witness on his own behalf on the trial of the indictment for forgery in the Court of General Sessions, and he was asked on cross-examination whether he had been in the Eastern Penitentiary in the State of Pennsylvania; whether he had gone by any other name than that of Edward J. Courtney, and whether he had served a term of imprisonment in the Eastern District of Pennsylvania, to each of which questions he answered in the negative, and the indictment charged defendant as guilty of willful and corrupt perjury in so doing. Upon competent evidence supporting the charge, defendant was convicted of the offence charged. A general demurrer was interposed to the indictment previons to the trial, and the point urged by defendant in support of the demurrer was that Chap. 678, Laws of 1869, was unconstitutional. The demurrer was overruled, and from that determination as well as the judgment upon the verdict this appeal is taken. Defendant on appeal urged that his conviction was improper for the reason that the evidence assigned as perjury was not material to the case.

ment of perjury must be a matter pertinent and material to the issue or case in question. But it is well settled that the credibility of a witness who gives testimony affecting an issue is always material; and hence legal testimony which affects such credibility is always within the issue on trial. Arch. Crim. Prac., 817; 97 Mass., 587; 59 N. Y., 17.

Judgment affirmed.

Opinion by Davis, P.J.; Daniels and Brady, JJ., concur.

PRACTICE.

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

In re application for appointment of receiver of the National Trust Co.

The People v. The National Trust Co.

Decided Oct. 26, 1883.

Except as provided in § 772 of the Code one judge cannot vacate or modify the orders of another judge of the same court who had general jurisdiction of the subject matter of such orders. Except as by such section provided, the application for resettlement or modification must be made to the judge who, having general jurisdiction of the subject matter, granted the orders. Appeal from order denying mo

John Vincent, for respts. Held, That Chap. 678, Laws of 1869, is not a violation of the provisions of 6, Art. 1. of the Constitution, which provides that no person shall be compelled in any criminal case to be a witness a witness against himself.

Held further, That the rule of law undoubtedly is that the assign

fixing the compensation of a receiver by reducing the amount allowed for his commissions.

In December, 1877, William J. Best was appointed receiver of the National Trust Co. in voluntary proceedings instituted under the provisions of the Revised Statute. to wind up its affairs. In pursuance of his appointment said receiver within a year thereafter.

reduced to possession and paid to the creditors $1,734,642.14 of the assets of the said company.

In March, 1879, the second above entitled action was instituted by the Attorney-General on behalf of the People to dissolve the corporation, and such proceedings were had that on April 2d, 1879. a judgment in the action so brought by the People was entered dissolving the corporation and appointing William J. Best receiver and he, said Best, was directed to turn over to himself as receiver in the action by the People the money held by him in the first action.

August 7th, 1878, a judge of the Supreme Court made an order, based upon the report of the referee passing the accounts of the receiver, allowing $52,039.27 as a commission to the receiver, being three per cent. on $1,734,642.44, the amount collected, $1,548,400.58 having been disbursed. Just about one year afterwards, and on August 7th, 1879, the same judge made an order in the second action by the People, based on the referee's report passing the receiver's account, and allowed to the receiver $36,766.77 additional for

commission.

December 28, 1882, the AttorneyGeneral moved this court for leave to intervene in the stockholder's proceeding and resettle the orders of August 7th, 1878, and August 7th, 1879, by reducing the allow ances to the receiver as commissions to the sums allowed by law. to executors and administrators.

This application was denied upon the ground that one judge can

not review the orders of another judge of the same court.

L. W. Russell, for applt.
F. N. Bangs, for respt..

Held, That the judge below who granted the orders fixing the compensation of the receiver had jurisdiction of the subject matter. It seems very clear that the orders were improvidently granted be cause they exceed the statutory limit of compensation allowed to receivers in such cases. But the practice requires that the application for the modification of such orders should be made to the judge below who granted them. Any other course would cause inextricable confusion and would be a violation of well established law. 53 N. Y., 405; 5 Hun, 257; 12 Hun, 130. Section 772 of the Code provides the only class of cases in which one judge may vacate or modify the orders of another.

Order affirmed, with leave, however, to the Attorney-General to apply to the judge who made the orders fixing the compensation of the receiver for a modification and resettlement thereof.

Opinions by Brady, J., and Daniels, J.

DIVORCE. PRACTICE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Ida J. Ross, applt., v. Joseph Ross, Jr., respt.

Decided Dec., 1883.

The referee's report in action for divorce a vinculo must be confirmed or judgment denied. The case cannot be opened for further testimony; court has power only to

direct a new trial. It is error to set aside

all proceedings and send case to Circuit after a report that is free from fraud, collusion or irregularity has been made.

Appeal from order vacating and setting aside referee's report, order for referee to take further testimony and all proceedings, and directing case to be retried at cir

cuit.

J. T. Langdon, for applt. Morris & Pearsall, for respt. Held, That if the proceedings do not warrant entry of judgment conformable to the referee's decision the motion for judgment must be denied and the party who desires further relief must make applica tion therefor, 23 Hun, 230; 3 Abb. N. C., 161; that that part of order setting aside all proceedings before the referee and sending the case to circuit for new trial is unwarranted; that the proceedings the proceedings before the referee are all regular, and his report should have been confirmed and judgment entered for plaintiff; that a review of the findings of a referee must be had by direct appeal; that the order opening case for further proof, permitting witnesses who desire to change their testimony to be reexamined, and for reexamination of plaintiff and defendant was wholly irregular, and, so far as it affected the decision of this case already made, absolutely void; that the referee's report stood as the decision of the court and having made it he became functus officio and had no further power in the case except settlement upon appeal, 27 How., 1; 17 How., 211; that the court had no power to direct the referee to

Vol. 18.-No. 9b.

take further proof, review his decision and make a new report as the order seemingly intended; it had only power to direct new trial, but that would have set aside all prior proceedings and reopened the whole case and trial would have been had de novo; that as the referee's report stands as the decision of the court nothing short. of an absolute order of the court can set it aside; that no proper place can be assigned to evidence taken after an order opening a case for further testimony.

