JUDGMENT. a creditor's bill upon the judgment. In his answer to that bill, B set up the said fraudulent representations of D as a defence; and after a bearing of the parties, the court allowed the defence, and made a decree dismissing the bill with costs. B then brought this suit, to have the judgment cancelled of record, and for a perpetual injunction, and M and M, his assignees under an assignment for the benefit of creditors, joined in the suit. Held, On demurrer to a complaint stating these facts, 1. That the question of fraud having been decided in the creditor's suit, was res adjudicata as between B and D, that suit having been prosecuted for the benefit of D; and that T, the nominal plaintiff, was also bound by the decree in that suit. 2. That the claim on the judgment having been by the decree in the creditor's suit adjudged to be liable to the defence of fraud there set up, the defendants in this suit were bound to show cause why the judgment should not be cancelled. And that there had been no laches on the part of the plaintiffs in applying for relief. 3. That the suit was properly brought by the plaintiffs; that B himself might bring it, he being interested in having the judgment cancelled; and that his assignees might bring it, as representing the assigned property, on the title to which the judgment was a cloud, and generally as representing the rights of other creditors of B in the fund assigned. And that it was proper for B and his assignees to unite as plaintiffs. Demurrer overruled, and judgment for plaintiffs. Supreme Ct., Gen. T., 1857, Monroe a. Delevan, 26 Barb., 16. 8. In distribution of surplus of proceeds of sale of real property under surrogate's order, for payment of debts, one of the creditors claimed payment of a judgment recovered in the late Common Pleas of Tompkins county, 15th March, 1841, and in May, 1842, docketed by filing transcript in New York. The judgment was erroneously docketed as having been recovered March 15, 1842, instead of 1841. The surrogate allowed this judgment, giving to it priority over a judgment recovered and docketed in New York in 1847. Held, that as it was not shown that the latter creditor had been in any way prejudiced by the error in the docket, it should be disregarded. (19 Wend., 90; 3 Cow., 39, note.) The provisions of the statute respecting the docketing of judgments are directory and omissions or variances which work no prejudice are immaterial. Ct. of Appeals, 1858. Sears a. Burnham, 17 N. Y. (3 E. P. Smith's) R., 445. 9. H being indebted to M, assigned to him a mortgage as collateral security. Upon default in the mortgage, H and M joined in a foreclosure action in which a judgment of sale was had, and the premises JUDICIAL SALE. were bought in by M for less than the amount of the debt secured by the assignment. Held, that M took the premises subject to an equity of redemption in H; and that the judgment did not bar the right of II to compel M to account for the proceeds of the property after reimbursing himself the indebtedness secured by the assignment. (Slee a. Manhattan Co., 1 Paige, 48.) Ct. of Appeals, 1857, Hoyt a. Martense, 16 N. Y. (2 E. P. Smith's) R., 231. 10. A statement, made for the purpose of entering a judgment under sections 282 and 383 of the Code, which states, as the facts out of which the debt arose, "that heretofore at the city of New York, I (Hodgins) made my certain promissory note for the sum of two thousand dollars, payable on demand, and that I have not paid said note, and that I am justly indebted to the plaintiff (Kendall) thereupon, in the said sum of two thousand dollars," is wholly insufficient to authorize a judgment to be entered upon it. Kendall a. Hodgins, Ante, 309. 11. A judgment entered on such a statement, and an execution issued on such a judgment may be set aside, on the motion of a bona fide purchaser of lands on which the judgment is an apparent lien, as to such purchaser and the lands so purchased, and such lands be declared to be freed and discharged of and from the apparent lien of such judgment, and of and from any and every proceeding whatsoever, under and by virtue of or founded on such judgment. Ib. 12. A. statement for judgment by confession-"that the plaintiff, at various times in the years 1854 and 1855, sold and delivered to me large quantities of meat, and upon such sale there is now justly due to the plaintiff a balance in the said sum of $2000”—is insufficient. The total amount of the debt and the amount of the payments should be stated. Neusbaum a Keim, Ante, 23. 13. A judgment formed upon an insufficient statement, though it may be good as against the debtor, is not so as against his grantees; and an action against them to reach property of the debtor fraudulently conveyed to them cannot be maintained upon it. Ib. APPEAL, 1, 2, 3, 7, 8, 9, 10, 11, 12, 13; ATTORNEY, 3, 4; CAUSE OF ACTION, 5; PARTIES, SERVICE AND PROOF OF, 3; SUPPLEMENTARY PROCEEDINGS, 11; VARIANCE, 3. JUDICIAL SALE. 1. The provision of the statute (2 Rev. Stats., 368, § 38), requiring that in sales of real estate on execution, several known lots, tracts, or parcels JUSTICE'S COurt. shall be sold separately, is directory merely, and a sale in disregard of it is not void, but only voidable. Cunningham a. Cassidy, Ante, 183. 2. A party aggrieved by such disregard must apply for relief within a reasonable time. He may waive the irregularity by express ratification, or by neglect to move within a reasonable time. Ib. 3. A creditor by mortgage redeemed the land sold upon execution, and after paying the amount to the sheriff, he gave him notice to pay over only a part of it, reserving a surplus until it should be determined to whom it belonged. The sheriff's deed, after reciting the redemption, recited the giving of this notice. Held, that the notice did not qualify the redemption effected prior to its being given, nor prevent the sheriff from applying the proceeds according to law. It was impertinent matter in the deed, but did not impair its effect. Ct. of Appeals, 1858, Spraker a. Cook, 16 N. Y. (2 E. P. Smith's) R., 567. 