Street to Fifty-ninth Street in New Each Commissioner could have proseYork City.

cuted his claim for his fees, but the disbursements, however, for which all were liable (6 Sup. Ct. Rep. 90; 1 IIun. 1), could not be the proper subject of an action by any one of them.

The complaint alleges, among other matters set forth, that Hennessy died after the making of the final report in the proceeding, but it appears that his death did not take place before the The joint, not several, liability for fees, expenses, and charges had been these disbursements, including clerk. taxed in the manner required by law. hire, &c., rendered it obligatory upon The defendants demurred upon the all, as the joint owners of the fund ground that there was a defect of par- aforesaid to pay them, to unite in an ties plaintiff in this, namely: that action for its recovery. James S. Hennessy, a co commissioner with the plaintiffs, was omitted as a party.

A. J Requier & W. C. Whitney, for

applts.

Henry E. Davies, S. G. Clarke & T. Allison, for respts.

The relation of the Commissioners

therefore to the defendants created a sceming anomaly, by which, as to a part of their compensation, they could severally prosecute their demands, and as to another part must unite to coerce payment.

Held, It is clear that it was the inThe representatives of Hennessey tention of the appellants, in interposing are interested in such part of the claim the demurrer, to assert that the person- as is necessary to discharge the existal representatives of James S. Hennes sy were necessary parties plaintiff. The ing obligations for clerk hire, &c. Their liability arises, not from any principle of co-partnership, but from the joint public duties imposed upon them, and the consequent assumption of such liability as the procurement of the necessary aid might entail. The plaintiffs do not acquire any right to the whole or any part of the share of the claim against the defendants due Hennessey for his services.

infelicitous mode, however, of asserting the grounds of demurrer ought not to prejudice the defendants, because it could not mislead the learned counsel for the plaintiff.

The question to be considered on this appeal is the correctness of the order made overruling the demurrer as frivolous.

should have been joined, or made deThe representatives of Hennessey

fendants in case of their refusal to unite.

The plaintiffs and IIennessy were selected to perform a duty to the public in a position designated by statute, and deriving all their powers from it. They were to act jointly for a compensJudgment reversed with costs, and ation, exclusive of necessary disburse the demurrer ordered to stand for hearments regulated by statute. The right

to compensation depended upon the ing at the Special Term.

performance of the duties incumbent

Opinion by Brady, J.; Daniels, J.

upon them (36 N. Y. 510), and the concurring. Daris, P. J., concurs in claim for such service exclusive of dis- result.

bursements was joint and several.

WRITS OF ERROR.

N. Y. COURT OF APPEALS.

Pratt, plff. in error v. The People, defts. in error.

Decided Dec. 19, 1876.

A writ of error will only lie from a final judgment.

Plaintiff in error was indicted and convicted in the Jefferson County Sessions for maintaining a nuisance in the public highways.

EVIDENCE.

ENGLISH HIGH COURT OF JUSTICE,
CHANCERY DIVISION.

Taylor v. Witham. Witham v. Taylor.

Decided June 14, 1876.

An entry m the handwriting of a deceas ed person, when prima facie against his interest, is admissible in evidence for all purposes, irrespective of its effect or value when received.

T., the testator in these causes, died

inter alia, he gave a legacy of £2,000 to Witham. Shortly after a question arose as to this legacy. Taylor and Witham were the executors under the will.

It appeared that in 1871 testator had advanced to Witham £2,000, which he expended in the purchase of a house, where testator afterwards resided with Witham and his wife.

Sentence was pronounced at the same term at which the trial was had, but not until the court had once been in 1875, having made a will by which, adjourned to the office of the county judge. Upon writ of error the judg ment was reversed by the General Term and a new trial granted upon the sole ground that the sentence was ir regular, in that the court had lost its jurisdiction of the prisoner by adjourning to the office of the county judge. Upon motion the General Term modified the order of reversal so that the record and proceedings were remitted to the Court of Sessions, and that court was directed to pronounce a prop er sentence and judgment. To review this a writ of error was allowed to this court. It did not appear that any errors occurred except in the manner and time of giving the judgment of the Court of Sessions.

