Digest. adversary the hazard of further litigation, should take his ground, and put the opposite party upon his guard, in clear, explicit, and not doubtful language, in his notice of appeal. Should point out clearly the error he complains of, so that his adversary may know what precise part of the claim is particularly disputed and will be contested upon the appeal (Id). 3. Where a notice of appeal from a justice's judgment, specifying the particulars in which the judgment should have been more favorable to the appellant, is served upon the respondent, the respondent in serving his offer of acceptance, must not only serve it upon the party but also upon the justice. The statute has made the respondent's right to costs depend upon a compliance with its provisions (Smith agt. Hinds, ante 187). 4. Where the respondent recovered judgment against the appellant before the justice for $48 damages, besides costs, and the appellant in his notice of appeal claimed that the judgment should have been in favor of the plaintiff for the sum of only $45; and then claimed that the judgment should have been only for the sum of $40, and afterwards continued to make the same claim as to the residue of the amount less $5, until he claimed that judgment should have been in his favor, and the respondent served an offer upon the appellant only, offering to reduce the judgment to $30-no acceptance of the offer being filed by the appellant, and upon the trial in the county court the respondent recovered a verdict for the sum of $37: Held, that the appellant was entitled to costs (Id). 5. It was the intention of congress to require a stamp to be affixed to the process by which a suit is removed from a justice's court to a court of record. And such process includes a notice of appeal (Lewis agt. Randall, ante 378). 6. But congress has no authority to deprive the court of jurisdiction by declaring the notice of appeal void for want of a stamp (Id). 7. The plaintiffs having recovered a judgment in a justice's court for $140, damages and costs; the defendant appealed to the county court, stating in his notice of appeal the particulars in which he claimed that the judgment should have been more favorable to him, to wit: that it should have been in his favor for no cause of action, and for costs. The respondent made no offer to allow the judgment to be corrected, in any of the particulars mentioned in the notice of appeal. The action was tried in the county court, and the plaintiffs recovered a verdict for $58: Held, that the appellant was not entitled to costs on the appeal, but that the respondents were (Wynkook agt. Halbut, 43 Barb. 266). NOTICE OF TRIAL. 1. The provisions of the Code in § 256, that in the first judicial district there need be but one notice of trial from either party, do not apply to notice of argument on an appeal to the general term (Walsh agt. Gregory, 19 Abb. 365). PARTIES. 1. Where the complaint charged that the defendant after the death of his wife, fraudulently procured the foreclosure of a mortgage of himself and wife on premises owned by his wife as her separate estate, and through the agency and instrumentality of other persons procured the title to the premises under the foreclosure in his own name, upon which he subsequently gave a mortgage to another person, and the plaintiffs claiming relief as heirs at law of defendant's wife, that the title of the premises be declared to be in the plaintiffs, subject to the last mortgage given by the defendant: Held, that a demurrer for the non-joinder as defendants of the persons through whose instrumentality the defendant procured title to the premises, and his mortgagee, would not lie (Stockwell agt. Wager, ante 271). 2. The defendant had no interest that required these persons to be made defendants, nor could he be prejudiced by the omission to make them parties, or his case improved by making them parties. The interest of the mortgagee was protected by the relief demanded in the complaint, and the other persons could not be necessary to enable the defendant to establish a bona fide title if he had one, or to assist him in answering for a fraud of which he was alone charged (Id). 3. An objection for a defect of partiessuch as the non-joinder of a person as plaintiff-which is not apparent upon the face of the complaint, can only be taken by answer. If the ob Digest. And jection is not thus taken, the defend- [ PARTNERS AND PARTNERSHIPS. ant will be held to have waived it (Conklin agt. Barton, 43 Barb. 435). 4. A plaintiff is not now to be nonsuited because he has brought too many parties into court. If he could recover against any of the defendants, upon the facts proved, had he sued them alone, a recovery against them will be proper, although he may have joined others with them in the action, against whom no liability is shown (McIntosh agt. Ensign, 28 N. Y. R. 169). 5. Where the complaint was against five defendants as common carriers, and the proof tended to establish a cause of action against two of them, and there was no proof whatever that the other three were liable jointly or otherwise Held, that although the plaintiff had joined with the two liable, others against whom no liability was shown, it was not error in the judge, upon the request of the two, to refuse to direct a verdict, or order judgment, in their favor (Id). See WITNESS, 1, 2, 3. See TAXES AND ASSESSMENTS, 2, 3. See CREDITOR'S ACTION, 2. PARTITION. 