tion, and, being refused, brought this his payment, but until then not only action. Held (overruling decision in same case, 57 N. Y., 518), That the plaintiff was entitled to recover. A recovery can be had as for money had and received, where the illegality consists in the contract itself and the contract is not executed; in such case there is a locus pœnitentiæ, the delictum is incomplete and the contract may be rescinded by either party. 12 Wall., 355. See also Lofft., 342; 2 B. & P., 466; 8 B. & C., 221; 4 Taunt., 277; Id., 291 1; 1 H. & N. (Exch.), 925; 22 Pick., 184; 4 Hill, 424; 4 Barb., 526; 34 L. T. (N. S.), 938. That the transaction, in furtherance of which the payment was made, has never been consummated is clear. Before any stock was issued the scheme to issue it was rescinded by the defendant. The real question is, was the locus pænitentiæ open to the plaintiff at the time he brought this suit. He had declined to respond to the second call when the defendant rescinded. Can there be any doubt that up to the time of the abandonment of the scheme by the defendant the plaintiff could have resorted to a court of equity and restrained further proceedings and vacated the proceedings already taken? The cases are numerous where courts of equity have interfered to prevent the consummation of a wrong upon the motion of a party who was instrumental in its inception. Story Eq. Jur., § 298. See, also, Nevill v. Wilkinson, 1 Brown's Ch., 473, note "a." If the plaintiff had received the fruits of the illegal transaction, in equity as at law, he could not have recovered could he have been heard, but restitution would have been made to him. The locus pœnitentia was open to the plaintiff so long as he was in a position to resort to a court of equity, and surely it was not closed to him by the action of the defendant in rescinding the illegal scheme. After that action on the part of the defendant the plaintiff took the only steps he could take in repudiation of the transaction by demanding his money and bringing his suit. He is not to be denied relief upon the theory that the delictum was complete. It is claimed that no payment was in fact made of the sum sought to be recovered by plaintiff. A dividend of four per cent. had been declared by the defendant to its stockholders, among them to Sheehan, who transferred his interest to the plaintiff, and the dividend, instead of being paid in money, was credited, by an agreement, as a payment of the first call under the subscription. Stockholders who did not subscribe for the new stock were paid in money. Held, The evidence does not justify the inference that the dividend was a fictitious or fraudulent one. The defendant has treated the dividend as though actually paid, not only in crediting it as a payment, but in its dealings with the other stockholders, and it is now too late to question its validity. The plaintiff bought it of Sheehan, and paid for it in full. His rights are the same as though he had borrowed the money of Sheehan to make the payment of the call. Judgment for plaintiff for $13,980, with interest from February 20, was joined before the justice, there 1866. Opinion by Wallace, J. APPEAL FROM JUSTICES' N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. James McCann, respt., v. Margaret Sheeke, applt. Decided December, 1877. Where the notice of appeal from a justice's judgment states that it is for a new trial in the County Court, the Justice need not return the testimony taken before him. Where the return of the Justice does not show that issue was joined before him, there can be no trial of any issue of fact in the County Court. When the County Court dismisses the appeal in such case, it is erroneous to award a judgment against the appellant. Appeal from an order of the Westchester County Court dismissing an appeal from a judgment rendered by a Justice of the Peace and awarding judgment against the appellant. The notice of appeal stated that the appeal was taken for a new trial in the County Court on the ground that the judgment was against evidence, &c. The return of the justice showed that the parties appeared on the return day, that the complaint was filed and an adjournment had, that on the return day defendant did not appear, but did not show that issue had been joined before the justice. F. Larkin, for applt. Held, That the notice of appeal having stated that the appeal was for a new trial in the County Court, the justice was not required to return the testimony taken before him; that as the return does not show that issue could be no trial of any issue of fact in the County Court. The remedy of the appellant was to seek relief from the default taken before the justice. The practice in a case of this kind is plain enough. It was not pursued in this case, and the County Court had no alternative but to dismiss the appeal. That part of the order appealed from, which awards a judgment against the appellant, is erroneous, and must be stricken out. In all other respects the order must be affirined. Order modified, and as modified affirmed without costs. Opinion by Gilbert, J.; Dykman, J., concurs. CONSTRUCTION OF WILL. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Charles W. Emans, ex'r., applt., v. Martha Hickman et al., respts. Decided December, 1877. A devise to executors of all of testator's property "for my funeral expenses, and the erection of a monument to my memory." is not sufficient to authorize the executors to expend the entire property for the purposes expressed. Action for the construction of a will. The only disposition of testator's property made by the will was as follows: "To my executors all money in my possession, all money due from any source or sources whatever, and all property of every kind and descrip tion held by me, for my funeral expenses and the erection of a monument to my memory in the Purdy yard in Phillipstown, Putnam Coun ty." The estate amounted to $1,200. The Court, on the hearing, found that testator did not intend to spend all his estate in funeral expenses and the monument; that he only intended to expend so much as was suitable to his condition in life, and that $150 was enough. The executor appealed. Hackett & Williams, for applt. Held, The will contains no direction to the executor to expend the whole of his estate for these purposes, nor does it contain any limitation of the discretion vested in the executor on that subject. The amount which an executor may expend for the purposes expressed in this will depends upon the question, what would be a reasonable allowance in his administration account under the circumstances. What is reasonable in a particular case will depend on the age, standing, property and habits of life of the deceased, and many other circumstances difficult to enumerate. No doubt it was competent for the testator to direct that the whole estate should be spent for his funeral expenses and a monument. The question is, whether the will manifests that intention. pressed no wish that his executor · should depart from that rule it should be applied to him. When no bounds to the discretion of a trustee or executor in a case like this have been declared, the Court may fix a limitation in accordance with justice. The limitation imposed in this case may seem an arbitrary one, but as it is not shown that any creditor of the testator will be injured by the decree, and the heirs of the testator, all of whom are parties to the action, assent to it, we think it ought to be affirmed with costs to the respective parties to be paid out of the fund. Opinion by Gilbert, J. INJUNCTION. TITLE. et al. Decided December, 1877. Parties to an action and their servants and agents may be enjoined. If a person enjoined is in fact a mere servant or agent, it does not vitiate the injunction to name him in it. No title to timber upon mortgaged premises can be acquired as against the mortgagee by wrongful and fraudulent acts of waste. Appeal from an order enjoining defendants from cutting down trees The language of the will is no more or committing waste upon the mortindicative of an intent that his ex-gaged premises, or from carrying away or disposing of timber, trees or wood lying thereon, or on premises to which it had been carried, and appointing a receiver of such timber, trees and wood, and directing a sale thereof by him. ecutor should expend any particular sum for those purposes than similar language in other wills where the rule limiting such expenditures which has been mentioned was applied. The testator will be presumed to have understood the rule of law regulating the powers and duties of executors on this subject, and as he ex Plaintiff had brought an action against defendants Birdsall and others, to foreclose a mortgage. Judgment had been entered, and it appeared that there would be a deficiency. A and fraudulent acts of waste. mortgagor may cut timber upon mortThe affidavit for the injunction al- gaged premises whenever he can do leged a conspiracy between defen-it without committing waste. But a dants Birdsall and one Nelson; that conspiracy, such as is charged in this in pursuance thereof they cut down case, furnishes no muniment of title 300 trees and removed them to land to the fruits thereof. On the conof one Reynolds and threaten to dis- trary the law affords to the mortgagee pose of them. These facts were not a remedy for such waste by an action disputed. for damages against a person committing it with knowledge of the exist ence of the mortgage, and that the value of the security would be impaired by his wrongful acts. 4 N. Y., 110; 59 Id., 126. The disposition of the timber already cut was, therefore, rightfully enjoined. 