Taylor, who was the residuary leganot a gift, but a loan, and to be retee, claimed that such advance was paid with interest. that it was a gift.

Witham contended

An agreement was afterwards entered into between them by which Witham purported to relinquish all claim to the legacy, in consideration of Taylor releasing him from all liability to refund the advance. Witham subsequently refused to carry out the agreement, and Taylor brought suit to enforce the agreement. Witham brought a cross suit to set aside the agreement on the ground of surprise and pressure.

On the trial Witham testified that the advance was a gift and not a loan. On

DEEDS.

N. Y. COURT OF APPEALS. Wilson et al., ex'rs., &c., respls. v. Randell,, applt.

Decided Nov. 21, 1876.

On a sale of land at a certain sum per acre, if the quantity of land falls short of the number of acres specified in the deed, the grantee is entitled to recover back the money paid for the land in excess of the actual quantity. The words more or less," inserted in a contract or deed indicate that the quantity of land is or may be uncertain.

This action was brought to reform a deed and to recover back $2,688, with interest, on the ground that less land was covered by the deed than was contracted to be sold.

W., plaintiff's testator, entered into a written contract with defendant to

purchase of him a piece of land which was described as "containing fifty-four and fifteen one hundredth acres of land, be the same more or less, for the sum of $350 per acre." Before the deed was delivered, defendant had a survey made of the land, by which it appeared there was fifty-six and fifteen one hundredth acres. The deed was not executed until two months after the contract was male, and it was admitted that it was executed in "pursuance of the contract and in fulfilment thereof." It described the land by metes and bounds as in the

Held, That an entry to be receivable in evidence after the death of the person who made it, must be prima facie against his interest, that is, the natural meaning of the entry, standing alone, must be against the interest of the man who made it. 2 Smith's L. C. (7th ed) 333. The enteries were against the interest of the testator and clearly admissible. The natural meaning of contract, and following the description an entry of "Interest paid me" is that it is against the party making it. It would not, standing alone, be evidence of a debt due from any particular per

son.

All the entries admitted.
Opinion by Jessel, M. R.

Vol. 3, No 23.*

are the words "containing fifty-six and fifteen one hundredth acres of land, be the same more or less." The consideration was computed on fifty-six and fifteen one hundredth acres at $350 per When the deed was executed defendant informed W. that there were two acres more than the contract stated,

acre.

and W. paid for them at the contract continuing a temporary injunction re

price. W. afterward had a survey made
of the lands, and it was found to con-
tain only forty-eight and forty-seven
one hundredth acres.

Odle Close, for applt.
Michael Nolan, for respts.

straining defendant from doing certain acts therein mentioned, on the ground that the order was not appealable. The decision at both Special and General Terms was based upon the constitutionality of a law of this state. Defendant Held, That plaintiffs were entitled to claimed that this case was not within recover back the money paid by their the general rule that an appeal from testator for the land, in excess of the an order continuing or dissolving a actual quantity. 2 Eq. Cas. Abr. 688; temporary injunction, cannot be taken 103 Mass. 341; 1 Sugd. on Vendors, to this court by virtue of an amend324; 14 N. Y. 143. That the con-ment to section 11 of the Code in 1865, tract of sale must be regarded as one adding as subdivision 4, a provision that to sell the land embraced in it by the when the decision "of any motion in acre at the price specified, and both the deed and contract may be considered in construing the latter; that the words "more or less," inserted in the contract, indicated that the quantity of land was, or might be, uncertain. 7 N. Y. 210, questioned.

Judgment of General Term, affirming judgment for plaintiffs, affirmed.

the Supreme Court at Special Term,
involved the constitutionality of any
law of this State, and based thereon, an
appeal would lie to the General Term
and the Court of Appeals.

