title to plaintiff of the property pur them held in trust or any part thereof, chased. and for such purpose or otherwise, to sell The question is, whether the defendants or convey all or any part or parts of said as trustees, &c., could give a valid title to estate which should by them be held in the property brought in question, and are trust. Margaret Palmer, the wife of the necessary to be determined by the provis-testator, and two of his children, Robert ions of the last will of John J. Palmer, of G. Palmer and James H. Palmer, died the city of New York, which are as fol before the testator without issue and unlows: married. No division into shares of the estate of said testator was ever made by said trustees as directed by said will. The testator died in 1858. On the 16th day of The testator devised all his estate, real and personal, to certain persons therein named, to hold the same during the life of his wife Margaret, and pay the income November, 1872, Henry, one of the sons thereof to her, and upon the further of the testator died, leaving him surviving trust, that immediately after the death of a widow and several minor children. his said wife, the said trustees should di- That upon the 1st of July, 1873, the said vide the said estate into seven equal parts, trustees offered for sale certain portions of that being the number of testator's the real estate of the testator, which was children then living. The income of each struck off to plaintiff at the price of of said parts, he directed his said trustees $15,997.75; he paid 10 per cent. down to pay to a child (one of the seven chil- and $200 auctioneer's fees, and signed a dren) during life, and upon the death of contract with defendants, as trustees any child leaving issue him surviving, he under the will, to complete the purchase. directed his said trustees to immediately convey and make over to such issue, said one-seventh part. In the divisions of the estate into seven parts and in the assigning of one of such parts to each child, the testator's advances to each child, to be found in a certain book named, should be included to make up the seventh part to such child, but no interest should be reckoned on advances, and in case the advances to any of said children should exceed the seventh part of the estate, then such child or children should not become indebted to the estate for the amount of such excess, but the amount of such excess was by the will bequeathed to such child. This action is to recover the moneys so paid and cancel the contract of sale. Flanagan & Bright pltffs. and respts Roe & Macklin defts. and applts. Held, In this case it appears that the trustees have neglected to make the division or partition directed by the will for the term of fifteen years from the term designated in the will. That it was evidently the intent of the testator that each of the seven parts into which he directed his estate to be divided, should be held upon separate and distinct trusts, and that immediately upon the death of any one of his children leaving issue, him or her surviving, that the share of such child, so dying, should vest immediately in the The said testator also provided, in and issue of such child. The power of sale by said will, that the better to enable given in the will was given to the trustees the said trustees to carry into effect the for the purpose of enabling them to make directions herein before mentioned, that the divisions directed by said will, and also the said trustees should have full power after the said division to change the inand authority at any and all times during vestments of any separate share. In this the continuance of the said trusts respect case it would appear that the said trustees, tively, in their discretion, to change the having neglected to make the division investments of the estate and property by directed by said will, the share of said estate belonging to Henry Palmer, upon his death vested immediately in his children, and that they became tenants in common with said trustees in the whole of said estate. The power of sale in the trustees which would enable them to convey the whole title, ceased upon the death of Henry Palmer. The trust, by the terms of the will has terminated, as to the one-seventh part of the estate, and the cestui que trusts have become tenants in common with the said trustees in said estate. A Court of Eguity will not restrain proceedings at law upon such a note. Bill to enjoin a suit at law. Complainant gave his note, dated July 26th 1870, payable one year after date, and bearing interest at the rate of 10 per cent. per annum, with 30 per cent. per annum after maturity, as liquidated damages for nonpayment when due. Suit had been commenced and a default entered, when the bill was filed to prevent the entering of final judgment. The court, on a proper application With his bill the complainant tendered being made to it, would undoubtedly the principal of the note, with 10 per cent. partition the estate into five equal parts interest, together with the costs of the (two of the children of testator having common law case. died unmarried and without issue), and Held, 1. That although the party agrees would transfer one of