UNDERTAKING. insufficient, excluded his claim. After judgment was rendered, but before it had been executed, he applied, on petition and affidavits, for leave to come in and prove his claim. Held, that the motion should be granted. 1. As it could only rest upon the ground of surprise or excusable neglect, it was in substance a motion for a new trial of the petitioner's claim, and therefore the order denying it was appealable to the general term [Code, § 349, subdiv. 2], and the court have power to relieve in such a case [§ 174]. 2. As there was no other remedy, and as this could be granted without prejudice to the rights of the others, the petitioner should be allowed a reference to establish the existence, amount, and priority of his claim, but not to question the existence and amount of others,he giving security for costs of the reference, and stipulating to waive the trial of his proceedings on the lien elsewhere. N. Y. Superior Ct., Gen. T., 1857, Levy a. Joyce, 1 Bosw., 622. UNDERTAKING. 1. When sureties in an undertaking on appeal become insolvent, the court may require a new undertaking. Code, § 335, as amended in 1859, Voorhies' 6th ed., 475, § 335; 481, § 348. 2. The judgment creditor is not bound to exhaust his remedy on the judgment before enforcing an undertaking given on appeal. Heebner a. Townsend, Ante, 234. 3. In an action on an undertaking in the usual form, which does not in terms call for notice to the sureties of affirmance, nor for demand of of payment, it is not necessary to aver or prove notice or demand. Ib. 4. A reference and report upon the damages sustained by reason of the injunction, and a confirmation by the court, are conclusive upon the sureties in the undertaking in an action against them, although they were not parties to the reference, and not notified of the proceedings. The sureties are concluded by the force and effect of their contract. The reference contemplated by an undertaking in the form prescribed by section 222 of the Code is to be had in the suit instituted by their principal, and in which the injunction was obtained; or at all events, it is to be a proceeding supplementary to that suit. It is a reference between the principal and the opposing party. And the court may direct that the sureties be notified of the proceedings, or the surety may even be heard on an application to set aside the report, and to send it back for correction, if it be wrong. Yet the want of notice to the sureties is not a jurisdictional defect. The sureties cannot go behind the report when finally made and duly confirmed, because they have, VARIANCE. by their contract, engaged to pay the damages occasioned by the injunction, to be ascertained in that precise manner. Ct. of Appeals, 1858, Methodist Churches of New York a. Barker, 4 E. P. Smith's (18 N. Y.) R., 463. INJUNCTION, 3, 4. VARIANCE. 1. The declaration alleged the breach of duty for which the action was brought, as consisting in the careless, negligent, and inattentive manner in which the defendants acted in selling the plaintiff's goods. The jury found that the defendants failed to exercise that care and diligence which prudent consignees, having the information which the defendants then had, and acting on their account, would exercise. Held, no substantial variance. N. Y. Superior Ct., Gen. T., 1857, Milbank a. Dennistoun, 1 Bosw., 246. 2. The provisions of the Code respected the disregard of variances applicable to actions commenced before the Code. [Laws of 1849, 705, § 2, subdiv. 1.] Ib. VERIFICATION. The defendant is not excused from verifying his answer to a sworn complaint, on the ground that the complainant charges him with fraud in the making of the assignment, which it is the object of the action to have set aside. Wolcott a. Winston, Ante, 422. WARRANT. A warrant issued under 2 Revised Statutes, 706, § 3, relating to the arrest and examination of offenders, is sufficient, if it contain the substance of the section, without each of the very words thereof. N. Y. Common Pleas, 1855, Sleight a. Ogle, 4 E. D. Smith's C. P. R., 445. WAIVER. Where a judgment, from parts of which an appeal is taken, is such that