trains contained in the notice and regulation in question only extends to cases where their trains fail to correspond with trains of other companies and not with other trains of their own, which is the present case. Having stated my opinion as to the liability of the company at common law and of the invalidity of the above notice and regulation so far as it restricts such liability in the present case, it still remains for me to consider the last point raised by the defendants, viz. Whether, if the notice and regulation were valid, and the plaintiff was bound by it to show willful misconduct on the part of the defendants' servants, he has shown it in the present case; in other words, whether the absence of the porters through their own fault, or by the orders of superior servants of the company, was, under all the circumstances of the present case, in point of law willful misconduct,' and I think with some doubt that it ought to be so held, and on this point I wish to refer once more to the judgment of the learned judge of the Marylebone County Court in Turner v. The Great Western Railway Company, and the authorities therein cited, as to the legal interpretation of the words 'willful misconduct.' The only case that I am aware of that militates against my view is that of Russell v. The Great Western Railway Company, before the learned judge of the Bath County Court to whom I have already referred-in which he held that the altered notice or regulation was valid and operative to restrict the defendants' liability to cases of proved willful misconduct on the part of their servants, but from what I have said it will be seen that I cannot concur in his view. Upon the whole, I am in favor of the plaintiff on all the points of law and facts involved in this case, and a verdict will, therefore, be entered for the plaintiff for the amount claimed, with costs, and with liberty to the defendants to appeal within one month.'"

NEW YORK SUPREME COURT ABSTRACT.*

DAMAGES.

Measure of, upon contract to deliver articles not purchasable in market.-Defendant, a contractor for the removal of dead animals from the city of Brooklyn, agreed to deliver, at a specified price, to plaintiff, who had facilities for manufacturing marketable articles therefrom, all the carcasses plaintiff should collect in Brooklyn for a year. Upon an action for a breach by defendant of this agreement, held, that the amount of profits plaintiff would have made, with his facilities, upon the animals defendant had gathered during the time he failed to deliver to plaintiff, was a proper measure of damages in such a case. Sternfels v. Clark,

396.

DURESS.

Pressing need of money not: pleading: complaint: what does not constitute cause of action.-A complaint in an action against C. & M. set forth that C. sent plaintiff to New York to establish the sale of an article manufactured by C.; that it was agreed that plaintiff was to be identified with the business, to share in the profits, and be paid such remuneration as the success of the business warranted; that the plaintiff established the business; that M. was put by C. in plaintiff's place without C.'s knowledge or consent; that a sum of $5,000 had accumulated in the business to plaintiff's credit; that C. refused to pay this unless plaintiff

From Vol. IV, Part III, N. Y. Supreme Court Reports.

signed a receipt in full, and that needing the money, he signed a receipt withdrawing all claim against C. under the agreement. The complaint asked for an accounting, etc., and that the receipt be declared void as obtained by fraud and duress. Held, (1) that the case was not one of duress, and (2) that the complaint was demurrable as not showing facts constituting a cause of action against either M. or C. Miller v. Coates, 429.

EMINENT DOMAIN.

Taking lands for streets: when title vests: Laws 1871, chap. 579.-Chapter 579, Laws of 1871, entitled "An act to lay out," etc., Ocean avenue, does not provide when the title of lands taken for the avenue shall vest in the public, but directs that the commissioners shall lay out such avenue, which shall form a part of their general plan of streets, and be laid down and designated on the map thereof to be filed by them. In an action by one claiming to be entitled, under a contract with the commissioners for opening such avenue, to the trees growing within its bounds, against the former owner of the fee for cutting such trees, it appeared that before the trees were cut the commissioners had adopted the line of the avenue and directed the preparation of the final assessment, but it was not shown that the action of the commissioners was promulgated or published, or that the map required by law had been filed. Held, that the appropriation of the land was not shown to be complete, or the title of defendant to have been divested, and a nonsuit was proper. Rider v. Stryker, 399.

ESTATE.

