Opinion of the Court, per BROWN, J. security of said gambling debt, and no other or different. The plaintiff thereupon objected to the proving of such fact by the witness George D. Lord, on the ground that the said George D. Lord is incompetent to testify to any conversation or transaction between him and said William Allen, deceased, by the provision of section 829 of the Code of Civil ProcedThe objection was sustained by the court and the offer of the defendant excluded, to which ruling the defendant then and there duly excepted." ure. The exception to this ruling of the court presents the question to be decided upon this appeal. The Special Term gave judgment for the plaintiff which was reversed by the General Term. The appellant contends that the witness was interested in the result of the action for the reason that her defeat upon the issue raised by the answer would have discharged the witness from all liability upon the bond, and, as the obligation was joint, this contention is sound unless it is overcome by the application to the facts of the case of the statute heretofore quoted. The respondent's claim is two-fold. First. That the result of proving the facts pleaded in the answer, under the operation of the statute, would be to work a transfer of the bond and mortgage from the plaintiff to the children of Mrs. Lord, and that the liability of the witness upon the bond would be intact and could be enforced against him by the parties into whose possession the statute would transfer it, and that Mr. Lord was not interested in an event which determined nothing more than the ownership of the securities. Second. That the evidence was competent for the purpose of proving that the mortgage did not belong to the plaintiff, under the provision of the statute, irrespective as to who had title to the bond, and that, if the facts had been proven, the court might have adjudged that the complaint, so far as it sought a foreclosure of the mortgage, should be dismissed, and either given judg ment for the plaintiff upon the bond, or made the dismissal without prejudice to bring another action upon the bond. Opinion of the Court, per BROWN, J. This latter ground was not taken at the trial as will appear from the offer which I have quoted. The attention of the court was not called to the fact that the evidence was claimed to be admissible only to affect the demand for a foreclosure of the mortgage. The offer was general to prove illegality in the consideration of both bond and mortgage. That it was inadmissible as to the bond is apparent, and, so far, the ruling of the court was right, and I am inclined to think the appellant cannot now claim a limited application of the evidence as a ground of error. But, regarding the form of the offer as of no consequence, our opinion is that the statute cannot have such a construction as to make it operative to transfer to the mortgagor's heirs title to the mortgage alone. The statute against betting and gaming was enacted as a protection of the public morals. The intention of the legis lature was to discourage and repress gambling in all its forms, and the law under consideration, having been enacted for the public good, is to be construed so as to accomplish, so far as possible, the suppression of the mischief against which it was directed. (Ruckman v. Pitcher, 1 N. Y. 396; Storey v. Brennan, 15 id. 527.) The intention is that the offender against the laws prohibiting gambling is to be punished by being deprived of any real estate mortgaged or conveyed to secure the gambling debt, and that real estate so mortgaged or conveyed shall pass to the heirs of the offender. The statute saves the security or conveyance for the single purpose of preserving the real estate to the heirs of the mortgagor or grantor. As to a mortgagee, both bond and mortgage are void, but the mortgage is preserved as a medium to transfer the land to the mortgagor's heirs. But such a result could be accomplished only through a foreclosure of the mortgage, and it needs no argument to show that the purpose of the statute would be defeated if the mortgage should belong to one person and the bond to another. The learned counsel for the respondent takes two positions Opinion of the Court, per BROWN, J. which are absolutely inconsistent. He argues, first, that the bond and mortgage are to be regarded as a single security affecting real estate and both pass under the statute and can be enforced by the mortgagor's heirs. That the witness was not pecuniarily interested in that result, as his liability to pay the debt was not thereby affected. Hence the evidence was admissible. His second proposition is that the mortgage alone affects the land, and that the court could have severed the securities and dismissed the complaint so far as it sought a sale of the real estate. That under this construction the evidence was admissible as it did not affect the liability of the witness on the bond. The argument presented by the learned counsel in the first point is a complete answer to his second proposition. I quote from his brief. "The statute expressly states that the securities where they affect real estate, shall immediately upon the execution thereof, be taken and held for the use of Mrs. Lord's children. In other words, the fact that a part of the consideration was for a gambling debt, works a transfer and assignment of the mortgage. I submit that that being so, to carry out the intent and purpose of the statute effectively