1. A parol partition between tenants in common, accompanied by actual possession in accordance therewith, will bind the parties and those claiming through or from them (Otis agt. Cusack, 43 Barb. 547). 2. And where, after such a partition has been made, the parties take separate possession of their respective portions, and one of them contracts with a mechanic to erect a dwelling house on his part, which is built, accordingly, the interest of the party so contracting is of such a nature as to make it the subject of a lien under the mechanics' lien law, although the title to the whole lot is in the cotenant. But the co-tenant, who is not a party to the contract with the mechanic, and who has no interest in the work done, is not liable under the contract; nor is his share of the property subject to the builder's lien (Id). 1. A partnership may be indebted to a member of the firm, and may bind itself to him by note or bill. though the payee cannot enforce the obligation at law, by reason of the technical legal rule that a man cannot sue himself, yet he may have relief in equity; and his indorser may recover at law (Traders' bank of Rochester agt. Bradner, 43 Barb. 379). 2. In equity the separate estate of partners is not liable for partnership demands, until the partnership effects are exhausted and the separate debts are paid (Ferry agt. Butler, 43 Barb. 395). 3. A participation in the profits of a business, by a party, as a compensation for his labor and services, without his having an interest in the principal stock, or in the profits as such, or any right to control the business, does not make him a partner. He must have an interest in the stock, with a right to control, and thus have a right to the profits as the result of the capital and industry in which all concerned are interested, and not as a measure of compensation merely; and must be liable for losses (Conklin agt. Barton, 43 Barb. 435). 4. Where an individual though not actually a partner of or connected in business with another, by his acts and declarations holds himself out to a third person as a partner, and induces him to believe that he is such, and thereby goods are obtained upon the credit of both, he will be estopped from denying the existence of a partnership, and will be liable as a partner (Id). 5. A surviving partner is vested with the partnership assets for the purpose of applying them to the payment of partnership debts equitably; and has not power to assign the whole assets to the preference of some creditors to the exclusion of others (Id). 6. A creditor's action should not be absolutely dismissed for defect of parties, unless the objection be taken by pleading (Id). 7. A transfer, by a partnership, of the partnership property, to a corporation formed by the partners for the purpose, in payment for which the partners take the stock of the corporation in their individual names, is not per se fraudulent as to the creditors of Digest. the partnership (Persse and Brooks' Paper Works agt. Willett, 19 Abb. 416). 8. The mere fact that partnership property is transferred, in exchange for other property, which is transferred to the members of the firm, individually, does not make the transfer per se fraudulent; nor is it conclusive evidence of interest to defraud or delay the partnership creditors, if the substituted property is as valuable as that sold, as accessible to process and as readily converted into money by judicial proceedings. The mere fact that the title to the substituted property is taken by the members of the firm severally, can only be important in connection with other evidence tending to show a fraudulent intent (Id). 9. An absolute and unconditional transfer, by an insolvent retiring partner in a firm which is also insolvent, of all his interest in the partnership property, to the other partner, who thereupon assumes the partnership liabilities, is not rendered void, as against individual creditors of the former, by the fact that, as a part of the consideration of such transfer, the latter agrees to employ the services of the former and his wife, and give them lodgings upon the premises assigned, and to pay the wife a share of the future profits of the business, if any. This does not, necessarily, show an intent by the retiring partner to defraud his individual creditors; nor does it, by securing to him the beneficial use of a part of the property, create or reserve any trust for his benefit (Griffin agt. Cranston, 10 Bosw. 1). The previous decision of this court in this case (1 Bosw. 281) reaffirmed. 10. Where several persons engaged in an enterprise, one of them agreeing to assist by advancing money, and to share in the losses, if any, but not to receive any part of the profits, which are to be divided among the others exclusively, although such one is not to be deemed a partner as between the others and himself, nevertheless, if he holds himself out or allows himself to be held out as a partner, to a third person, who, under the belief that he is such, enters into a contract with them, he is liable upon such contract (Moss agt. Jerome, 10 Bosw. 220). 