Wiley agt. Arnoux. attachment be decreed to be void, and that he prove his claim in this action, and in the meantime, pending the action, that he be enjoined from enforcing his attachment, and that a receiver be appointed. As to Lucas and other attaching creditors, the remedy at law against their enforcing a void attachment is adequate. The parties can release the attached property by a bond. They can move to vacate the attachment. They can defend upon the ground that the marine court has no jurisdiction of the action. If Lucas has sued in the wrong court, it is not the province of a court of equity to bring him in as a party to answer an allegation to that effect and to have his suit arrested. It is no aid to the complaint to aver that Lucas had bad motives in enforcing his claims in the marine court. If he has a good debt, and proves it in a competent court, no question will be made whether his design was to harass the parties, or one of them, or to get an advantage over other creditors. The judgment should be reversed, with costs to defendant Lucas. DYKMAN, J., concurred; GILBERT, J., not sitting. N. Y. SUPERIOR COURT. EDWIN WILEY, appellant, agt. ANTHONY ARNOUX and WILLIAM HOCKHAUSEN, respondents. Costs-security for — Plaintiff residing in another county required to file — Code of Civil Procedure, section 3268. Before the additional chapters of the Code of Civil Procedure went into operation (i. e., September 1, 1880) it was necessary for a plaintiff residing in another county bringing an action in this court to file security for costs, but the Code, as amended, has changed the law on this subject. VOL. LX Wiley agt. Arnoux. An order made on the 13th day of April, 1880, directing a plaintiff, who was a resident of Brooklyn, to file security for costs, held to be correct as the law then was. General Term, November, 1880. APPEAL from an order directing the plaintiff to file security for costs. The plaintiff is a resident of Brooklyn. The order appealed from was made on the 13th day of April, 1880. Herbert K. Cruikshank, for appellant. John A. Foster, for respondent. RUSSELL, J.-In the case of Lewis agt. Farrell, decided at this term of the court, it was held that before the additional chapters of the new Code went into operation it was necessary for a plaintiff residing in another county bringing an action in this court to file security for costs, but that the Code, as amended, had changed the law on this subject. The order appealed from was made before the change in the law occurred. It was correct as the law then was, and should be affirmed, with costs and disbursements. So ordered. SPIER, J., concurs. The People ex rel. Higgins agt. McAdam. SUPREME COURT. THE PEOPLE ex rel. FRANCIS HIGGINS, as receiver of JOHN H. McCUNN, respondent, agt. DAVID MCADAM, justice, appellant. Summary proceedings — Jurisdiction -Prohibition. The statute permitting summary proceedings founded upon an execution sale, affords the vendee of real estate a summary remedy against the judgment debtor in possession. It was not intended to extend the remedy to those in possession under the judgment debtor or his legal representatives. Where the admitted facts take the litigation without the operation of the statute and, consequently, without the jurisdiction of the court, a writ of prohibition is the proper remedy (Affirming S. C., 59 How., 442). First Department, General Term, November, 1880. Before DAVIS, P. J., BRADY and BARRETT, JJ. APPEAL from an order granting a writ of prohibition to restrain summary proceedings in a landlord and tenant case to recover the possession of certain leasehold property. Alfred McIntyre, for appellant. Butler, Stilman & Hubbard, for respondent. PER CURIAM.-1. The tenant against whom these proceedings were instituted was not "a person holding over and continuing in possession of real estate which had been sold by virtue of an execution against such person." Her tenancy was not under McCunn's executors but under the receiver. No execution had been issued against her, nor against the receiver under whom she holds. This receiver did not take under McCunn's executors, but under the order of this court The People ex rel. Higgins agt. McAdam. in certain actions pending therein. Nor was such receiver the servant or agent of the executors; nor was there collusion between the person in actual possession and the persons against whom the execution ran. The magistrate was, therefore, without jurisdiction. Prohibition will lie, because although there was jurisdiction in summary proceedings in general, there was none upon the facts set out in the applicant's affidavit. It is said that as the magistrate had jurisdiction in summary proceedings generally, he necessarily had jurisdiction to decide whether the case was within the statute. This argument is fallacious. The jurisdiction is special and limited, and the magistrate is strictly confined to the terms of the act. The original application and affidavit must show a case within the statute before the magistrate has authority even to issue the original summons to show cause. Under any other view these proceedings, which are useful enough if strictly pursued, would become a subject of grave apprehension. Ordinarily ejectment is the natural and appropriate common law remedy to recover the possession of lands, and we should not favor any attempt to effect the purposes of such an action under the forms of these summary proceedings. The object of the statute was to afford the vendee of real estate sold under execution a summary remedy against the judgment debtor in possession. It was not intended further to extend the summary jurisdiction of magistrates in these proceedings. In this connection the fact should not be lost sight of that these proceedings cannot be stayed, and that there is no redress for the defeated and ejected tenant save restitution after judgment of reversal on certiorari, followed by an action for the damages sustained. 2. The receiver was authorized to institute the present proceedings. It was his right and duty to protect and defend his tenant. As an incident thereto he could institute a proceeding looking to that end. For these reasons, as well as those assigned by Mr. justice BEACH, we think the order should be affirmed, with costs. Pattison et al. agt. O'Connor. SUPREME COURT. ELIAS J. PATTISON et al., respondents, agt. DENNIS J. O'CONNOR, appellant. Practice-Answer-Extension of time-When time to answer would have expired in five days, effect of stipulation extending time twenty days. The plaintiff's attorney, when defendant's time to answer would have expired in five days, gave a written stipulation extending the time to answer twenty days: Held, that the stipulation had the effect to give twenty days additional time to answer, and not fifteen days. Held, further, that where the stipulation was signed on the sixth day of April, a demurrer served on the thirtieth was in time. It was entirely proper to make a motion requiring the demurrer to be received, instead of delaying until after judgment was entered, and then moving to open the judgment. The defendant's right to serve his demurrer within the twenty days' extended time, is clear and a substantial one, and the order denying its exercise is appealable. First Department, General Term, December, 1880. Before DAVIS, P. J., BARRETT and BRADY, JJ. APPEAL from order of the special term denying motion, on the part of the appellant, requiring the respondents to receive service of the demurrer. Stearns & Ames, for appellant. 8. E. Brown, for respondent. DAVIS, P. J.— The complaint in this case was served on the 22d day of March, 1880. The twenty days to answer would have expired on the eleventh day of April, but, on the sixth day of April, the respondents' attorney signed a written |