A copy of the chattel mortgage, under which plaintiff made claim to the property, filed in the town clerk's office, was admitted in evidence, against exception, on the certificate of that officer, made pursuant to § 934, Code Civ. Pro., without proof of the existence and due execution of the original. Held, That this was error; as the certificate went only to the filing of the paper in the clerk's office. Judgment and order reversed; new trial granted; costs to abide the event. Opinion by Bockes, J.; Learned, P.J., and Landon, J., concur. REPLEVIN. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. same. Plaintiff's affidavit stated the aggregate value of all the chattels sought to be replevied as $1,415.32, and did not place a separate valuation upon the different articles. The sheriff proceeded to execute this requisition, and defendant M., in order to secure a return to him of the chattels replevied, furnished an affidavit that he was entitled to the possession thereof, together with an undertaking reciting that the sheriff had replevied a part of the chattels claimed by plaintiff, and binding the sureties in the sum of $2,830.64 for the delivery of the said part of the chattels to plaintiff if delivery thereof was adjudged, etc., and for the payment to him of any sum awarded by the judgment against M. Plaintiff excepted to the form of this undertaking inasmuch as Gottlieb Weber, applt., v. Na- it recited that only part of the than Manne, respt. 42 Hun 55 Decided Dec. 31, 1886. When plaintiff requires the replevin of a number of different chattels but states only the aggregate value thereof without placing a separate valuation on the different articles, and the sheriff replevies only a portion of the chattels so claimed by plaintiff, defendant, in order to secure the return of the chattels so replevied, must furnish the sheriff with an under taking in double the amount of the value of all the chattels as stated in plaintiff's affidavit, but no more can be recovered of the sureties on such undertaking than the value of the property the return of which is secured thereby. Plaintiff instituted an action against defendants for the replevin of certain chattels mentioned in his affidavit and delivered a requisition to the sheriff to replevy the chattels had been replevied when there was no evidence that such was the case, and bound the sureties only for the return of that part. From the order upholding this undertaking plaintiff appealed. Abram Kling, for applt. Held, That by § 1698, Code Civ. Pro., even if the whole of the property mentioned in plaintiff's affidavit has not been replevied, when the value of the different articles has not been stated but a gross value placed upon them all, the entire value mentioned in the affidavit is to be deemed the value of the part replevied in the proceedings to procure a return thereof to defendant, and by $ 1704 the undertaking given by defendant to secure such return is required to be in twice the amount of the sum stated in plaintiff's affidavit as the aggregate value of all the chattels sought to be replevied. sheriff the sureties would be liable to plaintiff, if he succeeded in maintaining his action, and that is all that they could have been made liable for if the undertaking had been made out precisely in the form in which it should have been under the sections of the Code supra. Order affirmed. Opinion by Daniels, J.; Davis, P.J. and Brady, J., concur. CONTEMPT. RESTITUTION. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. Julius Forstman v. Ruth A. Schulting. Decided Dec. 31, 1886. That the undertaking given in this case conformed to these requirements in its amount and that the additional statement that only a part of the chattels had been replevied did not qualify the liability of the persons executing the undertaking, for whatever the chattels might be that were replevied, and the return of which should be secured by means of the undertaking, the sureties would be liable only for their value in case plaintiff succeeded in maintaining his right to the recovery of their possession, and they would be liable to no more than that if no statement had been made in the undertaking asserting the fact to be that only a part of the chattels had been replevied. That the law has not been framed in such a manner as to impose on the sureties any larger measure of liability than this in any event. That it is for the value of the chattels replevied that they may be made liable and no liability beyond that. Diossy v. Morgan, 74 N. Y., 11, him. It was held, by a modificadistinguished. That the recital in the undertaking that only a part of the property had been replevied, while it was an irregularity, could not, therefore, be held to prejudice plaintiff, for whatever amount of the property was replevied by the Defendant's attorney was allowed by the court below the costs of opposing a motion for a new trial and such costs were paid to him. Upon appeal it was held, by a modification of the order, that such costs should not have been allowed, and defendant's attorney was ordered to make restitution thereof. He failed to do so after due service of said order upon him. Held, That plaintiff's remedy was not by application to punish defendant's attorney for contempt, but by issuing execution against his personal property. Defendant's attorney was allowed by the court below the costs of opposing a motion for a new trial and such costs were paid to tion of the order on appeal, that he was not entitled to said costs, and he was ordered to make restitution thereof to plaintiff or his attorney. A copy of the order requiring such restitution was served upon him, and, at the same time, a certified copy thereof was ex hibited to him, and upon his failure to obey such order this application was made to punish him for contempt of court. William Watson, for plff. C. Bainbridge Smith, for deft. Held, That the order directing restitution of the costs was authorized by § 1323, Code Civ. Pro. But that, while plaintiff was entitled to this restitution, it has not been provided that the attorney or party failing to make it should be punished for such failure by way of proceedings for a contempt. That it has been provided, on the contrary, by § 16 of the Code, that a party shall not be arrested or imprisoned for disobedience of a judgment or order requiring the payment of money due upon a contract express or implied, except where it is otherwise specially prescribed by law. That there is no special provision of law subjecting a party or an attorney to arrest or imprisonment for the non-payment of money under these circumstances, and the obligation to pay it arises upon contract; for, where money has been received under an erroneous decision and that decision has been reversed, the party receiving it is equitably bound to refund it, and the law will imply a promise on his part to pay it over. That plaintiff's remedy was provided by § 779 of the Code, which declared that where costs of a motion or any other sum of money directed by an