judgment debtors will not impair the credi- impliedly prohibits the issuing of a tor's remedies against the others. body execution until a property execution has been returned unsatisfied, is for the benefit and protection of the judgment debtor; it was designed to limit the continuance of imprison ment in the action, and to require the creditor to continue the imprisonment after the expiration of three months on final process, if he elected this remedy, subject to the power of the Court for cause shown, to continue the imprisonment on the original process. Also held, That the charging of R. in execution will not impair the creditor's remedies against the other defendants. 1 Cow., 99; 5 Wend., 58. Order of General Term, affirming order of Special Term, affirmed. Opinion by Andrews, J. All concur, except Church, Ch. J., absent. This was an appeal from an order of General Term, aflirming an order directing the discharge of defendant from arrest unless plaintiff issue execution against defendant's person.ment on mesne process after judgIt appeared that defendant R. was in actual custody under an order of arrest in the action, when the judgment against him and his co-defendants was entered. More than three months had elapsed since then and no execution against his person had been issued. Plaintiff moved to compel the sheriff to return such execution. The sheriff set up the fact that he had attachments in his hands against the defendants, issued prior to the execution, and that the actions in which they were issued were undetermined and are still pending. It appeared that none of R.'s property was attached in these actions. The motion. was denied. Before making this motion R. served on plaintiff's attorneys a demand in writing that they issue execution against his person, and a stipulation that charging him in execution should in no way prejudice their rights under the property execution, but that they should have the same right to enforce it against his property as if execution against the person had not been issued. The order appealed from directed that R. be discharged from custody unless plaintiff, within ten days after the order, issue an execution against his person. R. C. Elliott, for applt. Wm. Sutphen, for respt. Held, No error; that upon the facts presented the Court was authorized in making the order; that the provision of the Code (§ 288), which MANDAMUS. N. Y. COURT OF APPEALS. Decided December 4, 1877. Where a village charter provides that no moneys shall be paid out of the treasury, except on warrant of the trustees, and a subsequent statute authorizes the trustees to raise money and pay claims upon the warrant of the auditors, a mandamus will not lie to compel the payment of a claim against the village in the absence of a warrant of the auditor. An authenticated copy of the minutes of a meeting of the Board of Auditors, showing the audit of the claim, is not equivalent to such warrant. The title of a local or private act is a part of the act, and bears upon its meaning and purpose. The relator held a claim against the village of Saratoga Springs, which would, if valid, be a part of the float ing debt of the village. He applied for a mandamus requiring defendant to pay his claim upon affidavits of himself and his attorney, and an authenticated copy of the minutes of the meeting and proceedings of the by reason of the qualified refusal of the other to accept the deed and give the bonds and mortgages on the ground that the original contract had been modified, he is bound to give him an opportunity to comply with the demand after notice that a failure to do so would be treated as a rescission. specific performance is such laches as will forfeit the plaintiff's rights. Where a plaintiff has elected to bring an equitable action, he thereby waives his right to a trial by jury. board of village auditors showing the A delay of five years in bringing suit for audit of the claim. The village charter provides that money cannot be paid out of the treasury, except on the warrant of the trustees. Chapter 517, Laws of 1875, authorizes the trustees to raise money by issuing bonds for paying the floating debt of the village, and out of the money so raised to pay claims upon the warrant of the auditors. Charles S. Lester, for applt. Held, That the relator was not entitled to payment, except upon the warrant of the auditor directing payment of his claim; that the copy minutes of meeting showing the audit of the claim was not such a warrant, and relator did not show himself qualified to set the defendant in motion, or to ask the Court to do so, and his application should have been denied. In this State, the title of a local or private act is a part of the act, and bears upon its meaning and purpose. Order of General Term, reversing order of Special Term awarding a peremptory mandamus, affirmed. Opinion by Folger, J. All concur. CONTRACT. LACHES. TRIAL BY JURY. N. Y. COURT OF