
    George W. Beers, plaintiff and respondent, vs. John T. Hendrickson and Patrick Callaghan, defendants and appellants.
    1. A judgment at general term on appeal from one at special term, which merely affirms the latter, and does not award a new judgment for the whole amount recovered, hut only the costs of the appeal, is a judgment for such costs only. A satisfaction of it only discharges such costs, and neither operates as, nor warrants a discharge of, the judgment appealed from, or a prior judgment entered up and allowed to stand as security for the same claim,
    2. Under his general authority merely, an attorney cannot legally discharge a" judgment obtained by him, without receiving the full amount thereof, nor even then, if two years have elapsed since the judgment was entered.
    
      3. A mere parol agreement to receive less than the whole amount due on three judgments ; one for a claim, a prior one merely security therefor, and one of affirmance and for costs on appeal, cannot be enforced in equity, unless some circumstance concurred therewith to estop the party against whom it is' sought to be enforced, from setting up the want of a proper consideration, or the party seeking to enforce it, by making it, lost some position or condition, to which he cannot be restored. The execution of a mere satisfaction piece of the judgment of affirmance as a performance of such agreement is not sufficient to create such an equity.
    4. A satisfaction .piece of a judgment will not, in equity, be either reformed or considered efficacious for any other purpose than that expressed on its face, when executed in the precise form in which it was intended by both parties to be executed, and no mutual, mistake has occurred as to its terms; notwithstanding evidence of an intention of both parties to accomplish more, by it, • than it purports to authorize, to wit, to satisfy a whole claim of which such judgment formed but part, and the payment of a sum of money, less than the amount of such claim but more than such judgment, to obtain such satisfaction piece.
    5. A mere satisfaction piece of a judgment is only an authority to enter a satisfaction, and does not satisfy such judgment until the entry is made on the roll by the clerk.
    6. An attorney, who has obtained a judgment and executed a satisfaction piece thereof, which he acknowledges only as having executed it as such attorney, before a proper officer, who so states in his certificate of acknowledgment, must be deemed to have executed it solely as such, and not as an assignee thereof, although it has been assigned to him; particularly where the assignment, although containing an express power to satisfy such judgment, and duly acknowledged, is not filed by him with the clerk of the court, pursuant to the statute. (3 M. S. 640, § 24. N. T. Sess. L. 1834, eh. 262, § 2.)
    7. Whether when such assignment is a mere security for a debt, and restricts the authority to satisfy, to a “ payment ” of the judgment, the latter can bo exercised so as to make a satisfaction piece given by virtue of it, valid, when executed upon payment of less than the full amount 1 Quare.
    
    8. The reduction by the court of a judgment for a claim into a mere security therefor, upon giving permission to the party against whom it was entered to defend the action, takes such claim out of any merger in such judgment, and renders any prior assignment of the latter nugatory, and the assignee is bound by such change of the character of the judgment, when he has notice of and resists the application therefor. Per Robertson, Oh. J.
    9. A party seeking specific performance of a contract, or the correction of, or relief from a mistake therein, is bound to show himself ready, prompt and eager to perform such contract and correct such mistake on his part. An unexplained lapse of time, or gross laches, will be sufficient to bar such relief. Per Robertson, Oh. J.
    (Before Robertson, Ch. J., and Barbour and Monell, JJ.)
    Heard April 6, 1868;
    decided May —, 1868.
    
      This action was brought to compel the execution and delivery of satisfaction pieces of two judgments.
    In June, 1858, the defendant Hendrickson recovered a judgment, by default, against the plaintiff (Beers) for $1754.78. This judgment was, in July, 1858, assigned by Hendrickson to the defendant Callaghan and his partner, C. D. Miller, (since deceased) who were his attorneys and counsel. The assignment was absolute upon its face, and purported to transfer absolutely the whole judgment to the assignees. It contained a covenant by the assignor that the whole amount was unpaid, and authorized the assignees, on payment, to acknowledge satisfaction and discharge the judgment. After the assignment, the default was opened on motion of the plaintiff (Beers) and he was let in to defend; the judgment being allowed to stand as security. Callaghan & Miller, the assignees, who had been substituted as attorneys for the defendant Hendrickson, appeared on such motion and resisted the application.
    On the second trial, and in February, 1860, Hendrickson recovered a judgment against the present plaintiff (Beers) for $2155.67, damages and costs. The latter appealed from the judgment to the general term, where it was affirmed, with costs, and a third judgment roll was filed. The judgment order of affirmance was entered in June, 1860, and merely affirmed the judgment appealed from, with costs. The judgment roll was filed in July, 1860; to which there was annexed a paper without signature or allocatur of a judge, to the effect that it was “ adjudged that the said judgment be, and the same hereby is, in all things affirmed, with costs, amounting to the sum of $2205.96 damages and interest, besides $53.19 costs, amounting together to the sum of $2259.15.”
    In May, 1862, Miller (being still one of the attorneys for Hendrickson of record) received from Beers (the present plaintiff) the sum of $200, by the hand of James; E. Beers his counsel and brother, and acknowledged a satisfaction piece in the following words: “Satisfaction is aeknowledged between John T. Hendrickson, plaintiff, George W. Beers, defendant, for the sum of two thousand two hundred and fifty-nine dollars and fifteen cents judgment entered in the judgment book of the Superior Court of the city of Hew York, the tenth day of July, one thousand eight hundred and sixty. (Signed) Callaghan & Miller,
    by D. C, Miller.”
    The acknowledgment of it, signed by the officer before whom it was acknowledged, stated it to be so by Miller “ as one of the attorneys ” of the plaintiff in the action. Miller died in 1864. The relief demanded was that the defendant Callaghan, as surviving assignee of Hendrickson, should execute and acknowledge satisfaction of the first two judgments, namely, the one entered in June, 1858, for $1754.78, and the other entered in February, 1860, for $2155.67.
    Upon the trial before Justice Barbour, without a jury, James E. Beers, a brother of the plaintiff, who was examined as a witness, testified that he “ acted for the plaintiff in conducting the settlement with Miller.” That he “ offered to -give him $200 in cash if he would make that satisfaction piece and see that it was put on record. It was put on -record,” and he “ gave Miller the money, * * that Miller stated that Callaghan & Miller were the owners of the judgment, and that he had authority to satisfy it.”
    He further testified, that “Miller had agreed to take $250,” that he (witness) “told his brother of the offer,” but that his “ brother was not disposed to give any thing, but authorized” witness “to give $200, and gave’’him “ the money. Miller said he wanted the money very much and would take it.” He further testified that “Miller stated that he would take $250,” and witness'“ told him he did not believe his brother would pay it, and he wanted” witness “to go and see his brother.”, That he went, and on his “ return told Miller that his brother would give $200 to get rid of the whole thing. Miller said he would take it.”
    
