1. A statute authorizing the election of an additional justice of the peace in a city, conferred upon the justice to be elected thereunder, jurisdiction in all civil and criminal cases, and over all persons arrested or charged with any offenses, and all the juris- diction, power and authority in such cases, which were possessed by the justices in said city then in office; and provided that all laws governing the justices of the peace in said city should apply to, and be binding upon, said justice; but made no provision for a clerk. Held that no power to nominate or appoint a clerk was granted by the statute, and that the court could not extend the statute by construction. Cas- sidy v. The City of Brooklyn, 105
See MUNICIPAL CORPORATIONS.
One tenant in common in possession of the common property is only lia- ble to pay rent, when he agrees to pay it; and such an agreement only enures to the benefit of the co-tenant with whom it is made. Nor can he set off against such rent the cost of improvements and additions not strictly repairs. Scott v. Guernsey, 163
2. A tenant in common occupying without agreement to pay rent, is not liable, on partition, to account for rent, even though the occupancy be by a firm of which the tenant in common is a partner.
question is raised in regard to the fairness and equity of the partition, a court of equity has not power to compel a creditor having a lien on an undivided interest, by judgment or mortgage, before such partition, to resort to the share so partitioned to his debtor, for the satisfaction of his lien, and restrain him from enforcing such lien against the shares so partitioned and conveyed to the other tenants? Quære. Martin v. Wagener, 435
7. Where several agreements and con- veyances between the heirs of a per- son dying seised of land, were not in the nature of a partition of the es- tate, and were not intended to be a partition, but were mere contracts of bargain and sale, and conveyances thereon, and the plaintiff's conveyed their interests in the common lands to R. M., and thus subjected them to the lien of a judgment existing against him, in exchange for a con- veyance of an interest in other lands also incumbered by the same judg- ment; it was held that the plaintiff's having done so voluntarily, and with- out any mistake, or ignorance as to the facts, the court, upon a com- plaint alleging that R. M. had dis- posed of all the property he received in and by said exchange, which was amply sufficient to satisfy the judg ment, and that he was insolvent and unable to restore the same, or pro- cure restitution thereof, could not relieve them from the consequences of their own act, by decreeing the lands conveyed to them by R. M. to be free from the lien of such judg- ment, and restraining the sale there- of upon execution issued on such judgment.
8. Held, also, that, other judgments against R. M. having been enforced, and his title to the lands which were conveyed to him by the plaintiffs, and all the other lands held by him in severalty, having been alienated in executing the judgments, and the title vested in different purchasers, it became a mere question as to the order in which the lands subject to the lien of the original judgment should be sold, or made liable to contribution to such judgment; and that the order was regulated by stat- ute. (2 R. S. 375, ýý 70, 71.)
1. Where a cestui que trust resided in this State, and the original trustee, although he died in Connecticut, re- sided in this State when he was ap- pointed, had the trust fund here, at the time, and partly executed the trust here; and the cestui que trust was an infant and needed the fund for his support; it was held that, under these circumstances, the pow- er of the court to appoint a new trustee within its own territorial ju- risdiction could not be doubted. Curtis v. Smith,
4. The facts that a trustee was ap- pointed on petition merely, and not by bill; that the cestui que trust was not a party to the proceeding; and that other persons, contingently in- terested in the trust fund were not made parties, are mere irregularities, at the most, and do not touch the validity of the appointment; and the objections cannot be set up by per- sons not appearing to have any in- terest in the trust fund, but only claiming an interest, the nature of which is not shown. ib
5. The statute devolving a trust upon the court, on the death of a surviv- ing trustee, and authorizing the ap- pointment of a new trustee, (1 R. S. 730, 68,) applies to a trust of per- sonal as well as real estate. ib
6. Where one of two trustees dis- claimed acting as trustee, by an answer in chancery, in Missouri;
5. Where the relation of landlord and tenant did not exist, and there had been neither a tortious entry, nor a tortious holding, by the defendant, who went into possession by virtue of a parol agreement with the plain- tiffs to purchase, and had been will- ing to pay substantially according to the agreement, and had quitted the premises because the plaintiffs refused to allow him to perform his agreement, or to accept performance on his part; Held that the plaintiffs could not recover for the use of the premises; whether the action was to be regarded as an action for use and occupation, or an action for mesne profits. ib
6. Held, also, that it was erroneous for the judge to charge the jury that the agreement under which the de- fendant entered, for the purchase of the land, being void, the plaintiffs were entitled to recover the fair value of the use of the premises. ib
1. Where, in an action upon a prom- issory note, the single question to be tried is, whether there was a cor- rupt and an usurious agreement made upon a loan of money which was the consideration of the note, the intent of the parties is a question of fact; and that question having been found by the jury against the defendants, upon conflicting evi- dence, their finding is conclusive; unless some error was committed on the trial, by the judge, in his rul- ings, or charge to the jury. Horton v. Moot,
2. Whether the transaction was a con- trivance on the part of the plaintiff, by which he obtained more than seven per cent for the loan or for- bearance of money; whether it was a fraud upon the statute, or an eva- sion of the statute, to cover usury; whether the plaintiff bought the note of the bank at which it was payable; or whether the bank acted as the agent of the plaintiff, in committing the fraud-are not questions of law, independent of the facts upon which the propositions are based. And if the jury find, correctly, against the defendants upon them, the court can- not reverse their findings.
