the leases whether taken separately or together did not constitute an assignment of dower. 7 N. Y., 201; 2 Scribner on Dower, 2d ed., 83, 85, 253; 1 Washb. R. P., 4th ed., 274. The right of a widow to dower until it is assigned is a mere chose in action, which is not the subject of a sale upon execution against her, and before assignment or admeasurement is only a claim. 2 N. Y., 245; 8 id., 113. To bar the dower the grant must be in fee tail, or for the term of her life. Coke on Littleton, 612. The cases holding that where the property is not divisible the person entitled to dower may take a portion of the avails or the use of them for a proportionate period, do not apply where it does not appear that an agreement was made for that purpose, or the dower duly assigned according to law. To constitute an assignment or admeasurement of dower by virtue of any agreement or any specific act of the party, it should be clearly manifest that such was the intention. Judgment of General Term, General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All con cur. NEGLIGENCE. EVIDENCE. N. Y. SUPREME COURT. GENERAL TERM. FIFTH DEPT. property caused by the spreading of a fire set by defendant it is error to exclude evidence offered by defendant to prove that there were woods so situated as to protect the fire from the wind and thus lessen the danger of its spreading. Evidence should, as a general rule, be confined to facts, and not include conclusions and opinions of the witness. Appeal from judgment of County Court, affirming justice's judgment. Action to recover damages sustained by plaintiff in consequence of a fire set by defendant on his own lands whence it spread to plaintiff's lands. The parties owned adjoining lands, defendant's being north and plaintiff's south of the division line. Upon the question of defendant's negligence there was a conflict of evidence. Plaintiff's land was a tract of about 50 acres, half of which had been chopped over and a portion of the timber drawn away, but none of the land had been brought to a condition of tillage. Defendant's land along the division line was in like condition. At the time of the fire the weather was very dry, there having been no rain for the past four weeks. Defendant's purpose was to burn up the brush and clear his fallow land. The injury to plaintiff was the burning of some sawlogs and wood piled on his land not far from the line. Plaintiff gave evidence tending to show that at the time the fire was started the wind was blowing from the north. Defendant offered to prove John Kennally, respt., v. John that there was on the north and Selleck, applt. Decided Jan., 1885. west of his clearing a large tract of growing timber. This was ob In an action for damages to plaintiff's farm jected to by plaintiff as incompe tent, immaterial, and leading, and the objection was sustained. A witness who had for many years been a farmer was called by defendant and testified that he was present on the day the fire was set, that he knew the fallow in question, that the wind was from the northwest, and that it went down about three o'clock. He was then asked: "In your opinion was it proper to set fire at that time, all things considered?” The question was excluded. D. M. Darrin, for applt. J. W. Dininny, for respt. Held, That it plainly bore on the propriety of defendant's act that his clearing was surrounded on two sides by forests, which plainly are a great shelter to places and objects to the leeward, and which would render the fire unlikely to be blown on to the plaintiff's land. Defendant was entitled to prove every circumstance which had the least force as proof to meet the charge of negligence and to support the reasonableness of his conduct. The ruling rejecting the question asked of the farmer was correct. The witness could not be allowed to express an opinion as to the very fact in issue, and concerning which there was much dispute. Ferguson v. Hubbell, 26 Hun, 250, distinguished. Both judgments below reversed, with costs. Opinion by Barker, J.; Haight and Rumsey, JJ., concur; Bradley, J., not sitting. [See 20 W. Dig. 386-Ed.] Vol. 21.