Digest. 14. The provision of the constitution securing the trial by jury "in all cases in which it has heretofore been used," does not prevent the legislature from authorizing trials to be had otherwise than by a common law jury of twelve, in civil courts of local jurisdiction, in the case of actions in which the amount claimed does not exceed the limit of such jurisdiction, as it was established before the constitution took effect. (People, ex rel. Metropolitan Board of Health agt. Lane, 6 Abb. N. S., 105.) TROVER. 1. By the rules of practice and pleading. 2. The plaintiff having in his possession Held, also, that there was no conversion; no ownership over it; and it was not injured while in his possession. (Id.) Held, further, that even if it were conceded that the defendant was guilty of a technical trespass, the plaintiff was not entitled to recover the full value of the wagon. That he having but a special property in the wagon, under a bailment for a year, and it not having been converted, J., the general owner, could, at the expiration of the year, follow and take it wherever found. (Id.) 5. That there being not only no conversion, but a return of the property before suit brought, the plaintiff's refusal, then, to accept it, entitled him to recover only the value of his special property. And that, in the absence of any proof of the value of the plaintiff's special interest in the wagon, the court could not assume it to be over six cents. (Id.) TRUST AND TRUSTEES. 1. Where the grantee of lands holds the legal estate in the premises, and there is nothing in the conveyance to him which would give notice to any one that he holds it only in trust for another, there can be no doubt that a fore. closure and sale by advertisement, pursuant to the statute, of a mortgage, given by him without the knowledge or consent of the cestui que trust, would vest in a bona fide purchaser, under the foreclosure sale, without notice of the trust, a title which would cut off the equity of the cestui que trust although no notice of the proceedings were served on him. (Brown agt. Cherry, ante, 352.) 2. But the trustee in such case would be liable to the cestui que trust for the loss he sustained by his wrongful act in mortgaging the premises; and it would be no answer to such alleged liability that he supposed he was acting for the cestui que trust when he executed the mortgage. (Id.) 3. Therefore, for this reason, the trustee has such a pecuniary interest in the question, as will authorize him to bring an action, in his own name, to restrain the foreclosure of such mortgage. (Id.) 4. The trustee is also "a trustee of an express trust," and can sue without joining with him the person for whose benefit the action is prosecuted (Code 113). For he not only held the legal title to the land in his own name, for the benefit of another, but the very mort Digest. gage in question was executed by him in his own name, not for his own benefit, but for the benefit, as he supposed, of his cestui que trust. (Id.) 5. The Code (§ 113) says, that "a trustee of an express trust, within the meaning of this section, shall be construed to include a person with whom, or in whose name, a contract is made for the benefit of another." (Id.) 6. It is error to dismiss the plaintiff's complaint on the ground that the cestui que trust was not made a party. It is enough that he was entitled to commence the action alone, or in conjunction with the cestui que trust. If he has a standing in court in either way upon the pleadings, the complaint cannot be dismissed. (Id.) 7. A mortgage is not to be regarded as a disposition of land by deed, within the meaning of the article of the Revised Statutes respecting uses and trusts. (Bucklin agt. Bucklin, 1 Keyes, 141.) 8. A trust of personalty is not within the statutes of uses and trusts, and may be created for any purpose not forbidden by law. (Iď.) 9. The statute of limitations does not commence running against an infant cestui que trust, although her right to foreclose the mortgage accrue to her more than ten years before she becomes of age, (Id.) 10. A deed of trust made for the payment of debts extends only to the debts existing at the time of making the deed. (Gilbert agt. Gilbert, 1 Keyes, 159.) 11. There must be a trustee competent to take the fund so as to secure the ap. propriation to the purpose intended. There can be no valid trust unless the title can vest in some person natural or artificial by favor of the gift itself. (Sherwood agt. American Bible Society, 1 Keyes, 561.) 