      The money was paid and the before mentioned satisfaction piece was executed and put on record. The defendant Callaghan testified that the assignment of the judgment never was in Miller’s hands. He offered to prove that the assignment was given to secure Callaghan & Miller for their fees as attorneys and counsel for Hendrickson in the litigation, and also as security to Callaghan individually for money he had advanced to Hendrickson, which offer was excluded by the court.
    Upon these facts the court found, in its decision: First. That the payment of such sum of money by the plaintiff) George W. Beers, through his attorney, to Miller and the acceptance thereof by the latter and the giving by him of the before mentioned satisfaction piece constituted a full payment and discharge of the entire claim of Hendrickson against Beers, and of the same three judgments recovered thereon. Second. That the plaintiff (George W. Beers) is entitled to a satisfaction by the defendant Callaghan of the same two unsatisfied judgments, upon tendering to said Callaghan the expenses of the execution thereof. Third. That the defendant Callaghan was bound to execute and deliver said satisfaction pieces upon the same being presented to him with an offer to pay the expenses of acknowledging the same. And judgment was given accordingly that the defendant Callaghan satisfy said first two judgments of record; and that the plaintiff recover his costs of this action against both defendants. Both defendants appealed, and exceptions were filed to such decision.
    
      J. S. Bosworth, for the appellants, defendants.
    I. All ever done, to entitle the plaintiff Beers to the relief adjudged to him, or to any relief in this suit, was the payment of $200 in money, on account of a judgment amounting to over $2000; and for that sum, Miller alone, as one of the attorneys of record of Hendrickson, acknowledged a satisfaction piece of a judgment of affirmance of it, which was filed. Being executed and filed without the knowledge or authority of Callaghan or Hendrickson, it was in fraud of their rights.
    1. Hendrickson was entitled to the whole of the judgment, less the- $1000 due to Callaghan & Miller, and the $100 due to Callaghan, which the assignment of the first judgment was designed to secure to them; his interest embraced over $1100 of the principal amount of the judgment; the judgment appealed from deprives ■ him of all interest and property in the judgment, without any fault on his part, or equity on the part of Beers.
    2. If Beers’ attorney had even been told by Miller that the judgment had been assigned to him, (which is doubtful,) he must have understood it to have been so assigned merely as security for costs and fees, and that such was the nature and extent of their interest in it.
    3. Miller as attorney ofrecord for Hendrickson, could not lawfully acknowledge a satisfaction, piece, without having first been paid the full amount of the judgment in money. (2 R. S. 5th ed. 641, § 25. Lewis v. Woodruff, 15 How. Pr. 539.) Beers and his attorney knew, or were bound to know, that an attorney at law, really as such, had no such authority to discharge the judgment. On such a state of facts the court, on Hendrickson’s motion, would order any entry of satisfaction of all the judgments to be vacated, and the satisfaction piece taken off the files of the court. (Lewis v. Woodruff, ubi supra.)
    
    
      4. Hendrickson continuing to be the legal owner of the judgment, was also equitable owner of the whole of it; Callaghan & Miller had only the right jointly and severally to retain $1100 of the amount of it. Even if Callaghan & Miller had no personal rights which the court would protect, still it would those of Hendrickson, and allow execution to be issued, indorsed with directions to collect the amount left of the judgment, ($1159.15,) after deducting the sum secured to Callaghan and to Callaghan & Miller and interest.
    
      JJ. Callaghan & Miller, merely as attorneys on the record, could not in May, 1862, have acknowledged satisfaction of the second judgment, even if paid in full, because over two years had elapsed since its recovery. (3 R. S. 640, §§ 22, 24.) Nor could they, as attorneys of record, have acknowledged satisfaction of the first judgment at any time, as O’Brien was the attorney of record in that judgment. "Unless the plaintiff, therefore, is entitled to relief, on some ground other than the acknowledgment of this satisfaction piece by Miller, (as attorney of record, on being paid §200 therefor,) instead of his being entitled to the judgment rendered, the equity of the case is, that the satisfaction entered on the docket of the judgment rendered at general term should be vacated, the satisfaction piece taken from the files of the court, and the $200 paid merely credited on the judgment.
    HI. The only relief to which Beers is entitled on the whole transaction is to be credited $200 on the judgment as of May, 1862, because,
    1. An agreement to take and taking, in actual payment and satisfaction of a judgment, a sum of money less than its whole amount, is not -a bar at law or in equity to an action to recover the balance. (Harrison v. Close, 2 John. 448. Seymour v. Minturn, 17 id. 169. Lynch v. Welch, Selden’s notes, 13. Ward v. Broomhead, 14 Law and Eq. 502. Crafts v. Wilkinson, 4 Adolp. Ellis, N. S. 74. Bleakley v. White, 4 Paige, 654. Lewis v. Woodruff, 15 How. Pr. 539.)
    2. The acceptance of less than the whole amount of a debt due in satisfaction of the whole does not, at law or in equity, «extinguish the part unpaid. As to that, no consideration upholds the promise to accept what was paid, in satisfaction of the whole. Neither law nor equity will en-. force an agreement made without consideration. (Oases last above cited.)
    
