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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 The testator devised all his estate, real estate of said testator was ever made by and personal, to certain persons therein said trustees as directed by said will. The named, to hold the same during the life testator died in 1858. On the 16th day of 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 drea) 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

This action is to recover the moneys so convey and make over to such issue, said paid and cancel the contract of sale. one-seventh part. In the divisions of Flanagan & Bright pltffs. and respt s the estate into seven parts and in the as

Roe & Macklin defts. and applts. signing of one of such parts to each child, Held, In this case it appears that the the testator's advances to each child, to trustees have neglected to make the dibe found in a certain book named, should vision or partition directed by the will for be included to make up the seventh part the term of fifteen years from the term to such child, but no interest should be designated in the will. That it was evireckoned on advances, and in case the dently the intent of the testator that each advances to any of said children should of the seven parts into which he directed exceed the seventh part of the estate, then his estate to be divided, should be held such child or children should not become upon separate and distinct trusts, and indebted to the estate for the amount of that immediately upon the death of any such excess, but the amount of such ex- one of his children leaving issue, him or cess was by the will bequeathed to such her surviving, that the share of such child, 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 A Court of Equity will not restrain his death vested immediately in his chil proceedings at law upon such a dren, and that they became tenants in note. common with said trustees in the whole of

Bill to enjoin a suit at law. Complainsaid estate. The power of sale in the ant gave his note, dated July 26th 1870, trustees which would enable them to con- payable one year after date, and bearing vey the whole title, ceased upon the death interest at the rate of 10 per cent. per anof Henry Palmer. The trust, by the num, with 30 per cent. per annum after terms of the will has terminated, as to maturity, as liquidated damages for nonthe one-seventh part of the estate, and the payment when due. cestui que trusts have become tenants in Suit had been commenced and a decommon with the said trustees in suid fault entered, when the bill was filed to estate.

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 penalty to secure prompt payment. In by him, and he is entitled, therefore, to such cases the penalty is liquidated damrecover back, with interest, the moneys ages, fixed by the solemn agreement of paid upon such sales, and have his con- the parties. When made for the sole partract to complete purchase cancelled.

pose of securing prompt payment, and unJudgment of Special Term affirmed derstandingly entered into, such contracts with costs.

are valid at law,

and
may

be enforced. Opinion by Daniels, J.; Davis, P. J., Lawrence v. Cowles, 13 Ill., 579. concurring, Brady, J., dissenting, holds, Smith v. Whittaker, 23 Ill., 267. That the interest of the children of Henry Blair v. Chamblin, 39 Ill., 421. Palmer was not only subordinate to, and 2. The penalty imposed being liquidated controlled by the trust, but it was a con- damages, which have been the subject of tingent or limited one, dependent upon adjustment by agreement of the parties, the advances made to their parent during a Court of Equity will withhold its aid, the lifetime of the testator, and that the and leave the parties to their legal rights, children could acquire their right only by whatever they may be. enforcing the performance of the trust. There is nothing in the facts alleged

calling for the interposition of a Court of Chancery upon equitable grounds. That

Icomplainant was ignorant of the 30 per USURY.

cent. provision affords no ground for re

ief. It was his own negligence, against SUPREME COURT OF ILLINOIS.

which it is not the province of a court of Downey, admr., v. Beach.

law or equity to afford him relief. It is not usurions to insert in a note, Decree reversed and bill dismissed. as liquidated damages, that after

Opinion by Scott, C. J. maturity it shall bear interest in excess of the legal rate.

NEW YORK
YORK WEEKLY DIGEST. ANSWER. AMENDMENT.

N. Y. SUPREME COURT, GENERAL TERM
VOL. 2.)
MONDAY MARCH 6, 1876.

(No. 4.

-FIRST DEPARTMENT. AGISTMENT. ABSENCE OF

George B. Chase, respt. v. Thomas Lord SCIENTER

and another, exrs., applts. ENGLISH DECISIONS/QUEEN'S BENCH

Decided January 28th, 1875.
DIVISION.

Long delay in making application for Smith v. Cook.

leave to amend answer for the pur 1 Law Reports, 79.

pose of setting up the Statute of Decided December 14, 1875.

Limitations, is good ground for deAn agister of cattle is liable for dam nying such application, especially ages done through his negligence by

where plaintiff's rights against other à vicious animal in his care, to

parties have been lost on account of another animal also in his care, al

the failure of defendants to set up though he may not have known the said defence in the first instance. mischievous disposition of the for Appeal from an order refusing leave to mer.

amend an answer by setting up the Statuto Plaintiff delivered a horse to the de- of Limitations. fendant to be agisted, kept, and taken The action was brought to charge decare of. The defendant placed the horse fondants' testator as the owner of stock in in a field with a number of heifers, know- the Columbia Insurance Company, on the ing that a bull, kept on adjoining land, ground that a certain increase in its capihad several times been found in the field, tal stock had not been paid in, and notics and that there was no sufficient tence to of such payment filed as required by the keep it out.

general act for the incorporation of insurHe, however, did not know that the ance companies. Defendants desired to set bull was of a mischievous disposition. up that the action had not been com. The horse was gored by the bull and killed. menced within three years as required by Witnesses testified that it was imprudent the Code. Sec. 92, sub. 2. to turn young horses among horned (at W. C. Whitney, for plff. and respt. tle; others, that there was no danger in D. D. Lord,for applt. such a practice.