12. A debt becoming due subsequently to the making of such deed, under the act of March 22, 1811, making stockholders of certain corporations liable for the debts thereof due and owing after its dissolution, is not within the provision of such deed. (Rome Exchanye Bank agt. Eames, 1 Keyes, 588.) fund should be invested in a certain manner, and the proceeds applied to the maintenance of the wife. A portion thereof (20,000) was to be kept invested on bond and mortgage during her life. The wife was empow ered to dispose, by will, of the whole or any part of the fund which might remain unexpended, at her death. Following a covenant that the husband would permit his wife to live separate and apart from him, and that he would not exercise or claim marital control over her, or interfere with her in any manner, there was a stipulation in the deed that nothing therein contained should preclude the husband from ance of the trusts and agreement emtaking all lawful means, should occasion arise, to compel the performbraced therein: Held, that the husband had a sufficient legal and equitable interest in the trust fund to authorize him to intervene for its protection, by an action against the wife and trustees, if there was reason to fear that the fund would be diverted from the purpose for which it was provided. (Cranston agt. Plumb, 54 Barb., 50.) 14. Held, also, that if the trust was faithfully excuted, the $20,000 required to be kept invested on bond and mort gage during the life of the wife, would be unexpended at the time of her decease; and as it was possible that the wife might make no disposition of the trust fund, or any portion of it, by will, and the estate of the trustees would, in that event, cease, and whatever should remain unexpended would revert to the husband, as the donor; these circumstances gave him a pecuniary interest in the fund which justified him in applying to the court for the protection and preservation of the fund, during the life of the wife. (Id.) 15. By the terms of a trust deed the grantor professed to create a trust in the property conveyed, for the benefit of his wife and five minor children. The instrument required the trustees to collect and receive the moneys, proceeds and income arising from any disposition that might be made of the premises and property granted and sold, and to invest the same in good and safe interest-paying securities, and to collect and rece ve the interest and income arising therefrom, and also, in his discretion, the principal, and for that purpose to dispose of such securities as he should think best whether from interest or principal, again to invest and to reinvest, in his discre Digest. tion; and out of the moneys or income arising from the property granted and sold, or the proceeds thereof, to pay the expenses of executing and carrying out the trust, and a reasonable compensation to him for his services as trustee; and to apply the balance of the said income, and the principal, so far as in his judgment might be required, to the support and maintenance of the grantor's wife and children. And on the arrival of the youngest of said children then living, at the age of twenty-one years, or upon the decease of M. and A., the two youngest children, should they die before that time, to convey to the children then living, and to the grantor's wife, or to such of them as shonld survive, and the descendauts of any such of them as might be dead, the said property then remaing in trust, in equal shares and proportions; the descendants of the deceased child to take the share their parent, if alive, woud have taken: Held, that the effect of the language used in the deed was, that the trust should continne until the grantor's youngest child then living should attain twentyone years of age, in case that age was reached within the lifetime of M. and A. That if it should be, then the trustee must convey to the grantor's wife and children even if all of them should at that time be living. That that age should not be attained while M. and A., were living, then at their decease he must convey, if every one of the surviving children at that time should continue to be minors. (Levy agt. Hart, 54 Barb., 218.) 16. That there could be no possibility, therefore, of the estate of the trustee extending beyond the duration of the two designated lives; and it was not within the prohibition of the statute relating to future estates in lands, or the statute relating to the suspension of the ownership of personal property. (Id.) 17. Both those statutes allow the title to be suspended for two lives in being and ascertained when the deed is made; and no greater suspension was provided for in this case. (Id.) 18. If a trust 18 void, as suspending the power of alienation, and the absolute ownership of the property conveyed, beyond the period of two lives in being when the trust was created, the grantor of the trust cannot maintain an action in equity to set aside the trust deed on the ground that such is its legal character. If it be void, it cannot be even a cloud upon the grantor's title; because, if void upon its face, it cannot by any possibility be productive of injury to him, or his estate, and therefore will furnish no ground authorizing a court of equity to remove it, as likely to prejudice the grantor, or his estate. (Id.) 19. The grantor in a trust deed, as the legal owner of the property conveyed, has no right to maintain an action to obtain a construction of the deed. That privilege is confined to the trustee, or to those claming under the trust and requiring its execution. (Id.) TURNPIKE COMPANIES. 