mission of title in the answer. the plaintiff has a right to repose upon the ad- allowing plaintiff to repose upon admission of title in the answer. Judgment of General Term, judg favor of plaintiff, affirmed. Opinion by Andrews, J.; Folger, Rapallo, and Miller, JJ., concur; did not vote and Earl, J., did not sit. Allen, J., dissents; Church, Ch. J., EVIDENCE. N. Y. COURT OF APPEALS. Alexander, exrx. &c., respt., v. Dutcher et al., applts. This was an action for trespass.ment and order of Special Term, in The complaint alleged that when the trespass was committed, plaintiff was the owner and in possession of the locus in quo. Defendant, in his answer, alleged that he was the owner of the lands lying next "northerly of the lands of the plaintiff which are mentioned and described in the complaint," that he had an open right of way over the premises, and entered to remove an obstruction unlawfully placed therein; that he had "requested the plaintiff to remove such gate and to discontinue the same, and he promised to do so, but wrongfully continued the same." The concluding clause in the answer denied the complaint, "except as herein before answered." The court treated the ownership and possession of the locus in quo in the plaintiff as admitted by the pleadings. S. Earl, for applt. Amos H. Prescott, for respt. Held, no error; that the court was justified in so doing, and the concluding clause of the answer was not a denial of plaintiff's alleged title, as that was answered and admitted by what preceded. Plaintiff attempted on the trial to show that he had possession in fact of the locus in quo at the time of the alleged trespass, and the proof, as the Court held, showed that the legal title and possession were in his wife. Held, That the fact that plaintiff failed to prove title or possession in himself did not deprive him of the benefit of the admission in the answer, and no rule of law was violated in Decided Sept. 18, 1877. Section 399 of the Code, which relates to testimony in cases where an executor is a party, makes no distinction between cases where parties are called as witnesses in their own behalf or in behalf of a co-defendant, or cases where they are jointly and severally liable. The Act of 1832 (4 R. S., 454) has been superseded by §§ 120 and 397 of the Code of Procedure. Affirming S. C., 2 W. Dig. 415. This was an action against D., as maker, and others as endorsers of a promissory note. Defendant D. answered separately, setting up usury, payment and alteration of the note after execution. The other defendants answered jointly with same defences. On the trial plaintiff proved the note and protest and rested. D. offered to prove by defendant H. that he was solvent when the note became due, to the knowledge of A., plaintiff's intestate. Defendant also offered to prove that H. borrowed money of A. after the maturing of this note, and that A. did not claim that this note was outstanding. These offers were both excluded. E. F. Bullard, for applts. Held, no error; that § 399 of the Code, which prohibits all parties to actions from testifying to personal transactions with a deceased person against his executor, &c., makes no distinction between cases where parties are called as witnesses in their own behalf, or in behalf of a co-defendant, or cases where they are jointly and severally liable. The act of 1832 (4 R. S., 454) authorizing the maker and endorser of a promissory note to be joined in one action, and reserving all rights of the parties, the same as if they had not been joined, has been superseded by §§ 120 and 397 of the Code. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Rapallo, J. All con cur. extradition issued by the Governor of this State upon requisition of the Governor of Massachusetts. He was charged with being an accessory after the fact to a burglary in the latter State. Relator sued out this writ of habeas corpus, to which the Sheriff made return that he held the prisoner by virtue of the aforesaid warrant. Subsequently a further return was made by the Sheriff, showing that the prisoner was held by virtue of a second warrant of extradition issued upon another requisition of the Governor of Massachusetts, charging relator with being accessory before the fact to the same burglary. Relator traversed these returns, denying that he was the person named in the requisitions, or that he had ever committed any offense in the State of Massachusetts, and averring HABEAS CORPUS. EXTRADI- that the proceedings were irregular, TION. N. Y. SUPREME COURT. GENERAL Decided May 21, 1877. A Court of Oyer and Terminer has no power to issue a writ of habeas corpus in the case of a person held in custody by virtue of a warrant of extradition. Such a person is not a "prisoner detained in the common jail of any such county, upon any criminal charge," within the meaning of sec. 27, ch. 460, Laws of 1847. Where a writ of habeas corpus has been issued in such a case by an officer having authority so to do, the warrant of the Governor is not conclusive, but such officer may go behind