Collyer a. Collins.

The rule that would require the plaintiff to desist or be barred from prosecuting this action, if correct, would also entitle him to demand that the counter-claim for the judgment recovered in New Jersey by the defendants, should be barred in this action by reason of their former action prosecuted on that judgment, and now pending in this State, as the answer in this case alleges.

3. Under the system of pleading prevailing in this State, it is not necessary to state what conclusion or judgment will be demanded on the facts pleaded. The court are to render such judgment as the facts legally admitted in evidence will justify or require. The defendants were at liberty to insist that the judgment rendered in New Jersey is a bar to this action, although no statement to that effect is made in the answer. The judgment was admissible in evidence, and might be claimed to constitute a set-off or a bar at the pleasure of the defendants, although it cannot, in the present case, prevail as a bar or an estoppel.

I agree that the judgment be reversed and a new trial had before the same referee, with costs to abide the event, for the errors occurring at the trial, and for the defect of proof indicated.

BARNARD, J.-I concur in the conclusion.

DIGEST

OF

ALL POINTS OF PRACTICE

EMBRACED IN

THE STANDARD NEW YORK REPORTS,

Issued during the period covered by this Volume:

Viz.—39 and 40 Barbour; 8 BoSWORTH; 17 ABBOTTS' PR. R., and 26 HOWARD'S PR. R.

ABATEMENT.

1. The conviction, and sentence to the state prison, of a party defendant, pending the action against him, do not abate the action. (Per BOSWORTH, Ch. J.) N. Y. Superior Ct., 1861, Davis a. Duffie, 8 Bosw., 617.

2. On the expiration of a year from the death of a party to the action, the court has no power, on motion, to allow a continuance of the action by or against his representatives. Supreme Ct., 1863, Matter

of Borsdorff, Ante, 168. 3. Upon the death of a plaintiff, after final judgment in his favor, his personal representatives may bring an action upon the judgment, to obtain the same relief as was formerly obtained in such cases by a writ of scire facias. N. Y. Superior Ct., 1861, Ireland a. Litchfield, 8 Bosw., 634.

4. The personal representatives cannot issue execution by leave of court; nor can they revive the judgment by a motion under section 121 of the Code. (Per BOSWORTH, Ch. J.) Ib.

JUDGMENT; SUPPLEMENTAL COMPLAINT.

VOL. XVII.-31

ACCOUNT.

BILL OF PARTICULARS.

E

ACTIONS.

ACCOUNTING.

Principles of accounting between mortgagor and mortgagee in possession on a judgment for redemption of the mortgaged premises. N. Y. Superior Ct., Sp. T., 1860, Fogal a. Pirro, Ante, 113.

ACTIONS.

1. The statute (1 Rev. Stat., 750, § 9)—allowing a joint tenant or tenant in common to maintain an action of account or for money had and received against his co-tenant,-does not apply where one tenant possesses the entire premises without any agreement or demand on the part of the others, and farms it at his own cost, taking the produce [9 Eng. L. and Eq., 337; 12 Mass., 149; 18 Barb., 265]. Supreme Ct., VII. Dist., 1863, Dresser a. Dresser, 40 Barb., 301.

2. An action will not lie against a municipal corporation, to try irregularities in proceedings to take land for public use, and awarding the damages to another than the true owner. The proper remedy stated. Supreme Ct., 1863, Cahill a. Palmer, Ante, 196.

3. The Corporation of the city of New York in 1692 granted land, bounded on the East river, with the usual covenants, and with a provision that the grantee should make and maintain a wharf, along low water mark, to be a public street, and with a further covenant that if he performed this condition, he and his heirs and assigns should have and enjoy all the profits, &c., of the wharf. The Corporation having subsequently become the owner of, and having leased the land in front of their grantee's wharf, to a third person, giving him permission to fill in the same and enjoy the wharfage upon the new front thus made, which he accordingly did ;-Held, that the claim for damages which vested in the grantee by the destruction of his wharf, was a mere chose in action, and on his death passed to his personal representatives, not to his heirs and devisees; and that any recovery thereon would be for the entire damages for the whole injury, and successive actions could not be brought, as in the case of continuing trespasses. N. Y. Superior Ct., 1861, Van Zandt a. Mayor, &c., of New York, 8 Bosw., 375. 4. A vote of the common council of a municipal corporation that they will grant a petition for a conveyance of land, upon condition that the proposed grantee should release certain claims, followed by his giving notice to them of his willingness to do so; if it be assumed to amount to a contract binding on the corporation, will not, in case of a breach, sustain an action for damages by the heirs of the proposed grantee; nor will a court of equity, after the lapse of seventy years, compel specific performance. Ib.

ACTIONS.

5. To sustain either remedy, there must be proof of a tender of the release. Ib.

6. An action cannot be maintained against the individual members of a joint stock company, composed of more than seven associates, organized under the Laws of 1849, ch. 258, as amended by the Laws of 1853, ch. 153, to recover a debt of the association, until after the recovery of judgment against the company and the return of execution unsatisfied. N. Y. Superior Ct., 1863, Robbins a. Wells, 26 How. Pr., 15.

7. A stockholder of a corporation holding a claim against it for which the stockholders are individually liable, cannot recover upon it in an action against one of the stockholders individually. He can only set up the claim in a proper action against the stockholders generally for a contribution. N. Y. Superior Ct., 1861, Beers a. Waterbury, 8 Bosw., 396.

8. In those cases where one pretending to be an agent, has contracted as such, without authority from the principal, the party contracted with may, on learning the facts, repudiate the contract, and hold the assumed agent immediately responsible for damages, without waiting for the time when an action might be maintained on the contract itself; and the damages must be measured, not by the contract, but by the injury resulting from the agent's want of power. Whenever a person enters into a contract as agent for another, he warrants his own authority, unless very special circumstances, or express agreement, relieve him from that responsibility. [10 M. & W. 9, 10; 3 B. & Ad., 114; 13 Ad. & Ellis, N. S., 744; 10 Cush., 395; 5 Seld. 585; Story on Agency, § 264.] An action upon such warranty must always be appropriate where personal liability attaches to an agent in consequence of his contracting without authority. In such action the plaintiff would be relieved from the necessity of showing performance of conditions precedent, and from the delay which the terms of the contract might require, if the remedy were limited to an action on the contract; and if special damages should be incurred in consequence of the agent's failure to bind his principal, such as the costs of an unsuccessful action against the principal to enforce the contract, they may be recovered. If the act of the agent were fraudulent, an action for the deceit would lie, but it would be a concurrent remedy with an action on the warranty. Ct. of Appeals, 1863, White a. Madison, 26 How. Pr., 181.

9. Whether the party contracted with can maintain an action against the agent, on the contract, Query? Ib.

10. An action cannot be maintained against the purchaser at a fore