present suit was for rent subse- from an order denying a motion for quently accruing under the same a new trial upon the minutes. lease. The issues are the same, and Action upon a promissory note. the judgment in the former action For some time prior to the transis conclusive between the parties. action in litigation, the plaintiff 38 N. Y., 83; 3 N. Y., 511; 1 Denio, bank and one Cheyney had had 519; 4 N. Y., 71. dealings together, which finally reHeld further, As against a lessee sulted in an indebtedness to the it is not necessary to prove a de- former of some $5,000. For this the mand where neither a forfeiture nor bank held Cheyney's protested re-entry is claimed or sought. Here check, endorsed by one Vail. The the surety's agreement was absolute latter was an accommodation ento pay upon the lessee s default; that dorser, of which the bank was aware. is, upon the lessee's non-payment, After holding the protested check without requiring notice of any such for some time, the bank began default. Under such circumstances, pressing Cheyney and Vail for a the lessor is not bound to make any settlement. Thereupon Vail went demand upon the lessee before to Cheyney and induced him to give claiming payment from the surety. his firm notes to take up the check. 4 Bosw., 192; 2 Hall, 197. This firm was composed of Cheyney Judgment in plaintiff's favor af- and the defendant Underhill. firmed, with costs. Opinion by Barrett, J.; Davis, P. J., and Brady, J., concurring. COPARTNERSHIP. Un derhill knew nothing of Cheyney's action in the matter, and never assented thereto. Vail took the firm notes, which were payable to his order and endorsed by him to the N. Y. SUPREME COURT. GENERAL bank, and thereupon settled the pro TERM. FIRST DEPT. The Union National Bank of Rahway, New Jersey, respt., v. Howard L. Underhill, impld., &c., applt. Decided May 14, 1880. tested check, he paying a small difference in cash. The court, at circuit, directed a verdict for the Hamilton Odell, for applt. Where a note is given in the firm name by one Held, We think the court erred in partner for his private debt, or in a trans-directing a verdict against Underaction unconnected with the partnership hill. The verdict should have been business, which is the same thing, and known to be so by the person taking, the other part. ners are not bound unless they have as sented. the other The person so taking the note is not a bona fide satisfaction of the checks, but it was holder thereof. not a bona fide holder, This results Appeal by the defendant Under- from the fact that the precedent hill from a judgment entered against debt was Cheyney's individual oblihim upon a verdict directed by the gation. It is well settled that where court in favor of the plaintiff, and a note is given in the firm name by one partner for his private debt, or in a transaction unconnected with the partnership business, and known to be so by the person taking, the other partners are not bound unless they have assented. 14 Wend., 138; Id., 145; Id., 157; 18 Wend., 477; 6 Abb., N. S., 341. In the case of mutual and concurrent promises Appeal from a judgment entered upon the verdict of a jury, and from an order denying a motion for a new trial upon the judge's min utes. Upon the face of the transaction, Plaintiff had a doubtful claim the bank was chargeable with notice. against defendants in suit. It was The truth was plainly before the mutually and verbally agreed that bank that Vail had procured these defendants should pay plaintiff $150 notes to take up the check (upon for a consent of discontinuance and which Cheyney was the principal full settlement. Plaintiff tendered debtor and Vail only a surety), and the consent of discontinuance, toit was clearly put upon inquiry as gether with the release, but defendto Underhill's consent. ants failed to pay the agreed The fact that some of the money amount. Plaintiff brought action procured on Cheyney's individual for the $150, and had a verdict at checks was used in the firm's busi- circuit. ness was not shown. But even if a small firm indebtedness had been included, that would not render Underhill liable for Cheyney's large individual debt. 22 Pa., 21. Judgment and order denying motion for new trial reversed, and new trial ordered, with costs to abide the event. Wm. A. Boyd, for applts. Charles Hagadorn and R. M. Bruno, for respt. Held, It is clear that this verdict cannot be sustained. There was no acceptance of the discontinuance and release, nor were they even left with the defendants or their attorneys. There was, in fact, no inten Opinion by Barrett, J.; Davis, P. tion to surrender these documents J., and Brady, J., concurring. ACCORD EXECUTORY. N. Y. SUPREME COURT. GENERAL without concurrent payment. This is a plain case of an accord executory. Such an agreement would have been no bar to the original suit unless executed by the acceptance of the $150. 4 Denio, Charles A. Penzerbeiter, respt., v. 414; 6 Wend., 391; 19 Wend., 408; John H. Waydell et al., applts. Decided May 14, 1880. A mutual agreement to settle a pending suit, where neither party fulfills or performs either of the mutual promises, is no bar to the suit, and cannot constitute the basis of an action. An accord executory is no bar. 16 Barb., 598; 18 N. Y., 448. The promise to discontinue and release was not binding upon the plaintiff. Consequently the defendants were without a consideration for their promise. In the case of mutual and con current promises there must be promise had been made. The evireciprocity of obligation. The dence in respect to the new promise cases cited by the respondent are is as follows, the plaintiff being the based upon executed accords, and witness: "Q. What did Mr. Abrahams say in regard to the note subsequently at your house? "A. He promised to pay me. Q. What did he say? "A. He said that he would pay me, are not in point. If in the case at bar the release had been accepted, and in exchange the plaintiff had received the defendants' note for the $150, there would have been no doubt under the authorities of the plaintiff's right to recover upon the and that there would not be two note. This case cannot be regard- cents paid less than the note called ed as a substituted agreement. for. There the mutual stipulations must Q. How long since the converbe in the nature of a new consider-sation took place of which you have ation, as in 23 Barb., 546. Here spoken? there was nothing but an entirely unexecuted agreement to settle a pending suit which, under all the cases, was no bar. Judgment reversed, and a new trial ordered, with costs to abide the event. "A. Last January. 