must transfer the property to a trustee, or 2. Proof of a custom which is general is not ob-
declare that he holds it himself in trust.- jectionable when there is nothing in the con-
Young v. Young et al., 137.

tract to exclude its application. Parties are
4. In case of voluntary settlements or gifts, a

presumed to contract in reference to a gen.

eral usage or custom which prevails in the
trust will not be implied where one was not
in fact contemplated.—Id.

particular trade or business to which the

contract relates.--Fuller et al. v. Robinson,
Ö. Defendant purchased a mortgage made by 487.

one B., relying upon B.'s sworn statement
that it was given for a full consideration, and

afterward sold it for the full sum secured by 1. Defendants' intestate being indebted to plain-
it. In an action to establish a trust in favor

tiff, procured a loan from him, on mortgage,
of B.'s assigpees for the difference between
the face of the mortgage and the sum paid

nothing being said about the rate of interest.

A statement of the indebtedness, a receipted
for it by defendant, Held, That no trust could

attorney's bill and a check for the balance
be implied; that B.'s representation estopped

were handed to intestate as covering the
him from denying its truth.-Grissler et al. v.
Powers, 196.

loan. He objected to an item in the attor-

ney's bill of $150 for commissions in procur.
6. Where a deposit is made in the savings bank ing the loan, and plaintiff said it was all

by a person in his or her name, as trustee for right; that he could not do any better,
another, it is a' complete and valid transfer Held, That while intestate was deprived of
of the title to the fund.-Boone v. The Citi- the $150 by false pretence, it was not done
zens' Savings Bk., 208.

by virtue of any agreement, and therefore,

there could be no usury.-Guggenheimer v.
7. Where in an action by a judgment creditor

Geiszler et al., 287.
of the beneficiary a judgment is rendered
fixing the surplus income of a trust estate, 2. It is enough that the facts making out usury
and directing the trustees to pay the debt are stated with sufficient certainty in the
and costs out of such surplus, the trustees are pleading to enable the other party to know
bound by the judgment, and if they disobey what he would be called upon to meet.
its command become personally, liable for Leon v. Bernheimer, 288.
the debt.— Williams v. Thorn et al., 332.

3. Defendants applied to certain brokers for a
8. D., S. & Co. gave their check on themselves loan on mortgage, agreeing to pay them 12

to plaintiffs for a sum due plaintiffs. These per cent. for procuring it. One B agreed to
checks were known as cashier's checks. By make the loan, and left with one o, his at-
general arrangement with the National Bank torney, checks signed in blank. O filled up
of the State of New York, such checks were the checks during B.'s absence, one of which
cashed by said last named bank through the was for the 12 per cent.; this was endorsed
clearing house. After the check in suit was by defendants and handed to the brokers
drawn, D., S. & Co. made a deposit of securi- who transferred it to 0, and the latter re-
ties with said National Bank for the payment

tained all but a small commission which he
of certain over-drafts of cashier's checks, of paid the brokers. No portion of this sum
which the check aforesaid was one. After was received by B or the estate he repre-
depositing such securities, D., S. & Co, made sented. Held, That this did not constitute
a general assignment before the check in usury.- Van Wyck et al. v. Walters et al.,
suit had been paid. Held, That such securi- 366.
ties deposited created an irrevocable trust 4. Where one goes to another state and there
for the benefit of the holders of the checks,

makes a contract for the loan or forbearance
and that the holders of such checks were

of money lawful by the laws of that state, he
entitled to payment from such securities in

cannot render his obligation void by making
preference to the general creditors of D., S.
& Co.- Watts v. Shipman et al., 360.

it payable in a state by whose laws it would

be usurious; although it be signed in a

different state than where it was made and

sent to the place of contract by mail, it must

be governed by the laws of the place o
See NEGLIGENCE, 32, 33,

contract. The Wayne Co. Savings Bk. v. Low-


5. An accommodation note made and endorsed :

for the sole purpose of being discounted, which
See APPEAL, 30, 31; REPLEVIN, 5.

is discounted at its inception at a usurious

rate of interest, is void in the hands of a

bona fide holder for value, and cannot be
1. Proof of usage will not make a contract where

enforced against the accommodation en-

dorser.-Raynor v. Randall, 460.
the parties have made none, and it can only
be admitted to interpret the meaning of the 6. The fact that the endorser was wholly or part-
language employed. - The Nat. Savings Bk. of ly indemnified does not change the character -
D. C. v. Ward, 330.

of the note as accommodation paper.-Id.

7. If a contract is usurious it is absolutely void,

and no agreement between the parties can
give it vitality; the taint of usury perme- 1. There is no implied warranty on the part of
ates all transactions based upon it, and all

the vendor of a bill valid in the hands of the
are void alike.—Maybee et al. v. Crozier,

indorser that it is drawn against funds or

that it is not accommodation paper.- The

People's Bk. v. Bogart et al., 307.
8. Where an answer sets up usury in that notes

were discounted at a rate of from ten to 2. Defendants' intestate having an agreement
fourteen per cent. per annum, evidence that

with A & B, by which they were to share
the rate of discount was sixteen per cent.

equally with him the profits of the busi.
is properly excluded. — The Farmers' &

ness carried on by him, made an agreement
Mech. Nat. Bk. of Buffalo v. Lang, 574.

with C & D, by which he sold them each a

quarter interest therein. In an action by C,
9. A claim for a penalty under sec. 5198, U. S. Held, That intestate was liable for breach of
Rev. Stats., for payment of excessive interest

his contract of warranty of title the differ-
ca!ı be enforced only by action brought espe- ence between what C acquired by his pur-
cially for that purpose, and cannot be set up chase and that which be purchased.— Con-
as a counterclaim in an action upon evidence

verse v. Miner et al., 424.
of debt. -Id.

