damages and costs if the principal fails to prosecute his appeal to effect and make his plea good, from which it follows that if the judgment is affirmed by the appellate court, either directly or by a mandate sent down to the subordinate court, the sureties proprio vigore become liable to the same extent as the principal obligor. Unless the bond contains Where the bond is given in a subordinate court to prosecute an appeal to effect in a superior court, the sureties become liable if the judgment is affirmed in the superior court; nor are they discharged in case the judgment of the superior court is removed into a higher court for re-examination and a new bond is given to prosecute the second appeal, if the judgment is affirmed in some special provisions to that ofthe court of last resort. Nothing fect, the sureties in such a bond, will discharge the sureties given to given in a common law action, do prosecute the appeal from the court not become liable for the costs inof original jurisdiction but the re- curred in consequence of a new apversal of the judgment in some peal to a still higher court, or, in court having jurisdiction to correct other words, the sureties in a bond the alleged error. 2 Dev. Law, 109; given in the district court to indem1 Littell, 156; 25 N. Y., 487; 11 nify the opposite party, on an appeal Hun, 483; 24 How. Pr., 467-469; to the Circuit Court, are not liable 24 Barb., 435; 58 N. Y., 583. for the costs incurred by a ɛubseViewed in the light of these sug-quent removal of the cause from the gestions, it is clear that the liability of the sureties in the bond given to prosecute the removal of the cause in this case from the district court to the Circuit Court became fixed when the judgment rendered in the district court was affirmed; nor did the removal of the judgmet of affirmance rendered in the Circuit Court into the Supreme Court have any effect whatever to diminish the lia bility of those sureties. Certainly not, as the judgment rendered in the Circuit Court was affirmed in the Supreme Court. Also held, It is not necessary, in order to charge the sureties in an appeal bond that an execution on the judgment recovered in the appellate court should be issued against the principal. When they execute the bond they assume the obligation that they will answer all│ Circuit Court to the Supreme Court, the rule being that in that court the plaintiff in error, or appellant, must give a new bond; but it is equally well settled that such new appeal will not diminish or discharge the liability of his sureties on the bond given in the district court, unless the judgment rendered in the district court is wholly reversed. Judgment reversed, and cause remanded, with directions to sustain demurrer, and render judgment for plaintiff. Opinion by Clifford, J. SERVICES BY INFANT IN N. Y. SUPREME COURT. GENERAL Charles Lind, by guardian, &c., respt., v. Claus C. N. Sullestadt, by way of board, clothing, moneys applt. Decided June, 1880. An infant, who with his parents' consent becomes a member of the family of a relative, upon an agreement by the latter to bring him up properly, educate him, &c., cannot recover the value of his services if the relative performs his agreement, but if there is a breach of the agreement by the latter he may re cover. Appeal from judgment on a verdict obtained in the County Court of Orleans County, in an action for the value of services rendered. paid out for his benefit, and ser- Irving M. Thompson, for applt. Held, That the charge fully expressed the law of the case, and was correct, and properly limited. 14 Vt., 505; 9 Penn. St., 309; 22 Wisc., 93; 27 Mo., 308; 9 Mich., 274. There is a well settled presumption of fact, that when one man labors for another the latter is to pay the value of his services, but this does not apply between members of the same family. One who occupies a quasi filial position in a family cannot recover for services Plaintiff, an infant, was brought from his mother's home, in Norway, to live with defendant, his uncle, the latter agreeing to take him into his family as a member thereof, bring rendered while this relation subhim up suitably, clothe and educate sisted. 3 N. Y., 312; 38 How., 406; him properly, and treat him as if he 6 Lans., 512; 6 Hun, 658; 15 Hun, were his son. Plaintiff lived with 134. defendant about five years, and evidence was given tending to show that defendant had not fully performed the contract as to schooling, clothes, and food. The court charged as follows: "If the jury shall find that defendant so received plaintiff into his family, and as a member thereof, and if he did, while plaintiff remained in his family, taking into account the situation and condition in life occupied by the parties, bring him up in a suitable manner, and did clothe and educate him properly, and treat him as he would The action was properly brought in the name of the infant. By the contract between his mother and his uncle, she, at least, was bound, and was estopped from claiming his custody or services. Wood Master and Servant, §§ 24, 25. It amounted to an emancipation of the plaintiff. Judgment affirmed. on Opinion by Talcott, P. J.; Smith and Hardin, JJ., concur. APPEAL FROM COUNTY if he was his own son, plaintiff N. Y. SUPREME COURT. GENERAL cannot recover. But if defendant did not do all this, then plaintiff can recover what the services rendered TERM. FOURTH DEPT. William O. Roberts, respt., v. by him were fairly worth, over and John Marson et al., admrs., applts. above all he received from defendant Decided June, 1880. No appeal lies to the General Term from an ant Moore's wife, and took in exorder of a County Court made in an action change land of less value, and an begun in a Justice's Court. obligation from Moore by which the Appeal from order granting non- latter agreed to pay to plaintiff, or suit, &c. The action was replevin, bearer, $350, in goods at his store. commenced in a Justice's Court, and On this obligation $115.29 remained carried up to the County Court by unpaid. The exchange of land was appeal. made at Moore's request, and by his A. M. Beardsley, for applt. procurement. The referee authorized the fore Held, That in such an action no closure of the lien, but postponed it appeal lies to the General Term to three mortgages owned by one except from a final judgment. Code Clark, of which two were prior to of Civil Procedure, $$ 1,340, 1,342; the lien and one subsequent. Fish v. Thrasher, MSS. Opinion of A. Hazeltine, Jr., for applt. Talcott, P. J., at April Term, 1880; Lakin & Sessions, for respts. Andrews v. Long, 9 Weekly Dig., Held, Plaintiff got more than he 513. was entitled to by the judgment, and could not complain. The unpaid Appeal dismissed. Opinion by Talcott, P. J.; Smith balance of the due bill was not a and Hardin, JJ., concur. VENDOR'S LIEN. WAIVER. N. Y. SUPREME COURT. GENERAL TERM. FOURTH DEPT. Gilbert W. Hazeltine, applt,, Moses M. Moore et al., respts. Decided June, 1880. lien; for by taking it plaintiff waived a lien, whether on the ground that it was the obligation of a third person, or, if it be considered the obligation of the actual vendee, on the ground that it was a collateral agreement to pay part of the conVsideration in goods and not in money. 