Held, error; that as the certificate speaks of but one attestation, seal and signature, and speaks of the foregoing," it referred only to the last preceding attestation, i. e., the one to the copy execution; and that, therefore, there was no certificate authenticating the copy of the record, as prescribed by the act of congress (U. S. R. S., 170, sec. 905). (Burnell agt. Weld, 76 N. Y., 103.)

56. In an action against a sheriff for a false return to an execution in an action of replevin, defendant offered in evidence a chattel mortgage, purporting to cover the property, given by one A. H. to M. There was no allegation in the answer or offer to prove that plaintiff did not own the property, or that M. did own it or have any right to the possession thereof:

Held, that the mortgage was properly excluded. (Hoffman agt. Conner, 76 N. Y., 121.)

57. For the purpose of proving value, plaintiff was allowed to testify, under objection and exception, as to what she gave for the property:

Held, no error. (Id.)

58. At the time the objection was made, it did not appear when the property was purchased by plaintiff; subsequently, it appeared that the purchase was made ten years prior to the false return; the objection was in no way renewed:

Held, that there was no exception to present the point upon appeal, that evidence of the purchase-price so long before was incompetent. (Id.)

59. In an action to recover damages for alleged negligence in leaving an excavation in a street unprotected, a witness for plaintiff was asked, in reference to another accident occurring at the same place, "Do you know any thing about a party recovering a judg

ment of $5,000?" This was objected to and objection overruled. The witness answered, in substance, that he did not know any thing about it, but heard "from some parties outside that there was such a thing:'

Held, that the question was incompetent, and that the latter part of the answer was not so irresponsive as to relieve plaintiff from the responsibility of it; that to avoid such responsibility he should, at least, have disclaimed the answer and declined to receive it. (O'Hagan agt. Dillon, 76 N. Y., 170.)

60. A witness, on the part of defendant, who had testified that he hung a lamp, on the evening of the accident, near the excavation, and about the hour in the morning when he removed it, was asked, "Is your recollection refreshed or your attention called to that (the time of removal) from any circumstance, any accident that happened then?" This was objected to and excluded: Held, error. (Id.)

R., in the absence of the prisoner, to the effect that certain entries in the books of the company, as to policies issued, were false, and that the prisoner knew of it:

Held, error; that the reference to R. did not confer authority upon him to bind the prisoner by his declarations. (Lambert agt. People, 76 N. Y., 220.) *

63. The affidavit purported to have been sworn to before a notary public. The prosecution proved that M., the alleged notary, had acted as such for some years, and produced a book from the county clerk's office containing a list of notaries, the time of their appointments, etc., among which appeared the name of M. Defendant in error offered to prove that M., at the time of his alleged appointment, and at the date of the verification, was a resident in the state of New Jersey. This evidence was rejected:

Held, error; that it was necessary for the prosecution to show that the oath was taken before a de jure or de facto officer; that the evidence given for that purpose was, at best, but prima facie, and proof that the alleged notary was a non-resident, and so incapable of holding the office (1 R. S., 116, sec. 1) was competent to rebut any presumption arising from such evidence. (Id.)

64. In an action upon a note the makers admitted the execution thereof by them, but denied the indorsement by the payee, and alleged that the note was not made for value, but was fraudulently obtained by the payee, and that the plaintiff was not a holder for value. On the trial plaintiff's book-keeper, called by them as a witness to prove the indorsement, on cross-examination, testified, in substance, that he received the note before maturity, and that he gave nothing when he received it. On re-direct examination he testified, that for the note he sur

rendered, a short time after he received it, two other notes of the payees held by plaintiffs, which had been protested. Defendants offered to prove that the note was given without consideration, it having been sent by them to the payee to take up another note given as collateral security, for his accommodation, and that he did not take up the other note; this was objected to, upon the ground that defendants had not laid any foundation for the evidence, by showing that plaintiffs were not innocent holders for value. The objection was sustained:

Held, error; that if the offered proof had been made the burden would have been cast upon plaintiffs to show that they were bona fide holders for value; and that defendants did not lose the benefit of their exceptions by giving other evidence in an ineffectual attempt to lay a foundation for the rejected testimony in accordance with the ruling of the court. (Nickerson agt. Ruger, 76 N. Y., 279.)

