Held, That the test by which to determine whether the referee should find the facts which he was called on to find is, are they material, or were they mere items of evidence not proper subjects for specific findings, and the referee's refusal was

correct.

Judgment affirmed.

the custody of the bail by an order of arrest, at the suit of the people in a civil action under which he was imprisoned in default of bail until he escaped therefrom.

4. That there were six indictments for forgery in the Oyer and Terminer found. on the same day, and if the recognizance

Opinion by Mullin, P J.; Smith, and in question was intended to refer to any Gilbert, J. J., concurring.

BAIL.

N. Y. SUPREME COURT, GENERAL TERM.
FIRST DEPARTMENT.

The People of the State of New York ex. rel. Charles Devlin, v. the Court of Oyer and Terminer.

Decided March 6th, 1876.

of them, it does not distinguish which,
and is therefore void for uncertainty.

Dudley Field for Relator.
B. K. Phelps, District Attorney.

Held, the condition of the recognizance is for the appearance of Tweed at the Court of General Sessions of the Peace, to answer said indictment against him at the present term, or at any subsequent term of said Court, or to any Court where The Court of Oyer and Terminer will such indictment might be sent for trial. not ordinarily consider on motion to No point seems to have been made that have recognizance declared forfeited, the Court of Oyer and Terminer had facts which go to the question merely not acquired jurisdiction of the in lictas to whether the recognizance could be enforced, or whether certain facts ment, if any such had been found in the constitute a valid defence in favor Court of General Sessions, but it is alleged of the bail. These are questions of fact for trial before a proper tribunal. Forfeiture of recognizance, &c.

Certiorari to the Court of Oyer and Terminer on review of proceedings upon forfeiting recognizance of William M. Tweed, principal, and Charles Devlin as surety.

The objection urged to the order declaring the recognizance forfeited, urged at the Oyer and Terminer, and upon the present appeal were:

1. That the recognizance purports to be given under indictments against the principal in the General Sessions, when, in fact, the indictment was in the Oyer and Terminer.

2. That the recognizance was not formally continued by order from one term of the Court of Oyer and Terminer to

another.

3. That the principal was taken from

that none such had ever been found in

that Court.

If this was a question upon which the recognizance did not operate as an estoppel against the defendant, is was one of fact to be tried and determined by some tribunal, and the same thing is true of each of the other objections.

With reference to the objection that it is left uncertain to which of the six indictments found in the Court of General Sessions the recognizance was intended to refer, and it was therefore void for uncertamty; the objection seems to us to be without substance, because the recognizance refers to but one, and the production of Tweed under the recognizance would discharge the suit completely, whatever number of indictments might be in existence.

harmless, since the condition of the recogThe alleged uncertainty was entirely nizance required the production of the principal to answer but one indictment,

and that being done, there would be no 20th, while suit was brought on the 10th. obligation to produce him upon another. Plaintiffs denied any such agreement but If the Court might in its discretion alleged that a part payment had been. have considered the fact alleged in deter- made on the 9th; that one of the defendmining the question whether the order of ants advised the attachment and offered to forfeiture should be made yet, the relator point out their goods, which he afterwards had, we think, no such legal right, under did, and that two days after the attachthe circumstances, to demand the exer- ment defendants made a general assigncise of that discretion, as would entitle ment for the benefit of creditors. him to review the proceedings on a writ of certiorari. His rights are, we think, fully preserved, and may be enforced by the proper application to the Court of Common Pleas.

Two of the three witnesses for the defendants who swore to affidavits relative to the above agreement, upon a compulsory examination, admitted that the agreement was not within their personal knowledge

The writs should be dismissed with but that their statements were founded on costs.

Decided March 6, 1876.

Appeal from order of Special Term vacating attachment.

At the commencement of this action plaintiffs obtained an attachment on the ground of defendant's non-residence and thereunder levied upon certain of defendants' property.

On their application to vacate the attachment defendants, who are residents of Connecticut and New Jersey, showed that they had a place of business in the city of New York and claimed that they were residents within the meaning of the law as to attachments, and by three affidavits sought further to show that the amount sued for was not due when suit was brought as by special agreement the original time of payment, Aug. 1st, was extended to Aug.

hearsay.

Attachment was at Special Term va

cated.

A. R. Dyett, for applt.
Robert S. Hart, for respt.

On appeal.

Held, That the fact that defendants have a place of business in New York City does not make them residents of this State, except for purposes of an action in

the District Courts in said city. As to

the existence of a cause of action at the

time when the attachment was issued,

there seems to be some conflict in the affidavits. The point urged by defendants in their affidavits that there was a special agreement whereby their time was extended to the 20th of the month, does not seem to be sustained by their own witnes

ses, most of whom, on a compulsory examination, admitted that their information on this subject was by hearsay.

Defendant's affidavits failing for these reasons, there is no difficulty in saying that the weight of proof is strongly with plaintiffs. The payment by defendants of a part of this claim on the 9th, and the advice of one of them in recommending an attachment and offering to point out the goods, and his doing so when the cumstances strongly corroborating plainsheriff came with the attachment, are cirtiff's claim that the account was actually due.

Order vacating attachment set aside.
and motion to vacate denied.
Opinion by Davis, P. J.; Brady and
Daniels, J. J., concurring.

BEQUEST.

N. Y. COURT OF APPEALS.

Smith et al. applts. v. Van Nostrand respt.

Decided February 25, 1876.

