job was to be completed - that the job was completed and accepted by the defendant September 9, 1874:

Held, that the bringing of suit was sufficient demand and plaintiffs were entitled to interest from that time at least. (Case agt. Osborn, ante, 187.)

INTERPLEADER.

and another for the removal of these stacks and for injunction against their maintenance and continuance, are improperly joined as against the successors in interest of the original defendant's, who are made parties by a supplemental complaint reviving the action. (Equitable Life Assurance Society agt. Schermerhorn, ante, 477.)

As the newly made parties cannot be charged in tort, the two causes of action do not affect all the parties to the action, as required by section 484 of the Code. (Id.)

See EXECUTORS AND ADMINISTRATORS.

Price agt. Brown, ante, 411.

JOINT AND SEVERAL
LIABILITY.

1. Where in an action for damages alleged to arise from the breach of a written contract to do advertising, a joint liability is charged against numerous defendants, among whom are C., A. and C., copartners, and the latter defendants answer jointly, admitting that they had dealings with and did advertising for plaintiff, but aver that all such dealings were several as to them and not joint with the other defendants, and thereupon such copartners set up counter-claims in their answer, to which counter-claims plaintiff demurs on the ground that all the defendants in this action are sued on a joint liability, that the said counter-claims are alleged in favor of said defendants separately, and that as between the said defendants and the plaintiff a separate judgment in this action cannot be had:

Held, that a demurrer to such an answer is ill, and that defendants are entitled to judgment for the amount due under their counter-claims.

Held, also, that plaintiff's posi

tion would have been well taken under the former common law rule; but that the Code of Procedure has radically changed the former rule, and that now under the new Code, section 1204, judgment may be given for or against one or more defendants; that the ultimate rights of parties on the same side, as between themselves, may be determined, and a defendant granted any affirmative relief to which he is entitled. (Clegg agt. American Newspaper Union, ante, 498.)

JUDGMENT.

2.

3.

years after his death. (Grant agt. Griswold, 21 Hun, 509.)

That even if the court had power to make the order, it erred in ex ercising it in this case as no excuse was given for the long delay in making the application. (Id.)

What must be shown to authorize entry of judgment by default, in a case where summons has been served by publication-Code Civil Procedure, §§ 635, 1217. (See Clark agt. Boreel, 21 Hun, 594.)

4. For divorce-who cannot attack it for fraud or collusion on the part of the parties procuring it. (See Ruger agt. Heckel, 21 Hun, 489.)

5.

This

Upon a sale, had in 1877, a large deficiency arose, the premises being purchased by one Wm. H. Grant, who was, upon the death of the original plaintiff, in 1878, appointed his executor. Thereafter, and on December 24, 1879, he, as such executor, moved to amend the said judgment, nunc pro tunc, as of January 6, 1870, by inserting therein a provision charging the said Coe with any deficiency that might arise upon the sale:

Held, that the court had no power to grant the motion, as the application, though in form one for leave to amend the judgment, was in reality one for leave to enter an original judgment by default, against Coe, some ten

Power of a court to vacate. (See Underwood agt. Sutcliffe, 21 Hun, 357.)

A judgment of the United States circuit court, though docketed in a county clerk's office, still remains a judgment of that court, and an action can be brought thereon without first obtaining leave from the court so to do, as is required by section 71 of the Code when an action is to be brought upon a judgment recovered in a court of this state. (Goodyear Dental Vulcanite Co. agt. Frisselle, 22 Hun, 174.)

The power to render a personal judgment is merely incidental to the main purpose, and where it appears that no lien ever existed, the whole proceeding falls. (Id.)

9. As to whether, under said act, any personal judgment can be rendered except for a deficiency, quære. (Id.)

10. In an action for an accounting, brought by the executors of a deceased partner against the surviving partner of a firm, a judgment was rendered directing defendant to pay over to a receiver a specified sum, and to turn over to him the partnership assets remaining, out of which the receiver was directed to pay the plaintiffs a sum stated, and to divide the residue; thereupon a judgment was docketed in favor of plaintiffs, against defendant, for the amount the latter was required to pay; on motion to vacate the docket in this particular:

of Civil Procedure (secs. 191, 194), requiring a party, on appeal from an order granting a new trial, to stipulate for judgment against him in case of affirmance, and directing this court, in such case, to render judgment absolute upon the right of the appellants; also authorizing such proceedings in the court below upon the remittitur as are necessary to render the judgment effectual, the judgment must be absolute against the appellant upon the whole matter and right in controversy in the action. (Hiscock agt. Harris, 80 N. Y., 402.)

13. Where, therefore, an order, reversing a judgment in favor of plaintiff and granting a new trial, is affirmed on appeal to this court, and judgment absolute ordered, in an action wherein the answer sets up a counter-claim, defendant is entitled to such judgment upon the remittitur as the facts alleged by him in his answer entitle him to. (Id.)

11. To justify an appellate court in rendering final judgment against the respondent upon reversal of a judgment, it is not sufficient that it is improbable that the defeated party can succeed upon a new trial; it must appear that he certainly cannot. (Guernsey agt. Miller, 80 N. Y., 181.)

12. Under the provisions of the Code

JURISDICTION.

