Henderson v. Scott. was held that the defendant could not insist upon it as such. The defendant having been sworn as a witness in his own behalf, his counsel put to him the following question: "Have you, since you have been in the possession of these premises, made any improvements on the property?" The appeal-book states that the question having been objected to by the plaintiff's counsel, the trial judge said: "That question can be raised when they fix the time, of course it must be what improvements he has made prior to 1878. For the present, I will sustain the objection." The defendant's counsel excepted to the decision, but it does not appear that he modified the question, or renewed it in any form. The referee found in the former suit that on the 2d of February, 1878, the plaintiff demanded of the defendant one undivided seventh of the premises, and the defendant refused to give her possession of any part, denied her right to any portion, and claimed to own the whole. The defendant was not entitled, in [] any view of the case, to recover for improvements made by him after he was expressly notified of the plaintiff's claim, and claimed to hold in exclusion of it, and as the question was not limited to improve[*]ments made before that time, it was properly ex cluded upon the ground stated by the court. The only other question is, whether an ouster was shown. The defendant proved that Owen Henderson, who originally owned five undivided sevenths of the premises, as a tenant in common with the plaintiff, in 1863 conveyed the entire premises to one Levaque, who mortgaged them to one Atkinson, and on a foreclosure of the mortgage they were conveyed to one Cummings, and that in March, 1868, Cummings, with others, conveyed them by warranty deed to the defendant. The court held that the conveyance of the whole by the co-tenant Owen Henderson, to a grantee Stephenson v. Hanson. who claimed to own the whole, under his deed, ['] was an ouster of the plaintiff; and so are the authorities (Clapp v. Bromagham, 9 Cow. 530; Florence v. Hopkins, 46 N. Y. 182). And this point was adjudged against the defendant in the former action, the referee having found that in March, 1868, the defendant went into possession of the said premises, claiming to own the whole thereof under title derived from the said Owen Henderson, and that by going into possession after taking such deed and claiming to own. the whole, and expressly denying the plaintiff's right to any portion, and on demand refusing to yield possession of any portion, he had subjected himself to an action by the plaintiff to recover one undivided seventh of said premises. The considerations above expressed cover most all the questions raised by the appellant's counsel. The judgment and order should be affirmed. HARDIN and BARKER, JJ., concurred. STEPHENSON v. HANSON;-IN RE APPLICATION OF WILLIAM J. HANSON. CITY COURT OF NEW YORK, SPECIAL TERM, JUNE, 1884. S$ 14, 812. Contempt.-When surety to undertaking guilty of.-Punishment.— Effect of appeal from judgment in action in which undertaking was given. A surety to an undertaking who falsely swears that he is worth double the penalty of the undertaking is guilty of perjury, which is a contempt of court, [2] and may be punished therefor by a fine Stephenson v. Hanson. sufficient to indemnify the defendant for the loss and injury he has sustained thereby, and by imprisoning him for six months and until the fine is paid.[3] In such case, where the undertaking was given on procuring an order of arrest, the sureties' liability becomes fixed upon the date of the final vacating of the order of arrest, and the fact that an appeal has been taken from the judgment in the original action by the plaintiff therein is therefore immaterial.[5] The power to punish for contempt is a branch of the common law, adopted and sanctioned by the constitution of this state. [*] Instance of a case in which a surety on an undertaking was guilty of perjury.[', 2] (Decided July 28, 1884.) Motion to punish surety for contempt in swearing falsely as to his pecuniary responsibility. John Kolter was a surety upon an undertaking, on which an order of arrest was granted, in a certain action in which this applicant was the defendant, and one Stephenson the plaintiff; the order of arrest therein was vacated. Judgment was subsequently recovered by Hanson against the surety Kolter, for the sum of $281.65, damages and costs, sustained by reason of his arrest. In that action the defendant was examined as to his property, upon the return of execution wholly unsatisfied, and upon the facts disclosed this motion is made. Further facts are stated in the opinion. William B. Tullis, for the motion. J. C. J. Langbein, opposed. HYATT, J.-It is conceded that on June 9, 1883, the surety Kolter signed an undertaking, in the usual form, as surety upon an order of arrest in the action of Stephenson v. Hanson; Hanson al ['] Stephenson v. Hanson. leges that he also justified, by swearing that he was worth $500 over and above all his debts and liabilities; the surety deposes, upon his examination as a judg ment debtor in the action of Hanson v. Kolter, that although he signed and executed the instrument "he did not go before any notary upon that bond, and did not swear to the affidavit therein; that he signed his name and went away without reading the document"; but even if this statement is true, he at the same time deposed, that in the same action "he signed a second undertaking, marked filed July 20, 1883; that he signed the affidavit of justification therein, in the office of a lawyer and notary public, without reading or having it read to him, and supposes that he must have sworn to that affidavit before the notary public; that he has been watchman and housekeeper since May 1884, and prior to that time was a repairer of billiard tables; that he is married and supports a family; that he is not and was not prior to June 6, 1884 (date of the order for his examination as a judgment debtor), worth anything or possessed of any property, real or personal, or of any nature whatsoever, except household furniture exempt from execution; that he has no money except $500 in the bank, and has had no other money in the bank for over a year last past." He further deposes positively, "I have been in no better position pecuniarily, during more than a year last past, except, that I acquired in the Spring of 1883 a contingent interest in two second-hand billiard tables, with another, paying $60 apiece, share and share alike, as part owner; in October 1883, I was paid $75 for my interest; we advertised them for sale and was not offered any price for them, but think we could sell them for about $175 apiece; I desire to state nothing to my foregoing testimony." The examination was subscribed and sworn to Stephenson v. Hanson. (after having been read to him) by the said judgment debtor June 9, 1884. Upon the 17th of June, 1884, his examination was continued. He then deposed as follows: "Upon my former examination I was not represented by counsel, as I am now; I reside at 111 Fifth Avenue, New York City; I am watchman and housekeeper at that place for August Belmont; I have been with him as watchman fourteen years; when I was examined before, I thought that reference was only made to my property in this city, when asked about my property; I own three lots of ground in Cook county, Illinois, near Chicago; I got them from Thomas Back, to whom I loaned $100; I produce the deed he gave me; he has never paid any part of the loan; the date of the loan was February 23, 1878; he was to return it March 23, 1878; I have paid taxes ever since; it is free and clear of incumbrances; in the year 1878 those lots were worth $1,300, and they have increased in value since; I have seen Mr. Back since, he said he had no money, could not pay me, and was sorry, that I could keep the lots, that his wife was dead and he never could pay me; the billiard tables are worth $250 apiece; I did not read the undertakings when I signed them, they were not explained to me and I did not know what they were; when I signed the undertakings, I considered myself worth double the amount therein mentioned, and do so now." Upon his cross-examination he testified: "I knew I was signing undertakings, naturally enough I knew when I signed them, I must be worth some hundreds of dollars; I was born in New York City; went to primary school, also night school; I can read; I have taken no proceedings to perfect title under the deed, I don't know where the grantor is, have not seen him for a year last past; I paid taxes all along, the yearly taxes are two dollars and some cents, never saw the |