Roger A. Pryor, for motion.
James Emoll, opposed.

Held, That the order was not appealable; that as, by the amendment Opinion by Andrews, J. All con- of 1867, section 11 was amended by

cur.

APPEALS.

N. Y. COURT OF APPEALS. Patten, respt. v. The N. Y. Elevated R. R. Co., applt.

Decided Dec. 19, 1876. An order continuing or dissolving an injunction is not appealable, although based on a question of the constitutionality of a law of this state. Subdivision 4, § 11, of the Code as it existed in 1865, was superseded by the amendment of 1867, and since that time has formed no part of the Code.

This was a motion to dismiss an appeal from an order of the General Term of the New York Common Pleas, affirming an order of the Special Term

adding as subdivision 4, "an appeal
from any
order to the Court of Appeals,
affecting a substantial right, arising
upon any interlocutory proceeding or
upon any question of practice in the
action, may be heard as a motion and
noticed for hearing at any regular mo-
tion day of the court." This took the
place of subdivision 4, as it previously
existed, and it has formed no part of
the Code since that time. The appel-
late jurisdiction of the Court of Appeals
cannot, with propriety, be extended to
meet the supposed exigencies of any
case, even with the consent of the
parties.

Appeal dismissed.

Opinion by Earl, J. All concur.

BAILMENT.

U. S. SUPREME COURT.

proceeds of this sale Kendig took up A few days before its matu

the note.

to pay the note and demanded back the

Talty, plff. in error, v. The Free-rity Talty called on Kendig and offered man's Saving and Trust Co. (October, collateral. Kendig declined to accede 1876.)

to the proposition. He insisted that the understanding between him and Talty was that he was to receive no

In the case of a strict pledge, if the pledgee transfers the same to his own creditor, the latter may hold the pledge until the debt of the original owner is commission for negotiating the loan, discharged.

A tender by the first pledger of the amount due to the first pledgee extingu'shes the title of the second pledgee, but a tender must be made before a recovery can be had against him.

but that he was to have, instead, the right to sell or take the claim against the city, if he chose to do so, at ninety cents on the dollar.

He offered to pay

refused, and insisted that Kendig had

Talty for the claim, making the comIn error to the Supreme Court of the putation at that rate, and deducting District of Columbia. Action of re-the amount of the note. This Talty plevin. Talty had a claim against the City of no authority with respect to the claim Washington for work and materials but to sell in the event of default in the amounting to $6,096.75. He submit-payment of the note at maturity. Each ted it to the proper authority and re- party testified accordingly. Subseceived the usual voucher. On the 4th quently, and after the maturity of the of January, 1872, the claim was ap- note, Talty demanded from the defendproved by the commissioners of audit, ant in error the vouchers relating to and a certificate to that effect was given the claim. The defendant refused to to him. On the 6th of that month he give them up, and this suit was thereemployed Kendig, a broker, to nego- upon instituted. The marshal took tiate a loan for him. With that view them under the writ of replevin and dehe placed in Kendig's hands his own livered them to the plaintiff. note for $3,000, having sixty days to run, with interest at the rate of ten per cent. per annum, payable to his own order, and endorsed by him in ject of paying his note to either, exblank. He also placed in the hands of cept the offer to Kendig, as before Kendig, to be used as collateral, his stated. claim against the city, endorsed in blank also. The same day Kendig negotiated the loan and paid Talty the amount of the note, less the discount. Kendig sold the claim against the city to the defendant for 96 cents on the dollar. The money was paid to him. The purchase was made in good faith, and without notice of any right or claim on the part of Talty. With the

No tender was made by Talty to the defendant in error, nor to Kendig, and nothing was said by him upon the sub

After receiving back the collateral, Talty was paid the full amount of it by the commissioners of the sinking fund of the city. The only dispute between the parties as to the facts was that in relation to the authority of Kendig touching the claim.

Upon this state of the evidence the court instructed the jury to find for the defendant, and to assess the damages at