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same are without merit and brought for the purpose of bringing ruin upon plaintiff; there is also an averment that all such suits are still pending. Thomas G. Outerbridge, for applt.

Corlett & Hatch, for respt. Held, That as there is no averment or pretense that defendants have resorted to any abuse of process of law in prosecuting the actions the matter averred concerning these suits is irrelevant and should be stricken out.

A conspiracy consists in the unlawful combination or agreement of two or more persons to do an act unlawful in itself, or to do a lawful act by unlawful means. The allegation of conspiracy is of no importance so far as it respects the cause and ground of action. A simple conspiracy, however atrocious, unless it results in actual damage, is not the subject of a civil action. It is only necessary to be averred and proved where a verdict is demanded against two or more defendants. 7 Hill, 107; 1 Lord Raym., 374; 2 Gray, 124; 14 Allen, 499; 65 Pa., 507.

In actions for abuse of process of law it is unnecessary to aver and prove that the process improperly employed is at an end, or that it was sued out without reasonable or probable cause. Greenl. Ev., Vol. 2, § 452; Add. Torts, 755. Such actions may be maintained when the person who sues out the process uses the same for some private purpose of his own, not warranted by the exigencies of the writ or the order of the court, and

is liable for damages for such abuse. 8 Wend., 876; 51 Pa., 190; 64 id., 283.

Babbinger v. Sweet, 1 Abb. N. C., 263, considered.

Order modified by striking out paragraphs relating wholly to pending suits, without costs.

Opinion by Barker, J.; Hardin, P. J., and Dwight, J., con

cur.

EVIDENCE.

N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT.

Warren Bennett et al., applts., v. Robert Nelson, respt.

Decided Nov., 1883.

In an action for the price of barrels where their number was in dispute, defendant offered to show that one G. had carted all the barrels received from plaintiff to defendant's farm; that there they had been filled with fruit and that immediately thereafter they had been counted and that their number was so many. This evidence was excluded. Held, Error.

The action was for the price of certain barrels. The answer set up the delivery of a smaller number. Defendant offered to show by one G. that G. had taken the several lots of barrels, and all the barrels delivered to defendant, to defendant's farm; that there they had been filled with fruit and that immediately after being filled they were counted and were in number but so many in all. The evidence was excluded; and on appeal the county court reversed the judgment of the justice.

N. A. Calkins, for applts.
A. W. Curtis, for respt.

Held, That the evidence excluded was competent. The counting done after delivery was not conclusive and was open to the argument that some of the barrels might have been lost. Still we think defendant should have been allowed to show the fact.

G. B. Wilson and another, and therein had and levied an attachment (G. B. Wilson was a non resident) on said premises. The usual notice under Code, § 649, sub. 1, was filed in the clerk's office; also an inventory by the sheriff. The complaint stated the

Judgment of the county court above facts; also that plaintiff affirmed, with costs.

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TERM. THIRD DEPT.

Harriet M. Wilson, respt., v. John Kelly, sheriff, impl'd, applt. Decided Nov., 1883.

An attachment is a lien only upon the interest which the debtor had in the premises when levy was made. Hence, where plaintiff was in possession under a paper title given before but recorded after an attachment levied on the premises against her

grantor, Held, That an action by her to set aside said attachment as a cloud upon her title could not be sustained, especially where the attachment action had not proceeded to judgment.

It seems, that if an attaching creditor should unjustly neglect to proceed with her suit, under such circumstances, plaintiff might possibly have relief upon the ground that the process of the court was being abused.

Action to remove a cloud upon plaintiff's title. On June 8, 1882, one G. B. Wilson conveyed the premises in question to plaintiff, his wife; this deed was not recorded until July 31, 1882. On July 17, 1882, the People's Savings Bank brought an action against

was in possession and had the fee when the attachment was levied; also that but for the attachment plaintiff could have sold the land. The relief demanded was that the attachment and proceedings under it be set aside. The sheriff demurred. The demurrer was overruled.

S. S. Edick, for applt.

S. A. Bowen, for respt.

Held, Error. Notwithstanding the language of Code, § 649, subd. 1, which provides that the notice. of attachment is to be recorded with "like effect" as a notice of lis pendens, we think that an attaching creditor gets nothing more. than the debtor had at the time of

the levy. 65 N. Y., 30, and see Code, § 708, subd. 2,as to what the sheriff is to sell on the execution. This action cannot be sustained. In Lehman v. Roberts, 86 N. Y., 240, it is said that the sale of land under execution against a third party will not be restrained at the suit of a party in possession having the paper title. And in the case here it is not determined that the People's Savings Bank will ever have a judgment against G. B. Wilson. We may say however that if an attaching creditor should neglect to proceed with his suit and thus unjustly for a long time

perpetuate the lien of an attach- | Trull then assigned the judgment

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The court will not decree the cancellation or surrender of an instrument at the suit of a party who can, if he choose, put himself in a position to contest its validity. It seems, that the purchaser of a judgment cannot, under any circumstances, get a

better title thereto than his vendor had.

This action was for equitable relief. The complaint alleged the recovery of a judgment by one C. against J. B. Rogers, husband of defendant; that C. assigned it to defendant Trull, for $560 to be paid therefor, for which Trull gave his note to the order of B., as attorney for C; that Trull then commenced an action against the defendant Rogers and one Benedict, as assignee of her husband, to recover from them the amount of the judgment from property, as alleged, fraudulently assigned by the husband to his wife; that

to B. as collateral security for pay-
ment of the note; that thereafter,
the defendant Rogers, with in-
tent to defraud B. and with
knowledge of his rights, procured
Trull for $20 to assign to her the
judgment; that she now claims
that this assignment is a bar to the
action brought against her and
Benedict. Plaintiff claims under
B., by mesne assignments, and
holds both note and judgment.
The relief asked is that the assign-
ment of the judgment by defend-
ant Trull to defendant Rogers
be declared void as to plaintiff;
also that the action begun against
the defendant Rogers and Benedict
be continued in the name of this
The com-
plaintiff as plaintiff.
plaint was dismissed.

