as recommended and Carlson kept silent, are we to construe this silence as consenting that he had recommended the brick?" To which the court answered, "No." Whereupon the jury again retired, and after further deliberation came into court and rendered a verdict of no cause of action. The evidence upon which this question was based appeared in the re-direct examination of defendant's son, and is as follows: "Plaintiff said the brick did not come up to what father represented them; do not know whether father made any answer to that." It is now contended that the answer of the justice to the question asked by the jury was error. John G. Wicks, for applt. Byron A. Barlow, for respt. Held, That the reply of the justice was correct as far as it went. The rule is, that a declaration made in the presence of a party becomes evidence as showing that the party on hearing the statement did not deny its truth. The declarations are received in evidence, not as evidence in themselves, but for the purpose of enabling the jury to determine whether or not a reply was called for, and if called for was it the intention of the party by his silence to acquiesce in the truthfulness of the declarations. 2 Whart. on Evid., § 1136; 3 Redf., 394; 34 N. Y., 301-305. It thus appears that the reply of the justice to the question of the jury was strictly correct, for the court cannot charge as a matter of law that Carlson's silence amounted to an admission that he recomVol. 20-No. 18b. mended the brick. Plaintiff, however would have been entitled to the instruction that the fact of defendant's silence might be taken into consideration by the jurors together with the circumstances under which the statement was made in his presence, and if they were satisfied it was his intention to admit the truthfulness of the statement, to find accordingly. But plaintiff sat by and took no exception to the charge as made, and did not request the justice to make any further charge. We are, therefore, of opinion that he cannot avail himself of the omission to charge. to charge. A Justice of the Peace may instruct the jury in a question of law, and if he misdirects them it is error. But he may leave the whole case to them without any instructions. If, however, he charges a proposition in part and then refuses to charge the law in full upon the subject when requested, an exception will save the rights of the party on appeal. 16 Barb. 96; 2 Wait's Justices' Court Practice, 612. Judgment of the County Court reversed and that of the Justice's Court affirmed. Opinion by Haight, J.; Bradley, Angle and Childs, JJ., concur. SHERIFFS. ATTACHMENT. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Bolton Hall et al., applts., v. The United States Reflector Co., respt. Decided Jan. 9, 1885. The authority given by Chap. 462, Laws of 1884, to a judge adjusting the fees of a sheriff upon an attachment to order the payment of such fees is prospective in its character and does not give authority to order the payment of fees previously adjusted. When the plaintiff in an action in which an attachment has been issued has served no tice upon the sheriff releasing the attachment from the property seized, he is not liable for the fees and expenses of the sheriff incurred while retaining the prop erty for the purpose of maintaining lien upon it for fees previously accrued. A sheriff who has commenced an action to foreclose a lien upon property attached for fees upon the attachment under which he seized it, on which he has made the plaintiff in the attachment a party for the purpose of holding him liable for any deficiency, cannot avail himself of the remedy provided by Chap. 462, Laws of 1884, and procure an order directing such fees to be paid. Appeal from an order adjusting sheriffs' fees and expenses on attachments, and directing the same to be paid by plaintiffs. ground that the judge was not tion was commenced by the sheriff Wm. B. Hornblower and Joseph S. Auerbach, for applts. Edward P. Wilder, for respt. The plaintiffs commenced two actions against the defendant, and procured attachments to be issued under which its property was seized by the sheriff. Subsequently the plaintiffs served notice upon the sheriff releasing the attach- Held, That Chap. 462, Laws of ments from the property seized, 1884, was prospective in its charexcept for the purpose of satisfy- acter, and related to proceedings ing any lien upon the same for to be taken after its enactment, charges and expenses which had and that the judge had no power previously accrued. The fees and under its provisions to go back to expenses of the sheriff were ad- the bills already adjusted and justed by the judge allowing the direct their payment. That his attachments up to the time of authority over those bills was exsuch release, and the amount hausted at the time when he due ordered to be paid by the finally acted upon them, and that plaintiffs. The direction of paywas simply to adjust the amount sub- to which the sheriff was entitled, the leaving him to his remedy for their ment of such fees was sequently reversed upon collection as that was otherwise provided by law. not That the plaintiffs were liable to the sheriff for the expenses incurred by him in retaining the custody of the property after they had released and discharged their attachments, for from that time he ceased to hold the property at their instance, for their benefit, or by means of their direction. That as the sheriff had brought his action for the recovery of his fees and charges, he had elected that as the remedy to be pursued by him while that action should be pending, and having made that election he could not resort to the order provided for by the Act of 1884, for the two remedies were inconsistent. 18 N. Y., 552; 34 id., 473; 46 id., 354-7. Order reversed and order entered denying motion to adjust so much of sheriff's account as accrued upon the release of the attachments. Opinion by Daniels, J.; Davis, P. J., and Brady J., concurred. CLOUD ON TITLE, PLEADING. were irregular or invalid, so that the Court may determine whether the deed is in fact void. A general allegation that the proceedings were not taken according to law, but were illegal and void; or that the acts required to be done or performed had not been done or performed, states no facts, but merely the conclusions of the pleader, and is insufficient to rebut the legal presumption. When the complaint is framed for equitable relief only, the complaint cannot, upon demurrer, be sustained as one for the recovery of possession of the land, when no such relief is asked for. But if the action could be upheld as in ejectment, the allegations of the complaint show that defendant is in possession under a superior title. Appeal from an interlocutory judgment overruling demurrer to complaint. The complaint alleged