11. Upon, such a contract, hotwithstanding that it was joint, a recovery 12. may be had against one alone; and this although another of the debtors has been released by the plaintiff upon a compromise under the joint debtor act (Id). Entries in partnership books are not evidence for one partner against another on an accounting between them, unless it appears or may be presumed that the latter not only had access to the books, but actually inspected them. Thus, where the defendant was a dormant partner, who took no part in conducting the business, except to give his notes for its liabilities, and merely visited the place of business occasionally, and there was no evidence that he ever looked at any of the books: held, that the entries in the books were not admissible against him, in favor of his partner. (BOSWORTH, Ch. J. dissented.) (Taylor agt. Herring, 10 Bosw. 447). 13. The authority of each of several partners, as agents of the firm, is necessarily limited to transactions within the scope and object of the partnership, and in the course of its trade or affairs (Welles agt. March, 30 N. Y. R. 344). 14. A general assignment to a trustee of all the funds and effects of the partnership, for the benefit of creditors, is the exercise of a power without the scope of a partnership enterprise, and amounts, of itself, to a suspension or dissolution of the partnership. No such authority as that, in one of several partners, can be implied from the partnership relation. And if one partner executes such an assignment, without the consent or authority of the rest, it will be void, and will not operate to pass to the assignee the title to the firm property (Id). 15. The term "dormant partner” implies one who is not an active partner nor generally known as a partner; but to be such it is not essential a person should wholly abstain from any actual participation in the business of the firm, or be universally unknown as bearing a connection with it; nor does the term necessarily imply a studied concealment of the facts (North agt. Bloss, 30 N. Y. R. 374). 16. Where one of two partners retires from business, relinquishing to the other all his interest in the partnership property, the remaining partner acquires the same dominion as if it had ever been his own separate pro Digest. perty. The assignment being made in good faith, the title rests in the assignee as his own private estate, free from any lien or equity in favor of partnership creditors. Such assignee may lawfully transfer such property in payment of his individual debts (Dimon agt. Hazard, 32 N. Y. R. 65). 17. Members of a copartnership association who have assigned their inteterest therein to other solvent parties, with the assent of the copartners who accept such assignees as copartners in their stead, and recognize and treat them as such, as between themselves, are not liable for the debts of the copartnership existing at the time of such assignment; and they cannot be required to contribute for their payment to those continuing parties who have been required to pay the same (Savage agt. Putnam, 32 N. Y. R. 501). 18. At most, such partners who have thus assigned their interest in, and have ceased to be members of, such association, stand in the relation of sureties for the continuing members, to their partnership creditors, to be liable on condition as such sureties; and when the continuing partners pay such debt, they pay the same as principals, and their sureties are thereby discharged (Id). 19. On express provision in their articles of association or copartnership that each partner should pay his share of the indebtedness of the association in proportion to his amount of shares of stock does not alter, enlarge or modify the legal liability or relation of the members thereof to each other. It only declares, in terms, what the law implies (Id). 20. The parties to a copartnership may give it such a name as they please, and all contracts, obligations and notes, made with or given to such firm, may be prosecuted in the individual names of its members. It is otherwise with corporations (Crawford agt. Collins, ante 398). See ASSIGNMENT FOR THE BENE- See VESSELS, 19, 20, 21, 22, 23. PAYMENT. 1. The maker of a promissory note paid $100 thereon, to the payee, who omitted to indorse or give credit 2. therefor, but sued the maker and surety, and recovered judgment for the full amount of the note, the suit not being defended, and issued an execution thereon; whereupon the surety paid the judgment, and taking an assignment of the principal claim, brought an action to recover back the payment of $100. Held the action would not lie (Brieck agt. Wood, 43 Barb. 315). The law will not uphold the faith and trust that allow a man when sued upon a note, to lie by and rest upon the belief that the plaintiff will not do what he has notified the defendant, in the summons and complaint he will do, viz: take judgment for the whole amount of the note, without crediting a previous payment, and then bring an action to recover back a part of the judgment recovered, on the ground that his just confidence has been betrayed (The case of Smith agt. Weeks, 26 Barb. 463, overruled). 