A. B. Olmstead, for applt.
C. S. Lester, for respt.

Held, That the action could not be maintained. If the plaintiff claims to have succeeded to the rights of Trull in his action against defendant Rogers and Benedict, he should make a motion in that action to be substituted. Code § 756.

No new action is needed. And no action is needed to declare the assignment void and none is proper. 62 N. Y., 533. The complaint states and the evidence shows that defendant Rogers took the assignment of the judgment knowing of the previous transfer to B. Hence she took no more than Trull had. Indeed it is doubtful whether in such a case her purchase of a judgment (in this case against her husband) would give her any better title

than the vendor had. 50 N. Y., 61; 22 N. Y., 535; 64 N. Y., 220; 61 N. Y., 88. The decisions are principally concerning mortgages, but a judgment is also a chose in action and the same principle applies. The defendant Rogers is a mere voluntary purchaser from Trull; she is not in the position of a debtor who in good faith pays a debt to the original creditor, not knowing of a transfer. Besides the evidence shows she knew Trull had an interest of only $20 in the judgment. Since the assignment to her she has satisfied the judgment against her husband and has put in an amended answer in the Trull action setting up this fact. But if the plaintiff be substituted in that action he can therein show that this assignment and satisfaction are utterly invalid.

Judgment affirmed, with costs. Opinion by Learned, P. J.; Boardman and Bockes, JJ.,

concur.

NEGLIGENCE.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

George H. Converse, by guardian, respt., v. Artemus B. Walker, applt.

Decided Oct., 1883.

When a crowd of people took refuge from a storm in a hotel, not being guests thereof, and one of them, who entered the hotel solely to escape the storm, was injured by the falling of a floor caused by the unusual crowd, Held, That the injured person assumed the risks of going there at such a time and cannot recover damages from the hotel keeper, who is shown to have been guilty of no negligence.

Appeal from judgment on verdict, and from order denying new trial.

Defendant was proprietor of a hotel which had a broad covered piazza, the floor of which was seven feet from the ground. Under the piazza was the billiard room of the hotel. Adjacent to the hotel grounds were the grounds of the "Pioneer Association," there being no fence between the two. On the day of the accident which is the subject of the action there was a public meeting of 12,000 or 15,000 people on the Association grounds. A large number of guests were entertained by defendant at his hotel, and many people picniced on defendant's grounds without objection on his part. A sudden storm broke up the meeting, and many of the crowd took shelter in defendant's hotel. Plaintiff, a boy 13 years old, boy 13 years old, was at the meeting with his parents and took refuge in the billard room with his mother. A large crowd from the meeting sought shelter on the piazza, which gave way under their weight, and plaintiff was injured in the billiard room. below. The first floor of the hotel was also filled with people who came in within the space of five minutes. Most of the people on the piazza were not guests of the hotel. About a year before the accident one of the props. under the piazza had been removed and the strength of the floor was weakened. After the prop was removed and some time before this accident there had been a large crowd on the piazza,

and there had then been for non-suit should have been

no sign of its giving way. Neither plaintiff nor his parents were guests of the hotel, but went there solely to be out of the storm. The veranda was apparently safe, and there is no evidence that defendant knew it had not strength

granted.

Judgment reversed, with new trial, costs to abide event.

Opinion by Barker, J.; Smith, P. J., and Hardin, J., concur.

MENT.

TERM.

GENERAL

William B. Tullis, respt., v. Chester Bushnell et al., applts. Decided June 25, 1883.

to support the usual weight of ATTORNEYS LIEN. SETTLEvisitors in customary numbers. Defendant was not at all instru- N. Y. COMMON PLEAS. mental in convening the multitude at the meeting, and he had no reason to anticipate the sudden influx of people. As soon as the crowd came, he and his servants took all reasonable means to preserve order and to notify the people of the danger to which their action exposed them. The court refused defendant's request for a non-suit.

I. Sam. Johnson, for applt. F. C. Peck, for respt. Held, Error. Defendant was guilty of no breach of duty toward the plaintiff. The most liberal view, in plaintiff's behalf, would place defendant under the same obligations as any host who entertains invited guests. 10 Allen, 368; 41 N. Y., 525.

Those who crowded to the hotel accepted the perils incident to the sudden occupation by a multitude of people.

Southcote v. Stanley, 1 Hurl. & N., 347; Camp v. Wood, 76 N. Y., 92, and Cornby v. Hill, 4 C. B., 556, considered.

It would be an unwarrantable deduction from the undisputed facts to charge defendant with being guilty of a breach of duty toward plaintiff, and the motion

Vol. 18.-No. 6.

Where plaintiff before verdict, report, decision or judgment, settles the action without the intervention of his attorney and without paying his fees, said attorney cannot maintain an action against the parties to the original action on the ground that by the settlement they have destroyed his lieu; his remedy is by continuance of the original action, as before the passage of § 66, Code Civ. Pro., except that by such section he need not show fraud to obtain leave to prosecute.

Appeal from judgment and from order denying motion for new trial. One Runkle was made trustee for the distribution of stock of a certain manufacturing company. Thereafter one Bushnell, by William B. Tullis as his attorney, brought suit against the company, said trustee and others, for about $8,000 of the stock. Bushnell sought to settle the suit with defendants, who upon advice of said trustee refused to compromise until Bushnell's attorney had been paid his fees. Bushnell afterwards said that he had settled with Tullis, and thereupon a settlement of the suit was

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