2 Abb. Ct. App. Dec., 138; 2 Keyes, 64. A vendor's lien for the purchase price of land Appeal from judgment entered on report of a referee. Action to foreclose a vendor's lien for part of purchase price of land. Plaintiff conveyed land to defend Judgment affirmed, with costs of appeal. Opinion by Talcott, P. J.; Smith and Hardin, JJ., concur. BILL OF LADING. TRANSFER John J. Nicholson et al., v. William C. Conner, Sheriff, &c. Decided June 7, 1880. If a bill of lading is transferred as security for The plaintiffs, bankers in Balti- Charles W. Gould, for deft. more, in 1875 had a chattel mort- Held, That this instruction to the gage upon property of William M. jury was erroneous. That it is imWinks, of that place, a packer of possible for us to say whether the fruit, &c., who was insolvent, as jury found in favor of plaintiffs simsecurity for $8,000 he owed them. ply because of the fact that the In the middle of August plaintiffs plaintiffs had possession of the bill advanced money to enable him to of lading, or whether they merely fill an order for canned goods, pro- treated it as confirmatory of the evivided the goods should be consid- dence of Winks, and inclusive as to ered theirs, and that Winks should the arrangement entered into bedeliver to them the bill of lading tween them. The question of the when the goods were shipped. The transfer of the bill of lading was improceeds were to be applied to the portant because, independent of any payment of the $8,000 debt. The previous arrangement as to ownergoods were consigned to Thurber & ship of the goods, if it was transCo., of N. Y. city. On August 25, a ferred as security for the moneys blank draft, together with the bill which plaintiffs had advanced, it unof lading, naming Winks as con- doubtedly would pass title as besignor and Thurber & Co. consignees, tween Winks and his creditors. were handed to plaintiffs. Judgment reversed. draft was left blank as to amount, because the terms of sale, whether more, J., concurred. The cash or credit, had not yet been Opinion by Van Brunt, J.; Larre agreed upon. Any loss upon the transaction was to be borne by OFFICIAL BOND. COSTS. plaintiffs. Thurber & Co. refused to receive the goods, because of in- N. Y. COMMON PLEAS. GENERAL ferior quality. Then they were TERM. August Sibberns et al. Decided June 7, 1880. seized under attachment, upon a The Mayor, &c., of New York v. judgment which had been recovered in Baltimore by one O'Farrell against Winks, for $1,200. Plaintiffs brought this suit in replevin in the Marine Court, where, upon the trial, the judge instructed the jury that the possession of the bill of lading absolutely controlled the property, and judgment upon a verdict rendered for the plaintiffs was the sureties are liable for the costs of the action upon the bond in addition to the penalty, and costs are taxed against the defendant as in other actions. Execution for these costs may issue in the name of the prevailing party, wholly apart from the consideration of the amount to be levied upon the balance of the judgment for the constable, as such, for default or penalty of the bond. In May, 1857, upon a small judg misconduct in office. The objection was sustained by the court, and the complaint was thereupon dismissed. The General Term reversed this judgment, holding that the ruling above referred to was erroneous, and a new trial was ordered. ment obtained in a district court against J. Bates and others, August Sibberns, a constable, levied upon the property of one Redman, and Redman recovered a judgment in replevin in the Superior Court for A third trial was had before $83 damages. Execution upon this Judge Van Hoesen, without a jury, judgment being returned unsatisfied, in April, 1878. It was decided for this suit was brought by leave of the the defendant on the merits. court, in the name of the city, The General Term reversed the against Sibberns and Michael Ryan, judgment, holding that where, upon his surety upon the bond. The case a motion of a party who has a comwas originally tried before Chief petent judgment against a constable, Justice Daly, without a jury, in the court orders the latter's bond to November, 1860, and the complaint put in suit, such order is conclusive was dismissed, upon the ground that against the constable and his surety; the changes made in the law of this that the judgment was a recovery State after the bond in question had againt the former for default or misbeen given, by which the duties and conduct in office. The fourth trial responsibilities of constables were was before Judge Larremore, in increased, discharged the surety December, 1879. He directed a from liability upon the bond. This verdict for the plaintiffs for $1,794.54, was affirmed by General Term. being for $500, the penalty of the The Court of Appeals reversed this decision, holding that the liability of the surety was not affected by the changes made in the law. 35 How., 408. The second trial of the case was had before the Hon. J. F. Daly and a jury in June, 1877. The plaintiff then offered in evidence a judgment roll in a replevin suit brought by one John Redman, Jr., against August Sibberns. bond, and $1,294 costs. Judge Larremore afterwards ordered execution only up to the amount of the penalty of the bond, $500, under the provision of the statute, "that the surety or sureties in such bond shall not be charged beyond the amount of the sums respectively, in which they shall be bound in such bond." The defendant appealed from the judgment and order. Carpenter & Hays, for plff. This evidence was objected to by defendant's counsel, on the ground Held, That this provision has that it did not prove what was reference only to the amount the necessary to be proven in order to sureties are chargeable with on the justify a suit upon the constable's penalties of the bond; it has no bond, viz. a recovery against the reference to the costs of the action |