order to be paid are not paid within the time fixed for that purpose by the order, or, if no time is so fixed, within ten days after service of a copy of the order, an execution against the personal property only of the party required to pay over may be issued by any party or person to whom the costs or sum of money is made payable by the order. Motion denied. Opinion by Daniels, J.; Brady, J., concurs. FRAUD. PAYMENT. AP- N. Y. COURT OF APPEALS. Testator held a note of K. which he delivered to K. without consideration. At that time testator had other assets exceeding the amount of his debts. Held, On K.'s accounting, that the gift of the note was not a fraud on creditors, and must stand. An attorney who had a claim of testator's to collect, on doing so drew a check to K.'s order which was collected after testator's death. K. was his agent, and credited the amount on his account with testator, leaving a balance due him. Held, No error, and that he could not be compelled to account for the check in any other way than such application. An appeal to this court from an affirmance by General Term of a surrogate's decree brings nothing up for review where there was no appeal to General Term. No complaint can be made here of any finding or decision which was not excepted to by the party appealing to General Term. The fact that it was against the interest of the holder of a note to make the indorsements upon it makes them prima facie evidence of payments. Affirming S. C., 23 W. Dig., 272. Upon the accounting of K. as executor of A., it appeared that prior to 1876 A. held a note for upward of $11,000 against K., and early in that year gave it to K., who destroyed it. A. died Oct. 10, 1881, insolvent. His widow at the accounting was his sole creditor, and she claimed that A. was insolvent when he gave the note to K., and hence that the gift was fraudulent and void as to her, and the executor as to her should be charged with the amount of the note. There was no proof or finding of an intent to defraud on the part of A. It was proved that after A. had given the note to K. he had a valuable farm and other assets exceeding in value the amount of his debts. K. was charged with the amount of the note. the country. A. died the same day, and two days afterward K. drew the money on the check and credited it in his account with A., leaving a balance due from him to A, with which he charged himself on the accounting. The surrogate allowed the $6,000 credit. Held, No error; that the check when delivered at K.'s office operated as a payment sub modo, and he could then treat it as funds in his hands, to be applied so far as needed in payment of what A. then owed him; that when the money was drawn, the payment related back to the delivery of the check; that K. did not draw it as executor, but as payee, and hence. L. Laflin Kellogg and Arthur he could not be compelled to acH. Smith, for applt. Mathew Hale, for respt. Held, Error; that the gift was not a fraud upon the creditors of A. and must stand. It appeared that, for several years prior to the death of A., K. acted as his agent, having the general management of his business; that as such he placed in the hands of an attorney a claim against one S. for collection; that some time prior to the death of A., the attorney having brought suit upon the claim, collected $6,500. He afterward, while the testator was still alive, drew his own check on a New York bank for $6,000, payable to the order of K., and sent it to his office in the city of New York, and it was there delivered to some party in charge of the office, before the testator's death, with directions to telegraph its delivery to K., who was then with A. in count for the check except by first applying it upon what A. owed him in current account. The widow neither excepted to the finding nor appealed to General Term; the special guardian excepted but did not appeal; the general guardian appealed but did not except to the findings. Held, That none of the appellants are in a position to claim error as to the item allowed. An appeal to this court from an affirmance by the General Term of a surrogate's decree brings nothing up for review where there was no appeal to the General Term. Upon an appeal from a surrogate's decree no complaint can be made of any finding or decision which has not been excepted to. It appeared that when the testator died his widow held his note for $5,000 for borrowed money, dated March 17, 1870, upon which were indorsed $350, March 17, 1873; $350, March 17, 1874; $350, March 17, 1875; $300, March 17, 1887, and $200, Dec. 8, 1880. These indorsements were proved to have been made by the widow at their dates. The note was presented to the executor before the accounting and admitted by him, and he had made payments upon it. The only objection filed to the note before the surrogate was that it had been paid. It is now claimed that it was barred by the statute of limitations. The surrogate found that the note had been kept alive by the payments made upon it. The fact that it was against the interest of the holder of the note to make the indorsements upon it makes them prima facie evidence of payments. 17 Johns., 182; 13 Hun, 163; 20 id., 454. The General Term had power to reverse, affirm or modify the decree of the surrogate. Judgment of General Term, affirming, as modified, decree of surrogate, affirmed. Opinion by Earl, J. All concur. HUSBAND AND WIFE. COPARTNERSHIP. N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. alleged in the complaint to have been loaned to defendants as copartners. The answers of defendants denied the copartnership, and that of defendant, Adele M. Caffe, alleged that at the time of such loan she was, and that she still continued to be, the wife of the other defendant. Judgment was rendered against defendants at Circuit, and from such judgment this appeal was taken. Chas. P. Crosby, for applts. Held, That the only question presented by the case was whether, under the married woman acts of this State, husband and wife can form a copartnership and carry on business as copartners. That upon this question a direct conflict exists in the decisions of the Supreme Court in other departments. 37 Hun, 140; id., 405. That the decision in Kaufman v. Schoeffel, 37 Hun, 140, holding that such a copartnership could not be formed, seems to be a correct determination of the law, as the contrary ruling appears to be adverse to the spirit and intention of the married woman acts, which were to separate the estate of a married woman from that of Peter Snau, respt., v. George her husband and to completely esCaffe et al., applts. Decided Dec. 31, 1886. It seems, that a husband and wife cannot form a copartnership and carry on business together as copartners. This suit was brought to recover of defendants the sum of $31,465.65 tablish its separate character during coverture, and not enable her to so commingle it in copartnership with him as to clothe him with the power and title which copartners possess in law. That the better mode of dispos |