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Digest.

14. The provision of the constitntion se- 1 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 had 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, conld, at the expiration of the Health agt. Lane, 6 Abb. N. 8., 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 plaintiti''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 driilge 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 bis 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, tendant, 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 plainuitf. 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 uitle 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 co notice of the proceedings fendant becoming bis surety for such

were served on him. (Brown agt. 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, I le 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 the defendant acting under him, to

mortgage. (Id.) 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 throughout; it was benefit the action is prosecuted (Code not taken or detained with the intent 0 113). 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; be assumed | 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 liust was not made a party. It is enough that he was entitled to conmence 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 forbid

den by law. (Id.) 9. The statute of limitations does not

commence running against an infant cestui que trist, 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 appropriation 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,

i Keyes, 561.) 12. A debt becoming due subseqnently

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,

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 empowered io 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 00casion 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 faith•

fully excuted, the $20,000 reqnired to be kept invested on bond and mortgage 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 what. ever 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 invesi 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.

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13. A husband, on his separation from

bis wife, created a trust and supplied a fund ($50,000) to be exclusively reserved for her maintenance. By a deed of separation, executed by the husband and his wife, as well as by the trustees, it was stipulated that the

Digest.

tion; and out of the moneys or income canvot be even a clond 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 grantor, 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 the 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

aid 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 bave

against the people in an action to taken:

vacate the charter of the corporation

for not constructing and maintaining Hild, 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 water Turnpike Company, 2 Keyes, child then living should attain twenty.

3:27.) one years of age, in case that age was reached within the lifetime of M. and 2. It seems that such certincate 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

3. In an action by the people as above of the surviving children at that time

stated, evidence showing the condition should continue to be minors. (Levy

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 extrathe statute relating to the suspension

ordinary and enormous expenses in of the ownership of personal property.

constructing the road, and his reading

the provisions of the statute directing (Id.)

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

5. Negligence with knowledge is in, provided for in this case. (Id.)

tentional, willful and malicious. (Id.) 18. If a trust 18 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 trust was created, the be found on the line thereof,” thín 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.)

Digest.

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

ditin 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 deury, that only a part of the face of the note is demand

ed. (Id.) UNDERTAKING.

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, à 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

8. In cases of usury it is a question for additional security for the payment of

the jury, under proper instruction from the judgment, and that the defendant

the court (Sizer agt. Miller, I Hill, 227), has appealed from the order denying a new trial and that the state court has

whether there was any intention to

evade the laws against it. But it seems upon motion stayed proceedings upon

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

if the jury found otherwise, then a iu equity, obtain a stay of all proceed

noueuit or verdict would ordinarily be ings upon any judgment that the plaintiff may recover in a suit on the under

818tained. (Robbins agt. Dillaye, 2 taking pending the appeal in the state

Keyes, 506.) 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 bim 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 nou 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.

3 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 parthat 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

| 2. S. sold and sent to 0. a quntity of that allowed by statute. (Schoop agt. Clarke, 1 Keyes, 181.)

liquors, under an agreement that if 0.

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

larger amount than the party discount. 1 having sold only a small portion of ing it expected to advance, and it is the liquors, sold bis hotel, and sent

· Digest.

80.)

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 erty of O..

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

1 Taber agt. Gardner, 6 Abb. N. 8., passed to 0. on the delivery of the

147.) 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

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 dnring 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 continged 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, de

the 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 ownersbip. (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 plaintiff's 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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