or proceedings at law to recover them will not at all answer the presing purpose. Duress of person is exemplified in Forshay vs. Ferguson, 5 Hill, 154; Eadie vs. Shimmer, 26 N. Y. 9. The cases of Maxwell vs. Griswold, 18 How. (U. S.) 242, 256, and Harmony vs. Bingham, 12 N. Y. 99, illustrate what is duress of goods. It may be well to say that there can be no pretense, in this case, of a coercion in fact. There was no taking, or threat of taking goods. The oral protest was of no import, save to show that there was not an assent to the proceedings. Fowler vs. Lance, 59 N. Y. 603, 610. Coercion by law is where a court, having jurisdiction of the person and the subject-matter, has rendered a judgment which is collectable in due course. There the party cast in judgment may not resist the execution of it. His only remedy is to obtain a reversal, if he may, for error in it. As he can not resist the execu. tion of it when execution is attempted, he may as well pay the amount at one time as at another, and save the expense of delay. It may be well to say that if the judgment is not afterward reversed, but is invalid for any collateral reason, or the process issued upon it is illegal, payment with knowledge of the fact would perhaps be voluntary, which seems a sound distinction taken by Emmett, J., in Lott vs. Sweezy, 29 Barb. 87-92. To each case of coercion by law, as is above given, are to be added those quasi adjudications of inferior tribunals, such as assessors of taxes or assessments, where their proceedings are regular on their face, and on presentation make out a right to have and demand the amount levied, and to collect it, in due course of law, by sale of goods or municipal lease of real estate. Unless void on their face they have the force of a judgment; the party is legally bound to pay, and has no lawful mode of resisting. The only remedy is a reversal of the adjudication. Until reversed they give the collector of the tax the right to take and sell goods, and the assessment remains a prima facie valid lien upon real estate. Bank of Commerce vs. The Mayor, 43 N. Y. 184-8.

There is no clashing here with the case of N. Y. & H. R. R. Co. vs. Marsh, 12 N. Y. 308. In that case there was wanting another element, which is assumed to exist in the cases above supposed. There had been no reversal of the assessment of tax in that case. There had been no alteration of the rights and positions of the parties, and the action was brought upon the same state of facts as existed when the payment was made. Besides, in that case, the collector did not assert a right to seize property then and there. There was no taking, nor imminent danger thereof.

He was out of his bailiwick, which fact was as well known to the plaintiff as to him, and at the time payment was made as when action was commenced. Nor is it the same as Fleetwood vs. The Mayor, 2 Sandf. 475. There it was apparent, upon the face of the proceedings, that there was no foundation for them, no ordinance having been adopted for levying the assessment. The owner of the land assessed could always have relied upon this as a defense to an action to dispossess him. The lessee of the city would have needed to show, and would have failed to show, an ordinance for the assessment. The assessments were not a cloud upon his title, warranting an action to remove an apparent lien. (Marsh vs. City of Brooklyn, 59 N. Y. 280; Washburn vs. Burnham, 63 id. 132.) To warrant an action to recover back money paid, by coercion of law, upon a judgment or

tax levied, or assessment laid, it must appear that the judgment or proceedings were prima facie regular, so as not themselves to furnish evidence of their own invalidity, and it must also appear that the rights and positions of the parties have been changed since the payment was made, as by a reversal for error, or a setting aside for irregularity or illegality.

The

By the setting aside of the assessment in the case in hand the last of these requirements is made out. We must look into the case to see if the first is. The complaint alleges that the defendants imposed and put upon record what appeared to be, and was, an assessment on the plaintiff's land, and that the same became, and was, an apparent lien and incumbrance thereon. answer admits that the assessment was duly imposed, pursuant to law. The petition for the vacating of the assessment, which was given in evidence, alleges, on the ground of illegality, that there was included in the amount the cost of works not authorized by the ordinance in pursuance of which the assessment was laid. The order of the court, setting aside the assessment, recites that it satisfactorily appears that such irregularity took place. This is sufficient to show that the illegality of the assessment consisted in something aliunde, the record which would be produced by a municipal lessee, to establish his right to possession of the lot assessed. It was in a fact of which the plaintiff would have needed to make proof on his part to rebut the prima facie case made against him. It thus appears that the plaintiff fulfilled the other requirement of a payment involuntarily made.

