Cowdrey a. Carpenter.

The appeal suspends his right to obtain the benefit of his lien, but does not take it away.

We are not aware of any case where, after execution and levy under it, an appeal has been taken from the judgment, the court has set aside the execution and removed the levy. The levy is stayed, and the sheriff cannot proceed to sell. Nor could the lien of a judgment, upon the real property of the judgment-debtor, be removed by an appeal and security, until a recent special enactment, applicable to such a case. Before that law, the court were without power to relieve the property, be the security never so ample.

The cases of Parsons a. Travis (2 Duer, 659), and Spencer a. Rogers Locomotive Works (13 Abbotts' Pr., 180), we think sustain this view.

If, however, the right to dismiss these proceedings rested in the discretion of the judge (although we think it does not), it would be an unsound exercise of such discretion to deprive the creditor of a security obtained through his equitable lien upon the debtor's property, by substituting for it the mere personal obligation of two sureties, who, although responsible now, may be utterly and hopelessly insolvent before the determination of the appeal.

Until the Legislature provides for the discharge of these proceedings, upon securing the judgment on appeal, as they have provided for relieving real property, it seems to us, independently of the want of power, that no other or greater effect should be given to the appeal from the judgment than is given by the Code; namely, to stay all further proceedings upon the judgment appealed from, and necessarily all further proceedings under the supplemental order.

We think the dismissal of the supplemental proceedings was erroneous, and the order appealed from should be reversed. Order reversed.

Spencer a. The Rogers Locomotive Works.

SPENCER a. THE ROGERS LOCOMOTIVE WORKS.

New York Superior Court; General Term, November, 1861. PLEADING. ALLEGING JURISDICTIONAL FACTS.-DEMUrrer.— ALLEGING NOTICE OF NON-PAYMENT OF NOTE.

In actions in local courts of general jurisdiction,- -e. g., the New York Superior Court,-it is unnecessary to allege in the complaint the facts, such as residence of the parties, which are necessary to the jurisdiction of the court over the person of the defendant.

A complaint in an action brought in the New York Superior Court against a foreign corporation, upon a note, which it alleges was in terms payable in the city of New York, states a cause of action within the jurisdiction of the court, even though the plaintiff be a non-resident.

In an action against an indorser of a note, an averment that "it was duly presented for payment at said bank" (where by its terms it was payable), "and payment refused, of which due notice was given to the defendant," is sufficient.

Demurrer to complaint.

The pleadings are sufficiently stated in the opinion of the

court.

H. N. Beach, for appellant.

F. N. Bangs, for respondent.

BY THE COURT.*-WHITE, J.-The complaint in this case. sets forth that the defendants were and are a body corporate, created by the laws of the State of New Jersey. That on October the 29th, 1860, the corporation called the Memphis and Charleston Rail Road Company made their promissory note, bearing date at Memphis on that day, for $3,344.77, payable to the order of the defendant, six months after date, at the Bank of America, in the city of New York, and delivered it to defendant, who indorsed it, and delivered it, so that it came to and is now held by the plaintiff; that it was duly presented for

* Present, BoswORTH, Ch. J., WOODRUFF and WHITE, JJ.

Spencer a. The Rogers Locomotive Works.

payment at said bank at maturity, and payment refused, of which due notice was given to the defendant.

The defendant demurred to the complaint, upon the alleged grounds, that it appeared upon the face of the complaint

1. That the court had no jurisdiction of the person of the defendant, or the subject of the action.

2. That the complaint does not state facts sufficient to constitute a cause of action.

The main error upon which this demurrer is founded, is the supposition that it is necessary in a complaint in this court to aver jurisdiction; that is, to aver facts independent of the cause of action, the existence of which is, in certain cases, necessary to confer jurisdiction-such as the residence of the plaintiff, in an action against a foreign corporation, when neither the cause of action has arisen, nor the subject of the action is situated within the State. But this is a mistake. Jurisdiction is presumed, unless it appears upon the face of the complaint that the court has not jurisdiction of the action: that is, in the case supposed, jurisdiction will be presumed, unless it should be averred, or made distinctly to appear in the complaint, that the plaintiff was a non-resident.