N. A. Halbert, for applts.
S. R. Ten Eyck, for respts.

Held, error, that the bequest was not absolute nor a valid life estate, but it was the intention of the testator to empower his widow to expend out of the principal of the fund bequeathed what should be necessary for her support, and the bequest of the remainder to his children was subject to the exercise of this power, and they A bequest of money to a legatee for her would be entitled only to what remained support during her natural life and over and above what she had used for with power to use so much of the the authorized purpose; that the gift of principal as might be necessary for the remainder over to his children was not that purpose, with a remainder over repugnant to the gift to the wife, and was to the testators children, is valid. It is competent for the testator to make the life legatee custodian of the money, in which case such legatee becomes the trustee for the children.

This action was brought to recover certain U, S. bonds in the hands of defendant. The complaint alleged that the will of G. I. S. contained this clause; "I give and bequeath unto my beloved wife Catharine, the sum of $1,650, in lieu of dower in my real estate, for her support during her natural life, or as long as she remains my widow; then her said dower shall be transferred to my three children hereafter mentioned. $50, of the above named sum shall be paid to her as soon as practicable after my decease, and the remainder, on or about six months after;" that the widow purchased U. S. bonds with this money, it having been paid over to her by the executors of G. I. S., and held them up to the time of her decease. That some time before or after her death, defendant became the custodian of the bords, without value, and merely as the friend or agent of said widow; that plaintifts notified him after her death that the bonds were their property under the will, and demanded them of defendant, but that he refused to give them up. No evidence was introduced except the will of G. I. S. The complaint was dismissed on the ground of no cause of action.

valid. 1 P. Wms., 651; 5 Madd., 123; 47 N. Y., 512; 16 id., 83.

Patterson v. Ellis, 11 Wend., 259; Hill v. Hill, 4 Barb., 419; Tyson v. Blake, 22 N. Y., 558; and Norris v. Beyea, 3 Kern, 286, distinguished.

Also held, It is within the power of a testator, in bequeathing a life estate in a sum of money, with a remainder over, to confide the money to the legatee for life, in which case such legatee becomes the trustee of the principal. That plaintiffs being the cestui que trust, were the proper parties to claim the fund that the executors having paid it over to the widow as directed by the will, parted with all interest in it, and left it to follow the course directed by the will, and were discharged from all liability and divested of all power concerning it. 1 P. Wms., 651.

Judgment of General Term affirming judgment of nonsuit reversed, and new trial granted.

Opinion by Rapallo, J.

TOWN BONDS. ESTOPPEL. RE

CITALS.

U. S. SUPREME COURT.

The Town of Coloma, Plaintiff in Error, vs. David W. Eaves, Def't in Error. Decided March, 1876.

Where legislative authority has been

given to a municipality, or to its offi- scribe to the capital stock of said compacers, to subscribe for the stock of any." That the town of Coloma was one railroad company, and to issue mu- of the municipal divisions empowered by nicipal bonds in payment, but only this section to subscribe fully appears, on some precedent condition, such as and also that the railroad was built into a popular vote favoring the subscription, and where it may be gathered from the legislative enactment that the officers of the municipality were invested with power to decide whether the condition precedent has been com- "No such subscriptions shall be made plied with, their recital that it has until the question has been submitted to been, made in the bonds issued by the legal voters of said city, town or townthem and held by a bona fide purchaser, is conclusive of the fact ani ship in which the subscription is proposed binding upon the municipality, for to be made. And the clerk of such city, the recital is itself a decision of the town or township is hereby required, upfact by the appointed tribunal.

the town, before the bonds were issued. But it is upon the eleventh section of the act that the defendant relies. That section is as follows:

In error to the Circuit Court of the United States for the Northern District of Illinois.

It appears by the record that the plaintiff is a bona fide holder and owner of the coupons upon which the suit is founded, having obtained them before they were due and for a valuable consideration paid. The bonds to which the coupons were attached were given in payment of a subscription of $50,000.00 to the capital stock of the Chicago and Rock River Railroad Company, for which the town received in return certificates of five hundred shares of $100.00 each, in the stock of the company. That stock the town retains, but it resists the payment of the bonds, and of the coupons attached to them, alleging that they were issued without lawful authority.

on presentation of a petition signed by at least ten citizens, who are legal voters and tax-payers in such city, town, or township, stating the amount proposed to be subscribed, to post up notices in three public places in each town or township, which notices shall be posted not less than thirty days prior to holding such election, notifying the legal voters of such town or township to meet at the usual places of holding elections in such town or township, for the purpose of voting for or against such subscriptions. If it shall appear that a majority of all the legal voters of such city, town or township voting at such election have voted for subscription,' it shall be the duty of the president of the board of trustees, or other executive officer of such town, and of the supervisor in townships, to subscribe to the capital stock of said railroad company, in the name of such city, town, or township, the amount so voted to be subscribed, and to receive from such company the proper certificates therefor. He shall also execute to said company, in the name of such city, town or township, bonds bearing in

By an act of the legislature of Illinois, the Chicago and Rock River Railroad Company was incorporated with power to build and operate a railroad from Rock Falls, on Rock River, to Chicago, a distance of about one hundred and thirty miles. The tenth section of the act en-terest at ten per cent. per annum, which acted that "to aid in the construction of said road, any incorporated city, town, or township, organized under the township organization laws of the state, along or near the route of said road, might sub

bonds shall run for a term of not more twenty years; and the interest on the same shall be made payable annually; and which said bonds shall be signed by such president or supervisor, or other executive

officer, and be attested by the clerk of the parish of Orleans. This suit is brought

The bonds issued contained a recital of their use; that they were issued by authority of a certain act, and that the elec-institution is called in warranty. The tion had been held, and that the requisite number of voters had voted, etc.