and liable to account for the rents and profits, the sale merely transferring the equity of redemption from the mortgagor to the first mortgagee. It is necessary in such case that the holder of the second mortgage institute a foreclosure on his mortgage and make the first mortgagee a party. (Walsh agt. Rutgers Fire Ins. Co., 13 Abb., 33.) See LIEN, 2.

See MARRIED WOMEN, 5.
See USURY, 5.

MOTION.

1. A motion to set aside a summons for irregularity will be denied with costs, where the notice of motion does not specify the grounds of the motion, or in what the irregularity consists. (Perkins agt. Mead, ante, 476.)

2. A motion founded on irregularity of any proceedings, cannot be made where the irregularity complained of is not specified in the notice. (See to the same effect the case of Perkins agt. Mead, 476.) (Selover agt. Forbes, ante, 477.)

3. Stringent terms imposed on the defendant on opening the judgment by default against him, where his best excuse was that both he and his attorney neglected to attend to the case. (Id.)

See ATTACHMENT, 1.
See WITNESS, 1.

See COSTS, 6.

NATURALIZATION.

1. A minor son coming to this country with his father, an alien, and the father becoming naturalized during the minority of the son, the son becomes a citizen of the United States on arriving at the age of twenty-one years. (In the matter of Morrison, ante, 99.)

NEGLIGENCE.

1. The neglect to present a draft payable on demand, for four days, during which time the drawee fails, will operate to discharge the drawer. (Brady agt. The Little Miami R. R. Co., 34 Barb.. 249.)

See COMMON CARRIER, 1. 2. 3. 4.
See COMPLAINT, 10. 11.

See LACHES, 1.

1.

NEW TRIAL.

This is a novel case-an action to recover damages against the defendant for the wrongful conversion of a promissory note owned by the plaintiff; whereby the plaintiff by fiction of the action placed defendant in possession of the note, and proved the tenor of it and indorsements thereon, and recovered the balance claimed to be due on the note, when it appeared on the trial that the plaintiff's attorney had the note in his pocket, and could and should have produced it in evidence. This error, however, held not sufficient to reverse the judgment rendered for the plaintiff, although the whole evidence to sustain the judgment was very unsatisfactory. (Smith agt. Hoose, ante, 402.)

2. Although, on appeal, the court will not disturb the finding of a jury or a referee on a question of fact where there is ordinarily fair evidence to support it, yet whenever such finding is clearly against the body of the evidence, although there may be some evidence to support it, a new trial will be granted. (Thompson agt. Menck, ante, 431.)

3.

Although it is settled that a new trial will not be granted in actions for penalties on the ground that the verdict is against the weight of evidence, where the verdict is for the defendant; yet there is no such rule or decision where the verdict is in favor of the plaintiss. (East River Bank agt. Hoyt, ante, 478.)

4. Where a new trial is granted on the ground of the verdict being against evidence, the same can only be on payment of costs of the last trial. (Id.)

not for fraud, and dependent altogether upon a breach of a positive agreement. (Id.)

3. Therefore the rule of damages where the article is proved to be not as warranted, must be confined to the difference between the value of the article as it was, and its value as it would have been if it had been what it was represented to be; not to the damages that would arise from a breach of warranty that the article was fit for use in making brick. (ld.)

4. Where the principals were minors, it was held, that the agent might sue upon a contract made with him as such, and by which he was personally bound, without any assignment from the principals. (Nelson agt. Nixon, 13 Abb., 104.)

See PARTIES, 1.

See COMMON CARRIERS, 7. 8. 9.

PRINCIPAL AND SURETY.

1. In an action against the principal, the sureties when necessary and proper may be let in to defend, even after a regular judgment. (Jewett agt. Crane, 13 Abb., 97.)

2. Where an action was brought against sureties who had executed an undertaking pursuant to § 240 of the Code, to procure the discharge of an attachment against the property of a third person, and the court had directed the third person to furnish further sureties, and this not having been done judgment was entered against him by order of the court, held, that the sureties were not discharged. (Id.)

3. Bail are not absolutely exonerated by a judgment in favor of their principal; if the judgment should be set aside, and the plaintiff allowed to proceed in the action their liability would revive. (Von Gerhard agt. Lighte, 13 Abb., 101.)