Conversion of real into personal: by direction in will lands devised to infants.-H. died seized of an undivided interest in certain lands. By her will she gave all her estate, real and personal, to R. for life; remainder to the children of R. The will authorized the executors to sell the interest of H. in the real estate, and convert the same into personalty, with the consent in writing of R. The consent of R. was never given, and no sale was made; but, after the death of H., a partition suit was instituted, to which the children of R., who were infants, were made parties; the lands were sold thereunder, and the amount of the interest of which H. died seized deposited in court. Held, that the power of sale in the will being dependent upon the consent of R. for its exercise, and that consent not having been given, and no sale having been made thereunder, the interest of the children of R. in the lands of H. was not converted into personalty, either by the provision of the will, or by the sale made in partition, and the distributive share of each child upon the death of such child before division went to the heirs, and not to the personal representatives of the child. Petition of Thomas, 410.

sible to show that at the time the release was made plaintiff was not the owner of the mortgage, and that the validity of the release was dependent upon a condition which had not been fulfilled. Van Bokkelen v. Taylor, 422.

HIGHWAYS.

1. Ministerial acts of commissioners: mandamus.— All the proceedings for the laying out of a highway were duly had and taken, according to law, except the making and signing of the written order and filing the same in the town clerk's office. Held, that these acts were ministerial, and their performance by the commissioners of highways could be enforced by mandamus. People ex rel. Nelson v. Jefferds, 398.

2. Easement of public: erection of soldiers' monument in. The trustees of a village authorized the erection of a soldiers' monument in one of the public streets. Held, that they could do so without the consent of the owner of the fee. Tompkins v. Hodgson, 435.

3. Notices: Laws 1873, chapter 315.- By Laws 1873, chapter 315, the applicant for a highway is required to specify in a notice to be given by him to the commissioners of highways, the town clerk, and a justice of the peace, the time when a jury will be drawn. In the notice served on the clerk the time was named, but it was not in those served on commissioners and the justice. The drawing was before the proper officer, and the justice subsequently issued a summons for and swore the jury. Held, that the substantial requisites of the statute were observed. People ex rel. Ludlum v. Wallace, 438.

MANDAMUS.

May issue to compel performance of ministerial duty by local official.- By Laws 1873, chapter 335, section 34, the mayor of New York is required to countersign all warrants drawn by the comptroller. In 1874 the prerequisites required to authorize the comptroller to draw his warrant in favor of a party entitled to it for a certain sum were complied with and he drew his warrant, which the mayor refused to sign. Held, that mandamus was the proper remedy for such refusal. People ex rel. N. Y. & H. R. R. Co. v. Havemeyer, 365.

MISREPRESENTATION.

To captain of vessel as to depth of water: liability for damage in consequence of. - Plaintiff engaged defendant's barge to carry lumber to a specified place, which was represented to be on the H. river. After the barge was loaded, plaintiff directed it to be taken to another place, not on H. river, and said he would guaranty plenty of water, and that the steamboat would take the barge right to the place. Relying upon plaintiff's statement, defendant's captain, in charge of the barge, undertook to bring the barge to the place, but there was not enough water, and the barge was grounded and damaged. Held, that plaintiff was liable for such damage. Glover v. Thomas, 415.

MORTGAGE.

Subsequent mortgage presumptively discharged by foreclosure of prior. In an action to foreclose a mortgage, the holder of a subsequent mortgage was made a party. At the sale in such action G. purchased the premises and took a deed therefor, but paid no money and treated the subsequent mortgage as a lien, and continued to pay interest thereon. Held, that a grantee to whom G. conveyed the premises by a full covenant deed, free from all incumbrances, for a valuable consideration, and without notice, took the entire title free from the lien of the subsequent mortgage. Wood v. McClughan, 420.

NEGLIGENCE.

Passenger on street car: contributory negligence.· Plaintiff, a passenger on defendant's street railway car, after the same had stopped, left it by the front platform, and, when six or eight feet from the car in the street, was thrown down and injured by the car horses, which had been detached from the car, after plaintiff had left, and were turning round. Held, that when plaintiff was injured she was no longer a passenger on defendant's car, and the fact that she had left such car by the front platform in violation of a regulation of defendant's road, known to her, did not make her guilty of contributory negligence. Platt v. Forty-second St. & Grand St. F. R. R. Co., 406.

PLEADING.

Action between partners: when demand for money judgment not demurrable. The complaint stated that plaintiff and defendant entered into partnership for a year, that by the partnership agreement the plaintiff was to furnish the capital and the plaintiff and defendant were to share the profits and losses equally, and that a loss accrued at the expiration of the partnership for one-half the amount, of which a money judgment was demanded. Held not demurrable. Johnson v. Kelly, 417.

PRACTICE.