    IV. The assignment to Callaghan & Miller of the first judgment, did not affect the legal or equitable rights of the parties, because, the assignee of a judgment, (unless the assignment contains express authority to acknowledge satisfaction,) cannot merely as such execute a satisfaction piece which will justify the clerk of the court in cancelling the docket of the judgment.
    1. Prior to 1834, the statute only authorized a party, or his executors or administrators, (2 R. S. 5th ed. 640, § 20,) or the attorney on record, within two years after the filing of the record of such judgment, (Id. § 22, and id. p. 641, § 25,) to acknowledge satisfaction. By a statute passed in that • year, (ch. 262, §2 of the Laws of 1834; 3 R. S. 640, § 24;) it might be done, “by virtue of a letter of attorney, or other instrument containing a power to acknowledge satisfaction,” acknowledged as there required, and filed by such clerk with the satisfaction piece.
    2. Although the assignment in this case, contains such a power, its express terms only authorize Callaghan & Miller “ on payment” of the whole judgment “ to acknowledge satisfaction or discharge the same.” The authority, therefore, contained in the assignment, by its very terms, imposes the same condition upon its exercise by the assignees, that the settled law of the land imposes upon the exercise of that same power or authority by the “ attorney on record.”
    3. If Miller had attempted to execute the satisfaction piece as attorney in fact of the plaintiff, by virtue of the authority contained in the assignment, it would have been inoperative, not only because illegal and unauthorized by the terms of the power, but because the assignment contains no authority to discharge, upon any terms, any judgment other than the one named in it, which was the first judgment, and the power and authority being delegated to two persons, could not be exercised by one alone; clearly not, without the assent and concurrence of the other. (Green v. Miller, 6 John. 39. Sinclair v. Jackson, 8 Cowen, 543. Downing v. Rugar, 21 Wend. 178. The People v. Williams, 36 N. Y. Rep. 441.) All that Miller did, was done without the knowledge of either Hendrickson or Callaghan,, and in fraud of the rights of both.
    V. If it be claimed that Miller represented that Callaghan & Miller owned the judgment, and therefore the defendants cannot now be permitted to aver the contrary, the answers to that proposition are:
    1. It is neither alleged in the pleadings, nor pretended by Beers, (the witness,) that he paid the $200 relying on any such representation.
    2. The same witness, (Beers,) testifies, that Miller said “ we own the judgment,” by which he understood Callaghan and Miller to be designated. His impression was “that he stated that Hendrickson had assigned the judgment over to them.” “I think, (he added,) they had received very little money from Hendrickson.” That was the first he heard of the assignment, yet he did not ask to see it. It is clear from this that the witness Beers attached but little, if any consequence, to the fact that the judgment had been assigned, and that he understood, or might well have understood, that the judgment had been assigned as security for costs. All this is justly inferable from the testimony. “ My impression is that he said the judgment had been assigned over to the firm. I think * * * they received very little money from Hendrickson.”
    
    3. So far as Hendrickson individually, and his rights are concerned,, it is immaterial what Miller may have represented, because, (a.) He had not authorized Miller to make any representation. His power and authority as an attorney-at-law, are fixed by law, and Beers and his attorney are to be presumed to know them. (5.) The written assignment and power of attorney contained in it, speak for themselves; Beers, (the witness,) knew of its existence; it was his fault or misfortune that he did not ask to see it. (c.) Even if Miller had represented that Callaghan and Miller had an interest in the judgment different from that which the assignment apparently creates, or an authority which that does not purport to confer, it would have been the fault of Beers to confide in it, and not the fault or misfortune of Hendrickson that he did so confide, (d.) But, in fact, Miller made no representation inconsistent with the contents of the assignment, or the facts offered to be proved. What he said was consistent with both, and naturally tended to express, generally, the existence of the same state of facts.
    VI. There is no estoppel created in this case.
    1. An estoppel in this case, must be one in pais, and before a party can be concluded by such an estoppel, it must appear that, he has made an admission or statement clearly inconsistent'-with. the evidence he proposes to give; that the other party has acted on this admission or statement; and that the other party will be injured by allowing the truth of the admission or statement to be disproved. (Young v. Bushnell, 8 Bosw. 14, 20.)
    2. This doctrine, when applied, is applied to promote justice and prevent wrong. When so applying it would not effect those ends it is the duty, of a court not to apply it. (Blake v. Tucker, 12 Vermont Rep. 44.) Allowing proof that the first judgment was assigned as security for the payment of $1100, and that this was the character and extent of Callaghan & Miller’s interest in, or ownership of it, would not at law or in equity, be an injury to the plaintiff'. It was his duty to have paid not only the $200 he did pay, but the whole judgment. He will have the benefit of the payment, as a payment pro tanto; that is its whole legal or equitable effect.
    3. But, as before suggested, the facts offered to be proved, are not inconsistent with what Miller is represented to have said, and what he said had but little, if any, influence on Beers, (the attorney,) as he took a satisfaction acknowledged by Miller as attorney on the record, and not as an attorney in fact.
    VII. The court at special term, entirely misapprehended the legal effect of an acknowledgment of a satisfaction piece by the attorney on. the record, its filing with the clerk of the court, and the cancellation thereupon by him, of the docket of the'judgment; which is all the clerk had power to do, (3 R. S. 640, § 20,) or has attempted to do.
    1. The- judgment itself is not thereby “satisfied, discharged, or its legal effect impaired.” Its legal effect can only be impaired, and the judgment itself discharged by the entry of satisfaction on the roll, or judgment record. (Lownds v. Remsen, 7 Wend. 35.)
    2. What was done amounted only to evidence of payment, which will protect a third party who bona fide takes title, relying on it. (King v. Harris, 34 N. Y. Rep. 330. Slocum v. Freeman, Court of Appeals, Transcript, April 4, 1868.)
    3. As between the parties to the judgment, the court will receive proof of the actual facts. If it appear that the attorney acknowledged satisfaction without receiving full payment (as in the case of Lewis v. Woodruff,) or that giving effect to* his act would operate as a fraud upon the plaintiff* in the judgment, the court will direct the entry made by the clerk on the docket to be vacated, and the satisfaction piece taken off the files. (McGregor v. Comstock, 28 N. Y. Rep. 237.)
    4. It follows, therefore, that the first and second judgments are not, even technically, in legal effect, discharged or impaired. If, therefore, the court compels satisfaction to be entered of record oí the first and second judgments, it will affirmatively giv.e relief, not only more extensive than the legal effect of the satisfaction piece, the filing of it, and cancellation of the docket; but relief in conflict with the clear equity of the parties and of .adjudged cases. All the judgments are the property of Hendrickson. He is liable to Callaghan for the attorney and counsel fees due to Callaghan and Miller, and moneys advanced by Callaghan; Callaghan’s -interest in the judgments is as secu'rity merely. (Wolcott v. Holcomb, 31 N. Y. Rep. 135.)
    5. The court, on the facts proved, and offered to be proved, would direct the entry on the docket canceled; and the satisfaction piece taken off" the files; consequently it must reverse the judgment appealed from.
    TX. On the plaintiff’s theory, he has no standing in court; on that, the three judgments are satisfied, and this appears of record, and the third judgment is also canceled in fact and in legal effect; the record of it shows it to be- a mere affirmance of the second judgment. The second judgment shows on its face that it is for the same cause of action and in the same action as the first, which is merely security for the payment of it; neither, therefore, apparently indicate any existing liability, nor is a cloud on the title of any real estate which the plaintiff may own. A bill to have the first and second judgments satisfied of record, as such a cloud, would be dismissed for want of jurisdiction; if the plaintiff’s theory of the case be correct. (Ward v. Dewey, 16 N. Y. Rep. 522.) An execution on a satisfied judgment is absolutely void, and a purchaser under it would not acquire any title. (Swan v. Saddlemire, 8 Wend. 676, 681, and eases there cited.) There can be no doubt that this is so when a judgment appears of record to be satisfied.
    X. The decision made, not only deprives the defendants of substantial rights, but directs a relief to be worked out by an impracticable procedure. For it directs Callaghan, as surviving assignee, to acknowledge satisfaction of the second as well of the first judgment. The authority contained in the assignment, does not authorize Callaghan & Miller, or either of them, to acknowledge" a satisfaction piece of the second judgment, on whose filing the clerk of the court can cancel the docket of the judgment. If equity requires satisfaction of that judgment to be acknowledged, the satisfaction piece should be executed and acknowledged by Hendrickson.
    • XT. The decision made and judgment entered, not only deprives Hendrickson of his judgment without payment and without fault on his part, but subjects him jointly with Callaghan, to the costs of the action. . Hendrickson has done no act, made no representations, has not refused to comply with any just request, and yet is subjected to the costs of this action, as well as the loss of his judgment.
    XII. There is no resemblance between the effect of a release under seal, and a satisfaction piece" acknowledged by an attorney on the record.
    1. A release under seal, extinguishes a judgment thereby released; the consideration of a release, at common law, is not open to inquiry in a case free from fraud. It is conclusive upon the fact and sufficiency of a consideration. But a satisfaction piece by an attorney on record, does not ex proprio vigore, affect the judgment. It is merely a warrant to the officer of the court having charge of the record to cancel and discharge the docket of the judgment. (3 R. S. 640, § 20.) The statute does not make it a record nor recognize it as such. Even the filing of it and the cancellation of. the docket by the. clerk of the court does not impair the validity of the judgment. (Lownds v. Remsen, 7 Wend. 35, 40.)
    2. Though a satisfaction piece be acknowledged by an attorney and filed, and the clerk of the court has canceled the docket, yet if this was done on receiving partial payment only, the court will order the cancellation to be vacated, and the satisfaction piece taken off the file. (Lewis v. Woodruff, supra.) But it will never order a release to be vacated because it was executed on receiving less than the whole of the debt or judgment released.
    XIII. The judgment appealed from, as a whole, and in all its parts, is repugnant to every principle of law and equity.
    1.. The plaintiff paid $200 in money, on a judgment for $2259.15, and obtained a satisfaction piece signed and acknowledged merely as such, by one of the attorneys on the record. On these facts he has obtained a judgment at special term, without any consideration for if or equity to uphold it, that the first and second judgments be satified of record. Granting this relief to him is a fraud both upon Callaghan and Hendrickson. Denying such relief, and compelling Mm to pay the balance, would only compel him to do what the law requires and equity enjoins.
    2. In such a case, and on such facts, a court of equity will not interfere to grant any affirmative relief to the plaintiff in opposition to the legal and equitable rights of Hendrickson and Callaghan. If he wishes the aid of the court to compel satisfaction of the first and second judgments, he must do what equity requires, viz. pay the balance due. If unwilling to take a judgment in that form, a court of equity, on'the facts now appearing and offered to be proved, will leave him to defend himself, as he may be advised, against any attempts, Hendrickson may make to collect the balance due on his judgments,
    3. He cannot have the aid of a court of equity in an attempt to effect a result contrary to both law and equity; especially so where granting the relief sought would also operate as a fraud upon the defendants.
    