4. The sureties in a bond conditioned for the diligent prosecution of his application for a discharge by a debtor, under section 12 of the act to abolish imprisonment for debt and to punish fraudulent debtors (ch. 300 of 1831), are liable although such prosecution failed by reason of the inability of the county judge, before whom it was to be had, to discharge his duties. (Cobb agt. Harmon, 23 N. Y. R., 148.)

1.

PUBLICATION.

A notice, for the 28th Dec., 1861, of the sale of real estate situate in the city of New York, under a judgment in a foreclosure suit, published in a daily paper on the 9th and 12th, the 16th and 19th, and the 23d and 26th of that month, satisfies the rule (73) which requires the notice of sale to be published for three weeks immediately previous to the time of sale, at least twice in each week." (Chamberlain agt. Dempsey, ante, 356.)

RAILROADS.

1. A city railroad company or their employees have no right to regulate or prohibit travel on a public street where their track is laid. A person has a right to travel with his horse and wagon upon every part of it without interference from any one. (Fettritch agt. Dickerson, ante, 248.)

2. Where the defendants, being in the employ of the Second avenue railroad company, forcibly ran the plaintiff's horse and wagon from the railroad track, breaking his wagon and seriously injuring his horse, held, that the act was clearly unlawful, and gave the plaintiff a right of action for his damages. (Id.)

2.

See STREETS, 1. 2. 3. 4. 5. 6. 7. 8. See CORPORATIONS, 6.

RECEIVER.

1. It is irregular and improper in an action to recover the possession of real estate, (formerly ejectment) to appoint a receiver of the rents and profits of the property described in the complaint. (Thompson agt. Sherrard, ante, 155.) The latter clause of § 317 of the Code, authorizing the court, in its discretion, in the case mentioned in the section, to require the plaintiff (who prosecutes in a representative capacity) to give security for costs, should be confined to cases of mismanagement or bad faith on the part of the plaintiff. (Kimberly agt. Stewart, ante, 281.)

4. Where the defendant showed that the assessment on a premium note given by him to a mutual insurance company, for the non-payment of which he was prosecuted by the plaintiff as receiver of the company, had been paid to a former receiver of the company, for which the defendant held the receipt of the latter, held, that the carelessness or negligence in the prosecution of the action amounted to mismanagement or bad faith on the part of the plaintiff, which made it the duty of the court to require him to give security for costs. (Kimberly agt. Goodrich, ante, 424.) 5. A motion for security for costs against a plaintiff who sues as receiver, will be denied where it does not appear that there has been any mismanagement or bad faith in prosecuting the action. (Following the case of Kimberly agt. Stewart, ante, p. 281.) (Kimberly agt. Blackford, ante, 443.) 6. On a motion to substitute one person instead of another as receiver, the opposing party is not at liberty to examine the regularity of the original order appointing such receiver, or of the proceedings generally in the suit. (Fassett agt. Tallmadge, 13 Abb., 12.)

See COMPLAInt, 8.
See CORPORATIONS, 5. 6.

REFEREES AND REPORTS.

1. A verbal agreement made by the parties to an action, and an entry thereof by the referee in his minutes, at the time, allowing the referee a specified sum for each meeting, and also double the amount for each meeting occupying over two hours, is substantially such an agreement in writing as is contemplated by § 313 of the Code. (Philbin agt. Patrick, ante, 1.)

2. When a referee first delivers his report duly signed, his power over the subject matter is exhausted. (Shearman agt. Justice, ante, 241.)

3. Where a reference was ordered, in an action of mortgage foreclosure, to ascertain the priority of sale of different portions of the mortgaged premises owned by the defendants respectively, and the referee made, signed and delivered his report to the attorney of one of the defendants, without mentioning therein the subject of costs to either party, and a day or two afterwards the attorney called upon the referee and

requested him to insert in the report "with costs to defendant Hughes," (his client,) which was done by the referee, (without reflection,) held, that that this clause in reference to costs, so inserted, be stricken out of the report, and the same expunged from the record of judgment, with costs of the motion. (Id.)