Appeal from judgment by default after answer struck out as frivolous. Stare decisis. - Defendant in a foreclosure suit put in an answer which was struck out as frivolous. From the order striking it out defendant appealed, and the order was affirmed, and judgment taken by default against defendant. From this judgment defendant appealed. Held, that the order striking out the answer was the law of the case until reversed on appeal, and the correctness of that decision could not be questioned by the general term in an appeal from the final judgment. Mahon v. Hall, 390.

SERVICES.

When brother liable to sister for.- Plaintiff, at the request of her brother, who was not a member of her family, took him into her house, and nursed him during his last sickness. The brother spoke about paying her for her care and attention by will, and named a sum as the value of such care, etc. Held, that the plaintiff was entitled to recover for her services in nursing. Woodward v. Bugsbee, 393.

SPECIAL PROCEEDINGS.

Proceedings to obtain possession of official books and papers.- Under the statutes relating to "Proceedings to compel the delivery of books and papers by public officers to their successors" the title to an office where there are adverse claimauts cannot be tried, but the party in possession of such books cannot retain the same upon frivolous grounds, or such as create no reasonable doubt as to the right of the applicant. Matter of North v. Cary, 357.

STATUTE OF LIMITATION.

Does not run upon an admitted trust.— In 1865 plaintiff deposited negotiable bonds with defendant under the agreement that defendant should sell the bonds, reimburse himself for an advance made plaintiff, and account to plaintiff for the surplus. In 1868 plaintiff asked for an account, which defendant promised but neglected to give. In 1872 plaintiff again asked for an account, when defendant repudiated the claim. Held, that the pledge of the bonds, with power of sale, created a direct trust upon which the statute of limita

tions did not commence to run until the defendant repudiated the same in 1872. Purdy v. Sistare, 408.

STATUTORY CONSTRUCTION.

1. Charter of Hudson: assessment for local improvements: discretion" of officer.- By the charter of Hudson, commissioners to assess the cost of sewers are authorized to assess "upon such real estate as they shall deem benefited thereby in proportion to the amount of its benefits." Held, that the discretion of the commissioners is not unlimited, but there must exist some fact upon which their judgment is based. Longley v. City of Hudson, 353.

2. "Disinterested" person: who is not.-The charter of Hudson requires that there shall be appointed, as commissioners to assess for sewer improvements, three "disinterested" freeholders. The trustee of a corporation whose land was benefited equally with other land assessed, held not "disinterested." Ib.

3. Charter of Cohoes: duties of mayor: approval of official bond. - The charter of the city of Cohoes (Laws 1869, chap. 912) provides that the bond of the chamberlain "shall be approved by the mayor and common council." The charter (tit. 5, § 1) also declares that the mayor and aldermen of the city shall constitute the common council. Held, that the bond must be approved by the mayor independently of the common council, and that the approval by the common council does not include the approval of the mayor, although a part of such council. Matter of North v. Cary, 357.

4. Mayor pro tem.: extent of authority of. — The charter named also provides (tit. 5, § 6), that "whenever the mayor shall be absent from the city or from any meeting, the aldermen may appoint one of their number mayor for the time being, who shall hold office until the mayor returns, but shall vote as an alderman, and not have the casting vote or the power of veto." Held, that the provision refers only to the organization of meetings, and was not intended to authorize the aldermen to appoint a mayor to discharge all the duties devolved by the charter upon that officer, and an alderman chosen mayor pro tem. could not approve the sureties to the chamberlain's bond. Ib.

5. Veto power of mayor does not extend to appointments to office. - The charter also provides (tit. 4, § 1), that the mayor "shall have the power to veto any resolution or ordinance of the common council." Held, that he was not thereby authorized to veto the appointment of an officer the power to appoint whom was by the charter in the common council. lb.

6. Meetings of common council: appointments of. — The charter also provides (tit. 5, § 6), that "the common council shall determine the rules of its own proceedings," and (§ 5), that “the common council shall hold stated meetings at least once in each month." The common council, in 1872, by rule appointed stated times for meetings. Held, that the appointment continued in force until changed, and did not expire with the terms of office of the members who adopted it, and a meeting held in accordance therewith, in 1874, was not irregular. Ib.

TRUSTS.

1. Implied trust.-J. purchased lands for himself and brother, jointly, the brother paying his part of the consideration, but took the conveyance in his own name. At another time their father desiring to convey certain lands to J. and his brother jointly, conveyed to J. upon the promise of J. that he would convey to his brother. Both conveyances were so

made without the knowledge or consent of the brother. Held, that a trust was thereby created in favor of the brother in the undivided one-half part of the land conveyed, which trust was not defeated by the provisions of the statute relating to uses and trusts. (1 R. S. 728.) Cipperly v. Cipperly, 342.

