effects upon the land in which she
had a dower interest. Held, that
there was no misjoinder of action
or of parties. lb.

4. The plaintiff in a foreclosure action
cannot bring in a party claiming
rights in priority or in hostility to
the mortgagor as a defendant, and
have such rights adjudicated upon
adversely to him when he does not
answer the complaint, at least not
when the complaint does not set
forth such claimed rights, contains
no averments attacking the claims,
and demands no specific relief as
to them. An adjudication upon
such rights under such circum-
stances is without jurisdiction.
Vandenburgh v. The Mayor, 285.
5. Under section 756 of the Code, an
action can be continued under the
original plaintiff, notwithstanding
the transfer of the property. the
subject of the action, to another
party. The court could have grant-
ed such relief afterwards as the
evidence justified, but, on the con-
veyance by such plaintiff to another
party (the petitioner below) of the
fee of the property in question, and
his assignment of damages sus-
tained, the court had power to sub-
stitute the party to whom the inter-
ests were transferred as plaintiff in
the action; and whether or not such
substitution should be granted was
in the discretion of the court, as
were also the terms and conditions
on which the substitution should
be granted that were necessary to
protect the rights of the parties to
the action. Senft v. Man. Ry. Co.
417.

6. In the case at bar, however, the
provision in such terms and con-
ditions that no judgment or relief
be granted to the petitioner seeking
substitution unless she comply
with the conditions of the order,
was improper and beyond the dis-
cretion of the court, and should be
modified, (see opinion) and, as thus
modified, should be affirmed with-
out costs of this appeal. Ib.
Mortgage foreclosure, parties to same.
See Townshend v. Frommer, 90.

PAYMENT.

1. In this action to recover a balance

of indebtedness for service, etc.,
one of the defences was payment,
and it appeared in evidence that
plaintiff rendered his bill for ser-
vices to defendant in the sum of
$439, on account of which defend-
ant paid his own check for $165.55
and the check of one Woodruff,
endorsed by defendant, for $273.45,
and plaintiff receipted the bill.
The only evidence on this point
was the uncontradicted evidence
of the plaintiff, who testified that,
when he presented the bill, defend-
ant handed him the Woodruff
check saying, "I have Mr. Wood-
ruff's check, will you take that?"
and plaintiff replied, "Yes, with
your endorsement," and thereupon
the defendant endorsed the Wood-
ruff check and handed it to the
plaintiff. Nothing was said about
the checks being taken in payment
of the account. The Woodruff
check was not paid on presenta-
tion, and plaintiff brought this
action to recover the balance of the
original indebtedness. Held, that
this evidence did not warrant the
jury in finding that the Woodruff
check was given to the plaintiff in
payment, and the verdict should
have been set aside and a new trial
granted. Carroll v. Sweet, 100.
Another defence was, that the
Woodruff check was not presented
for payment for nine days after it
was given to plaintiff, and by
reason of such failure to present
the check there was a loss to de-
fendant. Held, that there was not
the slightest evidence to warrant
the jury in finding that there was
any loss to defendant by reason of
the failure of plaintiff to present
the check. The uncontradicted evi-
dence being that at no time did the
drawer of the check have enough
funds in the bank, upon which the
check was drawn, to pay the check;
that the place of payment was the
bank, and it was the duty of the
drawer to have funds at the place
named in the check. The plaintiff
fulfilled all the obligations that the
law placed upon him when he pre-
sented the check for payment at
the place named therein.
3. Held, also, that in an action for
the collection of a pre-existing

2.

Ib.

6. In this case the plaintiff claimed
a lien on a draft for his services to
the amount of $2,542.72, and the
right to have that lien enforced in
equity, demanding judgment for
such enforcement. In answer de-
fendant denied the lien and the
value of plaintiff's services, as al-
leged, stating that, by agreement,
they amounted only to $579.62,
which he had offered and was will-
ing to pay. The court below, on
motion, ordered judgment in favor
of plaintiff for the sum of $579.62
and costs, on the assumption that
the case was within section 511 of
the Code. Held, that the motion
for judgment should have been
denied. That a true construction
of the answer does not admit that
the value of the services was ab-
solutely and unconditionally due
or payable to plaintiff. That, on
the pleadings and the assumption
of the answer, it was not due and
payable until plaintiff performed a
duty antecedent to his right to re-
ceive payment, namely, he (plain-
tiff) must pay over the draft. If
he retained it, the money would
not be due. If he received the mo-
ney and the defendant's contention
that no more had been earned were
correct, there would be no lien.
By the judgment defendant was
deprived of the right to avail him-
self of the position of the answer,
that the defendant was not bound
to pay the value of the services
until plaintiff performed his con-
current duty of a delivery of the
draft. Foster v. Devlin, 120.