But even if the plaintiff were a non-resident in the case before us, I think that sufficient facts appear in the complaint to give the court jurisdiction. The action is upon a promissory note made payable at the Bank of America, in the city of New York. Upon the demand and non-payment, and notice to the indorser, a cause of action immediately arose and accrued to the holder in this city. (Bank of Commerce a. Rutland & Washington R. R. Co., 10 How. Pr., 1; Burckle a. Eckhart, 3 N. Y., 132; Cooper a. Earl of Waldegrave, 2 Beav., 282; Story's Confl. of L., §§ 281, 282.)

The averment of notice of non-payment and protest, which is supposed to be defective, and is relied upon in support of the second alleged ground of demurrer is, we think, sufficient.

The judgment must, therefore, be affirmed, with costs.

MATTER OF WOODBINE-STREET.

Supreme Court, Special Term, Westchester County, Feb., 1864. CERTIORARI.-NOTICE.-SEVERAL WRITS.

A common-law certiorari, to review the proceedings of a board of officers or inferior tribunal, may be granted on an ex-parte application.

Several writs of certiorari may be issued in one case, where this is necessary in order to bring up the entire record.

Motion to set aside order granting certiorari.

In this matter, an order had been obtained ex parte at special term, in Kings county, in Jan., 1864, for the issue of two common-law writs of certiorari, one to the village of Yonkers, and one to the County Court of Westchester county, to review proceedings on the levying of an assessment for the opening of Woodbine-street. The assessment-roll was on the files of the village; the order confirming the assessment was on the file of the County Court.

A. H. Wallis, for the village, moved to vacate the order and set aside the writs on two grounds:

1. Because the order was granted without notice.

2. Because two writs were issued in one proceeding. On the first point, he quoted Re Mount Morris Square, 2 Hill, 14; and People a. City of Rochester, 21 Barb., 656.

F. N. Bangs, in opposition, referred, on the first point, to Gardner a. Commissioners of Warren, 10 How. Pr., 181; and on the second, to Starr a. Trustees of Rochester, 6 Wend., 564; and Fitch a. Commissioners of Kirkland, 22 Ib., 132.

J. F. BARNARD, J., after deliberation, denied the motion, overruling both the grounds on which it was put, and holding that no notice was necessary, and that as many writs might issue as were requisite to bring up the entire record.

Fogal a. Pirro.

FOGAL a. PIRRO

New York Superior Court; Special Term, April, 1860. Again at General Term, December, 1862.

PLEADING. STATUTE OF LIMITATIONS.-FORECLOSURE.-PARTIES. -MORTGAGEE IN POSSESSION.-BILL TO REDEEM.-IMPROVEMENTS. ACCOUNTING. ANCIENT DEED.

The Statute of Limitations does not begin to run against the right of a remainderman to redeem real estate from the mortgagee in possession under the termor, until the determination of the precedent estate.

The title of the Revised Statutes, "Of the time of commencing suits in a court of equity'' (2 Rev. Stat., 301, §§ 49–53), superseded the whole doctrine of lapse of time, as previously applied in a court of equity, fixing a positive rule for equity suits, just as absolute and definite as the statutes had prescribed for suits at law.

In cases arising before, as well as since the Code, the defence of the Statute of Limitations can be interposed only by answer.

In pleading the Statute of Limitations in an action brought to obtain redemption of mortgaged premises, the essential features of the defence are, possession for over ten years without any payment on account of the mortgage, or any acknowledgment of the relation of mortgagor and mortgagee, or any payment of rents and profits, or accounting for them.

But, an answer averring a possession in the defendant and those under whom he claims for twenty years, adverse and hostile to the plaintiffs, and under a title vested in him, the defendant, or those through whom he is entitled, is sufficient.

A mortgagee in possession has the right to require full payment of the amount due, before he can be called upon to surrender the right or possession to any extent.

But in an action, by several plaintiffs, to obtain a redemption of premises from the mortgagee in possession, where the right of some of the plaintiffs is barred by the Statute of Limitations, the plaintiffs, not barred, are entitled to redeem their share of the land on payment of their proportion of the debt. On a redemption, the mortgagee in possession, who knew of the existence of the mortgage, is not, as a general rule, entitled to an allowance for new erections and improvements upon the mortgaged premises. But this rule is subject to many exceptions.

Where the mortgagee in possession, who has in good faith disavowed the character of mortgagee, and claimed in hostility to such a character, is obliged to submit to a redemption, the general rule is, that the improvements must be paid for.

Principles of accounting between mortgagor and mortgagee in possession on a judgment for redemption of the mortgaged premises.

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