APPEALS. Davidson, trustee, &c., applt., v. Associates of the Jersey Co., respts. Decided December 4, 1877. Before one of the parties to a contract for the sale of land can insist upon a forfeiture, This action was brought for the specific performance of a contract between one D. and defendants, by which D. was to erect five buildings on or before May 1, 1859, and then binds defendants on the completion of the buildings, according to the contract, to convey the land to D. for $22,880, to be paid by five separate bonds and mortgages of D. on the several lots to that amount in the ag gregate. The contract also provided that the buildings should be completed, and the bonds and mortgages given before August 1, 1859, or the agreement and the building contract should be void at the option of defendants as against them. The referee found that D. had substantially finished the buildings May 1, 1859. On July 23, 1859, defendants notified D., in writing, that they were ready to convey in pursuance of the agreement. They had executed such conveyance, and had it ready for delivery. On August 11, 1859, defendants tendered such conveyance to D., and demanded of him the bonds and mortgages; and D. replied that he did not accept or reject the deed, but could not deliver the mortgages until the amount was settled. On May 23, 1859, D. notified defendants mencement of the action, and that the evidence would now show a cause of action at common law for damages only. This motion was denied. Held, No error; that plaintiff having elected to bring an equitable action thereby elected the forum in which it should be tried, and waived, so far as he was concerned, the rightto a trial by jury. Judgment of General Term, af that he had finished the work, and demanded payment. July 29, 1859, D. notified defendants that he demanded a deed, and had executed bonds and mortgages; and on the next day tendered to defendants a deed for their execution, and the bonds and mortgages, which were for a larger amount than the sums provided for by the agreement, claiming that defendants should advance to him the amount the bonds and mort-firming judgment dismissing comgages were in excess of those pro- plaint, aflirmed. vided for in the agreement. D. refused to accept the deed, and the buildings remained unoccupied, partially open and to some extent unfinished until March, 1860, when defendants sold them for $24,400. This action was commenced in July, 1864. The complaint was dismissed. E. F. Bullard, for applt. Edgar S. Van Winkle, for respts. Held, No error; that the qualified refusal of D. to accept the deed and give the bonds and mortgages, on the ground that the original contract had been modified, did not alone forfeit his rights under the contract, and defendants before they could insist upon a forfeiture, by reason thereof, were bound to give him an opportunity to comply with the demand after notice that a failure to do so would be treated by them as a rescission, 6 Mad., 18; but D.'s rights were forfeited by his subsequent laches. Opinion by Andrews, J. All concur, except Allen, J., absent. EQUITABLE MORTGAGE. CONVERSION. N. Y. SUPREME COURT. . GENERAL TERM. SECOND DEPT. Decided December, 1877. which D. is to purchase land for B.'s bene- A judgment creditor of B. has an equitable lien upon such land. Appeal by defendant Duncan from judgments in favor of plaintiff and defendants Jane and Henry P. Bainbridge, entered upon the report of a referee. The answer disclosed the fact that defendants had sold the lots, and plaintiff made no attempt to amend complaint. At the opening of the In 1870 a judgment was recovered trial plaintiff demanded a trial by against Richard Bainbridge in favor jury, on the ground that it appeared of Condict, Jennings & Co., which on a former trial that defendants had judgment was afterwards, in 1872, asconveyed the lots before the com- I signed to plaintiff. Richard Bainbridge died in 1871. In 1866, some property at Far Rockaway, in which said Bainbridge had an interest, being about to be sold in partition, he entered into an agreement with defendant Duncan, as found by the referee, whereby Duncan was to purchase said land for the benefit of said Bainbridge, and hold the conveyance thereof as security for the repayment of the purchase money and such sums as he should thereafter advance to said Bainbridge. W. W. Macfarland, for applt. E. M. Felt and Sewell & Pierce, for respt. Held, That under the agreement, Bainbridge became the equitable owner of the land, and the conveyance by which Duncan held the legal estate therein was in equity a mortgage. 1 Paige, 147; 42 Barb., 390; 44 Id., 138, 606; 46 Id., 400; 1 N. Y. Sup. (T. & C.), 486, 523; 34 N. Y., 307; 46 Id., 627; 52 Id., 251. In all of the cases cited the right to redeem was upheld. In some of them it was put upon the ground of preventing fraud, by declaring the grantee of the legal estate a trustee. But it is quite immaterial whether a person to whom a court of equity awards the right to redeem is called a mortgagor, or a cestui que trust. Nor is it material that no liability to pay the mortgage debt existed against Bainbridge. 