65. Where, upon a criminal trial, the

accused is offered as a witness in. his own behalf, to entitle the prosecution, to put to him, upon cross-examination, questions which are irrelevant to the issue and are calculated to prejudice him with the jury, they must, at least, be such as clearly go to impeach his general moral character and his credibility, as a witness. (People agt. Crapo, 76 N. Y., 288.)

66. As to whether, even then, the questions would be competent, quære. (Id.)

67. Upon the trial of an indictment for burglary and larceny, the prisoner, on cross-examination, was asked if he had not been arrested on a charged of bigamy; this was objected to; objection overruled:

Held (FOLGER and EARL, JJ., dissenting), error; that it did not

legitimately tend to impair the credibility of the witness, and was incompetent for any purpose. (Id.)

or

*

69. In an application for a policy, the insured answered "No" to a question as to whether any member of his family had died been afflicted with insanity * or other hereditary disease." It was stated, however, that his father had died of a brain disease, caused by a hurt. In an action upon the policy, defendant claimed the answer untrue, and gave in evidence copies of entries in the records of a probate court of Ohio, determining the insured to be insane, and ordering him to be sent to a lunatic asylum; also records of the asylum showing that he had been admitted therein. The mother of the insured testified that her husband received an injury on his head in childhood; that for many years before his death he was afflicted with pains in his head, of which he complained, referring to the hurt he had received; that later he showed signs of weakening of mental powers, which continued and increased until his death, but that

to the end he knew what was going on; that he was sent to the asylum by friends for quiet and treatment. It did not appear that he was subject to any delusions or acted irrationally. After death an autopsy disclosed that his disease was hardening of the brain:

Held, that the records were not conclusive, as against plaintiff, as to the insanity of the father; nor did the evidence authorize the court to determine, as a question of law, that the answer was untrue. (Newton agt. Mut. Ben. L. Ins. Co., 76 N. Y., 426.)

70. As to whether the records were competent evidence, quære. (Id.)

While it is competent for a party

to show that a witness who has testified against him is hostile to him, the evidence to establish it should be direct and pointed; the court is not bound to receive evidence of a remote and uncertain bearing. (Gale agt. N. Y. C. and H. R. R. R. Co., 76 N. Y., 594.)

72. Defendant offered to show that one of plaintiff's witnesses had, prior to the accident as to which he testified, applied for a position upon its road, and had been refused:

Held, that the rejection thereof was not error. (Id.)

73. Where, in an action to recover

a balance of an alleged loan, the question was as to whether the loan was made to defendant or to other parties through defendant as their agent, held, that entries made in plaintiff's books, without defendant's knowledge or consent, were not competent evidence that the loan was made to or upon the credit of defendant. (Peck agt. Von Keller, 76 N. Y., 604.)

EXCEPTION.

See CRIMINAL LAW.

The People agt. Moett, ante, 467.

1. An objection as follow: "I desire to except to your honor's statement to the jury of evidence, or supposed evidence, connected with the accident or causing it," is too general and vague to be available as a ground of error. (Minick agt. City of Troy, 19 Hun, 253.)

2. An error in the charge of the court upon a criminal trial can only be availed of in this court upon exceptions duly taken on the trial. (Brotherton agt. People, 75 N. Y., 159.)

3. A general exception to all of charge upon a particular point, is unavailable here when a portion of the charge is correct; the attention of the court must be called to the erroneous portions. (Arnold agt. People, 75 N. Y., 603.)

EXECUTION.

1. An execution against the person, which recites that an execution has been issued to the proper county, and returned unsatisfied is insufficient. It must specify the county eo nomine, and if it does not, the defendant may be discharged on habeas corpus. (The People ex rel. Brack agt. Reilly, ante, 218.)

2. When part of a judgment for a tort is assigned, execution against the person may still issue in the name of the assignor for the full amount of the judgment. (Dougherty agt. Gardner, ante, 284.)

3. A judgment for damages resulting from personal injuries is assignable in whole or in part. The right to imprison is not lost. (Id.)

