creditors furnishes an exceptional case by force of section 529. (Frist et al. agt. Climm, ante, 214.)

23. Section 544-Where plaintiff's cause of action is upon a promissory note made by defendant to plaintiff's order, and defendant admits the making of the note, but alleges by way of avoidance that since the making and delivery of said note he made and delivered a certain other note as a renewal of the note sued on, and that the latter note was outstanding and not matured, the plaintiff should have leave by supplemental complaint to allege the fact that the note pleaded in defendant's answer as payment of the note in suit was not paid and was in plaintiff's possession, and to pray that he may tender the same on the trial. (Cohn agt. Husson, ante, 461.)

24. Section 519-In an action upon contract the imperative requirement is, that it must be alleged in the complaint that the defendant was guilty of fraud.

Where there is no complaint presented with the motion for the arrest, and the affidavits do not aver what the allegations of the complaint were, the order of arrest will be vacated. (Straus agt. Kreis, ante, 275.)

25. Section 550-In cases where, under this section of the Code of Civil Procedure, the right to arrest depends upon facts extrinsic the cause of action, and where no execution against the person can issue unless an order of arrest has been obtained and executed before judgment, these extrinsic matters need not be alleged in the complaint, and if alleged, are immaterial to the cause of action and need not be proved upon the trial. (Segelken agt. Meyer, 94 N. Y., 473.)

26. Section 559- Order of arrestdeposit in lieu of the undertaking required by this section of the

Code of Civil Procedure-right of the defendant to have his costs for vacating the order of arrest paid therefrom before the trial of the action. (See Tunstall agt. Winton, 31 Hun, 231.)

27. Sections 600, 601- Where the bail apply to be exonerated on account of the death of their principal, the application must be made before their time for answering expires. (Walsh agt. Schulz, ante, 173.)

28. Section 629-Temporary injunction application to dissolve it, on giving an undertakingCode of Civil Procedure, section 629, as amended by chapter 404 of 1853-the undertaking must comply with it strictly. (See Chamberlain agt. Buffalo, N. Y. and P. R. R. Co., 31 Hun, 339.)

(See Betzemann agt. Brooks, 31 Hun, 271.)

32. Section 649-A bond, promissory note or other instrument for the payment of money can be attached only by taking the same into the sheriff's actual custody.

Leaving a certified copy of the warrant with the usual notice upon a person having in his custody a bond belonging to the defendant in attachment is ineffectual to attach such bond.

A delivery of the bond claimed to be attached does not relate back to the time of the service of the warrant so as to vest title in the sheriff from that date. Neither the obligor in the bond nor the sheriff can set up the fraudulent character of the transfer of such bond to an assignee in an action thereon.

The Code of Civil Procedure (sec. 649, sub. 2) has made no change by which bonds, promissory notes, &c., are subjected to the rules governing the attachment of goods and chattels, except as to the manner in which the attachment is effected (Thurber agt. Blanck, 50 N. Y., 80; and Castle agt. Lewis, 78 N. Y., 137, followed and approved; Anthony agt. Wood, 29 Hun, 239, reversed). (Anthony agt. Wood, ante, 424.)

new party may be made a defendant after a demurrer alleging a defect of parties defendant has been interposed. (See Lewin agt. Wright, 31 Hun, 327.)

38. Section 738-There is no statutory authority allowing one joint debtor or partner to make an offer of judgment in behalf of his joint debtor or copartner. "The like offer," as used in this section of the Code of Civil Procedure, means that judgment must be taken against him who makes the offer if separate judgment can be taken.

Section 1932 of the Code of Civil Procedure, allowing judgments to be entered in form against both joint debtors when only one is served, does not relate to judg ments entered upon offers. (Garrison agt. Garrison, ante, 271.)

39. Section 756-Under the provisions of this section of the Code of Civil Procedure, where, after issue has been joined in an equity action, the plaintiff transfers his interest, the transferee may move to be substituted as plaintiff; and where, upon such motion, made with due notice to the defendant, an order of substitution is granted without directing

supplemental pleadings, or an amendment of the complaint, aside from such substitution the question as to title in the substituted plaintiff is determined by the order, and may not be raised upon the trial; and this, although defendant made default upon the motion. (Smith agt. Zalinski, 94 N. Y., 519.)

40. Section 772 - Practice-one justice of the supreme court cannot review the decision of another, except as to provisional remedies and the cases arising under this section of the Code of Civil Procedure. (See People agt. Nat. Trust Co., 31 Hun, 20.)

41. Sections 791, 793 -When an action is brought upon a judgment rendered in a chancery court in the state of Tennessee in an action on a policy of fire insurance on motion for a preference on the calendar:

Held, that the action being against a corporation, and founded upon a judgment, which is an evidence of debt for the absolute payment of money, the right to a preference appears upon the face of the pleadings, and is absolute without any qualification or condition of any kind. It is a right given by statute, which no court can by rules or otherwise limit or abridge. (McArthur agt. Commercial Fire Insurance Company, ante, 510.)

42. Sections 823, 971, 1003 - The fact that in an action to foreclose a mortgage the sale of the mortgaged premises may result in a deficiency, for which a money judgment may be docketed against the defendant liable for such deficiency, does not entitle him as matter of right to a jury trial; the action is in equity and is triable by the court.

