Everson agt. Gehrman and Everson. and the court allowed the judgment to stand as security; but said that "if collusion between the plaintiff or his attorney and Arnold, or the attorney whom he employed, had been satisfactorily established, the case would have been entirely different ; and the judgment would, in that case, be set aside as against Conklin." This is but a common instance of the aversion which the law always shows to fraud and coven. So, in the case of Sterne agt. Bentley, &c., Justice PAIGE noticed that, "fraud OR collusion between the plaintiff and the defendant, M'Laughlin, or his attorney, was denied by the plaintiff. And · in Denton agt. Noyes, (6 J. R. 296,) Chief Justice KENT said, "if there had been any collusion between the plaintiffs and the attorney for the defendant, it would have altered the case; but that none was shown or pretended." Here the collusion was between the plaintiff and one defendant; and if the court should sanction the amendment allowed at special term, it would make itself also their instrument. In Green, &c., agt. Beals, (2 Caine's R. 254,) and St. John agt. Holmes, (20 Wend. 609,) the court refused to set aside a judgment confessed against two partners, on a warrant of attorney signed by one; but there the one confessing the judgment alone, moved to set it aside; and it was held good as to him; but it might be that the other had assented, or did not choose to object. There, too, an attorney must have appeared for both. But an individual, not an attorney, can not appear in court for another without the express authority of that other. If this judgment should be sustained, it would open the way for one partner to give preferences, as he chose, to any number of creditors of the firm against the wishes of the other, and so produce the same effect as an assignment to a trustee for such purposes, which the partner could not have made. It would also encourage concealment and contrivance against those to whom the partner owed confidence and good faith. If the partners cannot agree, it is best to allow all the creditors to come in equally; or the most diligent, in the fair and regular practice of the law, to succeed. Tompkins agt. Acer. The order should be so modified as to withdraw from the defendant, Everson, the right to make any amendment; and so as to set aside the judgment as against the defendant, Gehrman, with costs of the appeal. SUPREME COURT. TOMPKINS agt. ACER. An answer, in an action on a promissory note, payable at bank, brought by the payee against the maker, merely taking issue upon an allegation of the presentment of the note at the bank at maturity, and setting up that the plaintiff is not the sole owner and holder of the note, but owns it jointly with another person, naming him, wherefore the plaintiff is not individually entitled to recover, is frivolous. At Chambers, November, 1854. MOTION by plaintiff for judgment, on account of the frivolousness of the answer, with costs. The facts sufficiently appear in the opinion. O. H. PALMER, for plaintiff. T. R. STRONG, Justice. The answer is clearly frivolous. The action is by the payee against the maker, and presentment of the note at the bank when it became due and payable, or at any other time, was not necessary, as it is not pretended that the defendant paid the note, or tendered payment, at the bank, when it became due; the issue on that subject is therefore immaterial. Assuming that the plaintiff is not the "sole owner and holder of the note, but that the said plaintiff is the owner of the same jointly with one A. C. Way," the conclusion drawn from it in the answer, that "therefore the said plaintiff is not individually The North River Insurance Company agt. Rachel Snediker and others. entitled to recover against the said defendant in this action," does not necessarily follow. The plaintiff may be a trustee of an express trust as to Way's interest, and entitled to sue and recover, without joining Way, under § 113 of the Code. It should have been shown that the interest of Way is of some other character, to present a case of a defect of parties plaintiff. The affidavit of the defendant, of merits, is fatally defective, in not saying that he has stated the case to his counsel, instead of his defence; and in omitting to state that he has a good defence on the merits-the words "on the merits" not being in the affidavit. No basis, therefore, for giving permission to amend is furnished. The motion must be granted, but without prejudice to a motion to the court at special term for leave to answer, &c. SUPREME COURT. THE NORTH RIVER INSURANCE COMPANY agt. RACHEL SNEDIKER and others. Under a judgment in an action for foreclosure and sale of mortgaged premises, the mortgagor has no right of redemption—consequently has no right of possession of the mortgaged premises for a year after the sale. Mortgagors have a right to redeem in “sales under execution,” in personal