it must be held that the bond, which is a part of the same transaction, comes within the saving grace of the statute and inures for the benefit of the children of Mrs. Lord alike with the mortgage. If that is not so then the statute is meaningless and the object sought to be accomplished by the statute utterly fails. It cannot be claimed that in such a case as this the statute contemplated that the mortgage should belong to one person and the bond to another. The beneficial interest in the debt is, however, included in the assignment of the mortgage, although the terms of the assignment embraces the mortgage alone. This would be the presumed intention of the parties in all cases when the debt has not been already transferred to another. The mortgage being merely an incident of the debt cannot be assigned separately from it so as to give any beneficial interest. (Jones on Mortgages, § 805.) If then the intent of the statute was to confer the beneficial interest in the mortgage to the children of Mrs. Lord, as to Opinion of the Court, per BROWN, J. which there is no question, the necessary effect must be that the bond, the evidence of the debt, must go with it." We concur in this reasoning, but we do not adopt the counsel's conclusion that the bond absolutely passes to the mortgagor's heirs, and such construction is not necessary to carry out the purposes of the statute. The bond is not of itself a security affecting real estate, and only so far as it is essential to give validity to the mortgage in the hands of the mortgagor's heirs, is it necessary to hold that it comes under the operation of the statute. If the amount of the debt is less than the value of the real estate the bond to the whole amount would necessarily pass because the heirs would acquire such an interest in the real estate only as is equal to the amount of the debt attempted to be secured, and the practical operation of the statute in such case would lead simply to the foreclosure of the mortgage, a sale of the land and payment of the amount secured. But it would be otherwise in case the amount of the debt exceeded the value of the land. In such case the heirs acquiring no right to the bond, except so far as it was necessary to support the mortgage, it to the extent of any excess over the value of the land would, under the statute, be "utterly void" and would be extinguished. It follows that the result of proving the facts set out in the answer and which it was proposed to prove by the witness George Lord would be to confine the enforcement of the bond and mortgage to the land and destroy the personal liability of the obligors upon the bond, and as the only judgment sought against the witness was for any deficiency that might exist after a sale of the land, he was directly interested in the event of the action and incompetent to testify to any transaction with the deceased mortgagee, and his evidence was properly excluded. The order of the General Term should be reversed and the judgment of the Special Term affirmed. All concur, except BRADLEY, J., not voting. Order reversed and judgment affirmed. Statement of case. ABRAHAM ROTHSCHILD, Respondent, v. CLARENCE WHITMAN et al., Appellants. Plaintiff's complaint alleged in substance that defendants, without probable cause, “wrongfully, unlawfully and maliciously begun an action" against plaintiff and caused him to be arrested and imprisoned under an order of arrest issued therein; that the order of arrest was vacated and plaintiff was discharged on the ground that it "was illegal, unauthorized, and that the court had no jurisdiction to grant the same." Two of the defendants set up as a counter-claim that plaintiff, as the manager of a certain firm, by fraud, deceit and false representations, induced defendants to sell it goods on credit, knowing that the firm would and could not pay; that after the receipt of said goods, the firm and plaintiff, with intent to cheat and defraud and in pursuance of their intent not to pay, secretly disposed of said goods; that the matters so alleged constituted one of the causes of action for which the arrest complained of was made, and that the order of arrest was vacated, not on the ground that said allegations were untrue, but because of the misjoinder of causes of action and parties. Held, that a demurrer to the answer was properly sustained; that it did not, within the meaning of the Code of Civil Procedure (§ 501), set forth facts constituting a cause of action arising out of the transaction set forth in the complaint; nor was it connected with the subject of the action, whether it was to be considered as an action for false imprisonment or malicious prosecution; that the complaint and answer set forth distinct and independent torts, with no necessary or legal connection between them. Reported below, 57 Hun, 135. (Submitted March 22, 1892; decided April 26, 1892.) APPEAL from order of the General Term of the Supreme Court in the first judicial department, made June 6, 1890, which reversed a judgment in favor of defendants entered upon a decision of the court on trial at Special Term and sustained a demurrer to a counter-claim pleaded by three of the defendants. The plaintiff alleged in his complaint that, on the 1st of September, 1887, the defendants, "not having any just or prob able cause of action against the plaintiff, did * * wrong fully, unlawfully and maliciously begin an action against him, and "did cause to be issued out of the Supreme Court |