It follows that the complaint was erroneously dismissed at the trial, and the judgment should be reversed.

"All concur." Peyser vs. Mayor of New York.--Albany Law Journal.

Abstract of Decisions.

COURT OF APPEALS.

APPEAL,

Service of notice of entry of judgment to limit appeal.-A notice of the entry of judgment was served, not upon the person who had appeared as attorney for the defendant, but upon the firm of B. & T., who gave admission of service in the name of the attorney. This firm had nearly the exclusive management of the case for the defendant, and there was other evidence that they were authorized to receive the notice and give the admission. Held, that the notice was properly served so as to limit the right of appeal to the General Term. Order below affirmed. Chase vs. Bibbens. Opinion by Earl, J. [Decided Oct. 9, 1877.]

CARRIER OF PASSENGERS.

Liable for unnecessary violence toward passengers by servant: unauthorized violence while acting in scope of employment.-A railroad company set apart a car for ladies in one of its trains, and placards announcing that it was so reserved were placed on the car, and a man was stationed at the car-door, with directions to endeavor to prevent men not accompanied by ladies from entering it, but he was not authorized to use physical force to prevent such entrance. He did use force to prevent a passenger entering the car, and injured the passenger. Held, that the company had a right to set apart the car for the use of ladies, and exclude males by force, using no more force than necessary. Held, also, that they would be liable for injury from an excess of force used in carrying out the regulation, and the fact that the servant employed to carry out the rule was not authorized to use force would not excuse the company so long as he did not use such force for his own purposes and was acting within the scope of his employment. Held, further, that it was within the scope of his employment to use force to prevent males from entering the car. Judgment below affirmed. Peck vs. N. Y. C. & H. R. R. R. Co. Opinion by Folger, J. [Decided Oct. 2, 1877.

Reported below, 8 Hun, 286.]

COMMON CARRIER.

1. Carrier may limit liability by contract.-A carrier of goods may limit his common-law liability by special contract fairly made, and when his liability is so limited to the sum of $50, by a requirement in the contract calling for the disclosure of the value of goods offered for carriage, in case they shall be of greater value than $50, this limitation is not avoided by the fact that at the time the goods were shipped the shipper was merely silent and made no attempt to mislead, and was not asked the value of such goods. Judgment below affirmed. (S. C., 53 N. Y. 652; 56 id. 168; 62 id. 35.) Judgment below affirmed. Magnin vs. Dinsmore. Opinion by Allen, J.

2. Non-delivery does not constitute conversion.—A mere non-delivery will not constitute a conversion, nor will a refusal to deliver on demand if the goods have been lost through negligence, or have been stolen.

[Decided Sept. 18, 1877.]

Ib.

1. Recitals in record not conclusive as to jurisdiction.—In an action to foreclose a mortgage, one of the defenses was that the action had been barred by the foreclosure of a prior mortgage on the same premises. The record of the judgment of the foreclosure of the prior mortgage showed that plaintiff in this action appeared as defendant in that, and a notice of appearance and consent for judgment, purporting to be signed by an attorney, was filed with the judgment-roll. There was, however, no proof filed of service in that action on plaintiff in this. In answer to this defense plaintiff produced evidence to show that the notice of appearance and consent was forged; that the attorney named

therein was not authorized to appear, and that he did not appear in such action. Held, reversing judgment below, that plaintiff was not concluded in this action by the record in the former action as to jurisdiction, but might show the facts sought to be proved in answer to the defense set up. (Brown vs. Nichols, 41 N. Y. 26, distinguished.) Ferguson vs. Crawford. Opinion by Rapallo, J.

