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14. The provision of the constitution se- no ownership over it; and it was not

curing the trial by jury" in all cases in injured while in his possession. (Id.) which it has heretofore been used," does not prevent the legislature from Held, further, that even if it were conauthorizing trials to be bad otherwise

ceded that the defendant was guilty of than by a common law jury of twelve,

a technical trespass, the plaintiff was in civil courts of local jurisdiction, in

not entitled to recover the full value the case of actions in which the amount

of the wagon. That he having but a claimed does not exceed the limit of special property in the wagon, under such jurisdiction, as it was established

a bailment for a year, and it not havbefore the coustitution took effect.

ing been converted, J., the general (People, ex rel. Metropolitan Board of

owner, could, at the expiration of the Health agt. Lane, 6 Abb. N. S., 105.)

year, follow and take it wherever

found. (Id.) TROVER.

5. That there being not only no con

version, but a return of the property

before suit brought, the plaintiff's re. 1. By the rules of practice and pleading

fusal, then, to accept it, entitled him to before the Code, an action of trover

recover only the value of his special could not be sustained without proof

property. And that, in the absence of of a detention or conversion of the

any proof of the value of the plaintiff's property alleged to have been un

special interest in the wagon, the court lawfully taken ; but as the forms of

could not assume it to be over six pleading do not now control, the court, cents. (Id.) in an action for wrongfully taking and carrying away and converting property, must examine the evidence, and TRUST AND TRUSTEES. if the proof, or facts found by the jury, entitle the plaintiff to a judginent, such 1. Where the grantee of lands holds the judgment should be given, even though legal estate in the premises, and there not asked for by the complaint. (El- is nothing in the conveyance to him dridge agt. Adams, 54 Barb., 417.) which would give notice to any one

that he holds it only in trust for anoth2. The plaintiff having in his possession

er, there can be no doubt that a fore. a buggy wagon which he had hired

closure and sale by advertisement, purfor a year, from J., let it to the de

suant to the statute, of a mortgage, fendant, It was used by H. and was

given by him without the knowledge brought back and received by the

or consent of the cestui que trust, would plaintiff. The wagon having been

vest in a bona fide purchaser, under injured by H. during its use, the plain

the foreclosure sale, without notice of tiff sent it to a shop, for repair. H.

the trust, a litle which would cut off afterward told him to get the wagon

the equity of the cestui que trust alfixed and he would pay for it, the de

though do notice of the proceedings fendant becoming bis surety for such were served on him. (Brown ayt. repairs. Subsequently H. and the

Cherry, ante, 352.) defendant took the wagon to another shop, had it repaired and returned it 2. But the trustee in such case would be to the plaintiff, before suit brought, liable to the cestui que trust for the loss and it remained in his possession : he sustained by his wrongful act in

mortgaging the premises; and it would Held, that the bailment of the wagon

be no answer to such alleged liability continued until it was repaired and

that he supposed he was acting for the returned ; and there being an implied

cestui que trust when he executed the license from the plaintiff to H., and

mortgage. (Id.) the defendant acting under him, to have the wagon repaired, the removal 3. Therefore, for this reason, the trustee of it from one shop to another, for that has such a pecuniary interest in the purpose, was not an unlawful taking question, as will authorize him to bring of the property. (Id.)

an action, in his own name, to restrain

the foreclosure of such mortgage. Held, also, that there was no conversion ;

(Id.) that the defendant was guilty only of a mere asportation; he did not inter- 4. The trustee is also "a trustee of an exfere with the plaintiff's dominion over press trust," and can sue without join. the wagon; his title being recognized ing with him the person for whose and acknowledged tbroughout; it was benefit the action is prosecuted (Code not taken or detained with the intent $ 113). For he not only held the legal to convert it to the defendant's rise, or title to the land in his own name, for the the use of any one else; he assumed benefit of another, but the very mort


gage in question was executed by him fund should be invested in a certain in his own name, not for his own bene- manner, and the proceeds applied fit, but for the benefit, as he supposed, to the maintenance of the wife. A of his cestui que trust. (Id.)

portion thereof (20,000) was to be

kept invested on bond and mortgage 5. The Code ( 113) says, that “a trustee

during her life. The wife was empow. of an express trust, within the meaning

ered io dispose, by will, of the whole of this section, shall be construed to in

or any part of the fund which might clude a person with whom, or in whose

remain unexpended, at her death. name, a contract is made for the benefit

Following a covenant that the husband of another." (Id.)

would permit his wife to live separate 6. It is error to dismiss the plaintiff's and apart from him, and that he would

complaint on the ground that the cestui not exercise or claim marital control que crust was not made a party. It is over her, or interfere with her in any enough that he was entitled to con- manner, there was a stipulation in the mence the action alone, or in conjunc- deed that nothing therein contained tion with the cestui que trust.

