was affirmed by the general term, a writ of habeas corpus was issued in that court, and thereafter at a general term constituted of differ. ent justices from those who heard and decided the case, upon the production of the prisoner he was again sentenced to be hung on a day named:

Held, that while it was probably not strictly regular for the court again to pass judgment, the issuing of the writ of habeas corpus was proper and it was the duty of the court, after examining the facts, to issue a warrant to the sheriff commanding him to execute the sentence already passed at a day specified (2 R. S., 659, secs. 23, 24), that pronouncing the same judgment did no injury and did not vitiate the former judgment; also that it was not material that the court passing the sentence was differently constituted from that which affirmed the judgment, it was sufficient that it was legally constituted. (Moett agt. People, 85 N. Y., 374.)

12. Where the court has jurisdiction of the parties to, and the subjectmatter of, an action for divorce brought by a wife, and judgment is rendered therein dissolving the marriage, with permission to her to marry again, and she does so marry, her second husband cannot maintain an action to have such judgment canceled, and his own marriage declared void, on the ground that the judgment was obtained through fraud and collusion. (Ruger agt. Heckel, 85 N. Y., 483.)

13. In the absence of fraud, a judg ment takes effect only on the actual interest in land which the judgment debtor has at the time of the recovery of the judgment. (Trenton Bkg. Co. agt. Duncan, 86 N. Y., 221.)

14. The title, therefore, of a grantee of the judgment debtor, by deed executed before the entry of judg

ment, although unrecorded, takes precedence of the judgment. (Id.)

15. The fact that such grantee has not recorded his deed creates no equity in favor of the judgment debtor. (Id.)

16. Although the recital in a judgment-roll, in an action of foreclosure, of service of process upon, and of appearance by, a defendant, is not conclusive, and evidence is admissible on the part of a defendant in an action brought to foreclose a mortgage to show that the court never acquired jurisdiction of his person, every intendment is in favor of the validity of the judgment, if regular on its face; the burden of establishing want of jurisdiction is upon the party so questioning it, and it should be established in the most satisfactory manner to deprive the judgment of its effect. (Ferguson agt. Crawford, 86 N. Y., 609.)

17. Where the lien of a judgment upon real estate of the judgment debtor has been suspended during appeal by order of the court as prescribed by the Code of Civil Procedure (sec. 1256), an order vacating such order of suspension and upon its face purporting to restore the lien nunc pro tunc does not restore it as against a creditor whose judgment was docketed in the interval between the granting of the two orders, and who was not a party to the original action or to the proceeding vacating the order. The court cannot by the mere process of vacating its order destroy liens taken upon the faith of it. (Harmon agt. Hope, 87 N. Y., 10.)

18. The fact that the holder of the

second judgment purchased it of the judgment creditor for less than its face does not establish that he did not purchase in good faith, and so that he is not within the protection of the Code; such purchaser has a right to buy as

cheaply as he can, and stands entitled to all the rights of his assignor. (Id)

19. A temporary injunction granted, not as a principal subject but as an incident to the action, which by its terms is to continue in force until further order of the court, is abrogated by a final judgment in the action, in favor of plaintiff. which makes no provision for the continuance of the injunction, and does not grant any further or other injunction. (Gardner agt. Gardner, 87 N. Y., 14.)

20. The fact that defendant has appealed from the judgment does not change or modify its legal effect in this particular. (Id.)

JUDICIAL NOTICE.

1. It seems, that the courts may take judicial notice of the way in which the great railways are managed in the every-day practical running of them, i. e., by overlooking officers at distant places, who by means of the telegraph are advised where trains are, and direct their movements. (Slater agt. Jewett, 85 N. Y., 61.)

JUDICIAL SALE.

1. Where, under the judgment in a partition suit, the referee appointed to sell is directed to pay out of the proceeds all taxes and assessments, &c., which were liens upon the premises, he is bound before distributing the fund, to pay off all such liens of which he has knowledge. His duty in this respect is not modified or affected by a provision in the terms of sale, to the effect that he will allow alt liens, provided the purchaser shall, previous to conveyance, produce proof thereof, with vouchers showing payment. (Weseman agt. Wingrove, 85 N. Y., 353.)

2. A purchaser upon a partition sale may not refuse a title acquired by adverse possession, but where there is reasonable doubt as to title, not obliged to take it. (See Shriver agt. Shriver, 86 N. Y., 576.)