-No. 4. SURETYSHIP. GENERAL N. Y. SUPREME COURT. Decided Jan., 1885. An agreement with one of two co-obligors, jointly and severally bound, not to sue him does not discharge the other obligor, but the other is liable for only one half the debt. Appeal from judgment in favor of plaintiff, entered on the report of a referee. Action upon a joint and several undertaking executed by defendant and one Leonard S. Standing under 1327, 1334 and 1352, Code Civ. Proc., on an appeal by one S. Miller Benedict from a judgment recovered against him by plaintiff, the judgment declaring the debt a charge on real estate and decreeing its sale as in foreclosure, and directing him to pay deficiency if any. S. M. Benedict did not join in the undertaking. The General Term reduced the judgment and affirmed it as modified. The real estate was sold and a judgment for a deficiency of $8,358.96 was docketed, on which an execution was issued and returned unsatisfied. Defendant alleges, as a defense, that before the sale plaintiff and S. entered into an oral agreement that S. should purchase at the sale 110 acres of the land at not more than $75 per acre, and convey it to plaintiff, and in consideration thereof plaintiff agreed not to sue S. on the undertaking. It was further alleged and found that such agreement was carried out. The referee found, as conclusion of law, that by the agreement and its performance S. was discharged from all liability on the undertaking, and that defendant was only liable for $4,793.12, onehalf of the deficiency, for which sum and costs a judgment was entered for plaintiff. ties is discharged by the creditor the other co-surety is liable for but one-half of the debt. 70 N. Y.. 537. Each co-surety is regarded as a principal debtor for his share of the debt, and as a surety for the remainder of the debt. For onehalf of this debt S. stood as principal, and Rea, as to all the parties to the contract, stood as his surety. Sheldon on Subrogation, § 169, and cases cited. Plaintiff being a party to the contract was bound to re Cornelius E. Stephens, for applt. Charles D. Adams, for respt. Held, No error. An agreement not to sue a sole debtor, made on a good consideration, is not a tech-gard the rights of these co-sureties. nical discharge, but should the creditor be permitted to recover the debtor could recover the same amount in an action for a breach of the agreement, and, to avoid circuity of action, the agreement not to sue is given the effect of a legal discharge. 2 Johns., 186; 4 Wend., 611; 1 Pars. on Cont., 28; Leake's Cont., 928. An agreement with one of two co-obligors, jointly and severally bound, not to sue him does not discharge the other obligor, 2 Johns., 207; 21 Wend., 424; 2 Wm. Saund., 48, and notes; 1 Pars. on Cont., 28; 2 Chit. Cont. (11 Am. Ed.), 1357; 2 Chit. Pl. (16 Am. Ed.), 363-455, but as between the parties to the agreement it has the same effect as though made with a sole obligor. Harrison v. Close, 2 Johns., 448, distinguished and explained. The obligors, as between themselves, as between S. Miller Benedict and themselves, and as between plaintiff in this action and themselves, are co-sureties. 63 N. Y., 245, 250; Code Civ. Proc., 1334. When one of two co-sure A surety may avail himself of any defense his principal may have. Id. § 101; L. R., 7 C. P., 372. The agreement not to sue being a good defense to an action on the undertaking against S., it is available to Rea as a defense to the recovery of the half for which S. stood as principal. Covenants not to sue are given the effect of a release to avoid circuity of action, which the law is said to abhor. There is no reason why the principle should not be applied to avoid the necessity of two additional actions instead of one when all the actions arise out of the same subject matter and the damages to be recovered are precisely the same in the actions. See 2 Wm. Saund., 150, and notes; Mayne on Dam., 96. Under the doctrine of subrogation, if the whole claim should be recovered by Rea, he would be entitled to enforce the agreement not to sue. Sheldon on Subrogation, $95. The avails arising from the sale of the farm was the primary fund for the payment of plaintiff's debt, to which he was required to first resort and exhaust, and in doing this he was bound to exercise the utmost good faith towards the sureties, doing no act which would impair the rights of rights of either. Whether the agreement entered into between plaintiff and S. without the knowledge of Rea in regard to the purchase of the farm is a defense to the whole cause of action need not be considered, as defendant has not appealed. Plaintiff insists that the evidence is insufficient to justify the finding of the referee that plaintiff agreed not to sue S. in consideration that he would purchase the farm and convey it to plaintiff. The only witnesses upon this question are plaintiff and I. T. S., who contradict each other. The subsequent transactions between the Standings and plaintiff in respect to the farm corroborate the evidence of S., and we think the finding should not be disturbed. Judgment affirmed, with costs. Opinion by Follett, J.; Hardin, P. J., and Boardman, J., concur. LIMITATIONS. HUSBAND N. Y. SUPREME COURT. GENERAL Decided Jan. 9, 1885. An action by a husband to recover damages for the loss of services of his wife, caused by a