and to a current of authority in the highest court of appellate jurisdiction. Something was said about the right of the plaintiff to reform this contract, so as to place the name of the defendant, Cross, on the note, as a previous indorser, and, I suppose, also to substitute his name as payee instead of that of the plaintiff. I need scarcely say, that if this can be done at all, it cannot be done in this action. The action has not been brought for any such purpose; and, of course, the defendant has had no opportunity of adducing evidence, or of being heard upon such a suggestion. Although we

have abolished the old forms of action, we have not abol ished allegations and proofs. In other words, we have not abolished the right of defence in courts of justice. I am of opinion that judgment should be for the defendant. Judgment for plaintiff affirmed with costs.

D. McMahon, for plaintiff.

S. F. Clarkson, for defendant.

Supreme Court. First Judicial District. General Term. February, 1857.

Before ROOSEVELT, DAVIES, and PEABODY, JJ.

BEALE AND OTHERS V. PARRISH.

Assignees and indorsees of promissory notes.

This action is brought against the indorser of a promis sory note. When it fell due it belonged to the Chemical Bank. The bank having discounted the note became the holder of it, and the bank, as such holder, having used due diligence to ascertain the residence of the indorser, and having sent notice of protest to the place designated (although erroneously) as the residence of the indorser, was entitled, as such holder, to recover against the indorser.

Plaintiffs were indorsers on the note after defendant, and were duly notified of its non-payment, upon which they paid it and took it up. The question is, whether the plaintiffs are to be regarded as assignees or indorsees of the note.

Held, that the plaintiffs, who paid the bank, (there being no pretence of intentional misrepresentation on their part,) stood in the shoes of the bank, and are subrogated to their rights.

Judgment of Special Term (MORRIS, J.) in favor of plaintiff's affirmed, with costs. See 1 Camp. 383; 2 Hill, 588, and 21 Wend. 643.

PEABODY, J. dissenting. Plaintiffs knew where defendant resided, and could have sent him notice in time. It was their duty to send it within the day allowed them by law after they received it, if they wished to hold him. He had a right to the notice from any party to the note, who would hold him as indorser, and notice from one would have inured to the benefit of other parties. The inability of the bank, after the use of diligence, excused them, and left defendant liable to them; but this did not inure to the benefit of plaintiffs, who were able to give the notice and did not. By their neglect he has lost the benefit of the notice. He may have lost thereby rights of recourse to prior indorsers, or others equally valuable. I think that he is not liable to the plaintiffs.

Lee and Smidt, for plaintiffs.
E. G. Lapham, for defendant.

ELY V. SMITH.

Liabilities of agents as makers of promissory notes.

Where a person making a promissory note uses the expression, "I promise to pay," he is personally liable, notwithstanding he may have added to his signature the words "Agent Silvic Gas Light Co." See the case of Moss v. Livingston, 4 Comst. 208.

ROGERS AND WIFE v. MCLEAN AND OTHERS.

Witnesses in partition suits.

In a partition suit each defendant has a distinct interest, and has a right, under the Code, to examine any other defendant as a witness in respect to such interest; and that, too, whether the party called to testify be or be not a married woman, or the husband of a married woman. See Code, §§ 274 and 397; also, 1 Kernan, 128; 3 Ibid. 266. Charles W. Sandford, for plaintiffs.

S. B. Helbert Judah, for defendants.

DE GUERIE v. BONFANTI.

Guardian and ward — Jurisdiction of surrogates.

Appeal by the plaintiff, former guardian of the person and estate of the defendant, from an order of the surrogate,

requiring the plaintiff to render an account of his proceed ings as such guardian, and show cause why an attachment should not be issued against him:

Held, that the defendant having assigned all his interest, could not call his late guardian to account, nor could an order for that purpose be made by the surrogate on his application. The surrogate can only make such an order without application in cases where the ward is still under

age.

Where the execution of an assignment is admitted but its bona fides is impeached, the surrogate has no jurisdiction to try the issue.

The order appealed from, therefore, should be so modified as to suspend the accounting before the surrogate, until the applicant shall have had an opportunity to test the validity of the assignment by a suit in this or some other court having jurisdiction.

W. Austin, for appellant.
A. Clarke, for respondent.

EVERETT AND BROWN v. VENDRYES.

Indorsement of notes - Lex loci contractus.