1.

JURISDICTION.

Where it appears that an attorney retains his client's money claiming a lien thereon, and upon the facts stated the right is clear and only the amount in question, the court has jurisdiction to determine that question, on application to compel the payment of the moneys retained, although the items of the attorney's account are such as in ordinary cases would subject them to taxation. (In re Knapp, 85 N. Y., 284.)

2. It seems, that the question may be determined by the court at special term, by a referee, or by a jury passing upon an issue sent to it. (Id.)

3. The Code does not abridge the power the supreme court has always had over its own judgments; it may, in its discretion, stay proceedings pending an appeal without the prescribed security; and the exercise of this discretion, unless capricious or the discretion is abused, is not reviewable here. (Granger agt. Craig, 85 N. Y., 619.)

4. The assessors of a town have no jurisdiction of the person of a nonresident of the county, whereby they can lawfully initiate a charge against him personally for a tax because of lands owned, but not occupied, by him in their town; they have jurisdiction to value the lands, but not to assess them to him, and their jurisdiction so to value them does not draw to it such further or other power, as that the assessment to the owner can be excused as an erroneous exercise of power. (Hilton agt. Fonda, 86 N. Y., 339.)

5. Where, therefore, town assessors, with knowledge of the facts, assessed the lands of a non-resident to the owner personally, instead of assessing them in the mode prescribed by the statute:

Held, that the act was an unofficial one, for which the assessors were personally liable. (Id.)

6. The railroad commissioners appointed under the act authorizing certain towns of Livingston county to issue bonds and take stock in the E. & G. V. R. R. Co. (chap. 442, Laws of 1868), had no relation to the county and in no sense were they subject to supervision by or subordinate to its board of supervisors. (In re Bradner, 87 N. Y., 171.)

7. Accordingly held, that said board had no jurisdiction to appoint a committee of its members for the purpose of an investigation to ascertain who were the railroad commissioners, under said act, of a town in said county; and had no authority to require the attendance of a witness before the committee upon such investigation (sec. 1, chap. 190, Laws of 1858); and that, therefore, a subpoena requiring-such attendance conveyed no mandate which imposed compliance, and disobedience thereto was not, within the meaning of the law, contemp. (Id.)

8. Under the provisions of the various acts in reference to the marine court of the city of New York (secs. 33-47, chap. 300, Laws of 1831; chap. 629, Laws of 1872; chap. 479, Laws of 1874; chap. 136, Laws of 1876); and prior to the Code of Civil Procedure (sec. 3169) that court had jurisdiction to issue an attachment for a debt not exceeding $2,000, against a non-resident of the county of New York, although he had a place of business in the city, where he regularly transacted business in person, and was a resident of the state. (Fielding agt. Lucas, 87 N. Y., 197.)

9. Under the Code of Civil Procedure (secs. 531, 822) the court has power to strike out the complaint in an action, as a penalty for disobedience of an order requiring plaintiff to serve a bill of particulars. (Gross agt. Clark, 87 N. Y., 272.)

10. Where, upon trial before a referee, it appeared that there could not be a complete determination of the matters in controversy withour the presence of one not a party to the action, and the referee thereupon granted leave to the plaintiffs to make application to the court to bring in such necessary party, and directed the cause to stand over for that purpose:

Held, that the referee had power to make the order; and, on refusal of the plaintiffs to make the application, that a dismissal of the complaint without prejudice " was within the power of the referee and was justified. (Peyser agt. Wendt, 87 N. Y., 322.)

under the statute "to facilitate the service of process in certain cases" (chap. 511, Laws of 1853, as amended by chap. 212, Laws of 1863), upon affidavits bringing the case within the statute, and service was made as authorized by the statute, and judgment perfected, which judgment was, in an action brought to set aside a fraudulent conveyance by the judgment debtor, attacked for want of jurisdiction in the judge granting such order:

Held, that it was only requisite for the plaintiff to show residence of the defendant in this state; that it was sufficient that the other facts specified in the statute were shown to the satisfaction of the judge granting the order. (Haswell agt. Lincks, 87 N. Y., 637.)

JURORS.

