examined upon the proof of the will and there was but these two witnesses to the will. The statute upon the subject presented is as follows:

"If any person shall be a subscribing witness to the execution of any will wherein any beneficial devise, legacy, interest or appointment of any real or personal estate shall be made to such witness and such will cannot be proven without the testimony of such witness, the said devise, legacy, interest or

quently is void. The subsequent legislation in reference to the examination of interested witnesses does not repeal by implication the statute. Such repeals are not favored and there is no inconsistency in both statutes standing together.

Surrogate's decree affirmed.

Opinion by Barnard, P. J.; Pratt and Dykman, JJ., concur.

SURETYSHIP.

so far as concerns such witness or any claiming under him and such person shall be compellable to testify respecting the execution of the said will in like manner as if no such devise or bequest had been made." 2 R. S., Edm., 65, $50.

N. H. Baker, for applt. Chas. M. Hall, for respt. Held, The will could not be proven without the testimony of Brown. Two witnesses at least are required to a will. This probate required both witnesses to be produced and examined. 2 R. S., Edm. 67, 62. As to Brown the legacy was void. A surrogate may believe one witness and not the other and thus it is claimed that a will can be proven without two witnesses in fact. The statute does not mean this. A will must have two witnesses and both must be sworn to prove it, with certain exceptions which do not include the present case. The testimony of the witness of necessity must be given, the will cannot be proved without it and the legacy conse

TERM. FIRST DEPT.

The Star Fire Ins. Co., respt., v. George Waddington, impld., applt.

Decided Dec. 21, 1883.

A mortgagor who conveys the mortgaged premises to a grantee who assumes the payment of the mortgage becomes thereby a surety only for the payment of the debt, and the receipt by the mortgagee of a new bond from such grantee, without the knowledge or assent of the original mortgagor, extending the time of payment and changing the period on the occurrence of which a default in the payment of the interest would render the principal sum due, discharges his liability as such surety, provided the mortgagee, at the time of receiving such bond, had notice or understood that the original mortgagor had become, by force of his deed, a surety only for the payment of the debt, and the recording of such deed is not sufficient notice of such fact.

Appeal by defendant Waddington from so much of a judgment of foreclosure as directed payment by him of any deficiency upon a sale of the mortgaged premises.

The bond and the mortgage fore closed in this action were made by

defendant Waddington in 1868, and, after various assignments, came into the hands of plaintiff. In 1869 Waddington conveyed the mortgaged premises to defendant Hoyt who, in the deed, assumed and agreed to pay the mortgage. Subsequently the plaintiff's assignor took from Hoyt a new bond by which the time for the payment of the mortgage was extended for about six months and also changing the period on the occurrence of which a default in payment of interest would render the principal sum due, and this, defendant Waddington claimed, released him from his obligation on his bond, as it was done without his knowledge or assent, and was set up by him as a defence to this action.

It appeared that the deed from Waddington to Hoyt was recorded, but it did not appear that plaintiff had any knowledge of the terms of the deed from Waddington to Hoyt.

Frederic W. Adee, for applt. George S. Hamlin, for respt. Held, That, after the assumption of the mortgage by defendant Hoyt, defendant Waddington stood in the relation of a surety only to the demand in suit, and that, by the bond taken by plaintiff's assignor from defendant Hoyt, the contract was so far changed as to have relieved defendant Waddington from liability as such surety, 7 Hun, 279; 76 N. Y., 274, if it had been understood by the creditor that he had become merely a surety for the payment of the debt; but to relieve defendant Waddington

his

from liability on this ground it was legally necessary that it should be established, as a fact, that the holder and owner of the bond and mortgage had notice or understood, at the time when the bond given by Hoyt was received, that defendant Waddington had become a surety only for the payment of the debt by force of his deed to Hoyt, 11 Wend., 311; 38 N. Y., 330; id., 96; 76 id., 274, and, as there was no proof in the case that plaintiff's assignor was made aware of the contents or effect of the deed from Waddington to Hoyt, the defence was incomplete and was properly overruled by the court.

Judgment affirmed.

Opinion by Daniels, J.; Davis, P.J., concurs; Brady, J., dissents.

EJECTMENT. PARTIES.

NY SUPREME COURT. GENERAL TERM. FIRST DEPT.

C. W. Van Voorhis, grantor, respt., v. Josephine Kelley et al., applts.

Decided Dec. 21, 1883.

When the deed under which a person claims adverse possession of real property is void a conveyance by the person against whom such adverse possession is claimed is not void, and his grantee must sue to recover such real property in his own name, and not in that of his grantor; but the purchaser of real property sold under an execution fraudulently issued without leave of the Court, after more than the prescribed period of time has elapsed during which an execution can be issued without obtaining such leave, and under which no effort was made to satisfy the judgment out of the personal property of the debtor, re

brought in the name of the grantor. Code of Civ. Pro., § 1501; 37 N. Y., 502.