2. Evidence: parol to explain object of written instrument.- Held, also, that parol evidence was admissible to establish such trust. Such evidence would not be in contradiction of the terms of the deed conveying the land, but in explanation of the reason for which it was given. Ib.

USURY.

Facts 'constituting: what is not a sale.-Defendant's son applied to plaintiff for a loan. Plaintiff said he had no spare money; that his money was all invested in certain railway bonds. Afterward in consequence of negotiations made by the son, who was pressed for money, of which fact plaintiff had knowledge, defendant executed a mortgage for $375 more than the amount of the bonds. At the time the bonds were not worth over eighty or ninety per cent of their face, and plaintiff knew they were to be used by the son to raise money. Held, that the transaction was a loan and not a sale, and was usurious. Quackenbos v. Sayer, 424.

WILL.

Construction of: conflicting provisions: infant's estate: when equity will subject to unauthorized payments for support of infant. A will contained this provision, "I will in trust to my wife all my property during her life-time; in consideration of which it shall be her duty to care, provide, and educate our children, until they are of age. After her death, all the real estate found is to be divided equally among my sons, and all my personal property found then shall be equally divided among my daughters. This is my last will, and it is my desire that the spirit as well as the letter thereof may be carried out." At the time of the testator's death the children were all under fourteen years of age. There was no executor appointed by the will, and letters of administration with the will annexed were granted to the widow and brother of testator. The widow, for two years, maintained the children as one family, when she died. The brother continued the maintenance of the children as one family, for two years, until the appointment of a general guardian, and expended in so doing his own money. Held, (1) that it was not the intention of the testator that the estate should be divided upon the death of his wife, but only upon that event after the children became of age; (2) that while the brother had no claim at law for reimbursement out of the testator's estate, he having done what, on application, the court would have directed him to do, equity could allow him to be so reimbursed. Brandon v. Brandon, 385.

Erskine, the famous Scotch barrister, was quite as discursive as Curran, and even more egotistical-witness the introduction of the savage with the bundle of sticks in the speech for Stockdale, or the appeal to the probable opinion of his ancestors on a knee-buckle. This was a patent case. In the course of his address to the jury, Erskine held up the buckle and exclaimed theatrically, "What would my ancestors have said could they have seen this miracle of ingenuity!" "You forget," remarked Garrow, "that your ancestors were unacquainted with the garment for which the buckle was intended."

COURT OF APPEALS ABSTRACT.

CARRIAGE OF GOODS BY SEA.

This action was brought to recover freight on a quantity of iron shipped from London to New York on board plaintiff's steamer. The defendants, who were the consignees and owners, set up as a counterclaim damages to the iron, alleged to have been occasioned by plaintiff's negligence. The bill of lading exempted the carrier from " any act of negligence or default whatsoever of the pilot, master or mariners." Held, that it related to negligence occurring while the goods were on the ship in the course of the voyage, and that it did not protect plaintiff from liability for negligence occurring after the goods were unladened and while in his possession before delivery. The bill of lading also provided that the goods should be taken from alongside by the consignees "immediately the vessel is ready to discharge, or otherwise the privilege is reserved to the vessel to land them on the pier * * * at the expense of the consignee and at his risk of fire, loss or injury." Held, that after such landing the goods remained in the plaintiff's custody as carrier, subject to the modified responsibility created by the contract, until after notice of arrival had been given the consignee, or a reasonable time had elapsed for their removal, and that plaintiff was not exempted by the clause from liability for a loss resulting from his own negligence.

The goods were discharged upon plaintiff's pier and were but partially protected, while defendants' agents were engaged in protecting them with tarpaulins from a storm, one of the tarpaulins was forcibly taken from them against their protest by plaintiff's employees and used to cover the hatch of the steamer. Held, that the act of plaintiff's servants was wrongful, but the injury was not willful in the sense that they designed it; that at the time they were engaged in, their master's business, and although the wrong was not authorized by him, yet, being done in the course of their employment and for his benefit, he was liable for any injury resulting therefrom. Gleadell v. Thomson et al. Opinion by Andrews, J.

CONVERSION - LOST PROPERTY.