1. After a jury had been impanneled and sworn, and the trial concluded, it was ascertained that two of the jurors were cousins of the plaintiff, who was the prevailing party. It was not shown that the plaintiff or jurors had knowledge of this fact, and it was shown that the defendant did not know of it. No misconduct on the part of the jurors so related was claimed to have existed:

Held, that the court properly refused to grant a motion for a new trial based upon the fact of such relationship. (Salisbury agt. McClaskey, 26 Hun, 262.)

JUSTICES OF THE PEACE.

1. Chapter 390 of the Laws of 1879, giving to courts of special sessions exclusive jurisdiction in the first instance to hear and determine cases of assault and battery, &c., has been repealed by the Code of Criminal Procedure. (Matter of Lord, ante, 97.)

2.

3.

1.

When the accused, having been arrested for a simple assault and battery, was brought before the justice issuing the warrant, he tendered bail for his appearance at the next court having jurisdiction of the offense, and refused to be tried at a court of special sessions:

Held, that the justice could not hold him for trial by a court of special sessions, but should have accepted the bail tendered. (Id.)

Under the Code of Criminal Procedure the jurisdiction conferred upon courts of special sessions, except in those cases in which by section 57 they have exclusive jurisdiction, can be exercised only in the following cases: 1. When the party charged, upon his being brought before the magistrate, requests to be tried by such court. 2. When not having made such request, and after having been required by the magistrate to give bail for his appearance at the next court of sessions in the county, he omits to do so for twenty-four hours. (Id.)

LANDLORD AND TENANT.

The defendant was the owner of a building and leased it with the machinery it contained to one Little. The latter employed the plaintiff, who came in contact with the machinery and was injured:

Held, that the tenant took the premises as they were, and that the plaintiff going into his service at that place, took the risks of the situation. If any railings or other safeguards were required, it was the duty of the tenant who used the machinery to construct them.

Held, further, that the tenant and not the landlord, was responsible for the injury. The respective duties owing by landlord and tenant to third persons considered. (Ryan agt. Wilson, ante, 172.)

LEASE.

1. A. executed to B. a lease of certain premises for the term of four years, with the "privilege of six years more at the same rent:

Held, that the words "with the privilege of six years more at the same rent are equivalent to a covenant of renewal, and that the plaintiff was entitled to a specific performance of the covenant by the execution of a new lease. (Crawford agt. Kastner, ante, 90.)

2. District courts are courts of limited jurisdiction. When a justice presides in a summary proceeding provided by statute, his powers are limited and restricted. Equitable defenses are not available. (Id.)

3. Whether B. was entitled to the renewal which was contemplated by the original agreement, depends entirely upon facts and circumstances, which, if disputed, necessarily required the adjudication of a court of competent jurisdiction, and was an issue of law which a district court justice was not competent to determine for want of jurisdiction. (Id.)

4. The rule is well settled that, when the defense is an equitable one, in a summary proceeding, application may be made to, and the powers of a court of equity invoked to restrain the proceedings, and to transfer the contention to its jurisdiction. (Id.)

LIEN.

1. Where the lien of a judgment upon real estate of the judgment debtor has been suspended during appeal by order of the court as prescribed by the Code of Civil Procedure (sec. 1256), an order vacating such order of suspension and upon its face purporting to restore the lien nunc pro tunc, does not restore it as against a

creditor whose judgment was docketed in the interval between the granting of the two orders, and who was not a party to the original action or to the proceeding vacating the order. The court cannot, by the mere process of vacating its order, destroy liens taken upon the faith of it. (Harmon agt. Hope, 87 N. Y., 10.)

2. The fact that the holder of the second judgment purchased it of the judgment creditor for less than its face does not establish that he did not purchase in good faith and so that he is not within the protection of the Code; such purchaser has a right to buy as cheaply as he can, and stands entitled to all the rights of his assignor. (Id.)

1.

LIMITATION OF ACTIONS.

The provision of the Code of Civil Procedure (sec. 382, sub. 5) limiting the time for the commencement of "an action to procure a judgment other than for a sum of money, on the ground of fraud," includes all cases formerly cognizable by the court of chancery, whether its jurisdiction therein was exclusive or concurrent with that of courts of law, in which any remedy or relief is sought for aside from or in addition to a mere money judgment, and which a court of law could not give, although as part of the relief sought a money judgment is also demanded. (Carr agt. Thompson, 87 N. Y., 160.)

2. It, therefore, includes a case where an accounting is sought for in addition to and as a means of reaching a judgment for money. (Id.)