it must be wholly reversed if the part appealed from is found erroneous, the party cannot both sustain an appeal from such parts and meanwhile enforce the other parts. Proceeding to enforce provisions which are dependent upon the provisions appealed from, is a waiver of the appeal. Ct. of Appeals, 1858, Bennett a. Van Syckel, 4 E. P. Smith's (18 N. Y.) R., 481. APPEAL, 14, 19; BAIL, 1; CAUSE OF ACTION, 5; COUNTER-CLAIM, 4; CLAIM AND DELIVERY, 2; DEFENCES, 18. WILL. WILL. The name of the testator was put to the will by a subscribing witness, by the express direction of the testator. Held, a valid subscription under the statute. [3 Levins, 86; a. Stanley, 9 Ves., 248; 10 Paige, 91, 92; and see 4 Comst., 146; Lewis a. Lewis, 13 Barb., 17; 12 Ves., 458; 1 Rob. on Wills, 94; 5 Johns., 144; 7 Jarm. on Wills, 777; Addy a. Grix, 8 Ves., 504; Harrison a. Harrison, Ib., 185; Jackson a. Van Dusen, 5 Johns., 144; 7 Bing., 457; 2 Ves., 454; Atk., 177; 12 Pet., 150; Baker a. Deming, 8 Adol. & El., 94.] Supreme Ct, Gen. T., 1858, Robins a. Coryell, 27 Barb., 556. WITNESS. 1. A witness whose attendance is voluntary, and not compelled by process, is not privileged from arrest while coming and going. Hardenbrook's Case, Ante, 416. 2. A guarantor of the debt, not incompetent in an action upon a collat eral security. Grosvenor a. The Atlantic Fire Ins. Co., 1 Bosw., 469. 3. The wife cannot be examined in an action in which her husband is a party, although she is also a party. So held, where she was improperly joined as a party. N. Y. Common Pleas, Gen. T., 1855, Main a. Stephens, 4 E. D. Smith's C. P. R., 86. 4. The husband and wife were sued for services of a dentist rendered to the latter. There was no allegation and no evidence that the defendants were husband and wife; and the wife was examined as a witness. Held, that judgment for the plaintiff must be reversed. If the defendants were husband and wife, the wife was incompetent as a witness. If they were not, then the judgment was against evidence, in holding both liable for the debt of one. 5. Whether the next of kin were incompetent witnesses in actions by the personal representative, on the ground that they were the party for whose immediate benefit the action was prosecuted,-Query? N. Y. Common Pleas, Gen. T., 1855, Walkley a. Griffith, 4 E. D. Smith's C. P. R., 343. Ib. 6. A party had a right to resort to other witnesses to prove that an adverse witness offered was the party in interest, with a view to exclude his testimony. [1 Phil. Ev., 134; Cow. & H.'s Notes, note 250; 2 Cow., 968.] N. Y. Common Pleas, Gen. T., 1855, Healy a. Kingsley, 4 E. D. Smith's C. P. R., 286. 7. A witness cannot be impeached in respect to credibility by proof of any single act of bad conduct, or any specific wrong transaction. Varona a. Soccaras, Ante, 302. WRIT OF ERROR. 3. Evidence of statements made by the witness to a third person, relative to the contents of his deposition, should not be allowed by way of explanation at all; nor for the purposes of impeachment, without first examining him-he being in court-and giving him an opportunity to explain. N. Y. Common Pleas, 1855, Crane a. Hardman, 4 E. D. Smith's C. P. R., 448. 9. Where testimony material to the issue is volunteered by a witness on cross-examination, it is error to exclude evidence to contradict such testimony. [Patchin a. The Astor Mutual Insurance Company, 3 Kern., 268.] N. Y. Superior Ct., Gen. T., 1857, Mills a. Carnly, 1 Bosw., 159. 10. Hardship and injustice arising from the statute allowing assignors to be witnesses, not a ground for a judicial restriction of the operation of the statute. Rourke a. Story, 4 E. D. Smith's C. P. R., 54. CAUSE OF ACTION, 2. WRIT OF ERROR. "The Court of Appeals shall have power, and it shall be its duty, to hear and determine all cases now pending in said court, upon writs of error • heretofore brought, to review the determination of the Supreme Court in awarding or refusing to award a peremptory mandamus, in the same manner as if such cases had been brought into said Court of Appeals, by appeal under the provisions of the Code of Procedure." Laws of 1859, 421, ch. 174, § 1. |