See Mortgage, 13; National Banks, 6.


1. The right of an owner of lands through

which a watercourse runs to have the same

kept open, and to discharge therein the sur-
See PRACTICE, 8, 19, 20.

face water, is not limited to the drainage and

discharge of surface water into the stream

in the same precise manner as when the land

was unimproved and uncultivated.- McCor-
1. A court of equity cannot be called upon to

mick et al. v. Horan, 231.
dissolve a voluntary, association until all the 2. Such an owner may change and control the
remedies given by the constitution and by- natural flow of the surface water, and by
laws for the redress of the evils complained

ditches, or otherwise, accelerate the flow or
of have been exhausted.Lafond et al. v. increase the volume of water, and if he does
Deems et al., 463.

so in the reasonable use of his premises, and
2. Voluntary associations, organized for the does not discharge surface water into the

mutual benefit of its members, should not be stream in quantities beyond its natural ca-
dissolved for slight causes, and if at all, only pacity, to the damage of the other owners,
when it is entirely apparent that the organ-

he exercises only a legal right.-Id.
ization has ceased to answer the ends of its
existence and no other mode of relief is at-


1. A municipal corporation owning improved
3. The members of such an association are not wharves and other artificial means, which it

has provided and maintains at its own cost
4. The rent of rooms not used by the association,

for the benefit of those engaged in commerce
but which they were compelled to hire, with

upon the public navigable waters of the
fines and initiation fees, had accumulated so

United States, is not prohibited by the
as to form a large fund, but not so large as

national constitution from charging and col-
to be beyond the reasonable wants of the as-

lecting from those using the wharves and
sociation. Held, That there was no such ac-

facilities such reasonable fees as will fairly
cumulation of funds as called for a dissolu-

remunerate it for the use of its property:-
tion of the association.-Id.

The Northwestern Union Packet Co. v. The

City of St. Louis, 521.

2. No state can, consistently with the National

Constitution, impose upon the products of

other States, brought therein for sale or use,

or upon citizens because engaged in the
SURANCE, 3, 4, 10, 11; REFEREE.

sale therein, or the transportation thereto,

of the products of other states, more

onerous public burdens or taxes than it im-
i. A warehouseman is only bound to use ordi-

poses upon the like products of its own
nary diligence in caring for and protecting

territory.-Guy v. The Mayor of Baltimore,

the property, but if, when demanded, it is
gone, he is bound to show that it has dis- 3. A state statute or municipal ordinance, in
appeared without his fault. - Golden v. Romer pursuance of which vessels, landing at the
et al., 5.

public wharves of a city, laden with the pro-

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money to

ducts of other states, are required to pay A., the children of I., the son of another de-
wharfage fees which are not exacted from ceased daughter, and his sons. Held, That
vessels landing thereat with the products of the residuary legatees took per stirpes and
the state, is in conflict with the National not per capita.Ferrer et al. v. Pyne et al.,


4. Testator by his will bequeathed a sum of

*"* the Presbyterian cemetery."
1. Testator by his will gave to his wife the use

There was a cemetery known by that name,
of all his real and personal property for life;

but no corporation in the town known to the
the income of the estate was given to his

law by that name. Held, That the bequest
four daughters to be divided equally among

must fail for want of a beneficiary capable of
them during their lives, with remainder to

taking, and that it was not such a charitable
their respective children, heirs and assigns.

bequest as the court could execute. The
The will also provided that in case of the

First Presbyterian Soc. v. Bowen et al., 400.
death of either of the daughters without 5. An executor who drew the will is a compe-
issue, her share should be divided equally tent witness to prove its execution.-Rugg et
among the survivors and to their children

al. v. Rugg et al., 401.
respectively. Held, That there was no illegal
suspension of the power of alienation; that 6. Mere failure of memory on the part of the
the bequest to the daughters of the income

witnesses will not defeat a will if the attesta-
for life was equivalent to a devise of a life

tion clause and other circumstances are satis.
estate in the land; that the remainder vested factory to prove its execution.-Id.
on the death of testator in the children of 7. An alien devisee, upon acceptance of the de-
the daughters then living, subject to open vise, takes a conditional title, absolute against
and let in afterborn children.– Monarque v. the heirs of the testator, but defeasible by
Monarque et al., 118.

the state until he makes and files the depo-
2. Testator by his will bequeathed to his wife

sition required by statute; this he may do at
one-third of all his property real and per-

any time before the state recovers the lands,
sonal, and the control of his farm as long as upon paying the costs of any proceeding for
she remained a widow, and at her death

escheat which may have been instituted. -
directed all his property to be equally divided

Hall et al. v. Hall et al., 414.
between his children. Held, That the widow 8. Under chap. 115, Laws of 1845, where a de-
took an absolute fee in one-third of the prop- vise is made to aliens, and one of the devisees
erty mentioned and the use of the whole

files the requisite deposition, the estate vests
during widowhood.—Roseboom v. Roseboom

in such devisee.-Id.
et al., 309.

See EVIDENCE, 3; Trusts, 1.
3. Testator by his will bequeathed $50,000 to
his daughter A., and the same amount to

“the children of I.,” a deceased daughter :
and after other bequests, he directed the re- See EVIDENCE, 3, 14, 17; NEGOTIABLE PAPER,
mainder of his estate to be divided between 7; Will, 5.

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