judgment would attach, and a judgment creditor of the son was a necessary party to the foreclosure of a prior mortgage upon the lands.

PPEAL by Samuel A. Thompson, a purchaser at a mortgage sale, from an order of the General Term of the Supreme Court in the First Department, affirming an order of the Special Term, denying a motion to release him from his purchase. The facts sufficiently appear in the opinion. The case is reported below at 9 Hun, 150.

Erastus F. Brown, for appellant.
Andrew Fallon, for respondent.

EARL, J. The appellant, Thompson, the purchaser at a mortgage foreclosure sale, seeks to be released from his purchase upon the claim that the proceedings in the foreclosure action above entitled are so defective as not to give him a good title. He insists upon several defects, but one of which it will be necessary to consider, and that is that a judgment creditor of William B. Slocum should have been made a party to this action. Hiram Slocum died seized of the mortgaged premises subject to the mortgage. He left a will in which he devised his estate, including these premises, to his executors, in trust, that they should divide the same into three parts, and as to one-third part he