plaintiff's title as one of the heirs-at-law of Jacob Schermerhorn, and a conveyance by the widow of her dower interest to defendant Seymour Boughton. That afterwards the County Treasurer conveyed the same premises to the Supervisors of the County, and that the latter quit-claimed to said S. B., who is in possession. That the deed to the Supervisors is, by act of the Legislature, made presumptive evidence of the regularity of the proceedings; that the sale and all proceed N. Y. SUPREME COURT. GENERAL ings prior thereto, from and in TERM. FIFTH DEPT. Gertrude E. Swart, respt., v. Seymour Boughton et al., applts. Decided Jan. 1885. In an action to remove a tax deed as a cloud upon the title, which is made presumptive evidence of the regularity of the tax pro ceedings, the complaint must allege facts showing in what particular the proceedings cluding the assessment, and all notices required to be given, are regular, and that the deed appears to be valid on its face, and that the defects set forth in the complaint can only be made to appear by extrinsic evidence, which will not necessarily appear in any proceeding at law by defendant B, in either defending or enforcing the right he claims under the | statute. The complaint then alleged that the tax levy for the year 1877, and the assessment as set forth in the deed, were not good and valid according to law; that the assessors did not make any legal or valid assessment, nor did the Supervisors make or levy any legal or valid tax; but on the contrary the same are utterly illegal and void; that all of the proceedings had to collect or enforce the pretended tax were not according to law, nor were the acts required to be done to entitle the Supervisors to a conveyance done or performed according to law; nor were any of the acts and proceedings required to be done by the charter of Rochester done or performed according to law; that all of said acts have not been done in a legal manner, according to the requirements of the acts of the Legislature and said charter, and are illegal and void. The complaint then alleged that the deed to the Supervisors and the deed from the latter to B. are a cloud upon the title of plaintiff and of the other heirs-at-law of Jacob Schermerhorn, and prayed for a judgment that such deeds be declared inoperative and void; that they be vacated, set aside, and cancelled, and for such other and further relief as to the Court may seem proper and equitable. Plaintiff sues in behalf of all the other heirs of Jacob Schermerhorn. Demurrer upon the ground that the complaint does not state facts sufficient to constitute a cause of action. H. H. Woodard, for applt. Wm. A. Hawthorne, for respt. Held, That as the deed is made presumptive evidence of the regularity of the tax proceedings, facts must be alleged and proven show. ing the invalidity of the proceeding in order to overthrow that presumption; that a general averment that the proceedings, etc., were not had or taken according to law, but were illegal and void, and that the acts required to be done or performed were not done or performed, states no facts showing the deed to be void, but merely the conclusions of the pleader; and therefore states no cause of action, but, on the contrary, shows that defendant has a superior title. The complaint does not allege any facts from which the Court could determine whether or not the tax deed is illegal and void. Code, § 281; 13 Barb., 209-216; 7 N. Y., 493; Pomeroy v.Remedies, §§ 530-1, and cases cited. Boyle v. City of Brooklyn, 71 N. Y., 1; People v. Ryder, 12 N. Y., 433, explained and distinguished. It was contended that the complaint stated a good cause of action in ejectment; it alleged the title of the plaintiff, that defendant B. claims under another title, which is invalid, and that his tenant is in possession of the land. Held, That as all the allegations of the complaint are made for the evident purpose of procuring equi table relief, and equitable relief alone is asked for, the complaint cannot be sustained as an action of ejectment to recover possession of the land, when no such remedy | she is entitled is no ground for or relief is asked for, and no an- demurrer. But the demand or swer has been interposed. That prayer may properly be considupon demurrer, as upon failure ered in determining the nature of to answer, the judgment should the action set forth in the comnot be more favorable to the plain- plaint, whether it is an action at tiff than that demanded in the com- law or in equity, whether the plaint. parties are entitled to a trial by jury or by the Court. In determining whether the action can be sustained as one in ejectment, it becomes important to inquire as to the nature of the final judgment that could be entered upon this demurrer. The Code provides that where there is no answer the judgment should not be more favorable to the plaintiff than that demanded in the complaint, etc. This complaint contains the general prayer for such other relief as the court may deem proper. It is possible that were an answer put in and a trial had plaintiff might also recover possession of the land; but in granting judgment where there is no answer no relief can be granted other than that specifically prayed for. 12 Abb., 331; 85 N. Y., 246, 253. See also 29 Hun, 422; 67 How., 191; 63 How., 262; 42 N. Y., 71; 9 Daly, 489; 4 Abb. N. C., 111 ; 4 Civ. Proc., 126; 13 Hun, 38, affirmed in 74 N. Y., 437. That, assuming that the action. could be sustained simply as one in ejectment, the allegations of the complaint show that defendant is in possession under a superior title. Judgment reversed and demurrer sustained, with leave to plaintiff to amend. Opinion by Haight, J.; Barker, J., concurs. Bradley, J., dis sents. JUDGMENT. EQUITY. NOTICE. The only relief asked for is that N. Y. SUPREME COURT. GENERAL the tax deeds be vacated, set aside and canceled. No possession being asked for, none could be awarded on final judgment upon the demurrer. The complaint asks for no relief that could be awarded by a jury; and no trial by jury could be had upon this complaint. Hence, we conclude that, if any cause of action is stated, it is merely an action to set aside the deeds as a cloud upon the title. True, the failure of plaintiff to demand the precise relief to which TERM. FIRST DEPT. Sarah Jane Miller, respt., v. Henry J. McGuckin, exr., et al, applts. Decided Jan. 9, 1885. The dismissal of a complaint for non-appear ance when the action is called for trial and the denial of a motion to open such default made upon affidavits without any investigation into the merits, do not bar at law or in equity a subsequent action brought by the defeated party for same relief. When a person takes a deed of certain real property as security for advances to be made in discharging encumbrances thereon, or |