      M. G-oepp, for the plaintiff, respondent.
    I. The defendants’ offer to prove what was the actual consideration of the assignment from Hendrickson to Callaghan & Miller, was properly denied. The assignment had been given in evidence, and was absolute. Although open to explanation between the. parties to it, and, perhaps, to impeachment, on the ground of want of consideration as between them, it was not so as to' third parties, including the plaintiff (Beers.) Whatever took place between Hendrickson, Callaghan & Miller, in regard to this assignment, was, as to the plaintiff res inter alios acta. The offer of evidence did not claim that either the plaintiff or James E. Beers, at the time of the latter’s transaction with Miller, had any notice or knowledge that the assignment was other than an absolute one. The evidence mentioned in the offer, if admitted, could not have, in any way, varied the rights or equities of the plaintiff, as against Hendrickson and Callahan. It was, therefore, properly rejected.
    H. The transaction between James E. Beers and Miller, in May, 1862, had the same legal effect, as • though there had been no assignment of the judgment, and the same transaction had then taken place between James E. Beers and Hendrickson (the original plaintiff*.)
    1. The original claim of Hendrickson against Beers was merged in the first judgment recovered upon it; and the assignment of that judgment to Callaghan & Miller vested in them the whole of’the claim. (Mallory v. Leach, 14 Abb. Pr. 449, n. S. C. 23 How. Pr. 507. Goodrich v. Dunbar, 17 Barb. 644. Nicholl v. Mason, 21 Wend. 341. Oakley v. Aspinwall, 4 Comst. 519. Besley v. Palmer, 1 Hill, 482. Suydam v. Barber, 18 N. Y. Rep. 470. Doughty v. Hope, 3 Denio, 249. Pierce et al. v. Kearney, 5 Hill, 82. Clapp v. Messerole, 38 Barb. 665.) The assignment of a judgment transfers the' debt as well as the security, as the debt is merged in the judgment; (Elsworth v. Caldwell, 18 Abb. Pr. 20. Pattison v. Hull, 9 Cowen, 747. DeGrant v. Graham, N. Y. Leg. Obs. 75;) one of several joint assignees or joint owners represents all, and his acts are binding on all. (Piersons v. Hooker, 3 John. 68. Bulkley v. Dayton, 14 John. 387. Bruen v. Marquand, 17 John. 58. 1 Bac. Abr. Release, D. C. Jacomb v. Harwood, 2 Vesey, sen. 265. Murray v. Blatchford, 1 Wend. 583. 1 Parsons on Contracts, 26, and notes. Wells v. Evans, 20 Wend. 251.) The consideration gets rid of a number of foreign matters discussed at special term.
    2. It is wholly immaterial whether Miller, as attorney, had authority to give the satisfaction piece. The act of Miller was the act of the plaintiff in the judgment (as it would have been Hendrickson’s act, had there been no assignment;) the circumstance that he is named in the acknowledgment as one of the attorneys of the plaintiff, does not alter this. When a man acts as his own attorney there can be no distinction between the acts of the principal and the acts of the attorney. Neither Miller’s assignor nor his co-assignee can allege a want of power in him to control this judgment, of which he had become the part owner by their joint act.
    