such warrant and determine whether any crime was sufficiently charged against the relator in the affidavits presented to the Governor. Relator was arrested and held by the Sheriff, by virtue of a warrant of informal, and illegal. The Governor, upon application, refused to produce the original affidavits upon which the warrants were issued, or to furnish copies thereof. The Court of Oyer and Terminer, by whom the writ of habeas corpus was issued, having decided the question of identity, dismissed the writ and remanded the relator, on the ground that it had no jurisdiction to entertain or determine any other question, but that jurisdiction of all other questions belonged exclusively to the federal courts. Chas. W. Brooke, for relator. Held, That the jurisdiction of the Court of Oyer and Terminer (if it had any whatever in the case) was not restricted to the mere question of the identity of the relator with the person named in the warrants; that the decision of the Governor upon the sufficiency of the affidavits is not conclusive, but is open to review by any court or officer having authority to issue the writ of habeas corpus. 56 N. Y., 182. But the Court of Oyer and Terminer had no power to issue the writ. Its only power to grant a writ of habeas corpus (except the writ ad testificandum) is given by sec. 27, ch. 460, Laws of 1847, in case of prisoners detained upon any criminal charge in the common jail of the county in which such court shall be sitting. Relator's case did not fall within the provisions of that section, and the Court of Oyer and Terminer had, therefore, no power as such Court to issue the writ or to hear and determine the issue joined upon the re turn. In the case of a judgment of a Court of general jurisdiction of a sister State, the want of jurisdiction may be shown by extrinsic evidence, and the recital of a jurisdictional fact in the record is not conclusive, but may be contradicted by extrinsic evidence. Reversing S. C., 2 W. Dig., 336. This action was brought to foreclose a mortgage. One of the defences was that plaintiff's rights as mortgagee had been barred by a judgment of foreclosure of a prior mortgage, under which judgment the premises were sold to one of the defendants. The answer alleged that plaintiff was a defendant in that action, and appeared by one M., his attorney, but did not put in an answer. Upon the trial, defendants put in evidence the judgment roll in said former action, which roll contained a notice of appearance for the plaintiff herein, and a consent that judgment be entered, purporting to be signed by M. The judgment was entered by Certiorari and habeas corpus dis- default for want of an answer and missed, and relator remanded. Opinion by Davis, C. J. Daniels, J., concurs in dismissing the certiorari, on the ground that it was not served upon, nor return made thereto by the justice issuing the writ of habeas corpus. EVIDENCE. on this consent, and recited that the summons had been served on all the defendants, and none had appeared except the present plaintiff and some others. No proof of service of the summons on plaintiff was attached to or contained in the judgment roll, and it was conceded as matter of fact that no such service was made. Plaintiff FOREIGN JUDG- offered to prove by M. that the signa MENT. N. Y. COURT OF APPEALS. Ferguson, applt., v. Crawford al., respts. Decided Sept. 18, 1877. ture to the notice of appearance and consent was a forgery; that he was et never authorized to appear for plaintiff, and that he never did appear for him. This evidence was rejected. Wm. F. Purdy, for applt. In an action to foreclose a mortgage, evidence to show that an appearance for the present plaintiff in an action to foreclose a prior mortgage, by which it is claimed his rights are barred, was unauthorized or forged, is competent. Wilson Brown, Jr., for respts. Held, error; that the evidence was competent; that the bare recital of jurisdictional facts in the record of the judgment was in an equity action under the practice in this State only prima facie evidence of the truth of the facts recited, and plaintiff was not estopped thereby from showing by affirmative proof that they were untrue, 29 How. Pr. 292; 6 Rob. 198; 12 N. Y., 164; that plaintiff had a right to prove any matter showing that defendants ought not in equity to avail themselves of the judgment. 28 Conn. 557. Brown v. Nichols, 41 N. Y., 26; Denton v. Noyes, 6 J. R., 296, distinguished. In the case of a judgment of a Court of general jurisdiction of a sister State, although entitled to the benefit of the presumption of jurisdiction which exists in favor of a judgment of our own courts, yet the want of jurisdiction may be shown by extrinsic evidence and the recital of a jurisdictional fact in the record is not conclusive but may be contradicted by extrinsic evidence. 