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and called, “The Dougherty Ameri- R. S., p. 728, § 55), in the Revised can Institute.
Statutes. And such trusts cannot be “ Tenth. I order and direct that, reanimated as powers in trust.
It until my real estate is sold, as herein is only trusts not enumerated as valid before directed, my executors herein- trusts in our Revised Statutes, which after named rent my said real estate, may be sustained as powers in trust, and, after paying all taxes, assess- provided they, as powers, have a ments, water-rates, insurance, and legal foundation. 1 R. S., p. 729, other charges thereon, to deposit the $ 58. The foregoing provisions of balance of the rent received from the will, establishing either a valid said premises in some good savings trust or power in trust, cannot be bank in the City of Brooklyn, and carried out. the said money so deposited by them Judgment affirmed. shall form a part of my residuary Opinion by Brady, J.; Davis, P. estate, and be payable with the pro- J., and Daniels, J., concurring. ceeds of the sale of the real estate as hereinbefore directed.”
FORMER JUDGMENT IN BAR. The Court below held that the four n. Y. SUPREME Courr. GENERAL years' estate in the land to rent the
TERM. SECOND DEP'r. same is invalid, and that the gift to
William S. Verplanck, Receiver, the Bishop of Raphoe as to land is &c., applt., v. Lorenzo Van Buren et invalid.
al., respts. Jesse Johnson and Abraham Lott,
Decided July, 1877. for applt.
A former adjudication is a bar to a subsequent S. P. Nash and T. B. Hewitt,
action upon the same transaction, although for executor.
it be claimed that full relief in the former Chauncey Shaffer, for respt.
action was prevented by fraud or false evi. Held, The foregoing provisions of
dence. the will do not create a valid trust, Appeal from an order setting aside or a valid power in trust. It does a verdict for plaintiff, and granting not create a valid trust because it new trial. contravenes our statute against per- Defendants and one Thomas W. petuity (1 R. S., page 723, § 15), Chrystie, in 1870, entered into an which provides that no conveyance agreement by which defendants were is valid which suspends the absolute to carry on the business of manufacpower of alienation, for more than turing brick on shares, on Chrystie's two lives in being at the creation of premises, for five years. the estate. The authorities hold that In 1871, a receiver of the goods of the limitation, to be valid, must be said Chrystie was appointed, who measured by lives and not suspended subsequently commenced an action for a definite period, no matter how against defendants for an'accounting short. The estate created is there- of sales of brick during the years fore void. It is invalid as a power 1870, 1871, and 1872. Judgment in trust, because it is one of the was rendered in said action for the trusts enumerated as valid trusts (1receiver for $3,278.49.
Plaintiff was afterwards substituted different from that which would as receiver, and commenced this ac- otherwise have been rendered. But tion against defendants for not ac- the insisting upon rights which, upon counting on the former trial for all a due investigation of those rights, sales of brick, and for frandulently might be found to be overstated or concealing the actual sales on said overestimated, is not the kind of frand accounting. Judgment was rendered which will authorize the Court to set for plaintiff for $6,476.42.
aside a judgment. Patch v. Ward, Calvin Frost and Charles Wheaton, Law R., 3 Chan. App., 207. Nor will for applt.
a party against whom a judgment is Milton A. Fowler, for respts. rendered be permitted to impeach it
Held, That the former adjudica- by proof that the evidence upon tion is a bar to this action. There is which it is founded was false. Ross v. no occasion to dispute the principle Hood, 8 IIun., 185–S. C. Court of that fraud vitiates all acts, however Appeals MSS. A great wrong, no solemn or even judicial. That prin- doubt, is done, and a high crime is ciple is an exception to the general committed by such a use of false witrule rejecting extrinsic evidence to nesses. But the remedy for the pubaffect written instruments or public lic crime is the indictment and pan. records. Equally well-settled, how- ishment of the parties to it, and for ever, is another principle of universal the private wrong by a motion in the application, namely—that the judg- action for a new trial or an appeal. ment of a Court of competent juris- There might never be an end to a diction directly upon the point is, as suit, if parties were permitted to set a plea, a bar, or as evidence, conclu- up the giving of false testimony sive between the same parties and against them as a fraud, which vititheir privies. Such a judgment is an ated the judgment. The only fraud estoppel. 1 Gr. Ev., SS 522–535. alleged here is of that character. The Both these rules are founded on the defendants, it is true, were the withighest public policy. On the one nesses who, it is alleged, gave the hand, the public interest requires false testimony on the trial of the that fraud shall be detected and sup- former action. But that makes no pressed, and on the other, that a limit difference. They were competent shall be prescribed to litigation, and witnesses, and were no more guilty that the same cause of action shall of fraud by testifying themselves not be brought before the Court more than if they had procured others to than once for a final determination. do so. At first blush, these principles would Upon principle as well as upon seem to be inconsistent with each authorities, we are convinced that the other. But, in truth, there is no re- former judgment is a bar to this action. pugnancy between them. The fraud Smith v. Nelson, 62 N. Y., 286. that vitiates a judgment consists of State of Michigan v. Phenix Bank, acts or omissions, whereby the Court 33 N. Y., 25, distinguished. is deceived, and in consequence of Order affirmed, with costs. such deception a judgmont is given Opinion by Gilbert, J.
MUNICIPAL CORPORATIONS. Held, That a lawful exercise of LIABILITY OF.
legislative action cannot be a wrong; SUPREME COURT OF MICHIGAN.
and as the determination of the plan
of a public work is in the nature of City of Lansing v. Toolan.
legislative action, there must be someA municipal corporation cannot be held liable thing besides the proper execution of
for injuries arising from defects in the plan the plan-somne negligence in its exof a public work; but only for negligence ecution, or some other distinct wrong in the execution of the plan adopted, or some other distinct wrong.