If he has should preclude the husband from a standing in court in either way upon

ance of the trusts and agreement emthe pleadings, the complaint cannot taking all lawful means, should 00be dismissed. (Id.)

casion arise, to compel the perform

braced therein: 7. A mortgage is not to be regarded as a

disposition of land by deed, within the Held, that the husband had a sufficient meaning of the article of the Revised legal and equitable interest in the Statutes respecting, uses and trusts.

trust fund to authorize him to intervene (Bucklin agt. Bucklin, 1 Keyes, 141.)

for its protection, by an action against

the wife and trustees, if there was 8. A trust of personalty is not within reason to fear that the fund would be

the statutes of uses and trusts, and may diverted from the purpose for which it be created for any purpose not forbid- was provided. (Cranston agt. Plumb, den by law. (Id.)

54 Barb., 50.) 9. The statute of limitations does not

14. Held, also, that if the trust was faith• commence running against an infant

fully excuted, the $20,000 reqnired to cestui que trist, although her right to foreclose the mortgage accrue to her

be kept invested on bond and mort

gage during the life of the wife, would more than ten years before she becomes of age, (Id.)

be unexpended at the time of her

decease; and as it was possible that 10. A deed of trust made for the payment

the wife might make no disposition of debts extends only to the debts ex- of the trust fund, or any portion of it, isting at the time of making the deed. by will, and the estate of the trustees (Gilbert agt. Gilbert, 1 Keyes, 159.)

would, in that event, cease, and what

ever should remain unexpended would 11. There must be a trustee competent revert to the husband, as the donor ;

to take the fund so as to secure the ap. these circumstances gave him a peculpropriation to the purpose intended.

niary interest in the fund which justiThere can be no valid trust unless the

fied him in applying to the court for the title can vest in some person natural or

protection and preservation of the fund, artificial by favor of the gift itself. during the life of the wife. (Id.) (Sherwood agt. American Bible Society, 1 Keyes, 561.)

15. By the terms of a trust deed the 12. A debt becoming due subsequently

grantor professed to create a trust in to the making of snch deed, under the

the property conveyed, for the benefit

of his wife and five minor children. act of March 22, 1811, making stockholders of certain corporations liable

The instrument required the trustees for the debts thereof due and owing

to collect and receive the moneys, after its dissolution, is not within the

proceeds and income arising from any

disposition that might be made of the provision of such deed. (Rome Exchanye Bank agt. Eames, 1 Keyes,

premises and property granted and 588.)

sold, and to invest the same in good

and safe interest-puying securities, and 13. A husband, on his separation from to collect and rece ve the interest and

bis wife, created a trust and supplied a income arising therefrom, and also, in fund ($50,000) to be exclusively re- his discretion, the principal, and for served for her maintenance. By a that purpose to dispose of such securideed of separation, executed by the ties as he should think best whether husband and bis wife, as well as by from interest or principal, again to the trustees, it was stipulated that the invest and to reinvest, in his discreDigest.


tion; and out of the moneys or income canvot be even a cloud upon the arising from the property granted and grantor's title; because, if void upon sold, or the proceeds thereof, to pay its face, it cannot by any possibility the expenses of executing and carrying be productive of injury to him, or his out the trust, and a reasonable com- estate, and therefore will furnish no pensation to him for his services as ground authorizing a court of equity to trustee ; and to apply the balance of

remove it, as likely to prejudice the the said income, and the principal, so gruntor, or his estate. (Id.) far as in his judgment might be required, to the support and maintenance 19. The grantor in a trust deed, as the of the grantor's wife and children. legal owner of the property conveyed, And on the arrival of the youngest of

has no right to maintain an action to said children then living, at the age of

obtain a construction of the deed. twenty-one years, or upon the decease That privilege is confined to the of M. and A., the two youngest chil. trustee, or to those claming under the dren, should they die before that time, trust and requiring its execution. (Id.) to convey to ihe children then living, and to the grantor's wife, or to such

