ACTS OF CONGRESS.

1. It seems that the right of a debtor
of the United States government,
when sued by it, to interpose a
counter-claim or counter-credits,
rests in all cases upon the provis-
ions of the act of Congress grant-
ing and regulating it (Act of March
3,1797, §§ 3 and 4); and while, un-
der said act, a defendant, upon com-
plying with its conditions, may
give in evidence any counter-claim
he may have in his own right,
which is a proper subject of set-off,
such counter-claim is available
only to the extent necessary to de-
feat the claim of the government,
and no affirmative judgment for
any excess can be rendered against
it. People v. Dennison.
272

2. The provision of the Federal Con-
stitution (art. 4. § 2), requiring the
surrender, on demand of the exec-
utive authority of a State, of fugi-
tives from justice "charged with
treason, felony, or other crimes"
who are found in another State,
and the provision of the U. S. Stat-
utes giving practical effect thereto
(U. S. R. S., 5278), embrace every
criminal offense and every act for-
bidden and made punishable by
the law of the State where the act
was committed. People ex rel.
Jourdan v. Donohue.
438

ADVERSE POSSESSION.

1. Plaintiffs having title to land
bounded by the waters of a bay at
ordinary high-water mark made an
allotment, under which defendant
claimed, bounded westerly by "the
cliff" At the time of the allotment
there was a strip of land between
the cliff and high-water mark. In
an action of ejectment to recover
this strip, defendant claimed by ad-
verse possession. It appeared that
fences on the sides of defendant's
premises, extending across the
strip in question to or near low-
water mark, had been maintained
by him and his grantors for more
than twenty years, those portions
across the beach being taken away
in winter to prevent their being
carried away by the ice and tides;
there was no fence along the cliff,
the land on that side being open
to the sea. Held, that the evidence
was sufficient to authorize the sub-
mission to the jury of the question
as to whether there was a sub-
stantial inclosure within the mean-
ing of the statute. Trustees, etc..
East Hampton v. Kirk.

215

2. Also held, that the fact that de-
fendant and his predecessors in
title had gathered sea-weed from
the premises, while not alone evi-
dence of adverse possession, was
such evidence taken in connection
with the fact that they claimed to
prevent other freeholders of the
town from gathering, and that they
did so under claim of exclusive
right as owners, which claim was
known to plaintiffs.
Id.

3. It appeared that R., a former own-
er of defendant's land, brought an

86

action for trespass against one who
had gathered sea-weed upon the
beach. R. discontinued the action
under an agreement with the town
and agreed not to sue again. Held,
that this did not entitle plaintiffs
to a charge to the jury that R.
thereby relinquished his adverse
possession; that it was at most evi-
dence bearing upon that question
for the consideration of the jury.
İd.

2. Judgment was rendered in this ac-
tion upon the report of referees in
favor of plaintiff. This was re-
versed by the General Term. The
attorney-general on appeal to this
court gave the required stipulation
for judgment absolute. Held, that
this was not an assent to an affirma-
tive judgment on a counter-claim
set up in the answer; that it waived
no legal objection to the counter-
claim, or immunity of the State
from such a judgment. People v.
Dennison.
272

ANNUITIES.

31

1. This action was brought by plaint-
iff, as committee of the estate of a
lunatic, to obtain an accounting of
the rents and profits of real estate
owned in common by the lunatic
and by defendant's testator, re-
ceived by the latter and of per-
sonal property belonging to them
jointly, which the complaint al-
leged had been fraudulently ap-
propriated by said testator, the de-
fendant, and her former husband,
in pursuance of a conspiracy be-
tween them in fraud of the rights
of the lunatic. Held, that the ac-
tion being for an accounting was
referable; that the allegations
of fraudulent conspiracy did not
change its character; and that an
order of reference was not reviewa-
ble here. Harrington v. Bruce.

103

4.

Where plaintiff fails to prove the
cause of action set up in his com-
plaint, and the objection is raised
upon the trial, and no amendment
of the pleading is asked for or or-
dered, a judgment in plaintiff's
favor, upon a cause of action en-
tirely separate and distinct from
that alleged, cannot be sustained
on appeal. Southwick v. First Nat.
Bk.
420

5. Where a summons was served
upon a sheriff by delivery to his
deputy at his office, held, that an
omission to prove the filing of no-
tice on the trial, if required, was
cured by the bringing of the notice
to the General Term, on appeal
from judgment against the sheriff.
Dunford v. Weaver

6. An omission in proof

445

matter

of record may be supplied on ap-
peal to sustain a judgment, where
the record cannot be answered or
changed.

ld.

7. It seems that, assuming the court
has power in a foreclosure suit to
compel the owner of the equity of