the five parts to the to pay a rate of interest in excess of that children of Henry Palmer. The deed, allowed by statute, after maturity, it is, therefore, did not convey to the plaintiff nevertheless, regarded in the nature of a the clear title to the premises purchased by him, and he is entitled, therefore, to recover back, with interest, the moneys paid upon such sales, and have his contract to complete purchase cancelled. Judgment of Special Term affirmed with costs. Opinion by Daniels, J.; Davis, P. J., concurring, Brady, J., dissenting, holds, That the interest of the children of Henry Palmer was not only subordinate to, and controlled by the trust, but it was a contingent or limited one, dependent upon the advances made to their parent during the lifetime of the testator, and that the children could acquire their right only by enforcing the performance of the trust. USURY. SUPREME COURT OF ILLINOIS. Downey, admr., v. Beach. It is not usurions to insert in a note, as liquidated damages, that after maturity it shall bear interest in excess of the legal rate. penalty to secure prompt payment. In 2. The penalty imposed being liquidated damages, which have been the subject of adjustment by agreement of the parties, a Court of Equity will withhold its aid, and leave the parties to their legal rights, whatever they may be. There is nothing in the facts alleged calling for the interposition of a Court of Chancery upon equitable grounds. That complainant was ignorant of the 30 per cent. provision affords no ground for reief. It was his own negligence, against which it is not the province of a court of law or equity to afford him relief. L Decree reversed and bill dismissed. Plaintiff delivered a horse to the defendant to be agisted, kept, and taken care of. The defendant placed the horse in a field with a number of heifers, knowing that a bull, kept on adjoining land, had several times been found in the field, and that there was no sufficient fence to keep it out. He, however, did not know that the bull was of a mischievous disposition. The horse was gored by the bull and killed. Witnesses testified that it was imprudent to turn young horses among horned cattle; others, that there was no danger in such a practice. The Court left to the jury whether the defendant acted without reasonable and proper care in putting the colt in the field near the bull and with the heifers. ANSWER. AMENDMENT. N. Y. SUPREME COURT, GENERAL TERM -FIRST DEPARTMENT. George B. Chase, respt. v. Thomas Lord and another, exrs., applts. Decided January 28th, 1875. Long delay in making application for leave to amend answer for the pur pose of setting up the Statute of Limitations, is good ground for denying such application, especially where plaintiff's rights against other parties have been lost on account of the failure of defendants to set up said defence in the first instance. Appeal from an order refusing leave to amend an answer by setting up the Statute of Limitations. The action was brought to charge defendants' testator as the owner of stock in the Columbia Insurance Company, on the ground that a certain increase in its capital stock had not been paid in, and notice of such payment filed as required by the general act for the incorporation of insurance companies. Defendants desired to set up that the action had not been commenced within three years as required by the Code. Sec. 92, sub. 2. W. C. Whitney, for plff. and respt. Held, The motion was properly denied, on the ground of laches. The action was commenced in November, 1870, and issue jo ned in February, 1871; that had the Statute been pleaded, then, plaintiff might have sought some one of the trustees or A rule nisi was obtained to enter a non-corporators in whose favor that defence suit on the ground there was no evidence did not exist. At the present time, not Verdict for plaintiff. of scienter. only the three years have elapsed, but also Held, That defendant was bound to the limitation of six years against the take reasonable care of the horse, and that others. It is a question whether the action it it was killed through his negligence he is brought for a penalty within sub. 2, sec. was liable, and that the doctrine of 92 of the Code. The question in the case scienter ought not to be extended to as strongly analagous to that in Cuming contract to take reasonable care. & Homer v. McCullough, 1 N. Y., 47. The reasons given by the Court below Rule discharged. Opinions by Blackburn, Quain and for denying the motion seem to us suffiField, J. J. Icient to show that the discretion of the Court was properly exercised. The long visions of the act of 1874, have the onus, delay in making the application is sufficient to show that the amendment would not be in furtherance of justice. Order affirmed. and in order to bring the case within that act must show that the subject matter of the controversy did not amount to $500, and having failed to do this defendants Opinion by Davis, P. J.; Daniels and are not brought within the act, and are not barred from their right of appeal. Brady, J. J., concurring. Motion denied. Opinion by Folger, J. APPEAL. PRACTICE. N. Y. COURT OF APPEALS. The People applts. v. Horton, et al., respts. Decided