only to relieve a borrower, under a usurious contract, from the obliga- tion to repay the money actually borrowed, in cases where a resort to a court of equity was necessary either for discovery or relief.
6. The former rule of courts of equity, requiring a complainant who sought relief in that court against a usuri- ous contract, obligation or security, to repay the money actually loaned, with interest, as a condition of granting the relief, was abrogated by the statute of 1837 only in behalf of the borrower. The rule is not abrogated as to the grantee of the borrower. When such grantee, as such, commences a suit for relief, the rule requiring him to do equity, as a condition of relief, still applies, b
1. In an action by a purchaser, against the vendor, to recover damages for fraudulent representations of the latter, upon a sale and purchase of land, the evidence showed that dur- ing the negotiations the plaintiff in- formed the defendant that he would not purchase lands held under a tax title; and that the defendant repre- sented that he "had good title, and the best kind of title" to the lands in question; that they had been se- lected as choice lands, many years before, by one who had great oppor- tunities of locating choice lands, and that such person had conveyed some of the lands so selected by him, to his brother, and the latter had conveyed them to the defend- The falsity of the representa- tions was clearly proved, and the
4 An agreement by parol having been made between the plaintiff and the defendants, for the sale of a dwell- ing house by the latter to the former, and the possession thereof, the plaintiff paid the purchase money. A writing was subsequently execu- ted by the defendants, and delivered, but it did not contain all the agree- ment. And upon the plaintiff ob- jecting to it, and returning it, on the ground that it did not provide for giving him possession, the defend- ants virtually admitted the fact, by not denying it, and agreeing to make it all right. Held that the defend- ants having received the plaintiff''s money upon an agreement to give him possession, equity and common justice demanded that they should make him good by returning the money, or giving possession accord- ing to agreement. Hoag v. Owen, 34
5. Held, also, that the jury having found that the writing was not a conveyance to the plaintiff, he was not bound to reconvey the building to the defendants before bringing
an action to recover back the pur- chase money he had paid. That it was sufficient for him to demand possession, or a return of the pur- chase money. ib
2. Of personal property.
6. On the 17th of October, 1866, the plaintiff, being the owner of a large quantity of wool, sold the same to A., F. & W. on a credit of four months, upon their notes. A., F. & W. were insolvent, at the time, and the wool was purchased by A., one of the members of the firm, with knowledge of such insolvency, and with a preconceived design not to pay for the wool. On that day ten sacks of the wool were delivered to the purchasers, and on the next day twenty-one sacks more were deliver- ed. On the 19th of October the plain- tiff refused to deliver the remainder; and on that day A., F. & W. made an assignment of all their personal estate, including the wool which had been delivered, to T. & R., to secure liabilities of the assignors to them, and to pay laborers and operatives. The wool delivered was immediately put into the mill of the purchasers, and at the time the assignment was made, the ten sacks delivered on the 17th, and more than one half of the twenty-one sacks delivered on the 18th, had passed the first process of manufacture, and were at different stages of manufacturing into under garments. On the same day, after the execution of the assignment, the defendant, claiming under the as- signees, took possession of the wool, at the said mill. On the 22d of October the plaintiff demanded the twenty-one sacks of wool, of the as- signees, claiming the right to rescind the sale and reclaim the property, on the ground of fraud. And, before the defendant or either of the par- ties to or for whom the assignment was executed had paid any money or wages, the same deinand was served upon the defendant. Held, 1. That the purchase of the wool by A., F. & W. having been fraudulent, the delivery of the property to them gave them no title to it. 2. That the assignment was fraudulent and void as against the plaintiff. 3. That the plaintiff had the right to have the sale rescinded, unless he had, by some act of omission or commission,
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