1 R. S., 738, § 139; 2 Barb. Ch., 559. The form in which the agreement by which the right of redemption is conferred is of no importance. It may be in the form of a conveyance upon trusts, or upon condition, or with a covenant to reconvey, 5 Barb., 613; 3 Kern., 200;-15 J. R., 205, and in this State the agreement need not be in writing. On the contrary, an absolute conveyance may be proved by parol evidence to have been intended as a security, and to be in reality a mortgage. 8 N. Y., 419; 46 N. Y., 605. At the time of Bainbridge's death, Duncan had sold a part of the lands in controversy and had received the proceeds of the sales. Such proceeds were applicable, and were in fact applied, to the reduction of Bainbridge's indebtedness to Duncan. Held, That that part of said lands which remained unsold when Bainbridge died, descended to his heir (1) R. S., 751, § 1; Id., 754, § 27) subject to Duncan's lien as mortgagee, and subject, also, to the dower of Mrs. Bainbridge. Either the heir or the widow might redeem, 5 Johns. Ch., 491, but a redemption by the heir would have extinguished the mortgage. 3 Paige, 363. After the death of Bainbridge, and in the year 1873, Duncan sold all the remaining lands and received the proceeds of such sales. Held, That this was in legal effect a conversion of the property of the heir, and at once gave to him a right of action for the recovery of the value of the lands sold or the proceeds of such sale, after applying the balance of the indebtedness for the security of which Duncan sold the lands, for the equity of redemption was destroyed by such sale illegally. That could be cut off without a breach of duty on Duncan's part only by a strict foreclosure or a foreclosure and sale. 46 N. Y., 611, 612, 633. The widow had a cause of action for the value of her dower in said lands, and the obligation of paying the mortgage debt rested solely upon the heir. 1 R. S., 749, § 4. The plaintiff, who is the assignee of a judgment recovered against the deceased Mr. Bainbridge, also had an equitable lien on such lands for the amount of his debt. That result is produced by the fact that the deceased Mr. Bainbridge was in equity the owner of the lands in his lifetime. If the legal estate therein had been vested in accordance with the real nature of the transaction between him and Duncan, the plaintiff would have had a legal lien thereon. But Duncan held the legal estate for the use of Bainbridge, and the latter was in possession. Such an interest is made liable to judgment and execution by statute. 2 R. S., 368, § 26; 15 N. Y., 475, 481. Moreover, in administering assets derived from the sale of lands held by a person for the use of a judgment debtor, creditors are entitled to the same interest in such assets that they would have had in the lands if the legal estate therein had been vested in the debtor. Averill v. Loucks, 6 'Barb., 19. A debtor cannot defeat the rights of creditors by concealing his ownership of lands. Equity follows the land. The instant it was adjudged that the relation between Duncan and the deceased Mr. Bainbridge was that of mortgagor and mortgagee, the plaintiff would have been entitled to have his judgment declared a lien on the lands, if the title thereto had then been held by Duncan. But the latter conveyed the lands, divested of that lien, and he was enabled to do so by the mere fact that he held the legal estate, and the purchasers from him took their respective titles without any notice that he held the lands as mortgagee only. While a court of equity cannot interfere with the rights of such purchasers, it can do no less than impose on the proceeds of the lands the liability which would have attached at law upon the lands if they had not been sold. Also held, That the recovery was properly measured by the amount for which Duncan sold the lands, and that there was no obligation on the parties adverse to him to pursue the securities which he received on the sale thereof, and that their right of recovery ought not to be defeated because securities were taken instead of money. Judgment affirmed. Opinion by Gilbert, J.; Barnard, P. J., and Dykman, J., concur. BANKRUPTCY. CONSTITUTIONAL LAW. U. S. SUPREME COURT. The United States v. Fox. (October, 1877.) Subdivision 9 of § 5132 of the Revised Statutes U. S., which provides for the punishment of a bankrupt who has obtained goods under false pretences, is invalid. An act which is not an offence against the United States at the time it is committed, cannot become such by any subsequent act of the party with which it has no connection. In November, 1874, the defendant filed a petition in bankruptcy in the District Court for the Southern District of New York. In March, 1876, he was indicted in the Circuit Court for that district for alleged offences |