2. When statements as to jurisdiction in record may be impeached. —In this State parties to a judgment are not, in a collateral action, concluded by the record as to jurisdiction, but the want of jurisdiction may always be shown by evidence except when the question of jurisdiction was litigated and decided in the action wherein the judgment was rendered. And this applies as well to domestic judgments as to those of other States. And the want of jurisdiction will render null and void the judgment of any court, whether it be of superior or inferior, of general, limited, or local jurisdiction, or of record or not; and the recital of jurisdictional facts in the record of judgment is only prima facie evidence of their existence; and the party against whom the judgment is offered is not estopped from showing by affirmative proof that such facts were untrue and the judgment void. Ib.

[Decided Sept. 18, 1877. Reported below, 7 Hun, 25.]

SURETYSHIP.

1. Right of joint surety against co-surety.-One of two co-sureties has a right only in case he pays the whole debt secured to recover one half from his co-surety. In case he pays less than the whole he can recover no more than the amount which he has paid in excess of the moiety of the whole debt. Judgment below affirmed. Morgan vs. Smith. Opinion by Folger, J.

2. Release of co-surety by creditor.—Where a co-surety has, by the conduct of the creditor, been released from his liability, the remaining co-surety will be held exonerated only as to so much of the original debt as the discharged co-surety could have been compelled to pay had his obligation continued. Ib.

3. Effect of dealings by creditor with co-surety.—It has been held in England that an act of the creditor, though by parol, which discharges one of two or more joint-debtors, will discharge both or all, though the contract be in writing; but the rule is different in this country; here a release by parol to one joint-debtor will not operate as a discharge to the other. The distinction prevailing in England between matter in discharge arising after the making of the contract and that which shows that it was never valid does not exist here. Ib.

4. Surety on lease; assignment of lease with landlord's consent.—It was provided in a lease that the lessees should not assign it nor let or under-let the premises without the written consent of the landlord. Held, that the consent of the landlord to the assignment of the lease, or to subletting the premises, would not operate to release the sureties for the rent, especially where the agreement of consent contained a clause saving all the rights of the sureties. Ib.

5.

When surety not released by agreement between creditor and principal.— The surety is discharged by a contract made between the creditor and the principal only when the rights of the surety are varied by such contract. When the rights and the remedies of the surety against his principal are saved he is not discharged, though the creditor may not be able to proceed against the principal. Ib.

[Decided Sept. 25, 1877. Reported below, 7 Hun, 245.]— Alb. Law Jour.

Supreme Court Proceedings.

SATURDAY, October 27, 1877.

5188--Matthews vs. Hale-Judgment and order affirmed.

5151-Estate of Wm. Stott, deceased-Cause remanded with an order to the Court below to modify the order appealed from.

MONDAY, October 29th.

Coburn vs. Smart-On motion of the appellants, and upon reading the affidavit of J. H. Meredith, it is ordered that in the three cases entitled above, and numbered respectively 1085, 1115 and 1145, the appellants have fifteen days further time from the 31st day of October, 1877, within which to file their transcript on appeal herein.

5193- White vs. Adams-Judgment and order denying a new trial reversed and cause remanded for a new trial.

5200-City and County of San Francisco vs. Morgan-Judgment and order affirmed.

5206--Schelle vs. White-Judgment and order affirmed.

with.

Remittitur forth

5255-Casey vs. Hixon-Judgment and order affirmed. Remittitur forth

with.

5267- Green vs. McAuliffe - Judgment and order affirmed. Remittitur forthwith.

5311 - Jenner vs. Stroth - Judgment as to defendant, Paul Neumann, reversed, and the cause remanded, with directions to sustain the demurrer to the complaint.

5327-Odd Fellows' Savings Bank vs. Haskins-Order affirmed. 5337-Hawkins vs. Mansfield Gold Mining Company-Judgment and order reversed, and cause remanded.

TUESDAY, October 30th.

5142-Spring vs. Hewston-Ordered that the judgment entered herein in this court on the 26th day of October, 1877, be and the same is hereby vacated and set aside; and it is further ordered that the cause stand submitted on the points and authorities on file.