self, and, apparently, never received any further attention or support from her husband after her separation from him:

Held, that, under such circumstances, her earnings belonged to her, and were recoverable by her, and not by her husband. (Pursell agt. Fry, ante, 317.)

2. The statutes of 1860 and 1862, as to married women, have not altered the common-law liability of the husband for the personal torts of his wife, but when such torts are committed in the management and control of her separate prop erty the rule is changed, and she only is liable. (Lansing agt. Holdridge, ante, 449.)

3. The wife is liable in the same manner, and to the same extent, for frauds or torts committed in the management of her property, as she is upon contracts relating to it. (Id.)

4. Where the wife of H. owned a house, which was insured and was occupied by N. as a tenant; the wife set fire to it in the night and it burned down, and the tenant's furniture was destroyed; H. was temporarily absent from home in a neighboring state, and was in no manner connected with her act; suit was brought by N., to recover for his damages against the wife, a daughter that was with her at the time of setting the fire, and H., the husband:

Held, that H., the husband, was not liable. That the plaintiff's damages resulted as a consequence of the tort committed by the wife in the management of her separate estate, and for these damages she may now be sued alone, and she holds her property as though husbandless," from which to respond for the damages. (Id.)

MARINE COURT (CITY OF NEW YORK).

1. The court of common pleas of the city and county of New York

evidence aliunde, the object of the testator's bounty can be ascertained. (Leonard et al. agt. Davenport, ante, 384.)

MORTGAGE.

1. K. conveyed to N. certain lands fronting on One Hundred and Twenty-first street, in the city of New York, at an agreed price. At the same time it was agreed between them that N. should erect eleven houses on said lands, and that K. should advance, from time to time, as the houses progressed, to N. certain moneys towards their erection, for which advances it was further agreed that K. should receive from it a mortgage on each of the eleven houses for one-eleventh part of the money so advanced. Afterwards, when part of the moneys so to be advanced had been paid, N. executed to K. a mortgage on the whole of said property to the amount of the advances that had then been made. This mortgage, it was agreed, should be held as security till all the advances should have been made, and till the eleven separate mortgages should be executed. Subsequently the whole of the agreed advances having been made, eight of the houses were sold by N. to various parties (among them the premises in question), on each of which, except the premises in question, the respective purchasers executed a mortgage (which was transferred to K.) for the proportionate amount advanced by K., who thereupon released his prior mortgage as to such house. N. also executed like mortgages on the remaining three houses, whereupon K., in like manner, released his lien as to those, so that the entire prior mortgage was released, except as to the house in question, and that was sought to be charged only for its proportionate amount of such advances under the first mortgage. The conveyance of the premises

in question was recorded in August, 1878. It was made subject "to two mortgages on said premises, amounting in the aggregate to the sum of $5,000." The first of the said two mortgages was one for $4,000, which is not in question here, and there was no other mortgage except the one in question on this house. In September following the conveyance in question, the last of the agreed advances was paid. The purchasers of the house in question claim : 1st. That the releases executed by K. of the ten other houses operated as a discharge of their house. 2d. That the receipt by him of the ten separate mortgages on the other houses, which, in the aggregate, were for a larger sum than the original mortgage, but were less by the sum which was the proportionate share of the premises in question, and which is sought to be recovered of the advances made, if the last payment made subsequent to the date of the deed to the grantees of the premises in question was deducted from the ⚫ aggregate amount of said ten mortgages:

Held, that the mortgage was a valid and subsisting lien on the premises in question for the amount claimed, to wit, the proportionate amount of the advances made, deducting the amount of the last payment on account of the advances from the aggregate of the separate mortgages, and deducting the remainder from the general mortgage left the sum claimed as due. (Kendall agt. Niebuhr,

ante, 156.)

2. The general rule that after alienation of a part of the mortgaged premises the remainder becomes primarily liable for the whole mortgage and that the portions alienated are liable only in the inverse order of alienation, and then only to the extent remaining due when the premises precedently liable have been exhausted is fully recognized. (Id.)

3. But the rule of charging lands in the inverse order of alienation or holding a portion remaining apparently covered by a mortgage discharged in consequence of the release by a mortgagee with notice of other portions which were primarily liable is a mere rule in equity The release to a subsequent purchaser is not a technical discharge of the lands previously conveyed. Neither is it an equitable release or discharge, unless upon the principles of natural equity and justice it ought thus to operate. (Id.)

4. A mortgagee is not bound, at his peril, to ascertain if the mortgaged premises have been aliened or mortgaged subsequent to his mortgage before releasing a part of the mortgaged premises. Recording a conveyance is not notice to him; it is notice only to subsequent purchasers in good faith and for a valuable consideration. (Id.)

5. Where a mortgagee, before releasing part of his mortgage security, employs an attorney to search the title and prepare the release and such attorney found of record certain conveyances, such knowledge is equivalent to knowledge by the mortgagee even if the attorney failed to communicate such information to his client. (Id.)

6. R., under his contract with N. was compellable to execute the release upon recovering the separate mortgages. The record of the mortgage covering the whole of the eleven houses was notice to the purchasers of the premises in question of a lien which, under certain circumstances, might have been enforced against this lot for its entire amount. If they had not notice of the contract between K. and N., they were put upon their inquiry in regard to it and by due diligence could have ascertained its terms. (Id.)