1. The certificate of inspectors that a road has been constructed according to the true intent and meaning of the statute in such cases, is not conclusive against the people in an action to vacate the charter of the corporation for not constructing and maintaining their road in the manner required by law. (People agt. Waterford and Stillwater Turnpike Company, 2 Keyes, 327.) 2. It seems that such certificate is prima facie sufficent to authorize the company to erect gates and demand tolls, and cannot perhaps be impeached collaterally in an action by such company to recover tolls, or penalties for their non-payment. (Id.) 3. In an action by the people as above stated, evidence showing the condition of the road from the time of first taking tolls to the commencement of the action is clearly admissible. (id.) 4. The refusal of the judge upon the trial of an action, to charge that the company were not required to use extraordinary and enormous expenses in constructing the road, and his reading the provisions of the statute directing how the road should be constructed, and his charge that the company were bound to comply with the statute, were all correct. (Id.) 5. Negligence with knowledge is in tentional, willful and malicious. (Id.) 6. Where the statute provides that the road "shall be bedded with stone, gravel or such other material as may be found on the line thereof," this cannot be construed to authorize the use of the ordinary soil, where this is not gravel or some other hard material. (Id.) Digest. 7. The words "along the line," as used in the statute, mean, to a reasonable distance on each side of the line, and if stone or gravel or other material for making a hard bed. can be found within one or two miles of the road, it is "along the line," and must be sought for the bedding. (Id.) UNDERTAKING. 1. Upon a suit brought in a court of the United States, upon an undertaking given in an action in a state court, conditioned to pay the judgment if a motion for a new trial is denied, if it appears that the undertaking was merely an additional security for the payment of the judgment, and that the defendant has appealed from the order denying a new trial and that the state court has upon motion stayed proceedings upon the judgment pending the appeal, the defendants can, by an auxilliary suit in equity, obtain a stay of all proceedings upon any judgment that the plaintiff may recover in a suit on the undertaking pending the appeal in the state court. (Merchants' National Bank agt. Leland, ante, 31.) USURY. 1. Where the defendants had paid for the money loaned them, nearly the amount of the note in suit at the time of the original loan, and on the different renewals, to the lender; Held, that it was gross usury-the jury having found by their verdict that it was the money of the lender. (Berlin agt. Mapes, ante, 288.) 3. As usurious contracts are not absolutely void, but are capable of being treated as valid, by the borrower, if the mortgagor allows the property to be sold under a foreclosure, without taking the necessary means to avoid the mortgage, an innocent purchaser cannot be affected by any usury in the loan. (Elliott agt. Wood, 53 Barb., 286.) 4. It is essential to the defense of usury, that there should be a corrupt agreement between the parties to the loan, that the lender shall have secured to him a greater rate of interest than that allowed by statute. (Schoop agt. Clarke, 1 Keyes, 181.) 5. Where a note or bill is made for a larger amount than the party discounting it expected to advance, and it is agreed that the paper shall be negoti ated for the security of the amoun advanced only, the transaction is not usurious. (Id.) 6. It is no variance to count upon the note or bill, and to prove on trial, to rebut the defense of usury, that only a part of the face of the note is demand ed. (Id.) 7. Where a party, in loaning money to another, is put to trouble and expense in procuring the same, a charge for such trouble and expense is not usury. Whether such charge is made to cover usury, is a question for the jury. (Eaton agt. Alger, 2 Keyes, 41.) 8. In cases of usury it is a question for the jury, under proper instruction from the court (Sizer agt. Miller, 1 Hill, 227), whether there was any intention to evade the laws against it. But it seems that if the case is such that the court would be bound to grant a new trial if the jury found otherwise, then a nonsuit or verdict would ordinarily be sustained. (Robbins agt. Dillaye, 2 Keyes, 506.) 