actions; and had this right prior to the act of 1847, (passed Nov. 20, 1847,) which extended the right of redemption to holders of liens by mortgage, in the same manner as to liens by judgment or decree. New York Special Term, March, 1854. THIS was an action brought for the foreclosure and sale of mortgaged premises in the city of New York. Judgment of foreclosure and sale was rendered for the plaintiffs on the 30th July, 1853; and the premises were sold under said judgment, The North River Insurance Company agt. Rachel Snediker and others. upon due notice, by the sheriff, to Charles Parsons, of the city of New York, who was the highest bidder, and became the purchaser; and to whom the sheriff, on the 26th Oct., 1853, executed a deed of the premises; which deed had been duly recorded. On the 28th of January, 1854, Parsons demanded possession of said premises from the defendant, Rachel Snediker, (widow of the mortgagor, and who executed the mortgage with her husband,) who was then in possession. She refused to deliver possession-claiming that she had a right to occupy the premises for the same length of time after the sale upon a foreclosure, as upon a sale by the sheriff under an execution(one year.) Parsons now moved for a writ of assistance, to be put into possession of said premises. The motion was opposed by Mrs. Snediker. ARCHIBALD HILTON, for Parsons. S. F. CLARKSON, for Mrs. Snediker. ROOSEVELT, Justice. One of the defendants in this case, the wife of the mortgagor, although she joined in the mortgage, refuses to yield possession of the mortgaged premises, notwithstanding the foreclosure. Her counsel insists that, like a judgment debtor after a sale on execution, she has the right of redemption, and the consequent right of possession for twelve months after the sale. If such be a correct view of the present state of the law, both bar and bench, and the whole community, have been laboring under a serious error for the last six years. The mortgage redemption act was repealed, it is admitted, as early as 1838; but the legislature, by an act, it is said, passed Nov. 20, 1847, "to amend title five of chapter six of the third part of the Revised Statutes," inadvertently, it may be, restored the privilege. In that act, it was declared that "all the provisions of the said title shall extend and apply to liens by mortgage, in the same manner as they do to liens by judgment or decree." Now, among the provisions of the title referred to, is that which gives to judgment debtors the right of redemption. And hence it is inferred that, by the act of 1847, the same right of re The North River Insurance Company agt. Rachel Snediker and others demption is extended to debtors by mortgage. The answer is, that every law must be construed according to its subject matter. The title in question, by its very terms, had reference exclusively to "personal actions," as understood before the Code, and to "executions against property," in such actions. It had no reference to equity suits, or to sales on foreclosure, except in a single particular-a junior creditor by chancery decree, not of foreclosure, but for the recovery of a specific sum of money, was placed upon the same footing, in respect of the right of redemption, as a junior creditor by ordinary common law judgment. Both were treated as alike holding liens on the premises sold under the older execution, and alike entitled to redeem as against such sale. It was soon discovered, however, that a lien by mortgage, where no decree had been obtained, possessed at least as strong claims, in respect of the privilege of redemption, as either of the other two. And accordingly the fifty-first section of the title in question was amended by inserting, after the words "any creditor having a decree or judgment," the words "or having a mortgage duly recorded." Having done this, it became obviously necessary that all the other provisions, some twenty odd in number, which related to "liens by judgment or decree," should be "extended, and applied to liens by mortgage :" such, for instance, as allowing a redemption of one or more of several lots, or of an unundivided share of a single lot or parcel, and defining the time when the title of the judgment debtor shall be divested, and how the redeeming creditor may himself be subjected to redemption in favor of some other holder of a like lien, and how the sheriffs' deeds are to be given, and when, and to whom, &c. The object of the act was to provide for the holders, and not for the givers of mortgages, and in cases not of foreclosure, but of "sales under execution" in personal actions. Mortgagors had already a right to redeem as against such sales, and this act extended the right to mortgagees. The former, too, for twelve months had the preference-the rights of the latter, even by the amendment, could only be exerted after the former had, by his omission, signified a determination to forego the |