      3. Heither Callaghan nor Hendrickson were entitled to notice of this transaction of Miller. The plaintiff was under no obligation, at law or in equity, to seek out both the owners of the judgment and deal with both. The act of one was in law, the act of both. He knew that Hendrickson had assigned the judgment, and had no further control over it, and was under no obligation to consult him whether he might or might not pay Miller.
    4. There is no evidence that this transaction was a fraud upon Callaghan, unless his testimony that Miller never told him of what had been done was evidence of it. If it were, it is not pretended that the plaintiff was a party to any fraud. If Miller did cheat Callaghan, that fact cannot affect the plaintiff’s equities and rights. The case is thus narrowed down to the question whether this payment by the present plaintiff (Beers) to the plaintiff in the judgment, and entry of satisfaction by the latter, do or do not entitle the former to the relief sought.
    IH. The plaintiffs, by entering judgment on the appeal for the amount of the whole claim, with interest and costs, whether regularly of irregularly, elected to treat the two former judgments as vacated, and to consider the third as the only subsisting judgment. As to the plaintiffs, the third judgment was, therefore, the only judgment having any vitality at the time they satisfied it.
    1. In the absence of any special application by the plaintiffs, the first judgment taken by default, must clearly be held to have been superseded by and merged in the second. (Pierce v. Thomas, 4 E. D. Smith, 354. Mott v. Union Bank, 8 Bosw. 591. Gilchrist v. Comfort, 26 How. Pr. 394. Ford v. Whittridge, 9 Abb. Pr. 416. Miller v. Insurance Co., 3 E. D. Smith, 184.) The fair inference from those decisions is, that if the plaintiff enters up the second judgment, and makes no special request as to what disposition shall be made of the first, he treats the first as vacated. When it so happens that the first is a lien on lands and the second is not, or that other liens have intervened between the first and the second, the plaintiff must apply to the court for proper relief; without that, the second is alone .to be enforced, and the court would not allow an execution to issue on the first. On a defendant’s application, the court would direct the first judgment to be satisfied or canceled, unless the plaintiff could show special reasons, (such as those suggested above,) for keeping it alive; if such reasons were shown, the court would probably retain the first judgment, and reduce the second to such an amount, as that the two together would make up the whole debt or damages, interest and costs. Any other practice would (to use the language of Judge Hogeboom, in Halsey v. Flint, 15 Abb. Pr. 371,) “ allow two judgments for the same debt, might, in some cases, oppressively increase interest, and would lead to an onerous and unnecessary multiplication of liens upon the debtor’s property.”
    2. Irrespective, therefore, of the satisfaction of the third judgment in this case, it is claimed that the plaintiff here (Beers) is entitled to have the first judgment vacated of record, Callaghan & Miller having superseded it by the second, and merged it therein.
    3. There seems to have been formerly some uncertainty about the proper mode of entering judgments of affirmance on appeal. It is, however, now settled that the proper and regular course is to enter them only for the costs of appeal. (Eno v. Crooke, 6 How. Pr. 462. De Agreda v. Mantel, 1 Abb. Pr. 130. Halsey v. Mint, 15 id. 367. Beardsley Scythe Co. v. Poster, 34 How. Pr. 97.)
    4. The entry of the third judgment for the full amount was therefore irregular. But the irregularity was the plain tiff’s act—the act of Callaghan & Miller—and cannot be complained of by them, although it might have been corrected on the plaintiff’s application. By entering the judgment on appeal in this form, Callaghan & Miller elected to treat the first and second judgments as vacated, (see Eno v. Crooke, ut sup.) and the plaintiff by taking no steps to the contrary, tacitly acquiesced in that election. If the latter, before paying Miller, had applied to the court to strike out or cause to be canceled the first and second judgments, and Callaghan & Miller had not opposed the' application, or had appeared and elected to stand by the third judgment," without showing special cause for keeping alive the first or second, the court would unquestionably have directed the satisfaction or cancellation, of the first and second; had such special cause been shown, they would have reduced the three judgments in some way to the real amount of debt, interest and costs. Both parties, however, in substance, agreed to consider the third judgment as the only subsisting, valid and “live” judgment; therefore, as to them all, it was the only existing, valid judgment, and the plaintiff is entitled to the extinguishment of the others, without regard to the question whether the third is paid or not, leaving that question, if it arise at all, to come up on Callaghan’s application to vacate the satisfaction of the third judgment, should he be advised to make such application.
    5. An irregular judgment may be made of force by the recognition and acts of the parties. (Weed v. Pendleton, 1 Abb. Pr. 51.) Although, therefore, the third judgment was irregular, both parties had acquiesced in the irregularity and thereby mutually waived it, which it was perfectly competent for them to do. As there cannot be three, or even two judgments for the same claim, and both parties elected to treat the third judgment as the judgment, the plaintiff is entitled to satisfaction of the first and second;
    IV. Callaghan & Miller, by receiving the $200 in full payment of the whole claim, and satisfying of record the judgment in which the claim was then merged, and .which was the only valid subsisting judgment, have extinguished and satisfied the claim itself, and there is no equity in their retaining the other two judgments on the record, to Beers’ inconvenience and injury.
    1. That the payment of the $200 was made and accepted in full satisfaction of the claim, is an undisputed fact. . James E. Beers testifies, “I told Miller my brother would give $200 to get rid of the whole thing; he said he would take it.” The judge at special term found as a fact that said payment “ was received and accepted, by the said Miller, as a full payment and satisfaction of the whole claim of said Hendrickson, assigned to said Callaghan & Miller, against the said George W. Beers.”
    2. The claim itself was merged in the last judgment as has been already shown; it had no longer an independent existence. If Callaghan & Miller, before satisfying the last judgment, -had undertaken to sue the plaintiff, for example, in another state, on the original claim, or the first or second judgment, the latter could have pleaded the third judgment, in bar, and defeated their action. They might have sued on the third judgment, but only on that. This illustration shows very clearly what has been urged under the third point—that the third judgment was the only valid and subsisting claim against Beers.
    3. The case does not fall within the principle that a creditor who accepts a part of a debt in payment of the whole, may nevertheless afterwards claim and recover the balance, there being no consideration to support its relinquishment, unless a release under seal has been given, (a.) In this first place, the principle in question applies only to undisputed debts. Where the claim is contested and compromised the mutual relinquishment of the claim on the one side, and the defense on the other, constitutes a sufficient consideration, even without a seal. (See 2 Pars, on Gont. 618.) The claim here was disputed, and had been litigated before the referee, and at the general term. Although decided against the plaintiff' the decision was not final, for the time for an appeal to the court of appeals had not expired; the transaction between him and Miller was, therefore, in the nature of a compromise or settlement, and not within the principle referred to. (5.) But again, the creditor in this case executed a satisfaction of record, which is of even higher solemnity than a release under seal, and which binds, even if no money at all be paid. (Barker v. St. Quintin, 12 M. & W. 441. Shep. Touch. 323. See Co. Lit. § 507; Mitchell v. Hawley, 4 Denio, 417; Jenk. Cent. p. 70.) A seal imports a consideration; an admission of record that a judgment has been satisfied is an act of still greater solemnity and deliberation, (e.) When a contract made without consideration has been fully carried out, it cannot be rescinded. A promise to give another $5000 cannot be enforced; but if the money has been actually given, the donor cannot maintain an action to recover it again. Miller’s promise to satisfy this judgment at a future day for $200, might not have been capable of being enforced at law; but having actually satisfied it, neither he nor those in privity with him can undo his work.
    Y. The two judgments unsatisfied of record, although incapable of being enforced, are, nevertheless, such incumbrances and clouds upon title, as that Beers is entitled, in a court of equity, to be relieved of them fully.
    1. Although an examination of the three judgments shows that they are all for the same cause of action, nevertheless, the two remaining ones are, prima facie, liens to their full amount, and Beers is entitled to have them canceled of record. The "cases already cited (Eno v. Crooke, 6 How. Pr. 462; DeAgreda v. Mantel, 1 Abb. Pr. 130; Halsey v. Flint, 15 id. 367, and Beardsley Scythe Co. v. Foster, 34 How. Pr. 97,) are authorities for the doctrine, that where two or three judgments are entered for one and the same claim, the court will order them to be reduced to the true amount. In all of those cases the fact appeared of recordthat the judgments were duplicate, and yet the courts held the injury to the defendants to be of sufficient weight to call for their interference.
    2. There can be no doubt that Miller had the power to settle and satisfy the whole claim, and that he intended to satisfy it, and did satisfy it, and that the omission to enter satisfaction of the first and second judgments was an oversight merely. If either Callaghan or Hendrickson has sustained any injury by Miller’s acts, their remedy should be against his estate, and not against the plaintiff who is at least equally innocent with them.
   By the Court, Monell, J.

