vided that H. should be at all times execution against his property unamenable to the process of the court, satisfied. Code, § 288; 2 R. S., 530, § 52; 1 N. Y., 368; 48 id., 348; 2 Saund., 60, note; 21 Wend., 88; 8 Johns., 97; 19 id., 233; 19 Wend., 188; 21 id., 57; 1 Hill, 298. It appeared that the undertaking and "for the payment to plaintiffs of such sum as may for any cause be recovered against the defendant." H. was discharged from arrest, and the replevin action proceeded to trial, and plaintiffs obtained a judg- in suit was taken by the sheriff in ment for the recovery of the posses- the course of his official duty, and sion of the property claimed or of its not by any arrangement between the value, in case a delivery could not parties to the action. be had. Execution was issued and returned unsatisfied, and afterwards this action was commenced upon the undertaking. Charles J. Patterson, for applts. Held, That it could not be treated as an agreement made between the parties to the action. Hale v. Carter, 2 Mod., 304, distinguished. The parties to an action in which Held, That the final clause in the the defendant has been arrested undertaking is to be construed in may agree upon the terms of his reconnection with the statute direct- lease, and an agreement made by ing the form of a judgment in an ac- the defendant upon this consideration for claim and delivery Code, §tion may be enforced. 1 N. Y., 368; 277, and, as construed, it is not an 16 id., 443; 2 Hill, 216; Cro. Eliz., absolute undertaking by the sureties 190; 2 B. & P., 151; 4 Camp., 46; to pay the value of the property as 6 Cow., 465. determined by the judgment, and, until after plaintiffs' failure to obtain the property upon execution issued, their right to its value did not become perfect, and there was no judgment for the value within the meaning of the undertaking. 27 N. Y., 324. Also held, That the undertaking is void, as having been taken colore officii, for the reason that it binds the sureties for the amenability of H. to process in the action, which obligation was unauthorized by the statute under which the undertaking was issued, R. S., Art. 2, Chap. 3, Tit. 2, Pt. 3; that this provision could not be rejected as surplusage, as a body execution could have been issued Mere verbal variation from the statutory forms may not make void an agreement or security, 10 Rep., 426, but the rule is different when the departure is a substantial one. Judgment of General Term, reversing judgment for plaintiffs' affirmed, and judgment absolute on stipulation. Opinion by Andrews, J. All concur, except Rapallo, J., not voting. [NOTE.-A motion for reargument was denied April 13, 1880. No opinion.-ED.] SET-OFF. N. Y. COURT OF APPEALS. Coffin, assignee, respt., v. McLean et al., applts. Decided April 6, 1880. against H. after the return of an In an action against principals and sureties on an undertaking, a set-off of a debt of plaintiff not fall due and payable until after- The undertaking in suit was given in an action Held, That at law the indebtedness of M. to the principals in the undertaking could not be allowed, it being a several indebtedness to but three of the defendants, while the liability of all the defendants is joint, and it being due and payable before there was a cause of action with the plaintiff on the undertaking. At law, the right of set-off is a creature of the statute, and that This is an action on an under- does not give it to more than one taking given by the defendants, five defendant unless the demand sought in number, on a claim by three of to be set-off was due to them all them for the immediate delivery of jointly, 2 R. S., 354, § 18, Sub. 6; personal property in an action Code of Pro., § 112, or unless a brought by them against one M. Before the determination of that action M. became insolvent, and made a general assignment for the benefit of his creditors, by which his interest in that action and in the undertaking in suit passed to plaintiff, his assignee. Plaintiff defended and recovered a judgment for the value of the property, and issued execution thereon, which was returned unsatisfied, the plaintiffs therein of, the defense may be treated as an having become insolvent. Defend- equitable one. ants claimed to have allowed them, as a set-off, so much of M.'s indebtedness to the principals in the undertaking, who were the plaintiffs in the action in which it was given, justice cannot otherwise be done. 43 as would extinguish plaintiff's de- N. Y., 419. Insolvency of one of mand. M.'s indebtedness was of the parties ceteris paribus is a suffitwo kinds, one that which became cient ground for a set-off in equity, due and payable before the assign- and though one of the parties seekment, and the other, that which did ing a set-off be a surety for the Vol. 10-No. 5. separate judgment may be held in an action between one or more of them and the plaintiff. New Code, § 501; nor is it permitted, except when the demands are mutual; that is, where both were due and payable before the transfer of either to a third party. 59 N. Y., 574; 74 id., 468; 9 id., 211; but as it appeared, from the proofs, there then existed such facts as equity could get hold In general, equity requires that cross-demands be set-off against each other, if from the nature of the claim or the situation of the parties in its business in this State, and it must be taxed in the town or ward where its principal office is located. The general provision of the statute authorizing assessments of personal property in the hands of an agent to be made against the agent is not applicable to property or corporations liable to taxation on their capital which have a principal office within the State. other, equity will adjudge it in favor of both against a demand collectible of both. Plaintiff took the claim subject to all equities against his assignor existing at the time of the assignment, 43 N. Y., 423; but that as the undertaking was given in an action wherein it was alleged that the property of M. had been un- The relator is a Massachusetts lawfully taken by the principals, corporation, doing business in this as the judgment determines this State, and engaged in manufacturing allegation to be correct, and as the boots and shoes by the labor of conundertaking is in lieu of the prop- victs in the State Prison at Sing erty, there existed superior equities Sing, and using there certain tools in the other creditors of M., repre- and machinery. Its principal office, sented by his assignor; that it or place of transacting the financial would not be equitable as between concerns of the company, was in the the principals and the other creditors City of New York, and it had no that the former should have and office for that purpose elsewhere. keep the property, and also have Defendants, who were the assessors their indebtedness satisfied in whole of the town of Ossining, assessed or in part by the application thereto against H., in said town, the tools of the amount of the undertaking, and machinery in his possession as and the set-off, therefore, was prop- agent of the relator. erly disallowed. Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Folger, J. All concur. TAXATION. CORPORATIONS. N. Y. COURT OF APPEALS. Decided Feb. 24, 1880. M. L. Cobb, for applts. Charles H. Winfield, for respt. Held, That the assessors had no jurisdiction to make the assessment in question; that the assessment could only be made in the City of New York, where the principal office of the relator was situated. The personal estate of a domestic corporation which may be subjected by taxation under the provisions of 1 R. S., 390, § 6, is what remains after deducting from the value of the The personal estate of a domestic corporation capital stock and surplus the value which may be subjected to taxation is what remains after deducting from the value of its of its real estate and shares in other capital stock and surplus the value of its real corporations, and the place where estate and shares in other corporations, and the principal office of the corporathe place where the principal office of the tion is located is the place of assesscorporation is located is the place of assessment of the personal estate, irreA foreign corporation doing business in this spective of its actual situs. The State can only be taxed on the sums invested general provision of the statute (1 ment. OF STAT R. S., 388, § 5), authorizing the as- CONSTRUCTION UTES. MECHANICS' LIENS. N. Y. COURT OF APPEALS. Whipple, applt., v. Christian, respt. A foreign corporation doing business in this State can only be taxed on the sums invested in its business in this State, and it must be taxed the same as if it were a resident of this State, viz., in the town or ward where its principal office is located. 1 Keyes, 303; 23 N. Y., 243. Decided April 6, 1880. A special act will not be deemed repealed by Affirming S. C., 7 W. Dig., 308. It appeared that the assessors had completed the roll and delivered it to the Supervisor of the town before the relator applied for a writ of certiorari. On the return thereof showing these facts, a supplemental writ was issued, commanding the Supervisor in whose hands the roll This action was brought to rewas to bring it into court. The roll deem certain premises from dewas brought in in answer to this fendant, who claims title as purwrit, and the hearing was had on chaser at a foreclosure sale. Plainboth the original and supplemental tiff claimed under a mechanic's lien, papers, and no objection was then which had not been cut off by the made to the form of the remedy, and foreclosure, which lien defendant after hearing the case on the merits, claimed was invalid. The mechanics' the court made the order appealed lien law of 1844, chap. 305, was from. It is now objected that a cer- applicable in the several cities of tiorari was not the proper remedy. this state, except the city of New Held, That it is too late now to York, and in certain villages named, raise this objection. in one of which the premises in suit Judgment of General Term, af- were situated. The Mechanics' Lien firming judgment declaring assess-Law of 1854, chapter 402, Laws of ment to be illegal, affirmed. 1854; declares that "all acts hereOpinion by Andrews, J. All con- tofore passed for the better security cur. of mechanics and others erecting buildings and furnishing materials, in either of the above counties (i. e. the counties named in the act) are hereby repealed." The act of 1844 was not in terms repealed. The act of 1858, chapter 204, extended to all the counties in the state, except New York and Erie, the provisions of the act of 1854. The act of 1844 was subsequently amended by the legislature several times. Plaintiff's notice of lien was not filed in conformity with the provisions of the act of 1844, but in pursuance of the act of 1854. Jno. Gillette, Jr., for applt. Held, That plaintiff acquired no lien, and could not maintain this action; that the act of 1844 could not be held to have been repealed by the acts of 1854 and 1858; that the amendments to the act of 1844 amount to a legislative declaration that, except as amended, the original act was in force, 66 N. Y., 414, or to an implied affirmation of its continued validity and force. 47 N. Y., 330. A special act will not be deemed repealed by implication in consequence of the passage of a general law containing a general repealing clause of inconsistent legislation. 47 N. Y., 216; 70 id., 287; 69 id., 209; 5 Hill, 225. Judgment of General Term, versing judgment for plaintiff, firmed. Opinion by Danforth, J. concur, except Earl, J., voting. re af All not NEGLIGENCE. N. Y. COURT OF APPEALS. Wasmer, adm'r'x., respt., v. The D. L. & W. RR. Co., applt. Decided Feb. 24, 1880. Plaintiff's intestate was peddling wood in a street of a city through which defendant's tracks ran. He left his horse untied and crossed the street to make a sale, when the horse became frightened by an approaching train and started across the street, but the wagon became entangled by the tracks. Intestate seized hold of the horse's head, and while endeavoring to get him away was thrown on the track and killed by the train. Held, That he was not, as a matter of law, guilty of contributory negligence; that it was his right and duty to rescue his horse if he could, and he had business in the place where he was; that there is no absolute rule of law that requires one who has a horse in the street to tie him or hold him by the reins; that his carelessness in leaving the horse untied was not the proximate cause of his death, and that whether intestate acted prudently or not was a question for the jury to determine. There was a city ordinance that forbade any horse to be left in a street unless securely tied. Held, That it could not be said, as matter of law, that intestate violated this ordi nance. The tracks were raised above the surface of the street, and there was no planking or filling between the rails. Held, That it was a question of fact for the jury whether the usefulness of the street was not unnecessarily impaired, and that defendant would not be relieved from liability because it is lessee of the road. It is negligence for a railroad company to run its trains within city limits at a rate exceeding that allowed by the city ordinance. This action was brought to recover damages for the death of W., plaintiff's intestate, alleged to have been caused by the negligence of defendant. It appeared that defendant was lessee of a railroad |