January 25, 1876. A party seeking, under the act of 1874, to restrict the general right of appeal, has the onus, and must bring the case within that act. ASSESSMENTS. JUDGMENT BAR. N. Y. SUPREME COURT-GEN'L TERM Zink v. City of Buffalo. A judgment in favor of other parties, It only affected the parties to that judg ment. This was a motion to dismiss an appeal, on the ground that it was forbidden by Chap. 322, Laws of 1874, which provides that no appeal shall be taken from an order granting or refusing a new trial, where the amount involved does not exThis action was brought to set aside an ceed $500, exclusive of costs. The action assessment of plaintiff's land, made for was brought to restrain the defendants' the purpose of defraying the expenses of business, but the complaint does not de- paving a street in Buffalo. Parties named mand any money, and the pleadings do W. and M. who were owners of land on not state the value of the business. It was the same street, had, previous to this, in erable from the pleadings, and the evi- commenced actions and had recovered dence tended to show, that the business judgments setting aside such assessment was worth much more than $500. Plain- as to them, and from whose judgment an tiff claimed that as the action was not on appeal had been taken. contract, it was to be governed by one of Upon the trial of this action the defendthe particular provisions of the act of ant introduced the judgment roll in the 1874, and the amount claimed in the com-case of W. and M., and requested the court plaint must be deemed the amount of the to find and decide that this judgment op‐ subject matter of the controversy, and as erated to annul the roll, and all the asno amount was specified, the subject mat- sessments therein, including plaintiff's, ter is of no account, and there could be and therefore plaintiff could not maintain no privilege of appeal. this action, as there was no existing assessment, &c. G. A. Scroggs, for applts. M. A. Whitney, for respts. Held, That the case falls within the general provisions of law giving a right of appeal to this Court, ard that plaintiffs in seeking to restrict that general right by applying the special prohibitory pro Appeal from the judgment of the Superior Court of the City of Buffalo, certified into this Court. Frank R. Parkins, for applt. Held, It was not an error of the judge action. at Special Term in refusing to find and nexed, setting out in detail its cause of decide that the judgment entered in the case of W. and M., introduced on the trial operated to annul said assessment roll, and all the assessments mentioned therein, including those set forth in the complaint in this action, and that, therefore, the plaintiff could not maintain this action. Such a decision and judgment only bound the parties in the actions, and set aside said assessment so far as it was a lien A motion was made at Special Term to vacate the attachment on the ground that it was insufficient and did not specify the grounds of plaintiffs claim,and was denied. Barrett, Redfield & Hill, for respt. Porter, Lowrey, Soren & Stone, for applts. Held, That the prerequisites required upon the lands of W. and M. It still by the Code (sec. 229) appeared by the affidavit in this case. The details were remains a lien and a cloud upon the plain-in the complaint, a copy of which was antiff's lands. That action did not bring nexed, which revealed to the Judge, conup, like a certiorari, the whole assessment roll for review, in behalf of all the parties assessed. In such case the judgment of the court would be upon the whole record, and might set aside and annul the whole assessment. Judgment affirmed. Opinion by E. D. Smith, J. ATTACHMENT. ment, what they were, and upon which sidering the application for the attachthe necessary conclusions could be drawn. davit (59 N. Y., Rep 647), and we do not The complaint could be used as an affiunderstand why a sworn copy may not be employed in the same way. It became necessarily a part of the affidavit when annexed and referred to as it was in this case, and as such it presented a full N. Y. SUPREME COURT, GENERAL TERM statement of the cause of action as it was -FIRST DEPARTMENT. Crandall et al., respt. v. McKaze, applt. A sworn copy of complaint setting out Appeal from order of Special Term denying motion to vacate attachment. Plaintiffs obtained an attachment against the property of defendant, on an affidavit which set out plaintiffs' cause of action, as follows: "That a cause of action exists in favor of said plaintiffs and against said defendant, arising out of a contract made and executed by said defendant, and by him denvered to said plaintiffs, and which is more particularly set forth in the copy of complaint hereto annexed in this action," and further alleged defendant's non-residence, a copy of a verified complaint an alleged to exist. Order affirmed. Opinion by Brady, J.; Daniels, J., concurring. BANKRUPTCY. ASSIGNEE'S TITLE. U. S. SUPREME COURT. Decided October Term, 1875. court. In error to the Supreme Court of the Territory of Colorado. Action of ejectment brought originally by Thomas and James Gaff against plaintiff in error. The title to certain lots in Denver City |