11 Paige, On the return of the order to show cause Nelson objected that he was not a party; that the trees, timber, and wood were his sole property, and that they were not on the mortgaged premises at the time the order to show cause was served. Williams & Silliman, for Nelson, 503. A receivership should follow applt. the injunction. The plaintiff did not ask for a receiver in the moving papers, but that is a formal defect which can be cured now by amendment upon terms. The injunction asked for embraced a restraint against carrying away the trees already cut. J. Langdon Ward, for defts. Held, That whether it was proper to make Nelson a party to the injunction depends upon the question whether his acts were done in aid of the conspiracy charged as the servant or agent of the Birdsalls, or as a pur-No great stretch of intendment is nechaser from them. He states in his cessary to make that sufficient. affidavit that he is the sole owner of the timber. When and by what means, and upon what consideration, he acquired his title, he does not state. His omission to state those particulars, or any of them, and to deny the conspiracy charged, is certainly very significant. Parties to an action and their servants and agents may be en Order affirmed without costs, and without prejudice to a motion by Nelson to vacate the same, and sale by receiver stayed for ten days. Opinion by Gilbert, J.; Barnard, P. J., concurs. PRACTICE. STIPULATION. TERM. SECOND DEPT. Cornelius Jones, applt., v. John P. Anderson, respt. joined. It is a common practice to N. Y. SUPREME COURT. GENERAL enjoin servants and agents without naming them, and notwithstanding they are not parties to the action. If a person enjoined is in fact a mere servant or agent, it does not vitiate the injunction to name him in it. No title to the timber could be acquired as against the mortgagee by wrongful Decided December, 1877. A stipulation entered into between attorneys to set a cause down for trial for a day certain, binds each party to it, without regard to the previous service of notice of trial. A default taken in such case should be opened STATUTE OF LIMITATIONS. only upon terms. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. Samuel A. Morrow, exr., &c., applt., v. Robert H. Morrow et al., exrs., respts. Appeal from an order of the Westchester County Court opening a default upon terms. This action was pending in the Westchester County Court. It was noticed for trial by the plaintiff and not by the defendant. The Court convened on the 13th day of April. On that day a stipulation in writing was made and signed by the attorneys for plaintiff and defendant "that the above cause be set down for trial for Wednesday, April 18th, 1877. On the 18th April, 1877, the plaintiff's attorney did not appear at the call of the case, and it was dismissed. The County Judge opened the default on terms. The plaintiff claims that the dismissal was irregular by reason of the fact that defendant had not noticed the case for trial at the April term. Jas. Ferguson, for applt. J. P. Sanders, for respt. Held, That a stipulation made in open Court, touching the subject of the litigation, is a contract with the Court and opposite party. 4 Sand. Ch., 438. It has always been the practice to hold parties strictly to their agreements made during the trial, and in the face of the Court relating to the conduct of the suit and its proceed ings. 41 Barb., 648. The stipulation bound each party to it without regard to the previous notice of trial. The County Judge acted within well-settled principles in imposing terms as a condition of letting in the plaintiff. Order affirmed with costs and disbursements. Opinion by Barnard, P. J. Decided December, 1877. An absolute acknowledgment of the existence of a debt is sufficient from which to infer a promise to pay, which will take the case out of the statute of limitations. Appeal from judgment entered on report of referee dismissing complaint. Action to ascertain the amount of Robert H. Morrow's indebtedness upon four outlawed notes, the complaint alleging a new promise. Defence: Statute of limitations and denial of new promise. In 1870, Robert H. Morrow borrowed of his father, Samuel II. Morrow, $4,820, for which he gave his father four notes payable on demand. On the 23d December, 1876, Samuel H. Morrow died, leaving a will. The plaintiff and the two defendants, being testator's three sons, were appointed executors, and have duly qualified as such. On the 12th January, 1877, the three executors made an inventory of the effects of deceased as required by law with the aid of sworn appraisers. Among the assets these four notes were entered as follows: "4 notes of Robert H. Morrow to deceased on demand. |