erty by Lydston, and that this agreement was a part of the transaction at the time, that Lydston should have an assignment from Dana of both mortgages. Dana was not a party to this agreement. Now, if this be so, we cannot see that it changes the result. The respondent, by the assignments from Dana to Lydston, and from Lydston to him, can stand no better than Dana would, on the same facts. When a mortgagee who holds two mortgages, one of real and the other of personal estate, to secure the payment Of the same debt, forecloses the personal mortgage, takes possession of the property, and converts it to his own use, if its value exceeds the debt secured, it operates as a payment or satisfaction of it. There is no longer an existing debt to uphold the real mortgage, and it is as effectually extinguished as if the debt had been paid in money.

Before the assignment to the respondent, Lydston had received the personal property mortgaged, of a value not only sufficient to pay the mortgage debt, but the $300 also, which by the contract with Patterson .he was to pay him as fast as he should receive it after the payment of the mortgage. The mortgage debt having been paid, the respondent took nothing by the assignment. There must be a decree that the respondent execute and deliver to the complainant a discharge of the mortgage held by him, with costs for complainant. Rev. St. 0. 90, § 15.

Decree accordingly.

PETERs, C. J ., WALTON, VIRGIN, EMERY, and HAsKELL, JJ., concurred.

HOGAN v. GASKILL and others.
(Court of Chancery of New Jersey. November 15, 1886.)

MECHANIc’s LIEN—LEASE—LESSEE’S INTEREST—SURRENDER—DEFEATING LIEN. After the filing of a mechanic’s lien upon the interest of a lessee in leased property, the lessee cannot defeat the remedy of the lien claimant by a surrender in favor of the lessor, notwithstanding a clause in the lease making it null and void in case, among other things, of the lessee abandoning the property. On bill to quiet title. Opinion states the facts. J. J. Crandall, for complainant. George T. Ingham, for defendants.

BIRD, V. C. Hogan was the owner of a shore front, a portion of which be leased to Howard, with the right to build a pier thereon, extending into the Atlantic ocean. The term was for 10 years, at the rental value of $50 a year. The conclusion of the instrument was in these words:

“In case of the destruction of said pier, or failure on the part of the said' George W. Howard to keep the said pier in operation, or the abandoning of it, then this lease shall become null and void, cease and determine; otherwise to remain in full force to the end of said term.”

“On the seventh day of September, 1886, the said Howard executed a paper in writing, in which, after reciting the agreement orlease by which he held the land w'hereon said pier stood, used these words: “Know all men by these presents that I, George W. Howard, the above-named lessee, do hereby abandon and yield up the above-described pier to the' said John Hogan and his heirs.”

Prior to the execution of the last-named instruments, Hogan recovered a large judgment against Howard, and so also did Gaskill, the defendant. Hogan’s judgment was a general judgment; but Gaskill’s was special, by virtue of the statute respecting mechanics’ liens. Gaskill advertised the pier for sale, by virtue of his special judgment. The bill was filed to restrain such sale. The bill sets forth many alleged irregularities in the proceedings at law in recovering the judgment upon the lien claim, and also sets forth the abandonment of the pier by Howard, as isexpressed in the above quotation. An order to show cause why an injunction should not issue was allowed. Counsel have been fully heard. There never was any doubt in the mind of the court as to its duty to refrain absolutely from interfering with the common-law proceedings, so far as any question could possibly arise as to methods or practice, whether regular or irregular in the prosecution of the suit. The only question worthy of consideration was whether Howard, under the circumstances, could abandon his right to the pier under his lease, so as toeffectually defeat the lien of the judgment creditor. It is admitted that, if such abandonment were effectual, it could be pleaded at law, but it isinsisted that, if that be so, Hogan should be protected in this court, and his property be preserved from the cloud which will be cast upon it by a sale. It may be, considering that the bill was filed to quiet title, that it was properly filed. I am not sure that the cases in New Jersey have gone quite so far; yet perhaps they have. Than about this, I concern myself more about the effect of the alleged abandonment. This is not easy of solution. The real question is, could Howard, under the circumstances, abandon a valuable legal right simply for the purpose of defeating his creditors? I think it will be conceded on every hand that he could not, if the agreement by which he held and enjoyed the right did not contain the clause, “or the abandoning of it.” Does this qualification change the legal rights of the parties? I think not. I think there is a great difference between “abandon” and “surrender;” between “abandoning a right or thing” and the “surrender of such right or thing” to another; between giving it up because it is regarded as utterly useless or valueless, and surrendering, assigning, or transferring it to another as a valuable right or thing. When one surrenders a right or thing to another by solemn agreement in writing, he certainly does not abandon it in the sense in which all understand the word “abandon.”

But it is claimed that this contract between Hogan and Howard was purely a personal affair, and that Hogan had a right to abandon the pier at any time, and that, upon such abandonment, the lease or agreement was terminated, and Hogan as effectually entitled to the absolute and unqualified possession as though the whole term of 10 years had-expired. This is too broad a view, and I think must be qualified by the observations already made. It seems to me, if valuable legal rights can thus be abandoned, it would be a hopeless task for creditors to attempt to enforce their just claims; for, if I am right ,in the foregoing remarks, the act of Howard amounts to nothing more than a voluntary conveyance of this property to Hogan. It was done evidently without consideration, and most plainly to prevent Gaskill from enforcing his lien.

