Lawrence agt. Fowler. precisely as it examines the evidence on the trial before a jury, and upon the same principles, and the case should be made up in this court precisely as required by the court of appeals, and a review here can be had only upon a case thus made up. (Rogers agt. Beard, supra.) But in respect to suits in equity, while the case must be the same, and must contain the findings and exceptions, the exceptions must, so far as they relate to matters of account and detail, be specific, pointing to the particular error claimed in the account as specific, as was required to a master's report under the former practice in chancery. There is a difficulty in trying equity cases before a referee under the Code, arising out of the intrinsic difference between legal and equitable actions. In legal actions the issues are single, and can easily be tried and disposed of by a referee as by a jury. But equitable actions are essentially different, and I think it is a mistake in the Code to require them to be tried before a referee, and before a single judge in the same way with legal actions. In actions between partners or joint tenants, as in this case, and also in actions of partition, and in various other actions where an accounting is necessary, the trial is necessarily in some degree a double one. First, the court or referee is to try the question of the liability of the defendant, to account and make an interlocutory decision or order, and then the account is to be subsequently taken before final judgment can be rendered. Much embarrassment in these cases would, I think, be obviated by a reference under section 270, of particular issues of fact involving the merits, instead of referring the whole issue to the referee. In the former case the report of the referee would have the force and effect of a special verdict, and the court at special term, would render the judgment and make the requisite order to carry into effect the interlocutory order or decree, based upon the finding of the referee. The difficulty in this case is that the whole issue was referred to the referee; we must, therefore, dispose of the whole issue, and his Mutual Benefit Life Ins. Co. agt. Board of Supervisors of New York. decision will stand as the decision of the court. (§ 272.) In either case no appeal lies until final judgment. (§348.) The appeal is from a judgment. No appeal is allowed from an interlocutory decree, it being the policy of the Code to allow only one appeal upon the merits in any action. Swarthout agt. Curtis, 4 Com., 416; Lawrence agt. Farmers'. Loan Co., 15 How., 57.) Upon the basis of the report of the referee in the case of Lawrence agt. Gallup, the court at special term can appoint commissioners to make partition, but upon the coming in of the report of the commissioners, the referee will necessarily have to make a final decree confirming the same, and dispose of the question of costs, and then final judgment can be entered up. This must be done before there can be any appeal to this court authorizing us to review any decision of the referee. In the suit of Lawrence agt. Fowler, therefore, there is nothing properly before ns for review, and the appeal in that case should be dismissed. In the case of Fowler, executor, &c. agt. Lawrence, final judgment having been rendered, but no proper exceptions having been taken to the decisions and findings of the referee, we could not do otherwise than affirm the judgment. Appeal dismissed in Lawrence agt. Fowler, executor. Judgment affirmed in Fowler, executor, agt. Lawrence. SUPREME COURT. THE MUTUAL BENEFIT LIFE INSURANCE COMPANY agt. THE BOARD OF SUPERVISORS OF THE COUNTY OF NEW YORK. A court of equity has no power to stay by injunction the collection of a tar, alleged to be illegal, on the ground that the plaintiffs were a foreign corporation, and had no place of business in this state. Equity cannot be appealed to in any case to restrain the collection of a tax or assessment which is void. New York General Term, March, 1861. CLERKE, SUTHERLAND and INGRAHAM, Justices. Mutual Benefit Life Ins. Co. agt. Board of Supervisors of New York. APPEAL from a judgment at special term. BRADLEY, MILLS & WOODHULL, for appellants. By the court, INGRAHAM, Justice. The complaint in this action asks to have the defendant restrained from collecting a tax which it is alleged was illegally imposed upon the plaintiffs, upon the ground that the plaintiffs were a foreign corporation and had no place of business in this state. To this complaint the defendant demurs. The point raised in this case was decided in Heywood agt. City of Buffalo, (14 N. Y. Rep., p. 534,) all the judges holding that equity should not be appealed to to restrain the collection of a tax or assessment which was void. (Fuller agt. Allen et al., S. C., May term, 1858.) In Van Doren agt. The Mayor, &c., of New York, (9 Paige, 388,) it was held that there was no remedy in equity, and