other things setting up the statute of Term of the 6th day of October, limitations. 1873.

The cause came on to be tried at the Chautauqua Circuit, before the Court without a jury, a jury having been duly waived. The Court made its findings, and thereupon rendered a judgment for the plaintiff for upwards of $20,000. The defendant, "Butterfield's Overland Dispatch," appealed from the judgment to the General Term.

Joshua M. Van Cott, for applt.
C. R. Lockwood, for respt.

The defendant had a right to appear gratis (Code, § 139), and from the time of such appearance, and not before, the Court acquired jurisdiction over "Butterfield's Overland Dispatch," and that more than six years having at that time expired after the cause of action accrued, the statute of limitations was a valid defence in the action.

Quare, Whether the Court had power to so amend the summons and

of all the original defendants and substitute that of another person. But at all events the order of the 6th of October, 1873, did not purport or attempt to affect the right of "Butterfield's Overland Dispatch" to set up the defence of the statute of limitations, so that whether authorized or not the order could not deprive " Butterfield's Overland Dispatch" of any rights which pertained to it at the time when it was duly subjected to the jurisdiction of the Court.

66

Judgment reversed and new trial ordered. Costs to abide the event. Opinion by Talcott, J. All concur.

Held, That a joint stock associa-proceedings as to strike out the names tion, organized under the laws of this State, is a corporation within § 99, of the Code of Procedure, and that a suit is commenced against it by the delivery of the summons, with the intention of having the same served, to the sheriff or other officer of the county in which the corporation was established by law, or where it keeps an office for the transaction of business, but that the original summons in this case was not the commencement of a suit against "Butterfield's Overland Dispatch," or George E. Cock, as treasurer thereof, but was a suit commenced against George E. Cock and the other individuals named with him as defendants in the summons, and against "The Overland Dispatch Company." That the Court acquired no jurisdiction to render a judgment against "Butterfield's Overland Dispatch," or George E. Cock, as the Treasurer thereof, until the appearance and answer of George E. Cock as the treasurer of "Butterfield's Overland Dispatch," after the service upon Van Cott & Winslow of the order of the Cattaraugus Special

N.

FORECLOSURE.

Y. SUPREME COURT.

GENERAL

TERM. SECOND DEPT.
John Jacques et al., respts.
Amelia L. Ormsby et al., applts., v.

Decided December, 1877.

A complaint which alleges that the papers in

a certain action to foreclose a mortgage were never served upon plaintiffs, that they never appeared in such action, but were ignorant of the proceedings, and that the appearance entered for them was unauthorized, is sufficient to maintain an action to set aside the judgment of foreclosure.

Appeal from order dismissing com

plaint in action to set aside judgment Jones, J., in 6 Robt., 198. of foreclosure.

It has

not, as yet, been directly adjudicated, and if sustained it must rest upon the

support in adjudications elsewhere." "The powers of a Court of equity being vested in our courts of law, and equitable defences being allowable, there is no reason why, to an action upon a judgment, the defendant should not be permitted to set up, by way of defence, any matter which would be ground of relief in equity."

The complaint alleged that plaintiffs were never served with either sum-local law of this State, as it finds no mons or any other paper in the action; that they never appeared therein; that it appears by the judgment roll that one De Vigne appeared for them as their attorney, admitted service of the summons, and waived service of all other papers in the action, save notices of sale and of surplus. That the plaintiffs knew nothing of the proceedings or of the sale under them, and never authorized De Vigne or any one to appear for them.

The complaint was dismissed as not containing facts sufficient to constitute a cause of action. From the order of dismissal the plaintiff appeals.

Morris & Pearsall, for applts.
R. & G. Ingraham, for respts.

"It is conceded in those States. where the record is held conclusive, that where the judgment has been obtained by fraud, or without bringing the defendant into Court, and the want of jurisdiction does not appear upon the face of the record, relief may be obtained in equity."

On the trial the complaint was dismissed on the ground that it did

a cause of action. As the law has been since interpreted by the Court of Appe ls, in Ferguson's case, this decision

was wrong.

Held, error. In Ferguson v. Craw-not allege facts sufficient to constitute ford (7 Hun, 25) it was held that the appearance of an attorney gives jurisdiction to the Court, and that the judgment in the action cannot be attacked collaterally on the ground that the appearance is unauthorized and forged. This doctrine was supposed to have been settled by the Court of Appeals in Brown v. Nichols (42 N. Y., 26).

Judgment reversed, new trial
granted, costs to abide event.
Opinion by Dykman, J.; Gilbert,
J., concurs; Barnard, J., not sitting.

STAY OF PROCEEDINGS.

N. Y. SUPREME COURT. GENERAL
TERM. SECOND DEPT.
Strong, applt., v. The City of

Brooklyn, respt.

But the doctrine of Ferguson v. Crawford, supra, has been distinctly repudiated by the Court of Appeals in the same case, reversing the judgment of the Court below, Rapallo, J., in delivering the opinion in this case, after quoting from Jones, J. (6 Robt.. A 198), proceeds: "It thus appears that the current of judicial opinion in this State is very strong and uniform in favor of the proposition stated by

Decided December, 1877.

stay of execution on a judgment will be

granted only for some cause arising during the litigation or after the rendition of the judgment.

