subsequently been paid. The firm also offered to allow judgment to be taken against them, under section 738 of the Code of Civil Procedure, for the amount claimed in the complaint, after deducting that note, which offer was accepted by the plaintiff, and judgment was entered accordingly. Subsequently the plaintiffs brought this action upon the same note against the defendant Marks, who had indorsed it:

Held, that this action was barred by the judgment entered in the former action. (Robinson agt. Marks, 19 Hun, 325.)

provision is clear and explicit. (Id.)

8. Nor has the provision of said Code (sec. 788), which declares a like rule for computing the time within which an act in an action or special proceeding is required to be done, any application, 1st. because it refers to the preceding section (sec. 787); 2d. It excepts cases where the law makes other provision; 3d. It relates to the time within which an act is required to be done, not to a period after the expiration of a specified time; 4th. The two sections have no connection, and this one was not designed to limit the operations of the other. (Id.)

*

6. Under the provision of the Code of Civil Procedure (new Code, sec. 1228), declaring that judgments on the decision of the court may be entered after the expiration of four days from the filing of the decision, * * and the service upon the attorney of the adverse party of a copy thereof, but not before," four full calendar days must elapse after the filing of a decision and notice thereof before judgment can be properly entered. (Marvin agt. Marvin, 75 N. Y., 240.)

7. The rule of interpretation which, in computing time, excludes the first and includes the last day has no application where, as here, the

This action was brought against

all the members of a board of education of a union free school district jointly as trustees, charging them as public officers, not as individuals, with neglect in not keeping the school-house in repair, in consequence whereof plaintiff was injured. It appeared upon the trial that the board had an arrangement with F., one of the defendants, that when any small repairs were needed he was to make them, whether upon order or notice first given, or upon his own motion did not distinctly appear, and it did not appear that the question of his individual liability, distinct from that of the other defendants was presented to the trial court. The judgment was against all of the defendants jointly:

Held, error; and that it could not be sustained against F. (Bassett agt. Fish, 75 Ñ. Y., 303.)

10. A judgment for plaintiff will not

be reversed on appeal because of an omission to aver in the complaint or to prove upon the trial a fact essential to the plaintiff's case, unless the defect was pointed out and is reached by a proper exception taken on the trial. (Thayer agt. Marsh, 75 N. Y., 340.)

11. The docket of a justice of the peace showed the service of summons, the appearance of the parties, the issue, a motion for discontinuance made by defendant on the ground that the accounts between the parties exceeded $400, the granting of the motion on that ground, and the items of costs; it also recited that it satisfactorily appeared from the proof offered, that the accounts of the parties exceeded said sum; it did not, in terms, award judgment of discontinuance with costs against plaintiff:

Held, that the docket contained all the particulars necessary to constitute a valid judgment of discontinuance for want of jurisdiction. (Bradner agt. Howard, 75 N. Y., 417.)

12. A valid judgment in personam cannot be obtained against a nonresident of the state who is not personally served with process and does not appear in the action. (Bartlett agt. Spicer, 75 N. Y., 528.)

13. A state cannot authorize such a judgment, which will bind property not within the state at the time and not proceeded against in rem, in satisfaction of the claim. (Id.)

14. In an action brought by a material-man, under the mechanic's lien law of 1862, for the counties of Kings and Queens (chap. 478 Laws of 1862), to foreclose an alleged lien for the value of materials furnished to a contractor, in which action the contractor is joined as defendant, and a personal judgment is demanded against him, such judgment cannot be rendered where the plaintiff fails to establish his lien. The action is in the nature of a proceeding in rem, and, as incident thereto, a personal judgment is authorized "in addition to the judgment' provided for against the owner of the premises; having failed in ob

taining that relief, plaintiff fails altogether. (Burroughs agt. Tostevan, 75 N. Y., 567.)

15. The fact that said act authorizes the enforcement of a lien "by a civil action in a court of record" governed by "the rules and practice in ordinary actions" (sec. 2) does not authorize a personal judgment in such a case. (Id.)

16. The objection that a judgment in an action against an executor as such is not in proper form, in that it should be de bonis testatoris, cannot be taken for the first time upon appeal; if the judgment is erroneous in this respect defendant should move in the court in which it was rendered to have it amended. (De Lavallette agt. Wendt, 75 N. Y., 579.)

17. It seems, that where a debtor, against whom actions have been commenced by different creditors, serves an offer of compromise under the Code (old Code, sec. 385; new Code, sec. 738) in the action last commenced, and thus enables the plaintiff therein, by accepting the same, to perfect his judgment in advance of the creditor who first brought suit, and to obtain a preference in the payment of his debt, this is not such a fraud as will authorize the setting aside of the judgment so obtained; the giving of a preference to one creditor over another is not unlawful. (Beards agt. Wheeler, 76 N. Y., 213.)