that the court had no power to interfere in the case of a tax or assessment which was irregular. In addition to these cases, I may add that in the present case there is no ground for such interference, even if under other circumstances the court had the power to grant the relief sought for in the complaint. The warrant of distress issued to collect the taxes has been levied on some office furniture only. If the tax is illegal, the plaintiffs have ample means of redress by an action for the trespass. There is no serious or irreparable injury calling for the issuing of an injunction, and unless the party is otherwise remediless, an injunction is not the proper remedy. The plaintiffs in submitting this case, have not seen fit to furnish any authorities sustaining this action, and we therefore conclude there are none. The judgment appealed from should be affirmed. Mallory agt. Clark. SUPREME COURT. MALLORY agt. MYRON H. CLARK. A trustee, though described as such, cannot confess an ordinary judgment so as to bind the trust estate. Where the trust estate is to be made liable for a debt created by a trustee, it must be reached by a special proceeding and judgment in equity, making or declaring the trust estate liable, or directing or authorizing it, or part of it, to be sold, for the purpose of discharging the claim. Where the court, in granting an order to change trustees, directed that the new trustee confess a judgment to the former trustee to secure advances made by him for the trust estate, Held, that this part of the order should be amended by directing the acting trustee to pay to the former trustee the balance due him, with interest, as soon as the acting trustee should receive from the trust estate sufficient funds therefor. New York Special Term, December, 1859. MOTION to set aside judgment on confession and execution against a trustee. INGRAHAM, Justice. The plaintiff was duly appointed trustee of a certain estate belonging to Sarah C. Cowles and others, and while such trustee, became creditor of the trust estate for moneys advanced by him, and for services rendered as such trustee. Afterwards, on the application of the cestui que trusts, and with the consent of the plaintiff, an application was made to change the trustee, and an order was made by a justice of this court discharging the plaintiff as trustee, and appointing Myron H. Clark as such trustee. In this order it was further directed that the trustee should confess a judgment to the plaintiff for the amount which he claimed to be due to him for moneys advanced and services. rendered in the discharge of his duties as such trustee. Under this order Clark, as trustee, confessed a judgment in favor of Mallory, for the moneys so claimed by him, and an execution has been issued upon such judgment, and the same levied upon the personal property of the trust estate. A motion is now made to set aside the judgment and the execution issued thereon. Mallory agt. Clark. Some of the cestui que trusts are infants, and did not consent to this proceeding. The order directing that a judgment by confession for such a claim, be made by a trustee of an estate, is an unusual one, and notwithstanding such order, I am at loss to see in what manner the trust estate can be made liable in an execution issued thereon. The judgment is against Myron H. Clark, described as trustee of Sarah E. Cowles and others, and it is adjudged that the plaintiff recover against the defendant the plaintiff's claim. It is an ordinary judgment against the defendant not making or declaring the trust estate liable, or directing or authorizing any part of it to be sold for the purpose of discharging the claim. An execution issued upon such a judgment cannot be levied upon the trust estate, more especially so where a part of it belongs to infants. If the trust estate is to be made liable for a debt created by a trustee, it must be reached by a special proceeding and judgment, and not by an ordinary judgment entered against the trustee, even though described as such. An action at law could never be maintained to reach the trust estate, by making the trustee the defendant, but for such a purpose a suit must be had, or a proceeding in equity. The union of the remedies at law and in equity, in the same tribunal under the Code, has not removed the necessity of the same course of proceeding to reach a trust estate, and there is no more authority to sell the trust estate in an action for money brought against the trustee, now, than there was before the adoption of the Code. Upon consultation with the justice by whom the order was made, I am informed that his attention was not particularly called to that provision in the order, and he concurs with me in the opinion that the judgment ought not to be enforced, but that the order should be amended so as to protect the trustees as well as the cestui que trusts. It is said that the judgment was entered by an order of |