The plaintiff obtained judgment for the recovery of land held by the

City used for public purposes. The defendant, alleging that it was about to condemn the land for public use, obtained an order staying the execution of this judgment. From this order plaintiff appeals.

cause

Held, Courts stop the execution of their judgments at times, exercising the power and control which they have over them and the process which goes to enforce them. Such stays are generally granted for some arising during the litigation or after the rendition of the judgment. If none such exist, the judgment must have full force, and the party in whose favor it has gone is entitled to all the legal remedies usually awarded for its enforcement. This is for the very obvious reason that the judg ment is the solemn judicial declara

Adam D. Wheelock, assignee, &c., respt., v. Henry M. Lee, applt.

Decided December 12, 1877.

The amendment of 1874 to the Bankrupt Act has not deprived the State Courts of jurisdiction over actions by assignees in bankruptcy for the collection of assets of the bankrupt which they possessed before the passage of such amendment.

enable the Federal Courts to rid themselves of a certain class of cases by sending them to a forum which is recognized already as having jurisdiction.

This is an action brought by plaintiff as assignee of C. M. Tremaine & Bro., to recover excessive interest paid

curities held and retained by defendant which had been given to him as collateral security for such loans.

tion of the rights of the party in The obvious purpose of the amendment is to whose favor it is, and the process is awarded to enable him to obtain that to which he has been adjudged entitled. In this case there is no claim of anything new either pending the litigation, or subsequent to judgment. The defendant says sub-on usurious loans and to recover sestantially that it is contemplated to take this land at a forced sale, and asks to have the plaintiff held off. If this order is right and can be maintained, the defendant need not condemn the land at all. It has possession and can maintain it, and the plaintiff is powerless to interfere. This does not differ in principle from the case of two private proprietors; yet it will not for a moment be main tained that the Courts would grant the petition of such an one, defendant, asking a stay, and alleging that he could compel the plaintiff to sell to him at any time.

On the trial the Court ordered a verdict for plaintiff, and judgment was entered thereon.

G. W. Van Slyck, for applt. B. E. Valentine, for respt. REYNOLDS, J.-The first question to be considered is whether the Court has jurisdiction of this action. It is a suit brought by an assignee in bankruptcy to collect debts and recover property alleged to belong to the bankrupt. The Bankrupt Act of 1867, § 1, gives the District Courts

jurisdiction (among other matters) Court making that decision, but if the "of the collection of the assets of the reasoning is meant to apply to a case bankrupt." This jurisdiction has like the one before us we are unable been repeatedly held to be not ex- to concur in it. That action was clusive but concurrent with that of brought upon a case arising under the State Courts. Such an action is the laws of the United States; the not a matter or proceeding in bank- cause of action was created by the ruptcy of which the Federal Courts bankrupt laws, and it may be that of have exclusive jurisdiction. See Claf- such a cause of action the Courts of lin v. Houseman, 93 U. S., 130; the United States have exclusive Cook v. Whipple, 55 N. Y., 150. It jurisdiction; but the cause of action is claimed, however, that the State in this case existed, independent of Courts have been deprived of juris- any act of Congress, the assignee diction in such actions, except in a merely standing in the place of the limited class of cases, by § 2 of chap. | borrower, to prosecute an action 390, Laws of 1874. This is an which he might have maintained if amendment of § 1 of the Bankrupt he had not become a bankrupt. The Act above referred to, and is as fol- Court, in Olcott v. Maclean (p. 281), lows: "Provided that the Court hav- says, "enumerating the cases that ing charge of the estate of any bank- might be prosecuted in such Courts rupt may direct that any of the legal (State Courts), "excluded all others assets or debts of the bankrupt, as not included by the import of the contradistinguished from equitable terms made use of." But § 1 of the demands, shall, when such debt does Bankrupt Act, either as originally not exceed $500, be collected in the passed or amended by the Act of 1874, Courts of the State where such bank- is one conferring jurisdiction on the rupt resides, having jurisdiction of District Courts, not on the State claims of such nature and amount." Courts; it does not say what the As I read this proviso, it neither pro- State Courts may or may not try; as fesses to confer any jurisdiction upon amended, it specifies what the Disthe State Courts nor to take away any trict Courts may decline to try, leavjurisdiction which they possess. Its ing it optional with them to do so or obvious purpose and construction is not. It neither takes away the juristo empower the District Courts to rid diction of the District Courts in those themselves of a certain class of cases, cases which they may send to the by sending them to a forum which is State Courts, nor the jurisdiction of recognized as already having jurisdic- the State Courts in such actions as tion over such matters. We are re- cannot thus be sent to them. In the ferred to the case of Olcott v. Mac- latter cases the selection of the trilean (10 Hun, 277), as holding that bunal is left to the suitor and not to the State Courts are deprived of juris- the District Court. The view we diction except in the cases which the have thus taken concurs with that District Courts may direct to be held by Judge Gilbert, in a case brought before them. We have very before him at Special Term, and is in great respect for the authority of the accordance with the decision of the

portance, the opinion of the Court is given in who owned the reversion, finding that

Eliza A. Kingsland, applt., v. Noah to Catharine Barry, and the remainder Tompkins, respt. to taxes and incumbrances.