TURNPIKE COMPANIES. of them as shonld survive, and the descendauts of any such of them as might be dead, the said property then 1. The certificate of inspectors that a remaing in trust, in equal shares and road has been constructed according proportions; the descendants of the to the true intent and meaning of the deceased child to take the share statute in such cases, is not conclusive their parent, if alive, woud have against the people in an action to taken:

vacate the charter of the corporation

for not constructing and maintaining Held, that the effect of the language used their road in the manner required by in the deed was, that the trust should

law. (People agt. Waterford and Stillcontinne until the grantor's youngest child then living should attain twenty

water Turnpike Company, 2 Keyes, one years of age, in case that age was reached within the lifetime of M. and 2. It seems that such certificate is prima A. That if it should be, then the facie sufficent to authorize the comtrustee must convey to the grantor's pany to erect gates and demand tolls, wife and children, even if all of them and cannot perhaps be impeached collshould at that time be living. That it aterally in an action by such company that age should not be attained while to recover tolls, or penalties for their M. and A., were living, then at their non-payment. (Id.) decease he must convey, if every one of the surviving children at that time 3. In an action by the people as above should continue to be minors. (Levy

stated, evidence showing the condition

of the road from the time of first agt. Hart, 54 Barb., 248.)

taking tolls to the commencement 16. That there could be no possibility, of the action is clearly admissible.

therefore, of the estate of the trustee (id.)
extending beyond the duration of the
two designated lives; and it was not

4. The refusal of the judge upon the trial within the prohibition of the statute

of an action, to charge that the comrelating to future estates in lands, or

pany were not required to use extra

ordinary and enormous expenses in the statute relating to the suspension of the ownership of personal property.

constructing the road, and his reading (Id.)

the provisions of the statute directing

how the road should be constructed, 17. Both those statates allow the title to and his charge that the company were

be suspended for two lives in being bound to comply with the statute, were and ascertained when the deed is all correct. (Id.) made ; and no greater suspension was provided for in this case. "(Id.)

5. Negligence with knowledge is in,

tentional, willful and malicious. (Id.) 18. If a trust is void, as suspending the

power of alienation, and the absolute 6. Where the statute provides that the ownership of the property conveyed, road "shall be bedded with stone, beyond the period of two lives in being gravel or such other material as may when the was created, the be found on the line thereof," thíu grantor of the trust cannot maintain cannot be construed to authorize the an action in equity to set aside the use of the ordinary soil, where this is trust deed on the ground that such is not gravel or some other hard material. its legal character. If it be void, it (Id.)



7. The words “along the line," as used agreed that the paper shall be negoti

in the statute, mean, to a reasonable ated for the security of the amoun distance on each side of the line, and advanced only, the transaction is not if stone or gravel or other material for usurious. (Id.) making a hard bed, can be found within one or two miles of the road, it is 6. It is no variance to count upon the “along the line," and must be sought

note or bill, and to prove on trial, to for the bedding. (Id.)

rebut the defense of usury, that only a part of the face of the note is demand


7. Where a party, in loaning money to

another, is put to trouble and expense 1. Upon a suit brought in a court of the in procuring the same, a charge for United States, upon an undertaking

such trouble and expense is not usury. given in an action in a state court, con- Whether such charge is made to cover ditioned to pay the judgment if a motion usury, is a question for the jury. for a new trial is denied, if it appears (Eaton agt. Alger, 2 Keyes, 41.) that the undertaking was merely an additional security for the payment of

8. In cases of usury it is a question for the judgment, and that the defendant

the jury, under proper instruction from

the court (Sizer agt. Miller, 1 Hill, P27), has appealed from the order denyirg

whether there was any intention to a new trial and that the state court has upon motion stayed proceedings upon

evade the laws against it. But it seems

that if the case is such that the court the judgment pending the appeal, the

would be bound to grant a new trial defendants can, by an auxilliary suit iu equity, obtain a stay of all proceed

if the jury found otherwise, then a

nousuit or verdict would ordinarily be ings upon any judgment that the plain

8118tained, (Robbins agt. Dillaye, 2 tiff may recover in a suit on the under

Keyes, 506.) taking pending the appeal in the state court. (Merchants' National Bank agt. 9. Where uncurrent money, is applied Leland, ante, 31.)

for and received by the borrower as being equally good for his purposes

with current, the transaction is not USURY.

therefore necessarily free from usury. The defendant's contract or agreement

to pay usury in any form could not 1. Where the defendants had paid for the repeal the statute. (Id.)

money loaned them, nearly the amount of the note in suit at the time of the 10. Where the agent of the lender falsely original loan, and on the different re- represents himself to be the principal, newals, to the lender;

the borrower believing him to be such,

and takes a bonus in excess of legal inHeld, that it was gross usury—the jury terest for the loan, it is not usurious if having found by their verdict that it

the actual lender did not take usurious was the money of the lender. (Berlin interest himself, or know of its being agt. Mapes, ante, 288.)

taken. (Lee agt. Chadsey, 2 Keyes, 545.) 3. As usurious contracts are not abso

lutely void, but are capable of being treated as valid, by the borrower, if

VENDOR AND PURCHASER. the mortgagor allows the property to be sold under a foreclosure, without 1. The refusal of the purchaser to actaking the necessary means to avoid cept a sufficient deed of land, agreeathe mortgage, an innocent purchaser ble to the contract, duly tendered by cannot be affected by any usury in the the vendor,loan. (Elliott agt. Wood, 53 Barb., Held, to exonerate the vendor, both from 286.)

the obligation to convey, and the obli4. It is essential to the defense of usury, gation to return the portion of the pur

that there should be a corrupt agree- chase money received on the contract. ment between the parties to the loan, (Simon agt. Kaliske, 6 Abb. N., S., that the lender shall have secured to 224.) him a greater rate of interest than that allowed by statute. (Schoop agt.

