Opinion of the Court, per EARL, J. 474; Swan v. Saddlemier, 8 id. 676; Love v. Palmer, 7 Johns. 159; Richardson v. Crandall, 48 N. Y. 347; Code of Civil Procedure, 160; Littlefield v. Brown, 7 Wend. 453-457; Goodwin v. Griffis, 88 N. Y. 629–640.) EARL, J. The judgment in the action of Hawley et al. v. Pierce et al. was not final. It adjudged that the assignment inade by defendants Pierce and Haggerty to defendant Beckwith was fraudulent as against the creditors of the assignors, and that it was null and void; that the assignee should account for the assigned property which came into his hands which was found to be of the value of $3,000; that a receiver should be appointed of the property of the assignors in their hands or in the hands of their assignee; that from the proceeds of such property the receiver should first pay the costs of that action, taxed at $100.07; that from the remainder he should pay the plaintiffs in that action for their judgment against the assignors $178.35 and interest thereon from Februrary 5, 1878, and that he report the remainder, with his proceedings, to the court for, and subject to its further order and direction. The learned counsel for the appellants claims that the judgment was final and calls our attention to the case of Produce Bank v. Morton (67 N. Y. 199) as an authority for his claim. In that case it was held that for the purpose of an appeal to this court a similar judgment was final. It was so held under the Code then existing because there was a final disposition of the whole controversy between the parties. But it was not final for every purpose. It was not so far final that a judgment for an ascertained definite sum, or for any sum, could be entered and docketed against the defendants, or any of them. Before such a judgment could be entered or docketed further proceedings were needed. And such was the case here. The precise sum which the assignee was to pay and for which the judgment could be entered and docketed against him was yet to be ascertained, and no judgment requiring the payment of any sum could be entered, without further proceedings, in favor of any person. So after the entry of the preliminary Opinion of the Court, per EARL, J. judgment, which was certainly in some sense interlocutory, upon a motion made on behalf of the plaintiffs therein, an order was granted by the court appointing a receiver of the property of the assignors, and the assignee was ordered to account to the receiver for all the property of the assignors which came into his hands, and to pay and deliver to the receiver all of such property which had been found to be of the value of $3,000; and the receiver was ordered to pay out of the property received by him the two items specified in the judgment, and to report the remainder with his proceedings to the court; and by the same order a referee was appointed to take and state the account of the assignee and to determine what costs, expenses and charges, and disbursements, if any, were properly allowable to him to be deducted from the sum of $3,000. In pursuance of that order the receiver qualified and the referee took an account and made his report to the court, which then made a final order allowing the assignee to deduct from the sum of $3,000, certain claims allowed to him, and directing him to pay the balance$2,610 to the receiver. to the receiver. Until this final order was made, the sum was not ascertained which the assignee was required to pay, and no judgment for any sum of money could be entered or docketed against him. That action had then for the first time reached a stage in which a money judgment could be entered and docketed against the assignee, and then such a judgment could and should have been entered and docketed in favor of the receiver against him. The last two orders should have been attached to the prior judgment-roll, and a final judgment should have been thereon entered. (Geery v. Geery, 63 N. Y. 252.) The judgment thus entered and docketed could have been enforced by execution, and not by such process as was issued in this case. The rule is furnished by the Revised Statutes (Part 3, chap. 8, title 13), which both parties assume to have been in force at the time the process was granted. Section 1 provides, among other things, for punishing by fine and imprisonment parties to suits for the non-payment of any sum ordered by the court to be paid, "in cases where by law execution cannot Opinion of the Court, per EARL, J. Section 4, under be awarded for the collection of such sum." which the plaintiff seeks to justify this process, reads as follows: "Where any rule or order of a court shall have been made for the payment of costs or any other sum of money, and proof by affidavit shall be made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison, until such sum and the costs and expenses of the proceedings be paid." This section must be construed in harmony with the prior provision cited, and authorizes the precept mentioned only in cases where an execution cannot be issued. It does not, therefore, apply to a case where money has been ordered to be paid by a final judgment, and so it has been uniformly held. (Lansing v. Lansing, 4 Lans. 377; Strobridge v. Strobridge, 21 Hun, 288; Baker v. Baker, 