Fraser v. Greenhill. sequestrated the property of the debtor for general distribution; but under the Code it is for the benefit of the attaching creditor alone, and the judgment which he may obtain in his suit, may be satisfied out of the property attached, either by virtue of the judgment itself, where the property attached has already been converted into money in the hands of the sheriff, or by a sale under an execution to be issued on the judgment. In both cases, as well under the Code as under the Revised Statutes, the matter in controversy is not merely as to the amount which the debtor may owe the attaching creditor, but as to the amount which he may be entitled to receive out of the fund, which is in court by virtue of the process of attach ment. In such case, the matter is widely different from a case where no attachment has been issued, but where a summons only has been issued, and the question is simply how much the defendant owes the plaintiff. In the one case, the question is merely between the debtor and creditor, and in the other it is that, with the material addition of a controversy between the creditors how much each is entitled to, out of a common fund in which both are interested. In the attachment under the Revised Statutes one creditor may contest the amount claimed by another, because both are interested in a common fund. So on claims to a surplus on a sale on foreclosure of a mortgage, where frequently the plaintiff and defendant have little or no interest in the matter in controversy, but contending creditors have the engrossing iz.terest, contest with each other, and are allowed to appear and be heard because they have an interest in a common fund. It seems to me that a suit under the Code, where the provisional remedy of an attachment has been used, and property has been seized upon it, is a cognate case and must be governed by the same principle, and that I cannot say that the controversy involved, even in the suit of Fraser & Co. v. Greenhill, does not embrace within its scope, the common fund in court and each one's share in it. When they obtain Fraser v. Greenhill. their judgment in the suit in which they have sued out their attachment, they will be entitled, by virtue of the judgment, to full satisfaction of it out of the fund in court, and I see no mode of protecting subsequent attaching creditors against collusion, except by allowing them to contest the claim of prior attaching creditors. Formerly, to reach such a case, it would be necessary for subsequent creditors to bring an independent suit against the debtor and prior creditors, claiming to set aside a judgment because of collusion, or to prevent a judgment from well grounded apprehension of it. Can such an independent suit now be necessary and must parties be subjected to the expense and delay of it? A complete determination of the controversy in respect to the fund which is in court by virtue of the attachment, can not be had without the presence of the subsequent creditors, and those creditors claim and have an interest in the whole controversy involved in the suit brought by the prior creditors. It appears to me, then, that this is a case which is eminently within the provisions of the Code, not only within its spirit, but its very letter, and that it illustrates in a striking manner the benefits which may arise from its provisions in respect to parties. I therefore allow the motion of Richie and McCormick, so far as to allow them to be parties defendant to the suit brought by Fraser & Co. against Greenhill, but without costs to either party. Kettletas v. Maybee. SUPREME COURT-GENERAL TERM. MARCH, 1852. KETTLETAS V. MAYBEE. Where a defendant is sued as an assignee of a lease and he denies by his answer only the execution of the lease and the assignment to him, to entitle the plaintiff to recover he need only prove the execution of the lease and assignment. The only defense the defendant can set up under such an answer is the non-execution of the lease and assignment. The defendant cannot under such an answer set up the defense that before the commencement of the action he had parted with all his interest in the lease and assignment. Edmonds, P.J.: This was an action on a covenant against the assignee of a lessee for one quarter's rent becoming due on the first of May, 1849. The defendant answered, denying the execution of the original lease, and denying an assignment to him. On the trial he offered to prove that before the rent became due, to wit: on the sixth April, 1849, he assigned all his interest to a third person, who entered into possession, and was in possession when the rent became due. The evidence was excluded, and the only question in the case which we consider on this appeal is whether this evidence was properly excluded. It seems to me that it was. In covenant there never was any general issue, and now there is none in any action, but all defenses must be specially pleaded. The mere denial that a lease was ever executed, or that it was ever assigned, does not in any manner imply the defense attempted to be set up by the evidence offered, nor would a party go down to trial on such a state of pleading with any idea that he would be called upon to do more than that prove a lease had been made and assigned to the defendant, and least of all things would he expect to be called upon to meet O'Donnell and Clark v. Kelsey. a defense that might allow all that to be true, and yet a liability be avoided by means of another assignment. Such further assignment is an affirmative, independent fact in no wise connected with the defense set up by the pleading, and to allow it to be proved without being pleaded would make pleading a trap to the unwary rather than a true statement of the cause of action or matter of defense. Upon principle, upon the old rules of pleading in the action of covenant, and upon the enactments of the Code, the defense offered ought to have been pleaded, and not having been pleaded the evidence was inadmissible. Judgment must be affirmed with costs. IN THE COURT OF APPEALS. 1852. O'DONNELL and CLARK V. KELSEY. The principle of apportioning land under water among the riparian owners, where the shore line has sinuosities, indentations, and projections. Though a riparian owner may not be estopped by a voluntary apportionment among other owners of the land under water, yet if he has taken possession of portions of it, pursuant to such apportionment, and seen others do so, also, without objection on his part, he may justly be regarded as having acquiesced in the same. Such acquiescence in the conduct or language of others, will be binding as an admission when it plainly appears that such conduct was fully known, or such language fully understood by him. IN November, 1833, the defendants, Kelsey and Anson Blake, purchased a tract of land in the city of Brooklyn, lying directly on the shore of the East river, and principally valuable for its water front. They thus became purchasers for themselves and others who were interested with them, in 46-vol. 2 O'Donnell and Clark v. Kelsey. whose behalf they executed a declaration of trust. In 1836, the legislature passed a law authorizing Kelsey & Blake, and other riparian owners on the same shore on both sides of them to dock out a certain distance into the river. In 1841, another statute was enacted altering the outer line in front of Kelsey & Blake and others who owned south of them, and permitting them to dock out still farther. The shore at the upland had many variations and sinuosities where it came down to the water, but the outer or water line as granted by the legislature was straight in front of the lands conveyed to Kelsey & Blake, and indeed the whole of the distance granted, except a change in its direction at a point directly in line with the northern boundary of their premises. That boundary, in their deed, was the center line of Butler street (afterward Harrison street), and that variation in the water line was at a point made by the prolongation of that center line into the river. Under an act of the legislature, commissioners were ap pointed to lay out Brooklyn into streets, squares, and avenues, and those commissioners laid out streets, etc., over these premises of Kelsey & Blake, and over the lands of the owners on both sides of them. Kelsey & Blake laid out their premises into lots and streets, according to the general plan of the commissioners, and in doing so, included the lands under water in front of their premises, taking the center line of Harrison street as it was prolonged into the river, as their northern boundary, and adopting as their southern line one parallel to it. The other riparian owners divided the lands under water among themselves, upon the same principle, taking the lines of the public streets as their basis, and appropriating to themselves the lands that came in front on this basis. Kelsey & Blake conveyed to their cestui que trust, the shares belonging to them, and released to each other each one's share as agreed, on partition among themselves. On |