This was an action brought to determine the claim of defendant M. to certain moneys in plaintiff's hands, and to restrain defendant H. from further proceedings upon a verdict obtained by him in an action against plaintiff for the conversion of said moneys. It appears that defendant H. was a passenger in one of plaintiff's cars, and found there a sum of money which he delivered to the conductor, to be restored to the owner if called for. The money was delivered to plaintiff's treasurer. H. subsequently demanded the money, and upon plaintiff's refusal to deliver brought an action therefor and recovered a verdict. After the verdict was rendered, defendant M. who was the owner of the money, demanded it of plaintiff, whereupon this action was commenced. Held, that the refusal to deliver to H. was evidence tending to show a conversion, but was not an actual conversion, nor did it affect M.'s title or claim; that upon his appearance and demand of the money, all right of H. thereto was ended, and that plaintiff not having had an opportunity to interpose this defense was entitled to the aid of equity to restrain the enforcement of the verdict; that the question as to whether plaintiff or H. had the right to the custody of the money for the owner could not be raised in this action, as it was disposed of in the orig.

inal action, but that as it must be assumed that H. was right in bringing his action and proceeding to verdict, he was entitled to be allowed his taxable costs therein.

Also held, that plaintiff was not bound to seek his relief by motion in the original action, but might institute an action for that purpose; but that equity would not interpose upon the ground that the verdict or judgment was erroneous, the error must be corrected if at all in the action in which it occurred.

Also held, that the presumption in favor of the title of the finder of property, that it was abandoned by the former owner, may not only be repelled by direct proof, but from the character of the property and the circumstances under which it was found it may not obtain at all. N. Y. & H. R. R. Co. v. Haws et al. Opinion by Grover, J.

CRIMINAL LAW.

1. Plaintiff in error, who was a convict in the Auburn State Prison, was indicted for the murder of a fellow convict. Upon the trial, after the prosecution had introduced a letter, alleged to have been written by the prisoner, but intercepted and not delivered, which tended to show an attempt to suborn witnesses to testify in his behalf, a keeper was allowed to testify to a conversation with the prisoner in reference to preventing communication between him and other convicts, in which the prisoner stated that he "had done all the communicating he wanted to." The witness also gave evidence which tended to show that such communication, other than by writing, was possible in the shop where the prisoner worked and where the homicide was committed. The prisoner was called as a witness in his own behalf, and his counsel offered to show by him that he had held no communication in any way with any one in the shops since the homicide. This evidence was excluded. Held, error; that the prisoner was entitled to relieve himself of the imputation of having suborned his witnesses, and to repel the imputation attempted to be cast upon them, which would have been done by satisfying the jury that no communication had in fact taken place between him and them.

Also held, that the fact, when the question was first put, before the offer was made, it was answered by the prisoner, and then immediately objected to, and objection sustained, did not obviate this error, as the jury must have understood from the ruling that the evidence was incompetent.

The provisions of the statute (§ 150, chap. 460, Laws of 1847), which authorize a convict to be sworn and make him "a competent witness against any fellow prisoner for any offense actually committed whilst in prison," permit a convict to testify to any facts material to the issue upon the trial of any such offense, and he is not restricted to the particular acts constituting the crime.

A writ of error in a criminal case brings up for review only questions of law raised by exceptions properly taken upon the trial. This court cannot reverse the judgment on the ground that the verdict was against the weight of evidence. Donohue v. People. Opinion by Church, Ch. J.

2. A requisition from the Governor of Michigan, on the Governor of this State, for the arrest of the relator was accompanied by affidavits, charging in substance that the fugitive had confederated with others to cheat and defraud a person of his property by false pretenses and devices, and that the conspirators did

obtain the property with intent to cheat and defraud; the false pretenses were not set out, or the means by which the cheat was to have been and was effected. Held (Grover, J., dissenting), that the affidavits did not contain sufficient to authorize the issuing of the executive warrant; that they did not necessarily charge a crime, as thus obtaining property was not in all cases, by the common law, a crime; that the affidavits did not make it appear that the fugitive was guilty of an offense punishable by the laws of Michigan; that if a conspiracy to do a wrongful act, affecting the property of another, is an offense by the laws of that State, although neither the end nor the means are criminal, the affidavits should have shown that fact; that the courts cannot take judicial notice of the laws of that State, and, in the absence of proof, the presumption is that the courts of that State agree with our own in declaring and interpreting the common law.

Also held, that the fact that an inferior magistrate, of the State of Michigan, had issued a warrant of arrest upon the same proof, did not justify the inference that a legal crime was charged in the affidavits.