4. Where the statement contained in the referee's report of the facts found by him, differs from his specification "of the facts found by him," inserted by him in the case on settling under the Code, (§§ 272, 268,) the specification will be deemed to contain the true statement of facts as actually found in the case. (Hartman agt. Proudfit, 6 Bosw., 191.)

1.

RELIGIOUS CORPORATIONS.
See TRUSTEES OF THE THEOLOGI-
CAL SEMINARY, 1. 2.

REVIVOR.

The doctrine of privity has never been carried so far as to authorize a revivor in a suit brought by a party in interest who dies, and the appointment of an executor, no revival by him but a transfer of the right and subject of the action and revivor by the assignee. (Rogers agt. Adriance, ante, 97.)

2. Where pending an action at law one of several defendants dics, the plaintiff may treat the action as having abated as against such deceased defendant, and proceed regularly against the surviving defendants. Whether an order of the court is necessary thus to proceed, quere? (Gardner agt. Walker, ante, 405.)

the court that the action be continued against the representatives of the deceased defendant, and also against the surviving defendants separately-making two distinct actions. For the action could not be permitted to proceed against both the surviving defendants and the representatives of the deceased defendant jointly as one action. (Id.)

4. Where on the trial the plaintiff was put to his election to proceed against the surviving defendant, or against the representatives of the deceased defendant, and he elected to proceed against the latter, and the court thereupon dismissed the complaint against the former, held, that the surviving defendant had a right to enter up judgment for his costs against the plaintiff while the issues with the other defendants remained undecided. (Id.)

1. It seems, that where a sheriff has become bail, (by the escape of a prisoner,) and has failed to surrender the principal in his exoneration within the time required by the Revised Statutes, (before the commencement of the action against him as bail,) but within the time required by section 191 of the Code, (within twenty days after the commencement of the action,) he is not wholly discharged from liability. That is, the 191st section of the Code is not a substitute of the Revised Statutes, as defining the whole extent of the sheriff's liability in such cases. (McCreery agt. Willett, ante, 91.) (The decision in this case reported as "Mc Gregory," in 17 How. Pr. R., 439, materially modified.)

See ANSWER, 13. 14.

See EXECUTION, 1.

SECURITY FOR COSTS.

1. The latter clause of section 317 of the Code, authorizing the court, in its discretion, in the cases mentioned in the section, to require the plaintiff (who

2.

prosecutes in a representative capacity) to give security for costs, should be confined to cases of mismanagement or bad faith on the part of the plaintiff. (Kimberly agt. Stewart, ante, 281.)

And this mismanagement or bad faith must be understood as relating to the commencement of the action and the proceedings therein, and not to the conduct of the plaintiff generally in the management of the trust. (ld.)

3. Where the defendant showed that the assessment on a premiuin note given by him to a mutual insurance company, for the non-payment of which he was prosecuted by the plaintiff as receiver of the company, had been paid to a former receiver of the company, for which the defendant held the receipt of the latter, held, that the carelessness or negligence in the prosecution of the action amounted to mismanagement or bad faith on the part of the plaintiff, which made it the duty of the court to require him to give security for costs. (Kimberly agt. Goodrich, ante, 424.)

4. A motion for security for costs against a plaintiff who sues as receiver, will be denied where it does not appear that there has been any mismanagement or bad faith in prosecuting the action. (Kimberly agt. Blackford, ante, 443.) Following the case of Kimberly agt. Stewart, ante, 281.)

5.

6.

7.

1.

A bond for security for costs in the N. Y. common pleas must be proved or acknowledged as a deed of real estate, before being filed. (Colt agt. Wheeler, 12 Abb., 388.)

An undertaking under section 209 of the Code, given by a non-resident plaintiff in commencing an action for the claim and delivery of personal property, is a substantial compliance with the Revised Statutes in relation to a bond for security for costs, required of non-resident plaintiffs. (Wisconsin Bank agt. Hobbs, ante, 494.)

In such an action the defendant waives an objection to the sufficiency of the plaintiff's affidavit upon which the property is taken, by giving an undertaking and obtaining a re-delivery of the property to himself. (Id.)

STATUTE OF LIMITATIONS. Where a surety who is a joint maker of a promissory note with a principal, requests the principal to make a