Action by indorsees against drawer of a bill of exchange made in Carthagena, but payable in New York, and protested for non-acceptance. Defence, that it was not duly indorsed by the payee:

Held, that being payable in New York, the instrument, as to its transfer, is governed by the laws of New York, and that by those laws a general indorsement is sufficient to transfer a bill or note, wherever made.

Exceptions overruled, and judgment for plaintiffs affirmed

with costs.

PEABODY, J., dissenting. This action is on a bill of exchange drawn in New Granada, addressed to a drawee in New York. It was indorsed in New Granada, and the question is by what law is the sufficiency of the indorsement and transfer to be determined. I think it must be by the laws of New Granada, where it was made. The validity of every personal contract must be tried by the law of the place where it is made. If this indorsement was effectual to pass the title there, it passed. If it was not so, it did not pass. The fact that it was payable elsewhere is entirely unimportant. The laws of the place of payment do not apply. The question is, did or did not the payee

indorse it to the plaintiff. He did an act in New Granada which it is claimed by the plaintiff was a transfer by indorsement to him. The effect of that act is denied by the defendant. How shall this question be tried? It seems to me quite clear, that it must be tried by the laws within the jurisdiction of which the act in dispute was done.

I. T. Wiliams, for plaintiffs.
Charles A. May, for defendant.

DULLES AND AERTSTEN V. SANDFORD.

Stockholders of manufacturing companies - Proof of dissolution. Action against the defendant, upon his alleged liability as a stockholder of the "Einpire Mill," a manufacturing company, incorporated in 1846, under the act of 1811.

Held, that in an action against an individual as a stockholder, the alleged dissolution of the corporation must be clearly proved. Mere insolvency, while the corporation retains a portion of its property, although heavily encumbered, and mere suspension of its ordinary business for a short period not exceeding one year (laws of 1825) are insufficient. Judgment for defendant, without prejudice to a new suit, if the plaintiff should be so advised. See 5 Hill, 131; 5 Denio, 566; 7 Paige, 576; 19 Johns. 466; 7 Johns. Ch. R. 217, 225, 226; 3 Comst. 419, and Laws of 1825.

By the original statute of dower, as it existed in 1823, (which was the time, in the present case, of the husband's death,) the widow had her whole life " to make demand of her dower." The Revised Statutes, however, expressly provide that a "widow shall demand her dower within twenty years after the death of her husband," and not within twenty years after the commencement of an adverse possession, according to the general statute of limitations. The general statute of limitations does not apply to claims for dower. This suit, therefore, which was commenced by the widow, not only twenty years after her husband's death, but twenty years after the passage of the Revised Statutes, is barred by lapse of time, unless the omission of the defendant to raise the objection in his answer can be

deemed a waiver. On this point the Code says, that the objection of lapse of time "can only be taken by answer." (Sect. 74.) But it also says, that the title on that subject shall not apply "to cases where the right of action has already accrued." It also excepts "special cases where a different limitation is prescribed by statute." The Code, therefore, has no application to an action like the present, in which the right, if any, accrued long before the date of the Code, and in which the limitation specially applicable is prescribed by a special statute, namely, the statute of dower. That statute, therefore, having taken effect more than twenty years before the commencement of this suit, (if we may consider the jurat of the complaint as evidence of its commencement,) constitutes an insuperable bar to the plaintiff's claim.

Judgment reversed and complaint dismissed. See 8 Wend. 661; 12 Ibid. 137; 4 Cow. 394; 1 Hill, 324; 9 Barb. 482; 3 Peters U. S. R. 280, and 5 J. R. 142. Geo. W. Stevens, for plaintiff.

J. W. Gerard, for defendant.

Common Pleas for the City and County of New York. General Term. January, 1857.

Before INGRAHAM, DALY, and BRADY, JJ.

RADWAY AND OTHERS V. GRAHAM AND OTHERS.

Payment of costs, a waiver of appeal.

Appeal from an order granted by Judge Daly, at special term, vacating the judgment rendered in this cause as against the defendant Graham, upon the payment of $25 costs. The costs were paid.

BRADY, J.-The receipt of the costs must be regarded as a waiver of the appeal, if received after the appeal taken, and of the right to appeal, if received before the appeal was taken. If a party to the action proceed upon an order made in the cause, or accept any benefit or advantage under it, he will be precluded from asking its review.

Order affirmed.

Charles N. Black, for plaintiffs.

John Graham, for defendants.

GARVY V. THE CAMDEN AND AMBOY R. R. COMPANY.

Common carriers― Admissibility of witnesses.

Held, that in an action by a passenger against a railway