Held, The motion was properly denied, The Court left to the jury whether the

on the ground of laches. The action was detendant acted without reasonable and commenced in November, 1870, and issue proper care in putting the colt in the field jo ned in February, 1871; that had the near the bull and with the heifers.

Statute been pleaded, then, plaintiff might Verdict for plaintiff.

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 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 a 18 strongly analagous to that in Cuming contract to take reasonable care.

& Homer v. McCullough, 1 N. Y., 47. Rule discharged.

The reasons given by the Court below Opinions ly Blackburn, Quain and for denying the motion seem to us suffiField, J. J.

cient 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 suffi- and in order to bring the case within that cient to show that the amendment would act must show that the subject matter of not be in furtherance of justice.

the controversy did not amount to $500, Order affirmed.

and having failed to do this defendants Opinion by Davis, P. J.; Daniels and are not brought within the act, and are Brady, J. J., concurring.

not barred from their right of appeal.

Motion denied.

Opinion by Folger, J.
APPEAL. PRACTICE.
N. Y. COURT OF APPEALS.

ASSESSMENTS. JUDGMENT BAR. The People applts. v. Horton, et al.,

N. Y. SUPREME COURT-GEN'L TERN respts.

FOURTH DEPT.
Decided January 25, 1876.
A party seeking, under the act of 1874,

Zink v. City of Buffalo. to restrict the general right of appeal,

Decided January, 1876. has the onus, and must bring the case A judgment in favor of other parties, within that act.

setting aside assessments, cannot be This was a motion to dismiss an appeal,

used by another person on ground on the ground that it was forbidden by

that such judgment operated to annul

the whole assessment. Chap. 322, Laws of 1874, which provides that no appeal shall be taken from an

It only affected the parties to that judg.

ment. order granting or refusing a new trial, where the amount involved does not ex

This action was bronght 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 particnlar 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 opbubject 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 asG. A. Scroggs, for applts.

sessment, &c. M. A. Whitney, for respts.

Appeal from the judgment of the SuIleld, That the case falls within the perior Court of the City of Buffalo, certigeneral provisions of law giving a right of fied into this Court. appeal to this Court, ard that plaintiffs in

Frank R. Parkins, for applt. Eceking to restrict that general right by

S. Rogers. for respt. applying the special prohibitory pro Held, It was not an error of the judge

at Special Term in refusing to find and nexed, setting out in detail its cause of decide that the judgment entered in the action. case of W. and M., introduced on the trial

A motion was made at Special Term to operated to annul said assessment roll, and vacate the attachment on the ground that all the assessments mentioned therein, in- it was insufficient and did not specify the cluding those set forth in the complaint grounds of plaintiffs claim and was deniedl. in this action, and that, therefore, the

Barrett, Redfield & Hill, for respt. plaintiff could not maintain this action.

Porter, Lowrey, Soren & Stone, for Such a decision and judgment only

applts. bound the parties in the actions, and set

Held, That the prerequisites required aside said assessment so far as it was a lien 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 ment, what they were, and upon which

sidering the application for the attachassessed. In such case the judgment of

the necessary conclusions could be drawn. the court would be upon the whole record, and might set aside and annul the whole davit (59 N. Y., Rep 647), and we do not

The complaint could be used as an altiassessment.

understand why a sworn copy may not be Judgment affirmed.

employed in the same way. It became Opinion by E. V. Smith, J.

necessarily a part of the affidavit when

annexed and referred to as it was in this ATTACHMENT.

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.

alleged to exist. Crandall et al., respt. v. McKaze, appu. Order affirmed. Decided January 28, 1876.

Opinion by Brady, J.; Daniels, J., conA sworn cory of complaint setting out curring.

the plaintiff's cuuse of action in full, annered to the affidavit, on which an aitachment is issued, and referred to

BANKRUPTCY. ASSIGNEE'S therein, is a substantial compliance

TITLE. with sec. 229 of the Code.

U.S. SUPREME COURT. Appeal from order of Special Term de Christian S. Eyster. piff. in error, v. nying motion to vacate attachment.

Thomas Gaff, et al., defts. in error. Plaintiffs obtained an attachment

Decided October Term, 1875. against the property of defendant, on an An assignee in bankruptcy, acquiring affidavit which set out plaintiffs' cause of

title to lands by virtue of the Bank action, as follows:

rupt Act, pending a litigation in a * That a cause of action exists in favor state court concerning them, takes of said plaintiffs and against said defend subject to the final decree of that ant, arising cut of a contract made and court. ercuted by said defendant, and by him In error to the Supreme Court of the delivered to said plaintiffs, and which is Territory of Colorarlo. more particularly set forth in the copy of Action of ejectment brought originally complaint hereto annexed in this action,” by Thomas and James Gaft against plainand further alleged defendant's non-resi- tiff in error. dence, a copy of a verified complaint an The title to certain lots in Denver City

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