FALSE IMPRISONMENT. the surrogate, even though it does not appear from the petition thɛ such infant is an heir or devisee. A person cannot be devested of his property by being ignored. He has a right to a day in court, before that power can be rightfully exerted. Ib. 10. A surrogate's order for sale of real estate, based upon a petition defective in substance, and one based on no petition or order to show cause,-Held void. [1 Hill, 130; 3 Barb., 341; 20 Wend., 241.] Ib. 11. That the widow, having previously had her dower assigned to her, is not a necessary party to the proceeding. [5 N. Y., 394.] N. Y. Superior Ct., 1860, Rigney a. Coles, 6 Bosw., 479. 12. The title of the purchaser is not affected by an omission to serve the order on tenauts in possession under a lease, the term of which has expired. Ib. 13. The caption of the surrogate's order to show cause why leave should not be given to the administrator to sell, stated that it was made "At a surrogate's court held .... at the surrogate's office in the city of New York, on the 11th of July, 1843," before the surrogate; and the body of it required "that all persons interested in the estate, &c., appear in this court on the 30th of August next, at 10 o'clock in the forenoon, to show cause, &c. ;"-Held, that it sufficiently designated the time and place where the parties were to appear. Ib. 14. Under 2 Rev. Stat., 101,-which requires that an order to show cause why a sale of real estate, for the payment of decedent's debts, should not be had, shall be published for four weeks in a newspaper printed in the county,-publication only once in each week, though in a daily paper, is sufficient. [7 Barb., 39; 5 N. Y., 497.] Ib. 15. The omission of the surrogate to enter in his book of minutes, adjournments of proceedings on an application for sale of real property, does not affect the title acquired under the sale. The presumption of regularity in obtaining a judgment should not be allowed to be gainsayed for such matters, unless a statute had peremptorily directed a formal minute to be made, and invalidated the proceedings, if it was neglected. Ib. FALSE IMPRISONMENT.. Where a person has been arrested upon a criminal charge, without any competent evidence of his guilt, the magistrate and prosecutor are jointly liable to an action for false imprisonment. Supreme Ct., 1861, Comfort a. Fulton, Ante, 276. FOREIGN CORPORATIONS. FORECLOSURE. 1. Where a mortgagee foreclosed without joining the holder of a subsequent mortgage upon the same premises, whose title appeared of record, and on the sale under the foreclosure, the first mortgagee purchased the property and received the rents and profits,-Held, that as to the second mortgage, he merely became mortgagee in possession, and was liable to account for the rents and profits, and that the utmost effect of the foreclosure and sale was to transfer the equity of redemption from the mortgagor to the plaintiff in the foreclosure. Supreme Ct., 1861, Walsh a. Rutgers Fire Ins. Co., Ante, 33. 2. In such a case it is regular and necessary for the holder of the second mortgage to institute a suit to foreclose his mortgage, and the plaintiff in the first foreclosure is properly made a party defendant. Ib. 3. Under the foreclosure of the second mortgage, the prior mortgagee in possession is entitled to have a sufficient portion of the proceeds of sale applied to the payment of his debt and costs, but no offer to redeem the premises, or pay the first mortgage is required. Ib. 4. Where the maker of the mortgage was a party defendant, and interposed the defence of usury, and afterwards withdrew such defence on receiving an absolute discharge of the debt which the mortgage had been given to secure, such discharge was Held, no defence for the subsequent grantee. N. Y. Superior Ct., Sp. T., 1861, Chamberlain a. Dempsey, Ante, 61. 5. The words "personal representatives," used in the statute respecting the foreclosure of mortgages by advertisement (Laws of 1844, ch. 346, § 2), mean "executors and administrators," and not heirs or devisees. Supreme Ct., 1861, Anderson a. Austin, 34 Barb., 319. 6. Where there is no "personal representative" to be served with notice, the provision of section 2 is inoperative, and the foreclosure will be good if conducted in the mode otherwise prescribed in the statute. Ib. 7. Mere delay in foreclosing a mortgage, without any request or notice to foreclose, and where the interest has been paid, is not enough to charge on the mortgagees the consequences of a fall in the value of the property. Supreme Ct., 1861, Merchants' Ins. Co. a. Hinman, Ante, 110. NOTICE, 4, 5. FOREIGN CORPORATIONS. Where a foreign corporation has commenced an action in this State, after giving security for the costs thereof, as provided in 2 Rev. Stat., FORMER ADJUDICATION. 457, § 1, and the sureties become insolvent, the court has no authority to require new or further security to be given. Supreme Ct., Chambers, 1861, Slater Bank a. Sturdy, Ante, 224. ATTACHMENT, 1. FORMER ADJUDICATION. 1. Persons, not parties to a former action, are not barred or estopped from raising, in a subsequent action, questions not raised or passed upon in the former. [7 Barb., 226; 16 N. Y., 575; 9 Ib., 28.] Supreme Ct., 1861, Knauth a. Bassett, 34 Barb., 31. 2. Where defendant hired plaintiff to work for him one year, and subsequently, at the request of plaintiff, released him from further obligation, and plaintiff took a judgment by default against defendant for wages for September and October;-Held, in an action to recover wages for the rest of the year, that the defendants were not estopped by the record of the recovery against them in the former action from showing that plaintiff, before the first recovery, had been discharged at his own request, under an agreement which vacated the contract of employment. Supreme Ct., 1861, Van Alstyne a. Indiana P. & Cleveland R. R. Co., 34 Barb., 28; S. C., 21 How. Pr., 175. 