I am willing to assume in this case that Callaghan & Miller were the exclusive owners of the several judgments mentioned in the complaint. The assignment of the first judgment was absolute upon its face, carrying with it the debt, and constituting the assignees the only parties in interest. As such assignees, they had legal power to receive payment and make satisfaction of all the judgments. The first question therefore of importance is, whether the satisfaction piece executed by Miller of the judgment of affirmance of July, 1860, operated to discharge in law the two previous judgments. That judgment was not, as was claimed by the respondent, and as represented in the satisfaction piece, a judgment for §2259.15, but a mere affirmance of the judgment of February 29,1860. And the paper annexed to the judgment roll, if it could be considered as a necessary or proper part of the record, contains a reference merely to the judgment appealed from, and does not in terms or otherwise award a new judgment for the whole amount. It would have been irregular if it had done so. I therefore regard the July judgment as a judgment merely confirming that appealed from and awarding the costs of the appeal. It necessarily follows, therefore, that as to its legal effect the satisfaction piece operated as a discharge of that judgment only. It clearly did not satisfy or authorize the discharge of record of the other judgments. It was executed by Miller, as the attorney of record, upon receiving a less sum than thé whole amount due, and more than two years after the filing of the judgment rolls. For these reasons the satisfaction piece was inconclusive as respects the previous judgments, (2 R. S. 362, § 24; Lewis v. Woodruff, 15 How. Pr. 539,) and operated only as a discharge of the July judgment.

Laying the satisfaction piece, therefore, ont of view, as a legal discharge of the prior judgments, the question remains, whether the agreement of Miller (which I will assume was proved) to receive two hundred dollars in payment of all the judgments, can be enforced, and his co-assignee be compelled to discharge those judgments of record without further satisfaction. As a naked agreement, unaffected by any supposed partial execution of it, the law is well settled, that it would have no force. And even the payment and re-ceipt of the two hundred dollars as a part execution would not be a satisfaction of the whole, or a bar to a recovery of the balance. (Seymour v Minturn, 17 John. 169. Lewis v. Woodruff, supra. Moss v. Shannon, 1 Hilt. 175.)

But it is claimed that the satisfaction piece was intended for a full execution of the agreement, and, therefore, the ' defendant Callaghan, as surviving assignee, is estopped from setting up its invalidity. It is not pretended that such satisfaction piece in fact, or legal effect, was sufficient to discharge the prior judgments of record. Such pretense would be inconsistent with the purpose of the present action. But it is claimed to be evidence of actual payment, and entitled to the same effect as a release under seal. The case, however, does not go far enough to give to the satisfaction piece the- effect of a record. The docket was canceled and discharged, (2 R. S. 362, § 22,) but the satisfaction piece was not entered upon the judgment roll. Until that was done, there was nothing in the whole proceeding which partook of a record, (Lownds v. Remsen, 7 Wend. 35,) so as to operate as an estoppel upon any of the parties. ¡Nor can there be given to it the effect of a release under seal. It is not a record, and is -not under seal, but is a mere authenticated acknowledgment of satisfaction, which by ■force of the statutes authorizes the docket to be canceled and discharged, and like any other receipt is open to inquiry. It seems to me, therefore, that even if the evidence had supported the finding of the learned justice, that the satisfaction piece was intended as a satisfaction of the entire claim, there would yet be no equity requiring the surviving owner to discharge the prior judgments. A payment of two hundred dollars as a satisfaction of a judgment of upwards. of two thousand dollars, is too inadequate to found any equity upon in favor of the judgment debtor. I have not been able to discover any reason .for making Hendrickson a party, or for directing any judgment against him. I think the plaintiff cannot have any part of the relief he asks for in his complaint, and that the judgment is therefore erroneous and should be set aside, and a new trial granted, with costs of the appeal to abide the event.