15 J. R.; 5 Wend. 148; 6 id., 447; 41 N. Y., 272; 46 id., 30. Judgment of General Term, affirming judgment for defendants, reversed, and new trial granted. without first bringing an action of trespass and establishing his legal right by judgment. Appeal from judgment in favor of plaintiff entered on decision of Special Term. This action was brought against defendants to recover damages for their having fenced up a public highway in Springfield, Otsego County, and to restrain them from maintaining or continuing such obstruction. The answer denies the existence of the highway. It is conceded that in 1849 such a road existed. In that year a plank road was built through the town nearly parallel to such road, and a very short distance from it. After that the old road was not used to a very great extent, and at different times various individuals, among others the defendants, obstructed it by fences and otherwise. Plaintiff is the owner of forty-nine acres of land, which are bounded on the east by said highway, and said highway is the only road, public or private, by which such premises can be reached. Samuel A. Bowen, for applt. Held, That the evidence justifies the conclusion that there had been no Opinion by Rapallo, J. All con- abandonment of the road by the pubcur, Andrews, J., in result. HIGHWAYS. OBSTRUCTIONS. N. Y. SUPREME COURT. GENERAL lic. It had been travelled and used as a highway up to the time the action was brought. It is true obstructions had been erected by individuals who owned adjoining lands in their own interests. But individu James Hood, respt., v. Calvin P. als cannot work an abandonment of Smith et al., applts. Decided Sept., 1877. Individuals cannot by obstructing a public highway work an abandonment of it. That can be done by the public only. A person whose rights are injured by such obstructions is entitled to equitable relief a public highway. That can be done only by the public. Held also, That when the plaintiff established his right to an injunction, his cause of action was established. The damages were merely an incident to the action, and the amount given as state a cause of action, and is not bound to anticipate the defence. ($10) was in fact nominal. Enough Where the reinsuring company has notice to was shown to sustain such an amount. Perhaps it would have been as well for the plaintiff to have brought his action of trespass and established his legal right by judgment in his favor, before appealing to the equity side of the Court. While that course is recommended in practice, it is not essential. Besides, the action of trespass would be quite inadequate to secure plaintiff's rights if others persisted in obstructing his right of way, as the amount of damage in each case might be trifling, but the annoyance would be perpetual. produce its contract of reinsurance and declines to do so, every intendment is to be taken against it. This was an action upon a policy of insurance upon the life of C. for the benefit of plaintiff, his wife. It appeared that the application was made in writing by C. and plaintiff jointly to the Empire M. L. Ins. Co., May 31, 1872, and that it stated that C. had not had, "during the last seven years, any sickness or disease," that no physician had attended him. for such a sickness, and also that he had not been subject to a cough. A policy was issued on the same day. Between June 1, 1872, and October 2, 1872, an agreement was made by defendant to assume the risks taken by the Empire M. L. Ins. Co., and REINSU-defendant issued a policy upon the life of C. in consideration of the representations made to the Empire Judgment affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., con cur. LIFE INSURANCE. N. Y. COURT OF APPEALS. Cohen, applt., v. The Continental Co. in the application for the policy Life Ins. Co., respt. Decided April 10, 1877. surrendered, and said application and representation were to apply to and make a part of the policy and war Where one company, in pursuance of an agree-ranted to be true. Defendant's polment to reinsure the risks assumed by an other, upon surrender of a policy in such other company, issues a policy in consideration of the representations made in the application for the surrendered policy, such application and representations to apply to and make a part of the policy and warranted to be true, Held, That such warranty related to the date of the original policy and icy also provided that if the declarations made to the Empire Co., or any part thereof, should not have been discovered to be in any respect untrue within one year of the date of defendant's policy, the same should be considered incontestable by defendant, unless they should be discovered at any time wilfully and fraudulently untrue. It was claimed that within a year after the issuing of defendas a life insurance company could safely or ant's policy, that some part of the not to that of the new one. Where the reinsuring company was to assume all the risks of the original insurer, it cannot set up as a defence to an action by one of its policy-holders that the risk was not such properly take. In an action upon a policy, plaintiff has a right in complaining to rely upon such averments declaration to the Empire Co. was untrue, and wilfully and fraudulently |