gage, with the interest thereon, remaining unpaid, Mrs. Chamberlin and her son, William B. Chamberlain, gave their promissory note, payable four months from its date, for the first year's interest. The note was never paid, and when this action was brought to redeem the mortgaged premises from the defendant Williams, the assignor of a senior mortgage, the entire sum intended to be secured by the mortgage in question remained unpaid. It is not clear that it was essential to reform the mortgage according to the prayer in the complaint, as it seems scarcely to have been a controverted question that the particular note in evidence was the one that the mortgage was given to secure. But, if essential, the referee decided correctly in granting the relief. The rule is, that a court of equity will reform a deed or writing if, by accident or mistake, it does not express the real intention of the parties. This case, I think, is one for the application of the rule. The plaintiffs' testator loaned to William B. Chamberlin fifteen hundred dollars on his note, indorsed by Mrs. Chamberlin, payable three months from date. Subsequently, it is agreed between them, that Chamberlin should obtain a mortgage from his mother, who was a party to the paper, to secure the payment of the note, and thereupon the loan should be extended one year from the date of the note. Mrs. Chamberlin, intending to carry out this agreement, executes a mortgage, and the plaintiffs' testator accepts it, believing it to be in accordance with the agreement. By mistake or accident, the mortgage was drawn up so as to describe a note which was never in existence. The parties intended by the mortgage to secure the payment of the note in question, but the writing varies from their intent by expressing something differing in substance from the truth of that intent. It is a clear case, it seems to me, for the interference of a court of equity to reform the deed, so as to make it just what the parties intended it should be.
I am for an affirmance of the judgment.
All the judges concurred.
Judgment affirmed, with costs.
ACCIDENT.
RAILROAD COMPANY, 6.
1. Doubtful, or even probable tes-
timony, is not sufficient to open a
long settled account, in the ab-
sence of any proof of fraud or
undue influence. McIntyre v. War-
ren, 99.
1. A verbal agreement between
father and son, that the son
should have a certain piece of
land in full for his share as heir
of the estate of the father (the
land being, at the time of the
agreement, of proportionate value
to constitute such share), without
writings or written evidence of
title given, is, if followed by
possession and enjoyment by the
son, an advancement, within 1 R.
S. 754; and if it does not appear
that the decedent left any per-
sonal or real estate other than
what he possessed at that time,
so that the advancement appears
to be equal, if not superior to the
amount of the share which the
child would have been entitled
to have received from the estate
as heir, such child and his heirs
will be excluded from any fur-
ther share in the estate of the
decedent. Parker v. McCluer,
454.
2. Upon this principle, the testi-
mony of a witness that errors in
the account were admitted by the
defendant, on an occasion many
years before the trial and many
years after the occurrence of the
errors in question, is not sufficient,
if it does not appear that any
memorandum of the admissions
was ever made by the witness,
and his recollection is not cor-
roborated, and is not complete in 2.
regard to material points. Ib.
3., The whole burden of proof is
on the party seeking to open such
an account. 1b.
MORTGAGE, 2; RECEIVER, 1.
EVIDENCE, 9; EXECUTORS AND
ADMINISTRATORS, 6.
CONTRACT, 5; FORECLOSURE, 2;
LIMITATIONS, 2; MANDAMUS, 5;
MONEYED CORPORATION, 3;
MONEY RECEIVED, 2.
Equity would interpose against
the claim of the heir in such a
case. Ib.
REVISED STATUTES.
SUPPLEMENTARY PROCEEDINGS, 2.
ALTERATION OF INSTRUMENT.
BILLS, NOTES, AND CHECKS, 1.
EXECUTORS AND ADMINISTRA-
TORS, 1.
A defendant having a right to
amend his answer of course, may
set up a new defense of any kind.
McQueen v. Babcock, 129.
REFEREE.
1. An appeal lies to the court of
appeals from a judgment of the
general term, rendered upon ar-
gument, affirming a final judg
ment of any kind, if the latter is
an actual determination of a
court of record, and not merely
rendered upon default. Lahens
v. Fielden, 1.
2. So held, in case of a judgment
granted against a plaintiff in con-
sequence of his failure to comply
with the terms of an order at
special term. Ib.
3. Although an order directing tne 7.
names of certain parties plaintiff
to be stricken out, might be
deemed a mere question of prac
tice within the discretion of the
court, and not reviewable on ap-
peal in the court of appeals, yet
where such an order further re-
quires the remaining plaintiff to
join such parties as defendants, 8.
and prescribes what allegations
he should assert in his amended]
complaint, it presents questions 9.
which may be reviewed by an
appeal to the court of appeals.
And this is so, although the order
states that the complaint is dis
missed for want of prosecution, if
the papers show that the want of
prosecution consisted simply in
the appellant's refusal to proceed
by making his original co-plain-
tiffs defendants. Ib.