2. S. sold and sent to 0. a quntity of Clarke, 1 Keyes, 181.)

liquors, under an agreement that if 0.

sold out his hotel be might send back 5. Where a note or bill is made for a the unsold liquors to S. 0., after

larger amount than the party discount. having sold only a small portion of ing it expected to advance, and it is the liqnors, sold bis hotel, and sent


erty of 0..


the balance of the liquors to the rail

VERIFICATION. road depot to be shipped back to S. While they were still at the depot, 1. Where an action is prosecuted or demarked and directed to S., they were

fended for the immediate benefit of seized by the defendant, as sheriff,

one who is not a party on the record, upon an attachment against the prop- but who is the party in interest, a

pleading may be verified by him. Held, that even assuming that the title

( Taber agt. Gardner, 6 Abb. N. S., passed to 0. on the delivery of the goods to him, the delivery of the liquors at the depot, for reshipment to

VESSEL. the vendor, in pursuance of the original contract, reinvested the latter with the title,

(Sutton agt Crosby, 54 Barb. 1. Where part owners of a vessel, then 80.)

under charter to a foreign government,

assigned to the plaintiffs all their interHeld, also, that the assent of the vendor est in said charter, and in and to the

to receive back the property in case freight to be earned under the same: the purchaser should sell his hotel, made the delivery of the property to

Held, in an action brought by the plainthe carrier, for the purpose of return

tiffs to recover their share of the freight ing the same to the vendor, valid and earned by the vessel during the last effectual to reinvest S. with the title, voyage, that such freight was subject as upon a resale of the liquors. (Id.) to an accounting between the several

co-owners, for all previous voyages; it 3. A bill of sale, containing a description

appearing that the former voyages and of the goods sold, such as is generally the one in question were all one entire, furnished by vendors, is not conclusive

connected and continued partnership as to the terms upon wbich the goods

transaction. And that the rights of the were sold. Though prima facie evi- plaintiffs, as assignees, were only in dence of a sale, it does not preclude the and to the balance, which on a settlevendor from showing the actual facts

ment of the accounts of said several respecting such sale. (Id.)

voyages, between said co-owners, might be found due to the plaintiffs as such

assignees. (Williams agt. Lawrence, VERDICT.

53 Barb., 320.)

2. Proceedings in rem against a vessel 1. The jury were instructed to find upon for the price of coal furnished her, dethe question of fraud in a sale, and on termine no question of ownership of the right of stoppage in transit, and

the vessel ; and, consequently, are not that either of these points, found af

admissible as evidence for the purpose firmatively, would entitle plaintiff to

of proving ownerabip. (Van Vechten a verdict:

agt. Griffiths, 1 Keyes, 104.) Held, that a verdict " for the plaintiff, 3. Counsel desiring the court to instruct on the ground of fraud," was

the jury as to a particular proposition, a sufficiently formal finding of fraud

not making the proposition clear and to sustain a judgment; although if a

intelligible, cannot complain if the general verdict for the plaintiff had

instruction is refused. (id.) been rendered, it must have been set aside. (Fraschieris agt. Henriques, 6

WARRANTY. Abb. N. 8., 251.) 2, If, in the finding of a jury, special 1. During a negotiation between the matter follows or is followed by gen

plaintiffs and defendants, for the pureral matter, the verdict will be judged chase of a number of cows by the foraccording to the special matter. (Id.) mer, of the latter, one of the plaintiff's

told one of the defendants that he 3. There is no fatal variance between the wanted to know if the cows were all

indictment and the verdict, where the right-all perfect - and when they former charges the prisoner with hav- were coming in; that the plaintiffs ing feloniously stolen, taken and carricd wanted them to take back into the away from the person, &c., and the lat- country to sell to dairymen, to fill in ter finds the prisoner guilty as charged where their cows were farrow and in the indictment of grand larceny, in old, &c.; that they must know whether stealing from the person, &c. (Fallon they were all coming in in good season, agt. People, 2 Keyes, 145.)

as they had to warrant them coming

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