7. The contract between K. and N.

1.

constituted an equitable mortgage and gave K. in equity an equitable lien which could be enforced against subsequent purchasers to the extent actually due under it. (Id.)

MORTGAGE FORECLOSURE.

Where three actions of foreclosure had been commenced, the defendants being the same in each, the mortgage in the first action covering fifty acres of land which, after the execution of this mortgage and the two mortgages affected by the second action, had been sold to L. D., one of the defendants; the two mortgages in the second action covered 150 acres, embracing the lands affected by the mortgage in the first action; the mortgage in the third action covered 100 acres, being part of the land affected by the mortgages in the first and second action, and excluding the portion sold to the defendant L. D.; on motion to consolidate the three actions:

Held, that the motion could not be granted for the following rea

sons:

First. The authorities are against it (6 Abbott's New Cases, 69).

Second. The proceedings are, in rem, against different pieces of property, and there is no reason why one parcel should bear burdens in the way of costs which belong to another.

Third. Rights of individual defendants differ, and one defendant should not bear that which belongs to another. (Kipp agt. Delamater, ante, 183.)

MORTGAGOR AND MORTGAGEE.

1. Where the mortgagor conveys to a third party, who assumes the mortgage, the relation of principal and surety arises between the mortgagor and his vendee, and after notice of this relation the

mortgagee is bound to observe it and abstain from doing any act to the prejudice of the mortgagor, or which would impair his recourse against the mortgaged premises in case he should be obliged to pay his bond and be subrogated to the mortgagee; the mortgagee in such a case, after notice, cannot, with impunity, release the land or extend the time of payment, or do any other act to the prejudice of the mortgagor, and the prohibited acts are determined by the law of principal and surety. (Marshall and Miller agt. Davies and others, ante, 231.)

2. But the actual relation of debtor

and creditor between the mortga-1. gor and mortgagee cannot be destroyed by any act of the mortgagor alone, where the mortgage is given to secure the bond of the mortgagor. (Id.)

3. In cases like the present the relation of creditor and principal debtor is so affected that the mortgagee is bound, after notice of the equitable rights of the mortgagor, 2. as between himself and vendee, to respect them and do no act to their prejudice, and when he forecloses the equities of the mortgagor will be protected in the order of sale. But the mortgagee may sue upon the bond in the first instance, notwithstanding the transfer of the land. (Id.)

4. Where a vendee of mortgaged premises has assumed the payment of the mortgage, the mortgagor cannot compel his creditor to foreclose when there is no good reason why he did not pay his bond according to his agreement and take an assignment of the bond and mortgage and proceed against the land and the subsequent grantees thereof for his indemnity. He can also proceed in equity to compel such grantees, as to whom he stood in the situation of a mere surety, to discharge the debt for his protection. (Id.)|

MOTIONS AND ORDERS.

There is no absolute right to a notice of eight days on enumerated motions. A shorter notice may be prescribed by a judge or court, under section 780 of the Code, and Rule 37 of the supreme court. The exercise of this power is subject to review. (The People ex rel. The Mayor agt. Nichols, ante, 200.)

Bringing on for hearing a certiorari upon the return thereto, is like a motion for judgment on the pleadings, on the ground that the answer raises no issue of fact, and it would present a question of law only. Such motion is of the class called non-enumerated, as defined by supreme court Rule 38. (Id.)

5. For the purposes of such motion, it is not necessary to make a case. The proceedings being fresh, the judge's minutes are presumed to disclose the error, if any exists. (Id.)

6. When a motion for a new trial is made at special term, it should be founded upon a case made and settled according to the rules and practice of the court. In no other way can it be well determined by a judge, other than the one who tried the cause what transpired at the trial and what questions distinctly arose. (Id.)

litigation was upon the answer of A. Plaintiff obtained judgment; A. appealed, G. did not. The minutes of the decision of the general term were as follows:

Judgment reversed, new trial granted, costs to appellant to abide the event." An order was thereupon entered reversing the judgment as to A. only, and directing a new trial as to her. It appeared by the opinion of the general term to have been its intention to reopen the whole case and to send it back for a new trial as to all the parties interested. Plaintiff, without notice to G., discontinued as to A. On motion of G. the general term modified its order so as to reverse the judgment in toto and to grant a new trial both as to G. & A.:

Held, that the general term had power to so modify; and that upon appeal to this court from the order directing the modification the question as to the power of the general term to reverse a judgment against a party who had not appealed was not presented, as its judgment was not up for review; that the question could only be presented by appeal from the order of reversal. (Salmon agt. Gedney, 75 N. Y., 479.)

11. Plaintiff recovered $1,000 against

H. for three libelous publications, he then brought this action for the same and for two other publications in the same newspaper, the five causes of action being set forth in separate counts, and a recovery of $4,000 was had upon all the counts. Pending an appeal from this judgment the former judgment was paid, and plaintiff thereupon moved to vacate the latter judgment:

Held, that the motion was premature. (Woods agt. Pangburn, 75 N. Y., 495.)

12. The general term directed that

the judgment be set aside, that the three counts upon the causes of action common to both actions