Order reversed, with costs, and judgment for plaintiff entered in conformity with referee's decision.

Opinion by Brown, J.; Dykman, J., also reads for reversal.

COSTS. TAXATION. N.Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT. The Remington Paper Co., applt.,

v. Dennis O'Brien, impld., respt. On appeal from a taxation of costs only the papers used before the clerk can be considered.

Where a bill of costs contained an item for

searches, accompanied by an affidavit in the usual form, and that the case was one of foreclosure and the search was procured for use in drawing the decree and to file, and no affidavit or paper disputing the facts is presented, the clerk is justified in allowing the claim for searches.

Appeal from order modifying taxation of costs.

The bill of costs of defendant O'Brien included a disbursement of $105.45 for searches, which was allowed. The pleadings, referee's report, and bill of costs, and an affidavit thereto were the the only papers used before the clerk. The

66

affidavit was in the usual form and also stated that the case was held to be a case of foreclosure of a mortgage, and the search was procured by deponent for use in drawing the decree and to file in the clerk's office when judgment is entered." The referee's report showed that the referee had directed in his order for judgment that such sales and payments "be made subject to any equities and rights of persons who are not made parties to this action." No other proofs were used before the clerk tending to enlighten him as

it was the duty of plaintiff to present them at the taxation. They cannot be brought in after the taxation has been had, and the Special Term was therefore correct in sustaining the taxation of the searches which had been ordered, paid for and used in the progress of the cause, and, as the affidavit to the bill showed, necessarily.

Order affirmed, with $10 costs and disbursements.

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

EVIDENCE.

Plaintiff appealed and the Special Term cut down the item to $95.75.

E. R. Brown, for applt.

O' Brien & Emerson, for respt. Held, That only the papers used before the clerk could be used at Special Term when a review of the taxation of the clerk was sought.

That upon the papers used before him the clerk was justified in holding that the searches were necessary and reasonable, and we cannot say he erred. Besides, Rule 64 seems to provide that searches may be made and used in the progress of the cause when a foreclosure of a mortgage is sought or had.

If there were other facts than those shown by defendant upon the taxation which would have led the clerk to a different conclusion

TERM. FIRST DEPT. James M. Nichol, respt., v. Thomas A. Nelson, applt.

Decided Dec. 21, 1883.

In an action upon a promissory note proof may be given on the part of defendant of a prior agreement between the maker and the payee providing for a mode in which the debt should be satisfied without the payment of money. Such proof does not conflict with or contradict the notes, and the performance of such agreement by defendant constitutes a defence to the action.

Appeal from judgment for plaintiff on demurrer to defendant's

answer.

This action was brought to recover upon five promissory notes made by defendant to the order of one T., payable in three years, and of which plaintiff had subsequently become the owner. The answer alleged that the notes were given for money received by defendant from said T. for the purpose of enabling defendant to be educated for the ministry and, in accordance with

a prior agreement between defendant and T., were to become due and payable only in the event of defendant not becoming a minister after having been so educated; that defendant had become and still continued to be a minister, and that plaintiff had acquired the notes with full knowledge of the foregoing facts, and, consequently, subject to the equities arising there

from.

Plaintiff demurred to this answer, and the court sustained the demurrer upon the ground that no evidence of the defence alleged could be introduced.

Benjamin H. Bayliss, for applt. Arthur Furber, for respt. Held, Error; that the agreement relied upon as a defence provided, in legal effect, for a mode in which the debt should be satisfied without the payment of money, and its performance by defendant satisfied the notes, and that proof of it would in no manner conflict with or contradict the notes. 3 Hill, 171, 178; 1 Hun, 113, S. C.; 60 N. Y., 394.

Judgment reversed, and judgment ordered for defendant upon the demurrer.

Opinions by Brady and Daniels, JJ.; Davis, P. J., concurs.

WILLS.

N. Y. SUPREME COURT. GENERAL

TERM. FOURTH DEPT.

In re application of the N. Y., L. & W. RR. Co. to acquire lands of Minna Van Zandt.

Testatrix by her will left all her property to her daughter, and by a subsequent clause provided that in case the daughter should

die without issue the property should be enjoyed by testatrix's husband and sister, and after their death to be divided among her brothers; the devise over to be contingent upon the daughter's dying without issue. Held, That the daughter took only a life estate, or conditional fee, and not an absolute fee.

Appeal from order of Special Term, directing the moneys awarded for certain real estate taken by the railroad to be paid to the County Treasurer and invested by him, and the interest paid to Mrs. Van Zandt during her life.

The mother of Mrs. Van Zandt died seized of the premises which were taken, leaving a last will and testament, which provided as follows:

"Second. I give, devise and bequeath to my beloved daughter, Minna Wisner, all my real and personal property of every name and nature, subject, however, to the payment of" certain legacies.

"Third. I direct that, in case my daughter Minna should die without issue, my real and personal property should be possessed and enjoyed by my husband, Reuben P. Wisner, and my sister, Delia Fish, during their natural lives, and after their death the said real and personal property to be divided equally between my brothers, Henry C., John M., Frederick D. and Thos. J. Fish or their representatives, share and share alike.

band and sister and brothers to depend upon the contingency of my daughter Minna's dying with

"The devise over to my has

out issue."