7. The complaint averred that the
defendant received, as trustee for
the plaintiff, certain moneys and
shares of stock upon the express
condition that the trust might be
terminated by plaintiff, at his elec-
tion, on or after July, 1866. That
plaintiff had given due notice to
defendant of his election to term-
inate the trust, etc., and demanded
the money and stock, but defend-
ant had refused, etc., etc. The
answer denied each and every al-
legation of the complaint. On the
trial, after plaintiff had submitted
his proofs, the defendant offered to
show, and did show, against the
objection of the plaintiff, that the

8.

9.

contract or the transaction, as
proven by plaintiff, was illegal, and
made to secure from defendant lob-
bying services. The objection to
this proof (which was overruled by
the Court) was that such a defence
had not been pleaded. On this
question the judges of the court
were divided in opinion, but all
agree that the judgment should be
affirmed, on the ground that the
proofs of the plaintiff do not sus-
tain the cause of action alleged in
the complaint, and that, irrespec-
tive of the evidence objected to,
the illegality of the contract ap-
pears. Milbank v. Jones, 135.

When the matters which are relied
on by a defendant to constitute an
estoppel do not affect the issues as
'made by the pleadings as to the
original obligation, they must be
pleaded in order to give the de-
fendant a right to offer testimony
in support of them. Dresler v.
Hard, 192.

Where the verification by the
plaintiff's attorney to a complaint
containing many material allega-
tions which it is apparent must
have been made on information
and belief (although not specifically
stated in the complaint to be so
made), sets forth as the only ground
of the belief and the only source
of the information of the affiant
"plaintiff's statements to him'
will not, without further proof of
the allegations of the complaint,
furnish ground for granting a pro-
visional remedy. Kuh v. Barnett,
234.

10. A judgment against a defendant
who does not answer in excess of
the relief prayed for by the com-
plaint is, as to such excess, at least
irregular. Vandenburgh v. The
Mayor, 285.

11. An adjudication as to matters not
necessarily involved in, or requisite
or necessarily incidental to the
granting of the relief prayed for,
and a judgment as to such matters,
is in excess of such relief; this
although the complaint contains
averments as to them, à fortiori
when it does not. An adjudication
as to such matters could only be
effectual to create an estoppel, and
if such effect could be given to it,

it would be of itself relief in addi-
tion to that demanded by the com-
plaint. Ib.

12. Where a complaint does not state
facts sufficient to constitute a
cause of action, facts which did not
exist at the time of the commence-
ment of the action cannot be
imported therein, either by an
amended or supplemental com-
plaint, so as to turn what is no
cause of action at all into a good
cause of action. Berford v. N. Y.
Iron Mine, 404.

13. The affidavits upon which the
motion or application is based,
under section 872 of the Code, must
set forth the nature of the defence.
This implies the existence of a
defence to the knowledge or infor-
mation of the defendant, and the
nature of such defence must be set
forth, as also the further statement
that by reason of defendant's
ignorance of sufficient particulars
in relation thereto he is not able to
plead it properly, etc., etc. It is
impossible to set forth the nature
of the defence when it is not known
to defendant or upon some infor-
Imation he believes that there is a
defence to the action and is able to
state the same. Roberts v. Press
Publishing Co., 526.

14. The form of the affidavit in the
case at bar is, that defendant and
his counsel have no means of as-
certaining" the particulars wherein
the said representations (the subject
of the action) were false," except
from the examination of plaintiff
before answer. Ib.

15. Obviously there can be no know-
ledge or information that the
representations were false in
general, because any knowledge or
information must relate to parti-
culars. The whole of the affidavit,
taken together, shows that the
defendant does not know and is not
informed, in general or particular,
that false representations or pre-
tences were made, or what was
their nature. Hence defendant is
ignorant of the existence of a
defence, and, therefore, its nature
cannot be and is not set forth as
required by the Code, and the order
should be vacated. Ib.

16. Held, that when all the matters

aimed at by the proposed order are
(as in the present case) such as call
for an examination as to the com-
mission of a crime, or as to some-
thing that is a link in the chain of
proof of the commission of the
crime, the judge should vacate the
order, under the discretion given to
him, on the application of the
party whose examination is sought.
The exercise of such discretion is
analogous to the rule upon hearing
a demurrer to a bill in chancery
for the discovery of testimony. If
the bill disclosed that the interro-
gatories contained therein called
for evidence tending to convict the
defendant of crime, the demurrer
was sustained. Ib.