3. The rule with respect to voluntary payments is, that if a party has actually paid what the law would not have compelled him to pay, but what in equity and good conscience he ought, he cannot recover it back again in an action for money had and received (Mayor, &c. of N. Y. agt. Erben, 10 Bosw. 189). 4. Evidence of these facts in defence to the action to recover back such alleged overpayment, is admissible under the defendants denial of the allegations of the complaint that the overpayment was money "not of right due and payable, and a payment made under a mistake of fact on the part of the plaintiff" (Id). 5. Where, in an action to recover back money paid by mistake, the referee found that the defendants were overpaid-were overpaid by mistake, and by mistake on a matter of fact: Held that this made the allowance for such overpayment a lawful credit in favor of the plaintiff, and deprived the defendants of the benefit of the objection that the payment was a voluntary one made with full knowledge of the fact; it neither being a voluntary payment, nor made with such knowledge of the facts as barred the plaintiffs title to relief (North agt. Bloss, 30 N. Y R. 374). 6. Where the plaintiff holds as collateral security for the payment of a debt, the receipt of a bailee for stereotyped plates, bad by an understanding and Digest. agreement with the parties in interest, looking to their mutual advantage, he transfers his interests in the plates, and gives an order for their delivery to the vendee, who undertakes to pay his demand from the proceeds arising from the use of the plates, and who gives security for the fulfillment of his undertaking, the plaintiff still retaining a lien upon the plates for his further security, the transaction is not to be deemed a payment (Wright agt. Storrs, 32 N. Y. R. 691). 7. The giving of further time for the payment of the debt due the plaintiff, with the knowledge and assent, and for the benefit of those who stood in the relation of sureties, does not discharge them from their liability as sureties (Id). See DEBTOR and CREDITOR, 4, 5, 6. See PRINCIPAL and SURETY, 2, 3, 4. See MORTGAGOR and MORTGAGEE, 14, 15, 16. See TENDER, 1, 2, 3. PLEDGE. 1. Where on a pledge of stock, there is no agreement in reference to the manner of the sale, the pledgee cannot sell the stock without giving the pledgor notice of the time and place of sale; and in such case the sale must be public at the time and place mentioned in the notice. But when the parties agree to have the pledge sold at public or private sale without notice, the pledgor cannot insist that he should have notice (Genet agt. Howland, ante 360). 2. Where the pledgee, by the terms of the stock note, had authority to sell the stock on the non-performance of the promise to pay on demand, either at public or private sale, and without notice, left a memorandum in the office of the pledgor, the latter being absent, in these words: "If you cannot give us $4,500, we will be obliged to use the 100 shares P. M. S. Ship Co.," without date or signature held, no demand of payment of the stock note which would authorise a sale of the stock (Id). 3. Where notice to redeem the stock pledged by payment of the amount loaned is sufficient, and will operate to the same extent as a regular de mand of payment of the note, the old common law rule of notice, with a reasonable time within which to redeem, must be resorted to. That is, the creditor is required to give a notice to the debtor to redeem the pledge, and allow a reasonable time within which to provide for such redemption (Id). 4. A right of action for the taking and conversion of personal property upon a pledge, is assignable, and the assignee may sue and recover in his own name, upon a tender of the debt, and a demand made by him after the assignment, although the conversion was before the assignment (Id). 5. Where the plaintiff in his complaint, unites with his claim for damages for the improper sale of a pledge, a cause of action for the redemption of the pledge, and the facts disclosed do not entitle him to the equitable relief -the redemption of the pledge-the court will order the action for the tort in improperly disposing of the pledge to be tried by a jury (Id). 6. A pledgee is entitled to notice of the time and place of sale of the thing pledged, unless his right thereto has been waived or surrendered by consent (Millikin agt. D'Ehon, 10 Bosw. 325). 7. A stipulation in the agreement of pledge, that the pledgee" may sell at public or private sale, or otherwise at his option," does not authorise him to sell at private sale, without giving the pledgor such previous notice of time and place (Id). 8. A pledge obtained by false representations of the creditor, though unredeemed by the debtor, vests no interest in the pledgee (Mead agt. Bunn, 32 N. Y. R. 275). PRINCIPAL AND AGENT. 1. A master painter is not liable for injuries caused by his workmen will fully bespattering the walls of the room. The remedy for willful injuries would be against the workmen Garvey agt. Dung, ante 315). 2. An attorney or agent, who has received from his principal, as a mere messenger or carrier, money to be delivered to a third person, although it be paid in performance of an agreement previously made between the principal and such third person, cannot set up any illegality in such agreement, as a defence to an action |