4. Counsel opposing a motion to
dismiss an action for want of
prosecution, in not complying
with an order to amend previously
made, are not to be deemed as
consenting to an order of dis-
missal in such sense as to preclude
an appeal, by stating that sooner
than comply with the order they
would allow the complaint to be
dismissed, and present the case on
appeal. Ib.
No appeal from a judgment can
be brought to this court until the
court below has finally disposed
of the whole matter before it, in-
cluding the right to costs, as well
as other rights of the parties;
and when its final decision has
once been given, it has no further
power over the case except to
carry out the judgment of the
appellate court. McGregor v.
Buell, 86.
If the record of the judgment
appealed from shows an actual
determination of the court below,
at general term, granting judg
ment, the appeal will not be dis-
missed on the suggestion that the
appellant had not entered judg
ment at special term, and that it
does not affirmatively appear that
the case was regularly at the
general term by appeal from a
judgment. Beecher v. Conradt,
1, note.
The rule that an appeal does not
lie from a judgment by default,
precludes an appeal to the su-
preme court from a judgment by
default in a county court, espe
cially where the objection is a de-
fect in the pleadings or papers in
the nature of pleadings. Maltby
v. Greene, 144.
The proper remedy in such a case
is by motion to the court in which
the action is pending. 1b.
An order of the general term,
affirming an order of the special
term allowing and adjusting costs,
is not appealable to the court of
appeals. McClure v. Supervisors
of Niagara, 83.
10. Orders adjusting taxable costs
are not appealable to this court.
People ex rel. Lumley v. Lewis,
11. One against whom an absolute
order is made, in supplementary
proceedings between third per-
sons, requiring him to pay over
to the creditor, a fund held for
the debtor, may maintain an ap-
peal therefrom. Locke v. Mub-
bett, 68.
12. A preliminary order made before
judgment, requiring a party to do
low, to prove a foreign statute
necessary to sustain the case of
the party, cannot be supplied, on
the argument of an appeal in the
court of appeals, by reading the
foreign statute there, without
proof of authenticity. Munroe
v. Guilleaume, 334.
certain acts or that an attachment 20. It seems, that on appeal from an
issue for contempt, is not appeal-
able to this court. New York &
New Haven R. R. Co. v. Ketchum,
347.
13. Under 2 L. 1868, p. 1930, c. 868,
§ 6, the determination of the su-
preme court, on certiorari to a
justice's court, to review summary 21.
proceedings to dispossess a tenant,
may be reviewed in this court by
appeal People ex rel. Clute v.
Boardman, 483.
14. Whether the proper mode of
bringing a decision on habeas cor-
pus and certiorari before this court!
for review, is by writ of error or
appeal,-Query. People ex rel.
Latorre v. O'Brien, 552.
15. Under the act of 1847, c. 455,
8, the proper form of an appeal
from a decision of highway com-
missioners is to the county judge;
although, it seems, the county
court have concurrent jurisdiction.
People ex rel. Van Rensselaer v.
Van Alstyne, 575.
16. Neither the supreme court nor
this court have power to review
the questions of fact where the
trial is had before a jury. Only
one question can arise before the
general term on the findings in
order striking out a demurrer as
frivolous, the court at general
term may modify the order by
giving defendants leave to an-
swer, and may leave the costs to
abide the event. Poppenhusen v.
Seeley, 615.
A surety in an undertaking on
appeal, who stipulates to pay the
costs awarded against the appel-
lants on
the appeal, and the
amount of the judgment, if the
judgment be affimed, is liable on
the undertaking only after an
affirmance of that appeal from
the then existing judgment, and
cannot be held to pay such new
judgment where there is an inter-
locutory order of affirmance re-
serving leave to answer, followed
by new pleadings and a new judg
ment on the new issue. lb.
CASE, 1; COURT OF APPEAIS, 1;
EXCEPTION, 2; HIGHWAY, 2;
JURISDICTION; MARINE
COURT; SURROGATE'S
COURT, 1, 4.
and took away plans he had sub-
mitted,-Held, not conclusive on
the question whether his employ-
ment was absolute or contingent.
Nourry v. Lord, 392.
such a case,-viz: whether there The fact that an architect sent for
was any evidence upon which the
finding of the jury can be sus-
tained. Parker v. Jervis, 449.
17. If the supreme court, at general
term, decide that there was no
proof by which the verdict can be
sustained, then a question of law
is presented which may be con-
sidered by this court. Ib.
18. On appeal from a judgment on
the findings of a referee, facts not
included in such findings cannot
be considered in this court. It
was the duty of the party to have
procured the referee to find spe-
cially on that subject. Mosher v.
Hotchkiss, 326.
19. The omission, in the court be-
INJUNCTION, 1; MUNICIPAL COR-
PORATION, 2; TAXES, 2.
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