Where in such case the court directs any matter of fact to be tried by a jury as authorized by these sections of the Code of Civil Procedure, and where after

such trial the court disregards the verdict and makes it own findings, the case is to be reviewed on appeal, on the findings and decisions of the court, as if there had been no submission of any fact to the jury. (Carroll et al. agt. Deimel et al., 95 N. Y., 252.)

43. Section 829- Evidence - when a party, seeking to enforce a claim which originally existed against a person who has since died, is competent to testify as to personal transactions between himself and such deceased person in respect to such claim. (Stephens agt. Cornell, 32 Hun, 414.) ·

44. Section 829-Evidence-personal transactions with a deceased person-what are to be considered as such when a party to the transaction cannot testify as to what was said and done by the others in his presence. (See Wilson agt. Reynolds, 31 Hun, 46.)

45. Section 829-Evidence - when the holder of a note does not derive his title or interest thereto from the person who delivers it to him. (See Converse agt. Cook, 31 Hun, 417.)

46. Section 829- Evidence- when a witness is interested in the event of the action. (See Barton agt. Seramling, 31 Hun, 467.)

47. Section 829-In an action brought by the heirs of a deceased grantor to set aside his conveyance on the ground of undue influence, his widow, who as his wife joined in the conveyance, is "a person interested in the event of the action" within the meaning of this section of the Code of Civil Procedure, and as such is incompetent to testify to personal transactions or communications between her and the deceased. (Sanford et al. agt. Elithorph et al., 95 N. Y., 48.)

mental condition of another is not competent, save in the case of a subscribing witness to a will, although based upor what the witness himself saw and heard.

The extent to which the examination of such a witness may go is this, where he has testified to facts within his knowledge and observation, i. e., acts and declarations of the person whose mental condition is the subject of inquiry, tending to show soundness or unsoundness of mind, he may characterize them as rational or irrational; his testimony must be limited to his conclusions from the facts testified to by him.

Where, therefore, in an action to set aside an assignment of a bond and mortgage because of the mental incapacity of the assignor, a witness not an expert, was allowed to testify under objection and exception that from what he had observed of the acts and conversations of the assignor he considered "his mind was gone;" and other witnesses after testifying to interviews with, and acts of the assignor, in answer to questions, asking them to characterize his condition, pronounced him imbecile: Held, that the testimony was incompetent, and its reception error.

The action was brought by the administrator of the assignor Held, that his next of kin were interested in the event of the action within the meaning of this provision of this section of the Code of Civil Procedure excluding such witnesses from testifying to

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 this section of the Code of Civil Procedure, to testify to anything said by her to the testator, or to what he communicated to her or others, in reply. (Lane agt. Lane, 95 N. Y., 4941.)

50. Section 829-In proceedings for the probate of a wiil the executor who presented the will for probate, and who was the principal legatee, after proving the loss of a former will, drawn by him, and executed by the testatrix, was permitted to I testify to its contents, and was also allowed, after testifying that he had an interview with the decedent, to testify that a memorandum produced was made by him at the house of the testatrix, at the time of the interview, and that from it another prior will was drawn by him: Held, error; that the evidence was "concerning a personal transaction or communication between the witness and the deceased" within the meaning of this section of the Code of Civil Procedure. (Matter of Will of Smith, 95 N. Y., 517.)

51. Section 870-Action against the president or treasurer of an uninthe officorporated association cer so sued cannot be examined as a party before trial-Code of Civil Procedure, section 1919. (See Duncan agt. Jones, 32 Hun, 12.)

52. Section 872-A plaintiff in an action has the right, under the Code of Civil Procedure, to an order for the examination of one of two defendants, to prove a co partnership between the defendants. (Goldberg agt. Roberts, ante, 269.)

53. Section 872, subdivision 4Examination of a party before trial the testimony must be

cate as to protest of note and service of notice-a second certificate may be made if the first be lost. (See Kellam agt. McKoon, 31 Hun, 519.)

57. Sections 956, 957, 958- The provisions of these sections of the Code of Civil Procedure, making certified copies of the records of foreign countries evidence and prescribing the manner of authentication, have no application to such a trial of an indictment for forgery. (The People agt. D'Argencour, 95 N. Y., 624.)

58. Section 977-Though under ordinary circumstances the party only who has noticed a cause for trial can move it for that purpose, yet when a cause has been specially set down for the day on which it was moved, and no objection was made to the right of the defendant to move it, and the plaintiff's counsel, after the jury was drawn, simply refused to proceed with the trial, the court was justified in directing a dismissal of the complaint. (Haberstich agt. Fischer, ante, 318.)

this section of the Code of Civil Procedure, will not have done his duty unless he delivers his report to the clerk to be filed in case it is not taken up by one of the attorneys within sixty days.

Notification to the plaintiff's or defendant's attorneys by the referee that his report is ready and at their disposal, on payment of his fees (naming the amount), is not to be deemed a sufficient delivery to prevent the forfeiture of his fees or the termination of the reference under this section of the Code.

(See Thornton agt. Thornton, 66 How., 119, where the same cases are cited and a different conclusion reached by HAIGHT, J.) (Little agt. Lynch, ante, 1.)

63. Section 1013 - Reference — an action to charge lands in the hands of heirs or devisees with debts of an ancestor is only referable by consent when the right to appeal is not lost by participating in the reference. (See Read agt. Lozin, 31 Hun, 286.)

64. Section 1018-Costs-where,