Where a party neglects to object to the submission of a case to the jury, he cannot afterwards, on appeal, be heard to say that there was no question of fact for the jury. The issuing of a second execution before the first is returned is a mere irregularity, and no one except the judgment debtor can take advantage of it. Appeal from a judgment entered on the verdict of a jury in favor of the defendant, and from an order denying a motion for a new trial. Action of replevin to recover possession of certain personal property. Plaintiff's claimed title by virtue of two chattel mortgages executed by one Samuel C. Brown, and a sale made and executed on the same day on which the defendant, as sheriff, levied on said property. The defense was that the mortgages and sale were made to hinder, delay and defraud creditors, and a justification under and by virtue of a judgment and execution against said Samuel C. Brown, in favor of J. M. & D. E. Smith. After the evidence was closed the and having taken their chances for a favorable verdict, they cannot now be heard to say that such submission was erroneous. 45 N. Y., 632; 12 Abb., N. S., 389, affirmed 53 N. Y., 621; 9 Hun, 502. Held further, That the issuing of the second execution was an irregularity which rendered it voidable at the option of the defendants in it. But it was not void, and certainly none but the defendants in the execution could take advantage of the irregularity and have set it aside. 7 N. Y., 195; 3 Johns., 20; 8 id., 337. The former execution was dead, and no action by the sheriff could be taken by virtue of it. 54 N. Y., 97. Judgment and order affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. MORTGAGES. SURPLUS MONEYS. case was submitted to the jury N. Y. SUPREME COURT. GENERAL without objection of plaintiffs. The execution by virtue of which the levy was made was a second execution the first not having been returned. Plaintiffs insisted that such execution was void, and that the sheriff could obtain no rights thereunder Duell & Benedict, for applts. Warren & Kellogg, for respts. Held, That the plaintiffs consented to the submission to the jury of the questions of fact upon which their title depends. By so doing they consented to the decisions of those questions by the jury, TERM. THIRD DEPT. Isaac Plumb, exr., v. Morris C. Thompson et al. Decided Sept., 1882. M. and C. each owned a one-half interest in a piece of real estate, on which D. as special guardian held a mortgage executed by M. At the request of both M. and C., and upon their promise to give him a second mortgage on the same property which would amply secure his claims, without order of the court, D. released his mortgage so that they could raise money on a first mortgage. This mortgage was given to plaintiff's testator to secure $1,500, C. signing as a surety for M. Thereafter, and before another mortgage was given to D., M. executed a mortgage upon his undivided share to C., to secure her against loss on the mortgage given to plaintiff's testator. The mortgage subsequently given to D. was not executed by C. In proceedings to obtain surplus arising on foreclosure of the mortgage given to plaintiff's testator, Held, That as between D.'s and C.'s mortgages, the former was the prior lien and entitled to have the surplus applied thereon. that Doing was entitled to the surplus. The Special Term held that Holden, as executor of Caroline Thompson, was entitled to it. Doing, as special guardian, appeals from the order of the Special Term. The equities of the respective claimants may be stated as fol gave his bond for the protection of the infants, Morris and Caroline. being his sureties, and as such guardian received the proceeds of the sale of their real estate. $625 of which he loaned April 13, 1875, to Morris Thompson, upon a mort Appeal by Doing, special guar-lows: Doing, as special guardian, dian, from an order awarding surplus moneys, arising from a mortgage foreclosure in the above entitled action, to Holden, executor of Caroline Thompson, deceased. The mortgage foreclosed was given for $1,500 May 27, 1876, by Morris C. Thompson and Caroline Thomp-gage upon the premises described son, his mother, each owning an undivided half of the premises therein described. Morris received the whole of the money, Caroline signing the mortgage as surety for Morris. This mortgage was the first record lien upon the premises. On the 6th day of July, 1877, Morris C. executed two mortgages upon his undivided half of said land, one to Caroline Thompson (Holden's testatrix), for $1,500, to secure her as surety on the mortgage foreclosed, and for $225 money loaned by her at some time to Morris C.; the other mortgage to Loren Doing, as special guardian for the infant children of Horace Doing, deceased, for $567.07, being part of proceeds of said infant's real estate theretofore sold. The Doing mortgage, though last delivered, was first recorded, but Doing had no knowledge of the $1,500 mortgage to Caroline until long after. The surplus in controversy is $722.57. The referee found in the complaint. It is not found that Caroline joined in this mortgage. In May, 1876, Morris and Caroline requested Doing to release his mortgage so that a loan of $1,500 could be obtained upon a first lien upon the premises, promising Doing to make him secure by a second mortgage. Doing released his mortgage, held by him as special guardian, at their request, without an order of the court, and the $1,500 mortgage to Plumb was given. The mortgage of $567.07, now held by Doing, as special guardian, and under which his claim is made to the surplus, was given for the balance unpaid of the original loan of $625. Loren Doing and Morris C. Thompson are both insolvent. John W. Church, for Doing, as special guardian. Stephen Holden, attorney and in person. Held, Error; that Doing, as special guardian, was entitled to have the surplus applied in payment of his mortgage. Order of Special Term reversed, and report of referee confirmed, and the balance of the surplus fund, after payment of the costs of the reference, must be paid to Loren Doing, as special guardian, with $10 costs of appeal and printing disbursements. Opinion by Boardman, J.; Learned, P. J., and Bockes, J., concur. REPLEVIN. ADVERSE POS SESSION. N.Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. William Youmans, respt., v. James A. Francisco, applt. Decided Sept., 1882. A party having title to lands on which is growing timber and bark, and not being in actual possession, may maintain replevin against a person in possession under a void deed who cuts and carries away such tim ber and bark. Appeal by defendant from a judgment of Delaware County Special Term. It is found that plaintiff acquired a good title to the lands July 7, 1876, of Mrs. Palmer; that the land was then unoccupied, wild and unimproved ; that one Wheeler, who had a void tax title. to said land, had given a contract to defendant in January, 1875, upon which defendant had paid nearly $100; that Wheeler had no title to the lands and defendants acquired no title to said lot or right of entry thereon by virtue of said contract; that defendant entered upon said lot in June, 1876, to cut timber and peel bark thereon and for such purposes built a temporary shanty thereon for his work men; that defendant and his men left said land on July 4, 1876, and again entered in the latter part of July and in August, 1876, and cut timber and peeled bark which he drew away. This action was brought to recover the possession or the value of said timber and bark and the damages sustained by plaintiff. The court at Special Term held that plaintiff was entitled to recover. W. & G. W." Youmans, for respt. Held, No error; that the facts found are a sufficient answer to the claim that Mrs. Palmer's deed was void because in violation of the statute making conveyances of land occupied adversely. The lands were not occupied at all when Mrs. Palmer gave her deed and there was no possession except that which followed the title. 79 N. Y., 93; id., 390. Defendant knew of Mrs. Palmer's title and had negotiated for its purchase. His subsequent purchase by contract of a void title condemns his claim of good faith or adverse possession. 9 Wend., 511, 523. The action of trespass or replevin will lie by the owner of land against one who wrongfully enters upon it and cuts down and carries off timber and bark. 2 R. S., *338. Judgment affirmed, with costs. Opinion by Boardman, J.; Learned, P. J., and Bockes. J., concur. COSTS. STOCKHOLDERS. Veeder,respt., v. Mudgett, applt. In an action by a creditor to establish the lia- referee. The action was brought, on the authority of Sections 10, 11 and 24, Ch. 40, Laws of 1848, by a creditor of a corporation, to enforce the liability of the stockholders for its debts. Section 1795 of the Code declares that, in such an action, the Court must ascertain the sums for which the stock holders are liable, and must "adjudge that the same be paid into court," to be applied as justice requires, &c. Section 745 of the Code declares that, unless the Court otherwise directs, money paid into court must be paid to the County Treasurer, &c. The final judgment in this case allowed costs to plaintiff and to the creditors whose claims were established out of the fund, which was ordered to be paid to the County Treasurer; and it further adjudged that a sufficient sum be paid in to include the Treasurer's legal fees; and it directed those fees to be paid therefrom. The Treasurer's fees amounted to $1,398. This sum VOL. 15.-No. 14. was put in the bill of costs, also certain printing done by direction of the referee. The judgment also provided that each claimant should. "recover the costs of proving his claim." Under this clause each claimant taxed $10 and his disbursements. An appeal is taken from the taxation. Satterlee & Yeoman, for applt. Held, That the County Treasurer's fees could not be included in the costs. We think they are not a disbursement" within the meaning of 3256. They are not money which the party has paid, or will be liable to pay, before judgment. His fees are only a deduction from the amount collected. If nothing should be collected there would be no fees. Yet plaintiff has a judgment for costs, including $1,398 fees, which may never be earned. Plaintiffs urge that they should have their full recovery; to which defendants might reply that they are bound to pay only their just debt, not the debt increased by fees. Sometimes an infant's share is paid to a County Treasurer. It never was heard that in such case the prospective fees of the Treasurer thereon should be taxed as costs and collected of the adverse party. The printing items objected to must be struck out. The referee's direction to print is not a rule of court, and only such printing as is required by the rules can be taxed. The items of $10 costs must be struck out. It seems that they were taxed as if on a motion. If so, the amount must be fixed by a court or judge. Code, Sec. 3251, | him" eree. Per curiam opinion. All concur; Westbrook, J., in result. ATTACHMENT. strengthens rather than weakens the affidavit. As to the other objection, we think that the exact words of the Code need not be used if words are used which are equivalent. Proof is to be made to the satisfaction of the judge. If there is evidence on Motion to disallow items grant- which he may be lawfully satisfied. ed, with $10 costs. of the truth of the matters required to be shown, that is enough. 1 Civ. P. C., 411-417. Without discussing the words "discounts and set-offs," we think that in ordinary use they have such meaning that a judge might feel satisfied that there was no counterclaim, especially where, as here, the facts are fully set forth in the affidavit. Objection is made to the undertaking, and, as there should be no doubt on this point, plaintiff must give a N. Y. SUPREME COURT. GENERAL TERM. THIRD DEPT. .. Lamkin et al. v. Douglass. Decided Sept., 1882. An affidavit on which an attachment was granted (Code, Sec. 636) read that plaintiff was entitled to recover of defendant a certain sum over and above all discounts and setoffs." Held, That the affidavit was suffi cient. new one. Order setting aside attachment reversed, with $10 costs and printing, and motion to set aside denied, provided plaintiff files within ten days a new undertaking. Per curiam opinion. Learned, P. J., and Bockes, J., concur. BILL OF PARTICULARS. The right to serve a demand for a copy of the Held, That the affidavit was sufficient. The proceeding is only auxiliary to the action, and we do not think the same strictness required It seems that a motion to set aside such a de as where the papers form the sole basis of jurisdiction. The omission of the words "known to mand is not proper. Appeal from an order setting aside defendant's demand for a |