66 Q. State it? "A. He said he would pay me that as quickly as he could." The witness again testified that the defendant said the same thing in February. Upon plaintiff rest Opinion by Barrett, J.; Davis, ing his case, the defendant moved P. J., and Brady, J., concurring. DISCHARGE IN BANKRUPTCY. Rebecca Goldman V. Abrahams. Decided April 5, 1880. to dismiss the complaint, upon the ground that the promise proved was conditional, and that the plaintiff was bound to prove that the condition had been fulfilled, and that GENERAL motion being denied, the defendant being put upon the stand denied Isidore having made a promise of any kind to pay the note. The court. charged the jury that if they concluded that there had been a Where after a discharge in bankruptcy, a new promise made by the defendant to promise is relied upon to sustain the ac tion, if it appears to have been a conditional pay this note since the discharge in promise it must appear that the condition bankruptcy, the defendant would be has been fulfilled. An exception in general terms to a judge's charge is good without specifying any grounds of exception. Action upon a promissory note. The defense was a discharge in bankruptcy. Reply was that a new liable. The defendant excepted. A verdict was rendered for the plaintiff in the Marine Court, and the General Term of that court affirmed the judgment entered thereon. The defendant appealed to this court. Mr. Goodhart, for plff. Mr. Crooks, for deft. Held, That it is apparent that the language used by the judge in his charge is, that the jury were sub- It is not the function of a writ of habeas corpus to determine such a collateral question as whether the prisoner was privileged from arrest, when arrested, and as to whether or not such privilege, if existing, was waived. The proper manner to raise such questions is by motion. stantially instructed that if they found, from the evidence, that the defendant had made any kind of a promise, conditional or otherwise, the plaintiff was entitled to recover. Such a charge was erroneous. If Appeal from an order discharging the promise was conditional, proof the relator, John Lampert, on habeas of the fulfillment of the condi- corpus, and also appeal from order tion must be given before a re- charging the attorney for one Faendcovery can be had. Hill and ler, at whose instance the relator Denio's Supplt., 371. The only was arrested personally, with the question to be considered is whether costs of the application for the relathe exception taken is sufficient to tor's discharge. raise the question. In an exception to a charge, counsel are not bound to state the grounds of their exception. They are simply called upon to except to such propositions as they deem erroneous, and this raises the question of law in a proper form. Judgment reversed, new trial ordered. Opinion by Van Brunt, J.; Van Hoesen and J. F. Daly, JJ., concurred. The relator, while returning from the Marine Court, from attendance upon an action to which he was a party, was arrested upon a body execution, issued against his person, in an action wherein one Faendler was plaintiff. Thereupon, the relator, after having claimed privilege from arrest, gave bail to the sheriff for the limits of the jail. Subsequently, at his own instance, a writ of habeas corpus, directed to the sheriff of New York County, was procured, and the sheriff made a return that Lampert, the relator, was not in his custody, having given bail for the jail limits, after being arrested upon the body execution above referred to. The relator Lampert, however, produced himself the return of the writ of habeas corpus, and insisted that his arrest was illegal, inasmuch as he was privileged from arrest by reason of his While the office of the writ of habeas corpus is returning from court where he had to remove all unlawful restraints upon per- been attending as a party to the by the production of the body. Without the action. Upon the facts appearing, production of the body the case has no stat- the court below held the relator was HABEAS CORPUS. N. Y. SUPREME COURT. GENERAL In re John Lampert. A person who has given bail to the sheriff for sonal freedom, yet this removal is procured upon privileged from arrest at the time tion of the court, or the validity of he was arrested upon the body exe- the process, but not into a mere cution, and directed his discharge. matter of temporary privilege. The and also directed that the attorney question of privilege is one that for Faendler, at whose instance the should be raised by motion or by relator was arrested, should pay the summary application to the court costs of the proceedings for the re- under whose protection the relator lator's discharge. was at the time of the arrest. 5 Wend., 90; 18 Johns., 52. Chas. Wehle, for applt. G. W. Wilson and Geo. Behrens, for respt. Held, The order discharging the relator was erroneous. The relator has mistaken his remedy and the office of a writ of habeas corpus. He was not imprisoned by the sheriff, nor was his bond for the limits such a restraint by that officer as authorized a resort to the writ. Whatever may be the special characteristic of the restraint, how There was nothing to warrant the imposition of costs against the attorney personally. Both upon the law and the facts we think the orders appealed from should be reversed with costs, and the habeas corpus proceedings dismissed with costs. Opinion by Barrett, J.; Davis, P.J., and Brady, J., concurring. ever effected or imposed, it must at NAME. SIGNATURE. LEASE. least be substantial and real to N. Y. SUPREME COURT. GENERAL TERM. FIRST DEPT. authorize a resort to the writ. Mere person may become bound by any mark or designation he thinks proper to adopt, provided it be used as a substitute for his name, and he intends to bind himself. The middle initial forms no part of a person's name, and may be disregarded as surplusage, A clause in a lease providing "that upon default in the payment of the rent, or any part thereof, the said hiring and the relation of landlord and tenant shall wholly cease and determine," does not render the lease absolutely void upon such default, but voidable only at the election of the lessor. Appeal from a judgment entered upon a report of a referee. This action was against the defendant as surety upon a lease enFurthermore, the office of the tered into between his son, Nathawrit is to inquire into the jurisdic- niel, and the plaintiff. In executing |