But there is another consideration which it is impossible to overcome; that is, the effectual security of the lien itself, from the time of filing, by virtue of the statute. This lien was filed long before the alleged abandonment. The rights thereby secured to the lien claimant were the rights of the owner,——no more, no less. The owner could in nowise abridge or abandon them, to the injury of the lien claimant. If all others should fail, this view must prevail.

It seems to be my duty to advise an order denying the injunction, and dismissing the order to show cause, with costs.

MICHAELIS, Prosecutor, 1:. BOARD OF FIRE COM’Rs 0F JERSEY CITY. (Supreme Court of New Jersey. December 1, 1886.)

1. FIREs AND FIRE DEPARTMENTS—FIRE COMMISSIONERS—POWERS OF—MAKING ENGINEER A STOKER—P. L. N. J. 1885, PAGE 130.

The transfer of an employe in the Jersey City, New Jersey, fire department, from his position of engineer to that of stoker, which last position is attended with different duties. and decreased pay, is invalid, under the act (P. L. N. J. 1885, p. 130) regulating the terms of officers and men in fire departments.

2. SAME—-APPOINTMENT—APPLICATION FOR—PHYSICIAN’s CERTIFICATE.

Such employe is protected, although he was appointed without filing an application sworn to and having a physician’s certificate showing his physical condition, according to the requirements of a rule adopted by a preceding board of fire commissioners.

(Syllabus by the Court.)

On certiorart' reviewing resolution passed by Board of Fire Commissioners of Jersey City.

The prosecutor brings up certain proceedings to remove him from the office or employment as engineer of engine company No. 1 to the position of stoker of engine company No. 3.

C. H. Voorhis, for prosecutor.

A. L. McDer'molt, for defendant.

REED, J. The prosecutor attacks the resolution of the board of fire ,commissioners of Jersey City, which made the transfer above mentioned. He claims that, by the terms of the act of 1885, (P. L. 1885, p. 130,) no power was vested in the board to make the transfer. This act provides that the officers and men employed by municipal authority in the fire department of any city shall severally hold their respective offices, and continue in their respective employments, during good behavior, efficiency, and residence in said city. It then provides for the removal of such officers or employes for certain causes.

I think that he held his employment as engineer protected by the terms of that act, and any attempt to transfer him, without his consent, was a removal from office or employment. The place of stoker was a different position, inferior in dignity, dissimilar in its work, and attended with decreased wages. It was, within the meaning of the act, a different employment or office.

The defendants, however, contend that he never held the position of engineer by municipal authority. He was promoted to his position as engineer, June 1, 1885. But it is in evidence that there was at that time in existence a rule of the board which reads thus: “N0 appointment in this department shall be legal until the applicant has filed an application, properly sworn to, and having a physician’s certificate attached thereto, showing his physical condition.” This rule of the board was adopted in August, 1881, and has never been readopted or rescinded since. Inasmuch as the power to appoint and remove officers was (until the act of 1885) lodged in the board of each year, without any restriction except such as the board of that year might adopt, no resolution of a board of 1881 could restrict the power of appointment of the board of 1885. There

V.6A.no.9———56

is no evidence of any action of the board of the last-named year in reference to the resolution. In fact it seems to have been disregarded. Besides, the rule seems to have prescribed What was to be done by a candidate before he could be considered eligible to be appointed. It seems to have been a rule which was designed for the convenience of the board, and which it could in its discretion disregard. Certainly, after permitting an appointee to exercise an employment, and receive pay for months, it can hardly be said that they have not waived the performance of the preparatory Steps which the rule contemplates. If the appointee is physically unfit to perform the duties attached to his employment, he is removable under the act of 1885. The resolution is set aside.

STATE (STAINSBY) v. SAME.
(Supreme Court of New Jersey. November 13, 1886.)

MUNICIPAL CORPORATIONS—POLICE OFFICERS IN NEWARK—CHANGE OF DUTY, NOT SUSPENSION. The change of members of the police force from detectives to atrolmen is not within the terms of the acts restraining the right of remove. from oflice or employment in the police department.

(Syllabus by the Court.)

On certiorart. Facts are stated in opinion.
J. Hank Fort, for prosecutor.
Joseph Coult, for defendant.

SoUDDER, J. The prosecutor in each of these cases was appointed patrolman in the police force of the city of Newark in February, 1885, when the whole force was reorganized. They were detailed to act as detective officers before the reorganization, and have continued to act as such since. When the commissioners took control of the police department, February 4, 1886, these prosecutors were still acting as detectives, and continued so to act until April 17 , 1886, when other detective officers were appointed by the commissioners, and these prosecutors were assigned to duty as patrolmen. No other or extra compensation was fixed for or paid to officers assigned to detective duty until after the commissioners assumed control of the price, when an additional or increased sum was paid until assigned to patrol duty, and since then they have been paid as patrolmen and acted as such. They are still on the force. The change was made by the commissioners without prior notice, cause assigned therefor, or hearing. .

Section 1 of the act of March 25, 1885, (Laws, 163,) restrains the right of removal from office or employment in the police department, and section 8 of the act of May 2, 1885, (Laws, 3261,) gives the commissioners the power and right to suspend, and to expel or discharge, provided good cause shall be shown for such suspension, expulsion, or dis