4. Under the statute regulating sales under authority of surrogates (2 Rev. Stats., 105, § 29), providing that after a sale, if the surrogate is of opinion "that the proceedings were unfair, or that the sum bid is disproportionate to the value, and that a sum exceeding such bid at least ten per cent., exclusive of the expenses of a new sale, may be obtained," he may order a re-sale;—he is not authorized to order a re-sale merely because such new bid can be obtained. Whether a larger bid can be obtained or not, if the sum bid was, at the time, an adequate price, the sale should not be disturbed unless the proceedings were unfair. (Delaplaine a. Lawrence, 3 Comst., 301.) Ct. of Appeals, 1857, Kain a. Masterton, 16 N. Y. (2 E. P. Smith's) R., 174. SURROGATE'S COURT, 1, 4. JUSTICE'S COURT. 1. Under the act of 1857, respecting practice in the District Courts in the City of New York (1 Laws of 1857, 707), a non-resident plaintiff must give security for costs when he proceeds by long summons, as well as when he proceeds by short summons. (BRADY, J., dissented.) Haulenbeck a. Gillies, Ante, 421. 2. The plaintiff's appeal from a judgment dismissing his complaint in such an action, will be dismissed if it does not appear by the return that any costs were awarded against him. 16. 3. Where an action is brought before a justice of the peace, by the assignee of the lessor in a lease in fee, against the assignee of the lessee to recover rent, and the defendant in his answer denies all the allegations in the complaint, the title to land necessarily comes in LIMITATIONS OF ACTIONS. question, and the justice has no jurisdiction to render a judgment. Supreme Ct., Gen. T., 1857, Main a. Cooper, 26 Barb., 468. 4. Of the power of a justice of the peace to punish for contempt, on a summons to show cause, for failure of a person duly summoned and returned as a juror for the trial of an action before such justice. Robbins a. Gorham, 26 Barb., 586. LIMITATIONS OF ACTIONS. 1. Under the provisions of the statute relative to limitations of actions, the aggregate of all a debtors absences from the State, is to be taken into view in determining the time limited for commencing the action. If, in an action or contract, the defendant has not been within the State an amount of time equal to six years, since the cause of action accrued and before the commencement of the action, the statute is not a bar. (Following Burroughs a. Bloomer, 5 Den., 533; Didier a. Davison, 2 Barb. Ch., 488; Ford a. Babcock, 2 Sandf., 530; and disapproving Dorr a. Swartwout, 5 Leg. Obs., 172; Cole a. Jessup, 2 Barb, 315.) Supreme Ct., Gen. T., 1857, Berrien a. Wright, 26 Barb., 208. To same effect is Cole a. Jessup, in Ct. of Appeals, 10 How Pr. R., 515. 2. The statute of limitations is a good defence in behalf of a foreign corporation in an action upon contract. (Faulkner a. The Delaware and Raritan Canal Co., 1 Den., 441.) The provision of section 100 of the Code, that "if, when the cause of action shall have accrued against any person, he shall be out of the State," such action may be commenced within the times limited after his return, &c., only applies to natural persons. None others can be out of the State at one time and in it at another; or depart from and reside out of a State and return to it. The residence of a corporation is necessarily fixed in the State of its creation. (13 Pet., 519, Bank of Augusta a. Earle, 14 Ib., 129; Runyan a. Lessees of Costar, 2 How., 499.) Supreme Ct., Gen. T., 1857, Olcott a. Tioga Rail Road Co., 26 Barb., 147. 3. To avail himself of the fact that he was for a period restrained from bringing suit by an injunction, in order to defeat the statute of limitations, it is not necessary plaintiff should plead that it was served on him. If the injunction was issued, and was brought to the notice of plaintiff, it was in force as to him. An averment that plaintiff was restrained by the injunction so held when section 153 of the Code allowed a reply to matter constituting a defence. (Since amended, 1852.) Supreme Ct., Gen. T., 1857, Berrien a. Wright, 26 Barb., 208. LOST BILL OR NOTE. LOST BILL OR NOTE. A note which is clearly proved to have been destroyed, is not a "lost" note within the statute, providing for giving indemnity or bringing an action thereon. (2 Rev. Stat., 406, §§ 75, 76.) And action can be maintained on it without indemnity. Ct. of Appeals, 1858, Des Arts a. Leggett, 16 N. Y. (2 E. P. Smith's) R., 582, 588. MANDAMUS. 1. When a board of supervisors, under 1 Rev. Stats., 366, § 2, subdivision 2-which empowers each board of supervisors to "examine, settle, and allow accounts chargeable against the county, audit the bill of a marshal rendered (under Laws of 1855, 90, ch. 64, amended, Ib., 259, ch. 181) for so many days' services in the State census, they act judicially in examining and deciding how many days the marshal was actually and necessarily employed; and if they err, it is no ground for mandamus. After they have determined the number of days, the rest of their duty is ministerial, and if they omit to discharge it, mandamus will lie. Supreme Ct., Gen. T., 1857, The People a. The Supervisors of Livingston County, 26 Barb., 118. 2. A mandamus should not be issued to direct a Board of Commis sioners of Excise under the act of 1857, to grant a license. The People on rel. Van Demark a. The Commissioners of Excise of Saratoga, Ante, 34. 3. A mandamus should not be issued to direct them to entertain the application of the petitioner, after the board have met, and completed the term of ten days limited in the act. Ib. MARRIED WOMAN. 1. A married woman may, under the acts of 1848 and 1849 (Laws of 1848, 307; Laws of 1849, 528) take a lease of real property; and where she has taken possession under such lease, and has been deprived of it by a third party, she may maintain an action against him to recover possession, without joining her husband. Court of Appeals, 1857, Darby a. Callaghan, 16 N. Y. (2 E. P. Smith's) R., 71. 2. It seems, that though any covenant on her part would be void, yet, if the lease contained such, the defendant being a wrong-doer, could take no advantage of it. Ib. |