17. Held also, that, in every case,
the vacation of such an order is
within the discretion of the court.
Ib.

See

Complaint.-Union of several causes
of action and parties.-Under Sec-
tion 434 of the Code of Civil Pro-
cedure, it must appear on the face
of the Complaint that all the causes
so united belong to one of the sub-
divisions of this section, that they
are consistent with each other, and
affect all the parties to the action.
- Misjoinder. See Shepard v.
Man. Ry. Co., 5.
Payment of debt pleaded, must be
proved-Receipt for indebtedness
subject to parol proof in explanation
of its real import - Pleadings
should not be submitted to jury
without proper instruction.
Carroll v. Sweet, 100.
Equitable relief sought in complaint
by assignee of collaterals given to
secure payment of a usurious note.
See Dickson v. Valentine, 128.
Where the right of recovery is based
by the complaint on a specific theory
a recovery cannot be had on another
entirely different theory. See Har-
court v. Ennis, 423.
Payment, testimony respecting when
admissible, although defense not
pleaded. See Mayer v. Haaren, 574.
Reference, motion for, not barred by
circumstance that the time for
amendment of pleading as of course
has not expired-Vacating order,
an amended answer not changing
the issues is not cause for vacator.
See Degener v. Underwood, 583.

Savings Banks, interpleader in action
by depositor-Persons not parties
claiming the deposit under Laws
1882, ch. 439, § 259. See Progres-
sire, etc., Union v. Ger. Savs. Bk.,
594.

POWERS.

The land and premises in question,
the subject of this action, were
conveyed to one Clarissa E. Curtis,
subject to a prior purchase money
mortgage, and she and her husband
conveyed the same to Eliza Racey
in trust, to receive the yearly in-
come, rents and profits during the
natural life of said Clarissa and to
her sole and separate use, and at
the death of said Clarissa, to
convey said land to the children of
said Clarissa, living at her death,
and the surviving children of such
of them as may then be dead, in
equal portion, per stirpes and not
per capita." The deed further
provided that, in case of the death
of said Clarissa, leaving no child or
grandchild her surviving, the lands
shall belong to and vest in the
heirs of said Clarissa, to whom the
trustees shall convey the same,
etc. The mortgage to which the
lands were subject was foreclosed
by action. Clarissa Curtis and her
husband, and Eliza Racey, the
trustee and holder of the estate for
the life of Mrs. Curtis, were made
parties thereto, and the lands were
sold under the judgment in said
foreclosure action, and the defend-
ants claim title to the same under
the Master's deed. Mrs. Curtis died
in 1886, leaving children and grand-
children, none of whom were made
parties to said foreclosure action,
and after her death the plaintiff
began this action to recover the
possession of four undivided tenths
of said lands that had been con-
veyed to him by certain of the
children and grandchildren of Mrs.
Curtis. Eliza Racey, the trustee,
never made any conveyance of the
lands under the trust deed. Held,

That this action of ejectment can-
not be sustained. The rule given by
Chitty prevails in this state. "The
lessor of the plaintiff must also
have a strict legal right, a mere

equitable and beneficial interest
without the legal title will not
suffice." The facts do not admit
a presumption that those under
whom the plaintiff claims have re-
ceived a conveyance from Mrs.
Racey, the trustee, or her heirs.
The trust in question was not
merely nominal, or such a trust
that equity will execute it by
deeming the conveyance made, al-
though not actually made, etc.
That under the statute and at
common law the execution of a
power implied the occurrence of the
event or the doing of the act, which
is the future existence of the use
intended by the grantor. The cestui
que trust, represented by the plaint-
iff, took no estate by the trust deed,
but will have an estate according
to the act done and the appoint-
ment of the use provided in the
trust deed. When that act is done,
and not until then, the rule applies
that the appointment relates
back to the deed of the grantor of the
power." The plaintiff had no legal
interest in the land that entitled
him to maintain an action of eject-
ment, and, if he had no such legal
interest, it is not necessary to
inquire if he had an interest of
some other kind, and then to
inquire into its characteristics.
Townshend v. Frommer, 90.

PRACTICE.

Injunction-Equity jurisdiction in
an action by citizens of this state
against a foreign corporation. See
Moore v. N. J. Lighterage Co., 1.
Complaint.-Union of several causes
of action and parties.—Under Sec-
tion 434 of the Code of Civil Pro-
cedure, it must appear on the face
of the complaint that all the causes,
so united, belong to one of the sub-
divisions of this section, that they
are consistent with each other, and
affect all the parties to the action.
--Misjoinder.-Injunction, etc. See
Shepard v. Man. Ry. Co., 5.
Appeal from order allowing costs to
defendants severally.—Injunction,
vacation of.-Action for new trial,
on the ground of newly-discovered
facts and evidence. See Mayor v.
Brady, 14.