The courts have jurisdiction to interfere by writ of habeas corpus, and to examine the grounds upon which the executive warrant for the apprehension of an alleged fugitive from justice from another State is issued, and in case the papers are defective and insufficient to discharge the prisoner.

Previous adjudications in proceedings by habeas corpus are no answer to a new writ where the relator is restrained of his liberty; the decision under one writ, refusing to discharge him, does not bar the issuing of a second writ by another court or officer. (Mercier v. The People, 25 Wend. 64, distinguished.) People ex rel. Laurence v. Brady, Justice, etc. Opinion by Andrews, J.

DAM.

This action was brought to recover damages for injuries alleged to have been caused by defendant's negligence in building a mill-dam in an unsafe and improper manner, and in failing to keep the same in good repair, in consequence of which it gave way and plaintiff's dam lower down on the stream was carried away. Plaintiff also claimed damages for injuries to the dam of K. & S., below his, which was also carried away, he being their assignee. The court charged in substance that defendant's negligence must have been the sole cause of the injury or there could be no recovery; that although defendant's dam was defective and out of repair and in consequence gave way, if there was sufficient water in the middle pond when its dam gave way to materially increase the volume and force of the stream, then plaintiff could not recover for injuries to the lower dam, as the damages would be too remote. Held, error. On the trial the jury rendered a general verdict for defendant. Held, that this finding did not necessarily establish that defendant was free from negligence and so make the charge harmless.

Also held, that the judgment below could not be affirmed as far as it related to plaintiff's dam, and reversed and new trial granted as to injuries to the dam of K. & S.

Also held, that where an injury to one is caused by, and is the natural and probable result of, the wrongful act or omission of another, such other is liable therefor, although other causes put in motion by the act or omission, and which in the absence thereof would not have produced the result, contribute to the injury. Pollett v. Long. Opinion by Grover, J.

DIVORCE AND ALIMONY.

This action was brought for a limited divorce and alimony. It was tried and submitted at special term. Subsequently the court of its own motion made an order, directing that certain specific questions of fact, stated in said order, be tried by a jury. Held, that the court had power to make the order, and it is not reviewable by this court; that section 267 of the Code, requiring the judge to make and file his decision within a specified time, does not restrict or affect this power, as the requirement is necessarily with the implied qualification that no other disposition is made of the case. Brinkley v. Brinkley. Opinion by Church, Ch. J.

NUISANCE.

This action was brought to restrain defendants from filling up a portion of a canal in the city of Buffalo. The common council of said city having power to abate nuisances in any manner they might deem expedient passed a resolution that a slip or canal, which was a public highway, was unwholesome on account of the stagnant water and filth therein, and to abate the alleged nuisance determined to fill it up and proceeded to do so. It appeared that the nuisance was caused by the failure of the corporation to exercise the power conferred upon it by its charter, to preserve the canals and slips in the city by preventing obstructions and filth being cast therein, and to remove obstructions therefrom; that it was not necessary in order to abate the nuisance to fill up the canal, but that the obstructions could have been removed at a small expense, and that plaintiff's property was seriously injured by the filling up of the canal. Held, that the filling up of the canal was not a proper exercise of the power to abate nuisances, and plaintiff was entitled to enjoin defendant from doing so; that the power is not unrestricted, such means only are intended as are necessary for the public good. The abatement must be limited by its necessity, and no wanton or unnecessary injury to the property or rights of individuals must be committed. Babcock v. City of Buffalo et al. Opinion by Rapallo, J.

PARTITION OF LANDS-EXCEPTIONS.

This was an action brought for the partition of certain premises by one having a vested remainder, subject to a life estate in an undivided half thereof. All the parties interested were made parties. The case was tried at Special Term, and judgment rendered directing a sale of the premises. There were no findings of law or fact made, and no exceptions appear in the case, save exceptions filed after the judgment to the "judgment" and "decree." Held, that there was no question for review presented by the exceptions, and the only question which could be considered was as to the jurisdiction of the Supreme Court to entertain the preceedings; that the court had jurisdiction of the parties and subject-matter, and whether it erred or not in determining that the case was a proper one for partition or sale could not be considered here. Howell v. Fields et al. Opinion by Church, Ch. J.

PROMISSORY NOTE.

Res adjudicata. This action was brought by plaintiff as receiver of a judgment-debtor, to have the transfer of a promissory note given by defendant W. to the judgment-debtor, and by him transferred to defendant M., declared fraudulent and void, and to recover upon said note. The complaint alleged that the note was