personal injury to her, inflicted through carelessness on the part of defendant, is not an action to recover for a personal injury, but is one to recover damages for an injury to property and is not barred by the statute of limitations until the expiration of six years. Appeal from judgment upon the dismissal of a complaint and verdict directed by the Court, and from an order denying motion for new trial. This action was brought to recover damages sustained by the plaintiff in consequence of injuries inflicted upon his wife through the carelessness of defendant's servants, such damages arising from the loss of services of his wife, moneys expended for necessary medical aid and attendance upon her during her illness, and for expenditures in the employment of one or more persons to do the service which she did for him. The action was not commenced until the expiration of more than three years from the time plaintiff's wife received the injuries which formed the basis of his demand; and, upon the trial, such fact being conceded and the statute of limitations having been set up as a defence, the Court dismissed the complaint and directed a verdict for the defendant upon the ground that the action was controlled by $ 383 of the Code of Civ. Pro. and should have been brought within three years. J. H. Whittlegge, for applt. Thornton, Earle & Kiendl, for respt. Held, That this was not an action to recover for a personal injury. That a personal injury was stated as an element only of plaintiff's case, and by which damages resulted to which plaintiff was subjected. That he was not to be compensated in this action for the personal suffering of his wife, or for any loss occasioned to her by diminution of her capacity in any respect, or any disability created by the effect of the injury sustained upon her health, which would necessarily enter into an award of damages for the personal injury contemplated by the Code in § 383 and 3343. That in this action plaintiff sought to recover for the result of an injury to his rights, interests, and property, 19 Hun, 342; 3 Den., 369; 25 How., 385; 19 N. Y., 464; 75 N. Y., 192; 24 Hun, 620, and that the action was controlled, therefore, by 382 of the Code of Civ. Pro., prescribing six years as the time within which such an action must be commenced. Judgment reversed and new trial granted. ly fitted a frozen track near the part of the house where entrance was effected and he was shown to have been in possession of an ax about the time of the murder and thereafter, in spite of his denial. His story of his whereabouts on the evening of the day before the body was found was shown to be false and he was found in virtual possession of a tax receipt of the deceased. Held, That the facts warranted the verdict of murder in the second degree. The guilt of a defendant must be established beyond reasonable doubt, not beyond a possible doubt. Appeal from judgment on conviction of murder in the second degree, for the killing of one Mrs. S. Five o'clock on March 27, 1883, Mrs. S. was seen outside and near her house in her usual health. On the next day, about three o'clock Opinion by Brady, J.; Davis, P. P. M., as she did not appear the J., and Daniels, J., concur. HOMICIDE. N. Y. SUPREME COURT. GENERAL TERM. SECOND DEPT. The People, respts., v. James H. Riley, applt. Decided Dec., 1884. S., a woman living alone, was found in her house mortally wounded by a fracture of the skull produced by a blunt instrument. The object of the murder was plunder. In the kitchen was found a pie plate and crumbs of bread on the table. The defendant was shown to have lived near the deceased. He was arrested in a distant town for which he stated that he had set out on the day before the killing, while the truth was that he had left deceased's town about three in the morning of the day on which she was found dead. He admitted he had been in the house and had eaten bread and pie on the day before the body was discovered. His boot exact daughters of a neighbor entered the house by the back way, which was found unfastened, and passing into the bed room found Mrs. S. wounded unto death by a blow on the head which had fractured the skull and had been produced by a heavy blunt instrument. It was evident that the premises had been entered by one acquainted with the deceased for the purpose of plunder. of plunder. A pane removed from the window had permitted the fastening of the window to be reached. In the kitchen was found a chair placed at the table and on the table a pie plate and some crumbs of of bread. The bureau drawers and drawers of the secretary had been opened, and though it did not appear that any money had been taken, yet it did appear that some money was found on a high shelf |