Subrogation. actions against sheriffs, &c., for official acts, by the words of the 22d section of that statute, do not apply to proceedings as for contempts to enforce civil remedies, yet in the spirit and intent of that section it does apply to such proceedings. For the omission of a sheriff to pay over to the county treasurer the proceeds of land on a sale in partition, the limitation of the statute begins to run at the time the omission occurs, and not from the time when the party in interest becomes apprised of his right of action. (Van Tassel agt. Van Tassel, 32 Barb., 439.) SUBROGATION. 1. An acceptor of a bill of exchange for the accommodation of the drawer, is regarded in law as the principal debtor, as between him and a bona fide holder. (Bank of Toronto agt. Hunter, Ante, 292, and 4 Bosw., 646.) 2. But as between the acceptor and the drawer, the acceptor stands in the relation of surety for the drawer, and his equity in relation to any securities belonging to the drawer held by the owner of the bill to secure its payment, is the same as it would be if his suretyship appeared on the face of the bill. (Id.) 3. The surety (acceptor) is, therefore, in equity entitled, on payment of the bill, to be subrogated to the position of the owner of the bill, in respect to such securities. (Id.) 4. Where the plaintiffs, a foreign corporation, brought their action against an accommodation acceptor residing in our jurisdiction, and it appearing that the plaintiff held securities for the payment of the bill, lodged with it by the drawers, and that the drawers were insolvent, Held, that the defendant might in his answer in the nature of a cross-bill in equity, demand subrogation as to such securities, upon payment of the amount due the plaintiffs; and that this relief could be granted without bringing in or making the drawers parties to the suit. (Id.) SUBSTITUTION. 1. A savings bank, that pays nothing for the money it receives, and agrees to re-pay the same to the depositor personally, or to his Summons. order, upon the production of a book, which is delivered to him, crediting him with the amount, hold the money as the agent or bailee of the depositor, under a personal contract to restore it or its amount. (Lund agt. Seaman's Bank, Ante, 461.) 2. And such bank is not at liberty to repudiate such agreement and relation where the assignee of the depositor claims the fund under an order of the latter, and ask that a third party claiming such fund may be substituted as defendants in its place, under § 122 of the Code; because the nature of the cause of action of the plaintiff is not the same against the bank as against the third party. (Id.) 3. Where the party sought to be substituted under § 122, upon proper notice served, have not appeared upon the motion and made their claim, nor signified its particular character, nor their willingness to assume the position of real defendants, nor their pecuniary ability to respond for the costs of an unsuccessful litigation, the motion will be denied. Especially so where the party sought to be brought in are non-residents. (Id.) 4. It is not clear that any other condition granting such a motion is contemplated to be imposed upon the defendants than making a deposit in court of the amount of the debt. (Id.) SUMMONS. 1. The name of a party omitted by inadvertence in a copy of the summons filed for publication, is such an error as may be corrected by amendment (Van Wyck agt. Hardy, Ante, 222.) 2. An affidavit of the plaintiff, for the purpose of procuring an order of publication, which stated that after due and diligent search and inquiry by this deponent, the said defendants named in the body of the affidavit, cannot be found in the state of New York, as he is informed and verily believes," held, sufficient to satisfy the judge legally of their non-residence, and to confer jurisdiction upon him to make the order. (Id.) 3. The purchaser of premises at a sale in a suit where publication has been ordered, must be deemed to know that he purchases subject to the power of the court to relieve parties, against whom publication is ordered, upon good cause shown, both before and after judgment, within seven years after the rendition thereof. (Id.) Sunday laws. 4. Where the summons as published in the Evening Post, omitted the words, "in said city of New York," after the words, "number 13 Chambers street," designating the office of the plaintiff's attorney, held, not such a defect as to make it void. (Id.) 5. Where the order for publication, in conformity to the statute, requires the summons and complaint to be served upon non-residents, by depositing the same forthwith in the post office, directed to such persons, some little time may elapse, (in this case four days, which was excused,) without forfeiting jurisdiction over the persons of the defendants. The word "forthwith" in this connection, should be construed as synonymous with all reasonable dispatch. (Id.) 6. The courts of this state have no jurisdiction to order service of a summons on a non-resident defendant by publication, unless the defendant has property within the state when the order is made. The jurisdiction of the courts to make the order of publication, depends upon the evidence in point of fact, of one of the five different cases or contingencies on which alone publication can be ordered; and 135 of the Code makes the jurisdiction depend, not upon the judge who grants the order being satisfied of the fact, but upon the existence of the fact itself. Therefore, a defendant proceeded against by publication and judgment, although the judgment may be prima facie evidence of these jurisdictional facts, and of a debt against him, has a right nevertheless to contest it, in a proper proceeding and show that such facts never existed; consequently, would render the judgment void. (Fiske agt. Anderson, 12 Abb., 8.) See AMENDMENT. (McElwain agt. Corning. 