Robertson, Oh. J.

No good reason has been adduced in this case for not considering all the right acquired by Callaghan & Miller in Hendrickson’s claim, by his assignment to them of merely the first judgment, as absolutely terminated by the reduction of that judgment to a mere security for such claim. That reduction was binding on them, because they had notice of, and appeared on, the application for the purpose. It took the claim out of any merger in the judgment, as a debt of a higher nature, and left the latter a mere collateral security, not an adjudication or recovery. (Mott v. Union Bank, 8 Bosw. 591. Ford v. Whittridge, 9 Abb. Pr. 416. Miller v. The Eagle Life and Health Ins. Co., 3 E. D. Smith, 184. Pierce v. Thomas, 4 id. 354.) The assignment itself did not, in terms, transfer the claim, but merely the judgment. Such an assignment of a mere security, without a transfer of that which it is intended to secure, has been uniformly held to be nugatory, and not to create any interest in the debt secured. It, therefore, became a perfect nullity, having the external form of an assignment of a debt, hut conferring no rights. (Merritt v. Bertholick, 36 N. Y. Rep. 45, op. Parker, J. and eases cited.) Of course, as Hendrickson’s attorney, Miller could not discharge the judgment for less than the amount due. (3 R. S. 5th ed. 641. § 25. Lewis v. Woodruff. 15 How. Pr. 539.)

Assuming, however, that the defendants are bound by the acts of Miller, the nature and purpose of the present action are not very clearly defined. It, of course, assumes to be equitable in its character, and seeks to compel the defendants to discharge the first two judgments against the plaintiff, and thereby the' claim which was merged in the second judgment. The only ground alleged in the complaint on which that relief is sought, is the acceptance by Miller of a small sum of money, paid by the plaintiff’s counsel to him, in full payment and satisfaction of the whole claim. The pleader, however, having been fully aware that, by itself, such acceptance would not discharge the claim, being a less sum paid in satisfaction and discharge of a greater; (Harrison v. Close, 2 John. 448; Seymour v. Minturn, 17 id. 169; Bleakley v. White, 4 Paige, 654; Lewis v. Woodruff, ubi sup.; Lynch v. Welch, Seld. n. 13; Ward v. Broomhead, 14 L. and Eq. 502; Crafts v. Wilkinson, 4 Ad. & El. N. S. 5, 74,) and that something more was necessary to create an equity to enforce the agreement supposed to arise out of such a stipulation, has added, as the sole ground for so enforcing it, an allegation' that the satisfaction piece actually executed by Miller, was intended as a satisfaction of the entire claim, * so given by * Miller, and received by” the plaintiff’s then counsel (Beers.) And upon the efficacy of that fact, in creating an equitable right by the plaintiff to have the supposed agreement to discharge the whole claim enforced, the whole of this case turns.

It is not easy to class a ease, with only such features, under any known head of equity jurisdiction. It cannot be sustained as an action to enforce specific performance of a written contract, with an oral variation of its terms, (see 1 Story's Eq. Jur. § 161,) because the whole contract itself was only oral, and not binding on the parties, for want of a proper consideration. Nor is it claimed to have, been an oral contract, so partly executed as to make it a fraud not to complete it. (Price v. Dyer, 17 Vesey, 364, per Sir Wm. Grant) There might, also, be some room for an equity in ordering a reformation of the satisfaction piece actually executed, if it were such an attempted execution of such contract, that nothing but such a mistake as would warrant a reformation of that kind, prevented it from actually accomplishing the purpose of such a contract, and making it binding upon the defendants. But no such relief is claimed, no such mistake is alleged, and the only ground presented is that such satisfaction piece, in the very form in which it was giv'en, “ was intended as a satisfaction for the whole claim,” and was so given and received. This, of course, precludes any idea that any other instrument was intended or agreed to be executed, and particularly any such satisfaction pieces, as it is sought in this action to compel the defendants to execute. There is, also, no pretense that the satisfaction piece executed was not given in the precise form in which the parties intended it should have been given, nor was a particle of evidence, tending to prove the contrary, ever offered. Oil the contrary, the plaintiff’s then counsel (Beers) testified, that he told Miller he would pay him the money, if he would execute that satisfaction piece, and that he would not, and did not, pay him the money, until the particular judgment, which it was given to satisfy, was satisfied of record by it. This court will not, therefore, interfere with such' an instrument, so drawn and executed, precisely in the form in which it was intended to be. (1 Story’s Eq. Jur. §§ 111-120. Willard’s Eq. Jur. 69. Hunt v. Pousmaniere’s adm’rs, 1 Peters, 13, 17. S. C. 2 Mason, 342. 3 id. 24. Leavitt v. Palmer, 3 N. Y. Rep. 19.)

The only question, therefore, left is whether ah instrument, having a definite legal effect, such as the satisfaction piece in question had, can, by force of the mere intention of the parties, proved even in the strongest manner, be made to have a more extensive one. If so, a mere receipt, and almost a blank piece of paper, deliberately delivered in order to have a certain effect, could be made as effective for all purposes as a release under seal. It is not alleged that such satisfaction piece, in its present_ form, was executed merely in part performance of any prior agreement, but that it was intended as an entire performance. If so, the prior agreement, as a mere negotiation, would have been merged in it. Whereas, the real, final and only contract, as testified to by the plaintiff’s then counsel, (Beers,) was merely to give that satisfaction piece, and put it. on record, in return for the money paid. It is difficult to discuss such a question as that now presented, without either encountering the difficulty of seeking to remedy a mistake of law, or making it one of those which arise from the legal principles upon which parol evidence to explain, alter or modify written instruments is rejected. It is, therefore, clear that no relief can be given on the grounds asked for.

The mere delivery of the satisfaction piece, in the form in which it was executed, or even in any form, could not operate to make the supposed oral contract of Miller, as set up in the complaint, binding, since it was not void merely because it was not in writing, but in consequence of its want of a consideration to support it. Nor do I see how the payment, by the plaintiff, merely of money already due by him, and the satisfaction by Miller of a judgment for merely part of that debt, can create any equity to have such void contract enforced. A party must part with something, which he was not bound to part with, or, at least, be incapable of being put in the same position as he was in before, in order to make a refusal by another to perform a contract with him otherwise void, such a fraud upon him, as to call upon a court of equity to enforce it. The plaintiff neither parted with any thing, nor lost any advantage previously possessed by him.