9. Where uncurrent money is applied for and received by the borrower as being equally good for his purposes with current, the transaction is not therefore necessarily free from usury. The defendant's contract or agreement to pay usury in any form could not repeal the statute. (Id.) 10. Where the agent of the lender falsely represents himself to be the principal, the borrower believing him to be such, and takes a bonus in excess of legal interest for the loan, it is not usurious if the actual lender did not take usurious interest himself, or know of its being taken. (Lee agt. Chadsey, 2 Keyes, 545.) VENDOR AND PURCHASER. 1. The refusal of the purchaser to accept a sufficient deed of land, agreeable to the contract, duly tendered by the vendor, Held, to exonerate the vendor, both from the obligation to convey, and the obligation to return the portion of the purchase money received on the contract. (Simon agt. Kaliske, 6 Abb. N., S., 224.) 2. S. sold and sent to O. a quntity of liquors, under an agreement that if O. sold out his hotel he might send back the unsold liquors to S. O., after having sold only a small portion of the liquors, sold his hotel, and sent Digest. the balance of the liquors to the railroad depot to be shipped back to S. While they were still at the depot, marked and directed to S., they were seized by the defendant, as sheriff, upon an attachment against the property of O.. Held, that even assuming that the title passed to O. on the delivery of the goods to him, the delivery of the liquors at the depot, for reshipment to the vendor, in pursuance of the original contract, reinvested the latter with the title. (Sutton agt Crosby, 54 Barb. 80.) Held, also, that the assent of the vendor to receive back the property in case the purchaser should sell his hotel, made the delivery of the property to the carrier, for the purpose of returning the same to the vendor, valid and effectual to reinvest S. with the title, as upon a resale of the liquors. (Id.) 3. A bill of sale, containing a description of the goods sold, such as is generally furnished by vendors, is not conclusive as to the terms upon which the goods were sold. Though prima facie evidence of a sale, it does not preclude the vendor from showing the actual facts respecting such sale. (Id.) VERDICT. 1. The jury were instructed to find upon the question of fraud in a sale, and on the right of stoppage in transit, and that either of these points, found affirmatively, would entitle plaintiff to a verdict: Held, that a verdict "for the plaintiff, $- on the ground of fraud," was a sufficiently formal finding of fraud to sustain a judgment; although if a general verdict for the plaintiff had been rendered, it must have been set aside. (Fraschieris agt. Henriques, 6 Abb. N. S., 251.) 2, If, in the finding of a jury, special matter follows or is followed by general matter, the verdict will be judged according to the special matter." (Id.) 3. There is no fatal variance between the indictment and the verdict, where the former charges the prisoner with having feloniously stolen, taken and carried away from the person, &c., and the latter finds the prisoner guilty as charged in the indictment of grand larceny, in stealing from the person, &c. (Fallon agt. People, 2 Keyes, 145.) VERIFICATION. 1. Where an action is prosecuted or defended for the immediate benefit of one who is not a party on the record, but who is the party in interest, a pleading may be verified by him. Taber agt. Gardner, 6 Abb. N. S., 147.) VESSEL. 1. Where part owners of a vessel, then under charter to a foreign government, assigned to the plaintiffs all their interest in said charter, and in and to the freight to be earned under the same: Held, in an action brought by the plaintiffs to recover their share of the freight earned by the vessel during the last voyage, that such freight was subject to an accounting between the several co-owners, for all previous voyages; it appearing that the former voyages and the one in question were all one entire, connected and continued partnership transaction. And that the rights of the plaintiffs, as assignees, were only in and to the balance, which on a settlement of the accounts of said several voyages, between said co-owners, might be found due to the plaintiff's as such assignees. (Williams agt. Lawrence, 53 Barb., 320.) 1. During a negotiation between the plaintiffs and defendants, for the purchase of a number of cows by the former, of the latter, one of the plaintiffs told one of the defendants that he wanted to know if the cows were all right-all perfect and when they were coming in; that the plaintiff's wanted them to take back into the country to sell to dairymen, to fill in where their cows were farrow and old, &c.; that they must know whether they were all coming in in good season,⚫ as they had to warrant them coming |