12 Abb., 16.) SUNDAY LAWS. 1. The act of April 17, 1860, prohibiting certain exhibitions and plays within the city and county of New York, on Sunday, held to be constitutional and valid, as a lawful exercise of legislative authority. (People agt. Hoym, Ante, 76.) 2. Consequently, the defendants, by exhibiting on Sunday, a play called "One of our People," or the "Brave Isaac," in the building Nos. 37 and 39 Bowery, known as the "New York Stadt Theatre," incurred the penalty prescribed by this act, to wit: Supplementary proceedings. guilty of a misdemeanor, and in addition to the punishment therefor provided by law, subjected to a penalty of $500, with a forfeiture of license. (Id.) 3. All business transactions performed on Sunday are valid, unless prohibited by statute, except judicial proceedings, which are void at common law. The true rule is that a contract for work and labor, to be void by our statute in regard to the observance of Sunday, must be expressly and altogether for an act which the law forbids; it must be a contract for servile labor to be performed on Sunday exclusively and expressly, and not on any other day. Making a contract or agreement upon a Sunday is not forbidden. (Merritt agt. Earle, 32 Barb., 38.) 4. A contract made on Sunday for the transportation of property by a common carrier, (a steamboat advertised to run certain days between Albany and New York) is not void because made on Sunday; nor because the voyage is to commence and does commence on Sunday. (Id.) See CORPORATIONS. Barb., 282.) (City of Brooklyn agt. Toynbee, 32 SUPPLEMENTARY PROCEEDINGS. 1. An examination order under supplementary proceedings, founded upon a judgment obtained prior to the discharge of the defendant from his debts under the two-third act, will be vacated upon application to the court. (Smith agt. Paul, Ante, 97,) 2. Upon such an application the plaintiff cannot show by affidavit, or otherwise, that he was not included in the schedule of debts, received no notice of application, nor even that he was a citizen of another state, not joining in the petition, nor receiving any dividend from the insolvent's estate. These are the proper questions for a trial to be brought, by permission of the court. (Id.) 3. Supplementary proceedings, under 292 of the Code, cannot be instituted in any case, upon a judgment recovered in a justice's court for less than twenty-five dollars, where a transcript has been filed, and execution issued and returned unsatisfied in whole or in part. (This overrules the case of Candee agt. Gundelsheimer, 17 How., 434.-County court decision.) (Butts agt. Dickinson, Ante, 230; S. C., 12 Abb,, 60.) Supplementary proceedings. 4. It seems, that the absence of a judge from his office, at the time appointed in an order made by him for the examination of a judgment debtor in supplementary proceedings, does not render the order inoperative, where the judge within a reasonable time, say within an hour, attends at his office to execute the order, although the judgment deltor appeared at the time appointed and waited some time before leaving. (Reynolds agt. Mc Elhone, Ante, 454.) 5. Therefore, any money paid over by the judgment debtor subsequently, on the same day, in violation of such order, would be a contempt, and subject him to a fine or punishment; especially, where as in this case, he had subsequently appeared before a referee in pursuance of an order made by the judge on the day first named. (Id.) 6. What recitals in a final order of a judge requiring a judgment deltor to pay over certain moneys, &c., or stand committed to jail, &c., considered sufficient, although informal. (¡d.) 7. A complete title to a chose in action, consisting of a debt due from a third person, passes by its assignment, without notice to the debtor. (Richardson agt. Ainsworth, Ante, 521.) 8. A voluntary payment by a judgment debtor of an execution against him to the sheriff, under § 293, cannot prejudice a prior assignee of the judgment in good faith. (See to the same effect, Robinson agt. Weeks, 6 How., 161.) (Id.) 9. And it makes the payment none the less voluntary, that an order was issued and served on the judgment dektor, under § 294 of the Code, but by consent was withdrawn before the payment by the debtor. (Id.) 10. Where on proceedings supplementary to execution, with a view of eliciting evidence tending to show that transfers of property made by the judgment debtor, were made with intent to defraud creditors, neither a witness, nor any person alleged to have property belonging to the judgment debtor, can be required to answer questions put with such view. (Town agt. Safeguard Ins. Co., 4 Bosw., 683.) 11. The judge cannot order to be delivered to the creditor, property in possession of a third person claiming title, no matter how fraudulent the transfer. The object of the examination is to discover |