3. A former action and judgment upon an account constitutes no bar, as against plaintiffs, to the maintenance by them of an action upon a note given in satisfaction of the account. A judgment, to constitute a bar, must be upon the very point in issue. Both actions must be in substance and in point of law identical, and the same evidence admissible, and to some extent controlling in both. [6 Hill, 114; 1 Smith's L. Cas., n., 443, 545; C. & H. Notes, 832-834.] Supreme Ct., 1861, Slauson a. Englehart, 34 Barb., 198. 4. Where two notes are given upon a single consideration, and one has been put in suit, and facts directly in issue, which, if true, must affect both notes alike, are established by verdict and judgment, the verdict and judgment are evidence of those facts in a suit between the same parties on the other note. [3 Cow., 120; 4 Ib., 559.] N. Y. Superior Ct., 1860, Treadwell a. Stebbins, 6 Bosw., 547. 5. Where there are several causes of action embraced in the same complaint, and the recovery appears to be general, parol evidence is competent to show upon which cause or causes of action specified, the trial was had and judgment obtained. [3 Cow., 120; 8 Wend., 9.] Supreme Ct., 1861, Stedman a. Patchin, 34 Barb., 218. 6. Such evidence does not contradict the record, unless the party is FRAUD. allowed to show that the judgment was upon a cause of action not specified in the complaint. Ib. 7. Where the defence interposed was a former judgment upon the merits, and it appeared that in the former action the plaintiff had applied for a discontinuance, and declined to give evidence of his demand, and that the court had considered merely the defendant's counter-claim;-Held, that the plaintiff had a right to maintain the second action for his demand. Supreme Ct., 1861, Jones a. Underwood, Ante, 393. 8. Defendant was owner of a steamboat running between Buffalo and Chicago, and touching at Cleveland, Ohio. While at Cleveland, full of passengers and freight, she was seized by the sheriff, at the suit of M., under process issued out of the Superior Court of Cleveland, under certain statutes of Ohio. To effect the release of the boat, the master executed a bond under the statute, conditioned for the return of the boat to satisfy any judgment upon the claim, or in default thereof, for its payment, and he procured plaintiff and one P. to join as sureties. On the release of the boat, and being informed by the master of the proceedings, the defendant defended the suit on his own account, and was defeated. Held, that the proceedings and seizure appearing regular under the statute of Ohio, the defendant, by appearing and defending the action, became bound by the judgment; and if so bound, the record of that judgment was conclusive evidence against him in an action by the plaintiff for the reimbursement of money he had been compelled to pay as one of the sureties in the bond. Supreme Ct., 1861, Stedman a. Patchin, 34 Barb., 218. 9. A judgment enrolled is res judicata, as to the matter in controversy, until reversed or vacated. So held, where an appeal from such judgment was yet pending. Supreme Ct., 1861, Tyler a. Willis, Ante, 369. 10. The principle of res adjudicata is applicable to a proceeding upon habeas corpus to obtain a discharge from enlistment. N. Y. Superior Ct., Sp. T., 1861, People a. Burtnett, Ante, 8. ARREST, 11. FRAUD. 1. Where a defendant had made disposition of his property, in good faith, with no dishonest purpose, at various times, and for different purposes, by five separate instruments, three of which were valid, and two, in law, constructively fraudulent against creditors,-Held, that he had not disposed of his property with intent to defraud, within the meaning HABEAS CORPUS. of the Code, § 179, subd. 5. Supreme Ct., 1862, Caldwell's Case, Ante, 405. 2. Active or meditated fraud in the disposition of a debtor's property, is characterized by an actual dishonest intent governing the act. Constructive fraud consists in innocently doing some act forbidden, or omitting to do some act prescribed, by law. (POTTER, J.) Ib. ARREST. FRAUDULENT CONVEYANCES. One who had, since the execution of a fraudulent assignment, recovered judgment, for costs merely, against the assignor,-Held, not a judgment-creditor entitled to impeach the assignment in an action against him by the assignees. Supreme Ct., 1860, Ogden a. Prentice, 33 Barb., 160. ASSIGNMENT FOR BENEFIT OF CREDITORS, 2, 3. HABEAS CORPUS. 1. An affidavit upon an application for a habeas corpus, if the application is made to an officer residing not in the county where the petitioner is detained, but in an adjoining county, must explicitly state that there is no officer in the former county, other than the county judge, authorized to grant the writ. It is not sufficient to state that the deponent could find none. N. Y. Superior Ct., Sp. T., 1861, People a. Burtnett, Ante, 8. 2. Such affidavit is also objectionable, if made several days previous to the day on which it is used. Ib. 3. If it appears, on the return to a writ of habeas corpus, that the prisoner is detained in custody for a contempt specially and plainly charged in the commitment by some court having authority to commit for the contempt charged, it is the duty of the officer conducting the proceeding forthwith to remand the prisoner into custody. Supreme Ct., Chambers, 1861, Davison's Case, Ante, 129; to similar effect, Kearney's Case, Ante, 459. 4. On habeas corpus in behalf of a debtor taken under execution against the person, the regularity and propriety of the arrest may be inquired into, so far as to determine whether the creditor had any right or authority to issue the process. The prisoner is unlawfully detained if there be no judgment, or if the judgment be one on which no execu |