Even, however, if this court could reform the satisfaction piece actually given, or its delivery in partial execution of an oral contract to satisfy a claim for one tenth of its amount, .could confer on a court of equity jurisdiction to enforce such contract, the exercise of jurisdiction in either case must be, to a certain extent, a matter of discretion, (1 Story’s Eq. Jur. § 742, and oases,) and founded only on the clearest and most irrefragable evidence of the facts on which it rests. In case of mistake, the denial of one of the parties, in his answer, as to his intention, is considered as fatal, (Mortimer v. Shorhall, 2 Dr. & W. 363; 374,) unless the proof to the contrary greatly preponderates. (Pitcairn v. Ogbourne, 2 Vesey, 375, 379.) The plaintiff has successfully avoided that difficulty, by waiting until after the opposite party (Miller) died, which took place two years after the transaction, and by waiting five years before beginning his action, has obtained every benefit he could by the lapse of time, by the indistinctness produced in the memory of the counsel whom he then employed, and the loss of any adverse testimony which the defendants might have had. Ho excuse is offered for such laches. A party seeking specific performance is bound to show himself ready, prompt and eager to perform it. (1 Story’s Eq. Jur. § 776, and cases cited in note 4.) Relief, demanded after a long lapse of time, with no explanation of the delay, or after gross laches, will not be administered. (1 Fonbl. Eq. b. 1, ch. 6, § 2, n. e.) Ho equitable circumstances are presented in this case to call for the relief demanded. A full and adequate consideration is always deemed necessary, (Sugd. on Vend. ch. 4, § 2, 191, 7th ed.; German v. Machin, 6 Paige, 288;) yet the plaintiff has neither averred, nor undertaken to prove, that the sum paid by him was all that he was able to pay on account of the claim of Hendrickson against him, and that more could not have been collected by the attorneys of the former. I think, therefore, the unexplained lapse of time, the death of the only other party to the transaction, the nature of the contract, and the absence of all equities for enforcing the contract, would have been a sufficient bar to any equitable relief, had there been.no other.

There is (besides, if it be necessary to pass upon that question,) an entire absence of evidence to support either allegation in the complaint, that, as to the acceptance of the money paid by the plaintiff - in satisfaction of the first two judgments, or that, as to the delivery of the satisfaction piece with the intent thereby to satisfy them, unless the absolute silence, at the time, of the parties by whom the settlement was made upon the subject, is to be considered as equivalent to their establishment, merely because the plaintiff probably desired to satisfy the whole claim by paying one tenth of its amount. . It is to be recollected that Miller, one of the parties to the negotiation, is dead, and that over five, and nearly six years elapsed before the other party was called upon to testify. In all the conversations detailed by him, neither the name of Hendrickson, nor his claim, nor any judgment but the last one on appeal is in any way referred to. Three times, in answer to different questions put by the counsel on both sides and the court, he stated such conversation, (or its substance,) which showed' for what alone the money was paid. He referred to but one judgment and one satisfaction piece, for which it was to be paid, and was paid. Eot a word was uttered as to satisfying any thing else, and the money was paid, the moment that was satisfied of record. It is utterly immaterial whether both the agents who arranged the transaction believed that .such satisfaction piece discharged all claim or not, provided they said nothing on the subject. Both being lawyers, they may fairly be presumed to have known something of the law, as well as the force of the language used by them in conducting the settlement. It was urged on the argument, that the plaintiff must have intended to get more than satisfaction of the last judgment only, because he paid more than was due'. That may be so, but his agent never said so. The same argument is equally good for the defendants, that Miller did not intend to take one tenth of a judgment which must have been secured on the appeal, in full, for it. It was also urged that the plaintiff’s then counsel (Beers) informed Miller that his brother told him he would give $200 to get rid of “ the whole thing.” Eothing in such conversation, as testified to, or said before or after it, or any allusion by either party, explains what was meant by “the whole thing.” At all events, nothing was even remotely said or done about getting rid of the prior judgments if they were what was meant, and the plaintiff waited five years, (although his then counsel must have known he had not got rid of them,) before he attempted to do so. Certainly, moreover, nothing was said or done to show in the most remote way that the satisfaction piece was intended to do any thing more than satisfy the judgment named in it, and therefore the second of the material facts, and the most essential of the two, to the plaintiff’s case alleged in the complaint, falls to the ground. I am reluctantly, therefore, compelled to differ from my learned associate, before whom this case was tried, in his findings of fact, wherein he finds that both such facts were proved.

The conduct of the plaintiff’s former counsel on the occasion referred to, might be reconciled with the plaintiff’s present claim, by supposing that the former imagined that the satisfaction of the last judgment virtually in law satisfied the other two, and that it was overlooked by Miller, and that by confining his negotiation to that, he would obtain what the plaintiff desired, without awakening the attention-of the latter, and the docket of that judgment might possibly have led him into that mistake. But it is hardly possible for a lawyer who examined the judgment roll to think so, as the only adjudication contained in it is an affirmance of the judgment; there is no award of a recoveiy in it of any thing, not even of the costs of appeal. The sums mentioned seem to be inserted only to identify the judgment, and are certainly not awarded by it. Miller might have explained, if living, whatever is irreconcileable or mysterious in the transaction, if there be any such thing, but the plaintiff has - prudently waited until his lips were sealed in death, and we are left to make the best explanation that can be made.

It is, besides, not a matter entirely free from doubt, whether in the absence of all evidence of the plaintiff’s inability to pay, Miller had authority to agree to accept one tenth of the claim in discharge of the whole. If the evidence rejected had been admitted, it would have shown him a mere mortgagee or pledgee and trustee for Hendrickson of his equity of redemption. (Hawks v. Hinchcliff, 17 Barb. 492.) If he had transferred it to a stranger, he would have been liable for the full amount, (Id.) and there seems to be no good reason, why he could release the plaintiff for less than he could pay, as the latter was not a purchaser for a valuable consideration, since he parted with nothing he was not bound to pay already.

But, for the reasons already given, I concur in reversing the judgment, with costs to abide the event.

Barbour, J. dissented.  