That although the usual formal allegations of an action of ejectment were not contained in the complaint, still the allegations that it did contain were equivalent in legal effect, for defendants could not have unlawfully obtained possession of the property and held it adversely to plaintiff, as alleged in the complaint, without wrongfully withholding it.

Judgment affirmed.

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

REFERENCE. APPEAL.

WAIVER.

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

Cassius H. Read, respt., v. Peter A. Lozier et al., applts.

Decided Dec. 21, 1883.

An action brought against the heirs or devisees of a decedent to recover demands owing by said decedent in his lifetime, on the ground that the personal estate is insufficient to pay such debts, and that defendants have become vested with real estate owned by the decedent in his lifetime, can

not be referred for the reason that said demands consist of long accounts without the consent of all parties.

It is only actions in which the immediate object of the party is to recover the account relied upon that can be referred without the consent of all parties. The right to appeal from an order denying a motion to vacate an order of reference is not waived by participating in the trial of the action before the referee if the appellant objected to such trial proceeding before the referee on the ground that the reference was unauthorized, and only went on with

the trial after such objection was overruled by the referee.

Appeal from order denying a motion to open a default and vacate an order of reference.

This action was brought to collect from defendants, as heirs and devisees of one M., deceased, debts owing by said M. in his lifetime, on the ground that the personal estate of the said M. was insufficient to pay such debts, and that defendants had become vested with real estate owned by the debtor in his lifetime. Two of these debts consisted of accounts including a variety of items, and for that reason the action was deemed referable, and an order of reference was made on the default of defendants, who subsequently moved to open such default and vacate the order of reference, but their motion was denied.

Preston Stevenson, for applts.
D. S. Riddle, for respt.

Held, That if the action was not one which could be referred without the consent of defendants the order of reference should have been vacated.

That under § 1013 of the Code a reference of an action as one requiring the examination of a long account can be ordered without the consent of all parties only in those cases in which the immediate object of the party is to recover the account relied upon. 86 N. Y., 433; 16 Hun, 68. That the immediate and principal object of this action was to establish the liability of defendants for the payment of the debts, and proof of the accounts would only become neces

sary to determine the extent of the liability after that should be established, and a reference to take and state such accounts could be regularly ordered without the consent of all parties only after such liability had been established.

Before the appeal was brought on for argument a motion was made on behalf of plaintiff to dis- | miss it on the ground that the trial had already taken place before the referee, and that defendants had

curity and without a stay does not prevent the other party from taking the proceedings provided for or allowed by the order.

Order denying application to open default and vacate order of reference reversed and motion to dismiss appeal denied.

Opinion by Daniels, J.; Davis, P. J., concurred.

LIMITATIONS. FRAUD.

thereby waived the right to appeal. On the other hand it was made to appear that, when the hearing before the referee was about to commence, the objection was taken by defendants' counsel before the referee that the reference was unauthorized and it was stated that an appeal would be taken from the order, and it was only after this objection was overruled that defendants proceeded with the hearing of the case; and it also appeared that, after the evidence was through, the objection was again renewed that the referee was without authority to proceed and that was in like manner overruled.

Held, That these objections were unmistakable evidence of the fact that defendants did not intend to acquiesce in or consent to the trial of the action before the referee, and what they did after their objections were overruled was of a compulsory nature, and that such a proceeding is not, of itself, a waiver of the right to appeal appears from § 1351 of the Code of Civil Procedure, providing that an appeal from an order without se

TERM. FIRST DEPT.

Thomas D. Adams et al., applts., v. Abram Stern et al., respts.

Decided Dec. 21, 1883.

The mere fact of knowledge, or presumptive knowledge, on the part of debtors of an assignor in bankruptcy, that such assignor has omitted from his list of assets the debt owing by them, will not raise a presumption of fraud on their part against the bankrupt's creditors, so as to take their debt out of the Statute of Limitations enacted by § 5057 of the Revised Statutes of the United States.

Some actual connection or collusion with such assignor to the disadvantage and injury of the creditors by enabling the assignor to conceal the indebtedness, or in any other way to defraud his creditors, must be shown for that purpose; and the knowledge of such omission is a circumstance to be considered by the jury, in connection with any other evidence tending to show such collusion, in arriving at their verdict upon the subject.

Appeal from judgment entered on verdict at Circuit.

This was an action brought by assignees in bankruptcy to recover for a debt owing to their assignors. The debt was admitted by defendants and the Statute of Limitations of two years, established by 8 5057 of the United States Re