23 id. 356; People, ex rel. Fries, v. Riley, 25 id. 587; Randall v. Dusenbury, 41 N. Y. Supr. Ct. 456; Matter of Watson v. Nelson, 69 N. Y. 536; O'Gara v. Kearney, 77 id. 423.) The plaintiffs in the action in which the receiver and referee were appointed could acquire no right to a precept for the arrest of the assignee by omitting to enter their final judg ment. They could not evade the statutes in that way. They or their receiver, having the right to enter the judgment and enforce payment of the same by execution, could not enforce the same by attaching the assignee for contempt in refusing to pay. It follows that the precept for the arrest of the assignee was unauthorized; that he was illegally arrested; that the sheriff had no right to exact or take the bond, and that the defendant as surety thereto has not been made liable thereon. The judgment of the General Term should, therefore, be affirmed, with costs. All concur. Statement of case. EMELINE LANE as Executrix, etc., Appellant, v. HENRY F. It is not essential to the due publication of a will that the testator shall declare in express terms in the presence of the subscribing witnesses that the instrument is his last will; it is sufficient if he in some way makes known to them by acts or conduct, if not by words, that it is intended and understood by him to be his will. Where therefore a testator subscribed the will in the presence of the witnesses, and by his conduct made known to them its nature, and requested their attestation, held that there was a substantial compliance with the statutes, sufficient to entitle the will to probate, Mitchell v. Mitchell (16 Hun, 97, affirmed 77 N. Y. 596), distinguished. Probate was contested by the heirs-at-law. It appeared that through partial paralysis of the vocal organs, the testator at the time he executed his will was unable to utter words, but he made sounds intelligible to those familiar with him, and signs, which to some extent any one could interpret. His wife went with him to the house of the scrivener who drew the will. She was executrix and legatee. Held, that she was incompetent under the Code of Civil Procedure (§ 829), to testify to any thing said by her to the testator, or to what he communicated to her or others, in reply. (Argued March 13, 1884; decided April 15, 1884.) APPEAL from order of the General Term of the Supreme Court in the third judicial department, made May 1, 1883, which denied a motion for a new trial of certain issues which had been settled herein and tried at a circuit. These were proceedings for the probate of the will of Frederick F. Lane, deceased. The facts, so far as material, are stated in the opinion. George B. Bradley for appellant. The testator having subscribed his name to the will at the end thereof in the presence of each of the subscribing witnesses thereto, and at the time he so subscribed it having declared it to be his last will and testament, there was a compliance with the statute. (2 R. S. 63, § 40, subd. 3; Coffin v. Coffin, 23 N. Y. 15; Torry v. Brown, 15 Barb. 304; Marvin v. Marvin, 3 Abb. Ct. App. Dec. 201, 202; 4 Keyes, 21.) There was an unquestioned and effectual Statement of case. publication of the will. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422; Coffin v. Coffin, 23 id. 9, 15; Thompson v. Seastedt, 6 T. & C. 78; 62 N. Y. 634; Gilbert v. Knox, 52 id. 125, 128; Niffer v. Groesbeck, 22 Barb. 670; Darling v. Arthur, 22 Hun, 84; Torry v. Bowen, 15 Barb. 304; Ludlum v. Otis, 15 Hun, 412; Muirs v. Freeman, 3 Redf. 181.) The court erred in striking out the testimony of Mrs. Emeline Lane, and in withdrawing it from the consideration of the jury. (Simmons v. Sisson, 26 N. Y. 264; Cary v. White, 59 id. 336; Hildebrandt v. Crawford, 65 id. 107; Braque v. Lord, 67 id. 495; Krushaar v. Meyer, 72 id. 602; Code of Civ. Pro., 828; 59 N. Y. 339; Quin v. Lloyd, 41 id. 354.) When the court swept out all the testimony of the witness, if any of it was competent, the proponent was justified in complaining, and the exception was well taken. (Quin v. Lloyd, 41 N. Y. 354.) The fact of publication of a will is not dependent upon the testimony or recollection of the subscribing witnesses. (Trustees of Auburn Seminary v. Calhoun, 25 N. Y. 422.) The motion for new trial was properly made at General Term. (Howland v. Taylor, 53 N. Y. 627; Sutton v. Ray, 72 id. 482, 484-5; Code of Civ. Pro., § 3347, subd. 11; 2 R. S. 67, § 58; Watts v. Aikin, 4 How. 349; Laws of 1847, chap. 280, § 17; Spotts v. Dumesnil, 12 Abb. [N. S.] 128; Marvin v. Marvin, 3 Abb. Ct. of App. Dec. 193; 4 Keyes, 10; Johnson v. Hicks, 1 Lans. 150; Webster v. Cole, 17 Hun, 507, 509; Const. of 1821, art. 5, § 4; Laws of 1830, chap. 185, § 1; 2 R. S. [2d ed.] 124, § 9; id. [3d ed.] 260, § 9; 2 R. S. 67, § 58; Code of Pro., § 471.) J. McGuire for respondent. There was not a due execution of the will in that there was not a valid publication thereof within the requirements of the statute. (Baskin v. Baskin, 36 N. Y. 416; Gilbert v. Knox, 52 id. 125; Bagley v. Blackman, 2 Lans. 41; Brown v. De Selding, 4 Sandf. 10; Seymour v. Van Wyck, 6 N. Y. 120; Burritt v. Selliman, 16 Barb. 198; Mitchell v. Mitchell, 16 Hun, 97.) The situation, health and surroundings of the testator, whether the person |