The law is well settled in this country that courts of justice in one state will, out of comity, enforce the laws of another state or country when, by such enforcement, they will not violate their own laws or inflict injury upon some one of their own citizens. (Roblin agt. Long, ante, 200.).

2. This court having acquired jurisdiction of the person of the defendant, it possesses full power to enforce the judgment and decree of the chancery court of Canada, to the extent of compelling defendant to convey the lands mentioned in the complaint, though the same are situated in the Province of Canada and without the jurisdiction of this court. (Id.)

3. Supreme court has no jurisdiction of an action to construe a

will, containing no trusts. (See Wager agt. Wager, 21 Hun, 93.)

4. The jurisdiction and power of the courts was not affected by the provision of the Code of Procedure (sec. 428), abolishing the writ of quo warranto and proceedings by information in the nature thereof; it is only the form of the proceedings that was done away with. The remedies theretofore had in those forms may now be obtained by civil action. (People ex rel. agt. Hall, 80 N. Y., 117.)

5. As to whether the jurisdiction of the courts in those matters can be affected by legislation, quare. (Id.)

6. The provision of the charter of the city of New York of 1873 (sec. 6, chap. 335, Laws of 1873), making the board of aldermen "the judge of the election, returns and qualifications of its own members, subject, however, to the review of any court of competent jurisdiction," did not oust the courts of jurisdiction, or prevent them from originating an inquiry as to the right to that office (CHURCH, Ch. J., dissenting). (Id.)

7. The provision simply creates a cumulative jurisdiction, by the exercise of which the board is for the time constituted a legal body and its acts are made authoritative, leaving to courts of competent jurisdiction the right to inquire in behalf of the people, into the right of any person who, by action of the board, holds a place in it (CHURCH, Ch. J., dissenting). (Id.)

8. The distinction between the occasions and the effect of the use of these phrases in a legislative enactment conferring power upon the councils of municipalities or other inferior tribunals, and their use in the Constitution of the United States (art. 1, sec. 5, sub. 1), and of this state (art, 3, sec. 10),

conferring power upon the houses of the legislature pointed out. (Id.)

9. A general term of the supreme court has power to amend its record, after an appeal to this court, by inserting in an order of reversal that its decision was made upon questions of fact. (Guern sey agt. Miller, 80 N. Y., 181.)

10. As an action of trespass quære clausum fregit is local in its character, it will not lie in this state where the land is located in another state. (Am. Un. Tel. Co. agt. Middleton, 80 N. Y., 408.)

11. An order of arrest was issued in an action to recover damages for wrongfully and maliciously cutting down and carrying away certain telegraph poles, with the wires and insulators attached thereto, which were located in a highway in the state of New Jersey, and formed part of a continuous telegraph line in operation in that state. On motion to vacate the order of arrest, held, that the order was not properly granted; that as the poles were affixed to the soil they were part of the realty, and the cutting down of the same was a trespass, the damages for which could only be recovered in an action quære clausum fregit; that the cutting down and removal charged was one continuous transaction, which constituted but one cause of action, which could not be divided, and which was local; also, that the objection as to jurisdiction could be taken on such a motion; as, if the order of arrest was granted without authority, defendant was entitled to have it vacated, and was not bound to raise the question by answer or demurrer. (Id.)

12. As to whether the lapse of the thirty days limited for service of summons, after the issuing of an attachment, ousts the court of jurisdiction and abates the action or merely avoids the attachment,

quære. (Mojarrieta agt. Saenz, 80 N. Y., 547.)

13. A plaintiff after having obtained one attachment and order of publication, may abandon them and take out a new attachment and order, provided this is not done for the purpose of vexation. (Id.) 14. It does not affect the jurisdiction of the court in granting the second attachment, that the same affidavit was used which was used in obtaining the first. (Id.)

15. It seems, that it is proper thus to use the affidavit a second time, but if not it is a mere matter of practice, a departure from which by the court does not deprive it of jurisdiction. (Id.)

16. It seems, also, that the omission upon the second application to comply with this rule (25) requiring that the affidavit upon an ex parte application shall state whether a previous application has been made, does not affect the jurisdiction; it is a mere irregularity, and if not regarded by the court below will not be regarded here. (Id.)

17. When jurisdiction of court of another state will be presumed. (See P. P. G. Co. agt. Wheelock, 80 N. Y., 278.)

18. General term of supreme court has no power to vacate judgment as to costs, which has been affirmed by this court, at least when no new facts are presented. (See Sheridan agt. Andrews [Mem.], 80 N. Y., 648.)

JUROR.

1. In this action, brought by the plaintiff upon a policy of insurance issued by the defendant to her upon the life of her husband, one of the defenses was that the husband had committed suicide,

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and thereby avoided the policy. When the case was brought on for trial, several of the jurors stated, on being examined by the defendant's counsel, that they should consider the fact that a man had committed suicide as some evidence of insanity; some stating that they should so consider it in some cases, and all stating that they should require other and additional evidence to establish it:

Held, that the jurors were competent, and that a challenge interposed by the defendant's counsel was properly overruled. (Hagadorn agt. Conn. Mut. Life Ins. Co., 22 Hun, 247.)