4. Property of the defendant having been levied upon under executions, issued upon judgments recovered against it by the plaintiff and another, the same was,

by an order of the court, made on April 23, 1878, directed to be sold under the said executions, subject to the approval of the court. The property was sold April twentyninth, and was purchased by the plaintiff, at a price in excess of the amount due on all the judg ments. No money was paid, but a bond was given conditioned that the purchaser would bring the money into court, or pay the same over as the court might direct. On May fourteenth the sale was approved by the court. Prior thereto and on May fourth, the plaintiff recovered another judg ment against the defendant, exceeding in amount the surplus which had arisen on the sale, and on that day issued an execution to the same sheriff.

July 16, 1878, the appellant was appointed receiver of the defendant, and thereafter applied to have the surplus paid over to him:

Held, that this application was properly denied, and that the plaintiff was entitled to have it applied upon his judgment of May fourth. (First Nat. Bank agt. Whitehall Trans. Co., 18 Hun, 161.)

5. In November, 1874, one Snedeker conveyed certain premises to one Campbell, the deed being recorded June 9, 1875. June 8, 1875, Campbell reconveyed the premises to Snedeker's wife, the deed being recorded in August, 1875. In July, 1875, judgments were recovered against Snedeker, and the premises sold upon executions issued thereon to one Carman, to whom, on the expiration of fifteen months, a deed was delivered by the sheriff. The premises having been sold on the foreclosure of a mortgage executed prior to November, 1874, Carman claimed to be entitled to the surplus moneys:

Held, that as Snedeker had no title to the premises when the judgments were docketed, Car

man acquired none on the sheriff's sale, and had, therefore, no interest in the surplus moneys. (Snedeker agt. Snedeker, 18 Hun, 355.)

6. That even if the conveyance to Campbell was fraudulent, Carman was not in a position to attack it in proceedings for the distribution of such surplus. (Id.)

7. One purchasing in good faith, at a sheriff's sale, under execution, goods in the possession of the judgment debtor, is not liable to an action brought by the true owner to recover the goods, or their value, until a demand therefor has been made and refused. (Rawley agt. Brown, 18 Hun, 456.)

8. An execution having been delivered to the sheriff, he went to the office of the defendant, a lawyer, and found him out; he then went to the defendant's farm, looked over certain articles of personal property and made a minute of them; he then returned to the defendant's office, and finding him still out, he looked over his library, opened the cases, handled the books and made a memorandum of them. On the next day he saw the defendant, showed him the execution and told him he had levied on the books:

Held, that the levy was sufficient as against a subsequent purchaser from the defendant. (Dean agt. Campbell, 19 Hun, 534.)

9. That such levy continued in force for the benefit of executions received by the same sheriff subsequently and up to the time that the execution under which the levy was made was paid. Except as against a purchaser in good faith, the goods of the debtor are bound from the time of the delivery of the execution to the sheriff. (Id.)

10. The notice of a sale of chattels under an execution, required to

be given by section 21 of 2 Revised Statutes, 366, need not describe the execution, nor give the name of the judgment debtor. (Chapman agt. Morrill, 19 Hun, 318.)

11. On December 3, 1875, the plaintiff delivered an execution to one Paine, a deputy of the defendant. The defendant was then sheriff of Monroe county, his term of office expiring on the last of that month. The execution not being paid in sixty days, it was held by Paine, with the knowledge and consent of the plaintiff and the sheriff, in the expectation that the debtor would pay it later. Thereafter the debtor paid the amount thereof to Paine, who returned the execution as satisfied, in the name of the defendant, as late sheriff, but did not pay over the money so received to either the plaintiff or the sheriff. In an action against the sheriff to recover the amount so received by his deputy, held, that the plaintiff was entitled to recover. (Ross agt. Campbell, 19 Hun, 615.)

12. Under an execution, in the usual form in an action for the claim and delivery of personal property, it is the duty of the sheriff to take and deliver the property as commanded, not only if he finds it in the possession of any person named therein, but also if he finds it in the possession of any other person; unless he can justify his refusal to do so by showing that such person has a title or right of possession superior to that of the party to whom he is commanded to deliver it. (Hoffman agt. Conner, 76 N. Y., 121.)

13. Where, therefore, to such an execution, the sheriff returned that he could not find the property so as to make delivery, and it appeared, in an action against him for a false return, that he knew where the property was within his county, and could have found