18. Where, in an action against part ners upon a partnership obligagation, separate judgments are entered against each of the defendants, instead of a joint judgment against all, this is an irregularity merely; and the court has no power to set aside the judgments on motion, unless motion is made within one year after their rendition (2 R. S., 359, sec. 2). (Judd L. and S. O. Co. agt. Hubbell, 76 N. Y., 543.)

tion of the assignment, and alleged substantially that he did not accept the trust, but took the property by appointment of the creditors:

Held, that this averment did not oust the judge of jurisdiction, but simply raised an issue for his determination. (Id.)

7. The supreme court, whether sitting in general or special term, is one court, the general term has the records of the court before it the same as the special term; and, after entry of judgment upon its decision, has power to correct, amend or modify the judgment so as to give true expression to its decision. (Salmon agt. Gedney, 75 N. Y., 479.)

8. The distinction between the jurisdiction of this court and of the general term of the supreme court in this particular pointed out. (Id.)

9. The supreme court of this state has not jurisdiction of an action upon a stipulation entered into in a proceeding in admiralty, instituted to obtain possession of a vessel for the purpose of prosecuting a particular voyage. (Bartlett agt. Spicer, 75 N. Y., 528.)

10. The stipulation is but an incident to the proceeding of which, as it is a possessory action in rem, the United States district court has exclusive jurisdiction; and the stipulation can only be enforced by and in accordance with the practice of that court. (Id.)

11. Under the provision of the charter of the village of Port Jervis (sec. 40, chap. 370, Laws of 1873), giving to the police justice of said village the jurisdiction, powers and authority of the justices of the peace of the town in which the village is situated, with "jurisdiction to hear and determine all cases arising under the charter, by-laws or ordinances," the jurisdiction in the class of cases last

specified is to be exercised in the same manner as in cases before justices of the peace. (Peo. ex rel. Dargin agt. Cox, 76 N. Y., 47.)

12. In an action, therefore, for a violation of an ordinance of said village, held, that defendant was entitled to demand and have a jury, as on trial before a justice of the peace. (Id.)

13. Where, upon presentation to a clerk in the office of a surrogate of a petition asking for the appointment of an administrator of the estate of M., who was, in fact, then living, the clerk filled up a blank for letters of administration signed and left with him by the surrogate, and attached thereto the surrogate's seal, the latter never having acted upon and having had no knowledge of the petition, held, that the judicial powers of the surrogate could not be delegated; that the letters were absolutely void, and were no protection to one who, upon presentation thereof, in good faith and relying upon them, paid to the person named as administrator a sum due M. (Roderigas agt. E. R. Segs. Bk., 76 N. Y., 316.)

14. The petition alleged the death of M. upon the best of the knowledge, information and belief of the petitioner; there was no other proof of death. Held, that this was not due proof of the death such as would give the surrogate jurisdiction. (Id.)

15. The court of common pleas of the city and county of New York has no jurisdiction to entertain an appeal from an order of the marine court, except it be an order granting a new trial (old Code, secs. 34, 352, 354; sec. 9, chap. 545, Laws of 1874; sec. 43, chap. 479, Laws of 1875). (Bamberg agt. Stern, 76 N. Y., 555.)

16. This court has no power to amend

a record of the supreme court;

any amendment must be sought in that court. (Kenyon agt. N. Y. C. and H. R. R. R. Co., 76 N. Y., 607.)

JUROR.

JURY.

1. The proceedings by which a jury is to be obtained in a justice's court are purely statutory and should be strictly complied with, otherwise the judgment rendered cannot be sustained. (Becker agt. Sitterly, ante, 38.)

2. The justice is limited by the statute to a certain course of proceedings; and unless those proceedings are adhered to, or waived by the party who has a right to insist on them, the judgment is ir regular and void. (Id.)

3. A venire for a jury issued by a justice of the peace to the defendant at his request out of court, and in the absence of the plaintiff and without giving him notice, is irregular, and for such irregularity the judgment will be reversed. (Id.)

Held, that the refusal of the justice to deposit the twelve names in the hat again and draw out six, one after another (as required by the statute), to compose the jury, when requested by plaintiff's counsel so to do, was a fatal error and one for which the judgment will be reversed. (Id.)

Upon the trial of the plaintiff in error for murder, the court having ordered additional jurors to be summoned, the clerk brought into court the box containing the names of the trial jurors for the county, and the box containing the names of those for the town, but not the one containing the names of those who had already served. The jurors having been duly summoned, the prisoner's counsel interposed a challenge to the array, on the ground that all the boxes were not brought into court as required by section 1059 of the Code of Civil Procedure. The court having sustained the challenge the prisoner's counsel withdrew it:

Held, that by withdrawing the challenge the prisoner waived any informality in the drawing of the jury, and was concluded from objecting thereto on appeal.

Semble, that as it did not appear that the names in the county jurors' box were exhausted, the failure of the clerk to bring into court the third box did not affect the validity of the drawing. (Pierson agt. People, 18 Hun, 239.)

8. A juror, upon the trial of a challenge to the favor, testified that he had read of the case in the papers and formed a decided opinion, which it would require evidence to remove, and that he would enter the jury box with it still existing, and that it would require evidence to dislodge it; that he generally believed what he read in the papers, if it sounded reasonable, until contradicted; that if accepted as a juror he did not think he would permit what