- before the municipality construct
ing the work could be held responsiToolan brought suit against the ble for a tort. Detroit v. Beckman, city of Lansing to recover damages 34 Mich., 129. for an injury received by him from Now, had Van Keuren been emfalling into a ditch, which, he alleges, ployed by the city to cut the ditch was cut by authority of the city across for a sewer, and cover it for the pasone of its streets, and negligently left sage of teams as he did, putting it uncovered and unguarded. The facts precisely in the condition in which it appear to have been that one Van was when Toolan was injured, the Keuren was employed by the city to city, under the decision in Beckman's build a wing to one of the bridges case, could not have been held liable over Grand River, and that in the as for negligence in not providing prosecution of that work he found it for covering it further. In planning necessary to cut the ditch in question a public work, a municipal corporaacross a street near it to keep the tion must determine for itself to water, after a heavy rainfall, from what extent it will guard against posrushing against and destroying his sible accidents. Courts and juries unfinished wall. This he did on his are not to say it shall be punished in own responsibility, covering it with damages for not giving to the public plank to the width of sixteen feet. more complete protection; for, While it remained in this condition, was shown in Beckman's case, that Toolan, in turning off the street in would be to take the administration passing along one evening, fell in the of municipal affairs out of the hands ditch, and was injured. There were to which it has been intrusted by law. questions of his negligence on the What the public have the right to retrial below, which are immaterial quire of them is, that in the construchere. The city afterward paid Van tion of their works after the plans Keuren for his work, and allowed are fixed upon, and in their manage. the ditch to remain for a sewer. The ment afterward, due care shall be obcase was put to the jury as one of neg- served; but negligence is not to be ligence, and plaintiff recovered. predicated of the plan itself.
It is claimed, in support of the If we assume the original responsijudgment, that the city has accepted bility of the city for Van Keuren’s and ratified the act of Van Keuren act, then the only fault in the case in cutting the ditch and partially cov- was in not providing further coverering it, and is therefore liable. ing for the ditch or sewer. But that
goes to the plan only; it has nothing could be heard, when in motion, withto do with the execution of the plan, out a bell, at a distance varying from which, indeed, is not complained of. one hundred to two hundred yards.
Judgment reversed with costs, and The engineer of this locomotive did a new trial ordered.
not see Harlan till he was run over, Opinion by Cooley, C. J.
the engine going backward. The track was a straight one, and the en
gine could have been seen at a conRAILROAD COMPANIES. NEG-siderable distance. There was LIGENCE
possibility of stopping it, had the enSUPREME COURT OF MISSOURI.
gineer seen Harlan before he was Harlan v. The St. Louis, K. C. & struck, so as to avoid the disaster that N. R. Co.
occurred. Decided April, 1877.
The instructions given by the court Although the employees of a railroad company to the jury distinctly declared that
are negligent in failing to ring the bell on the plaintiff could not recover if the approaching a crossing, the company is not disaster was produced by IIarlan's liable for an injury to one who attempts to cross the tracks when he sees or might see
own negligence, although the bell the approaching locomotive.
was not sounded, provided the enPersons about to cross a railroad track must gineer could not hare prevented the
look as well as listen ; a failure to do so is accident. The jury, however, found negligence per se.
a verdict for the plaintiff. The deceased, who lived in the Held, That a person who goes on a town of Moberly, was passing from railroad track, or proposes to cross it, the east side of the railroad, on a fre- must use his eyes and ears to avoid quented path leading over the tracks, injury. in the middle of a clear day in No- A neglect of regulations in regard vember, and was killed by what is to bell-ringing inay amount to neglicalled the pony-engine, running back- gence in law on the part of the railward on the main track. He stepped road employees; but that does not from behind some cars standing on absolve strangers, who propose to the side-track, which was seven feet cross the track, from ordinary care. from the main track, and was killed Indeed, every intelligent person who by this engine almost immediately. has arrived at years of discretion is He wore a fur cap with ears to it, but presumed to know that it is dangerous it seems from the testimony that his to be on a railroad track. When hearing and eyesight were ordinarily trains are passing to and fro, and good. The bell on the pony-engine when crossing, he is expected to having no rope to it, was not sounded be vigilant and watchful of the apby the engineer, and there was a proach of a locomotive. The failfreight train on the adjoining track, ure to exercise such vigilance is negabout fifty feet off, on which there ligence per se. Conceding, in this was a bell ringing which could be case, that the failure to ring the bell heard all over the town.
was negligence on the part of the The locomotive that killed Harlan defendant's servants, yet Harlan could
both see and hear the locomotive if EXECUTION. PARTNERSHIP. he had looked or listened. And his N. Y. SUPREME COURT.
GENERAL stepping on the track, on the ap
TERM. SECOND DEPT. proach of the engine, at a slow rate of
Carmelo F. Caruana, applt., v. speed, appears unaccountable. He
Aaron B. Cohn, respt. seems to have been either absorbed
Decided July 6, 1877. in thought, or concluded, after he saw
To constitute a valid levy there must be actual the engine, that he could cross safely,
control or dominion of the property. The although it was so near as to make
legal test of a valid levy is whether anything the experiment exceedingly hazard- has been done which will subject the officer ous. The company are not responsi- to an action of trespass if the execution does ble for the result of such experiment, a partner's interest in the firm is not the sub
not afford him protection. unless the engineer, after seeing the
ject of sale on execution ; only his interest hazardous position of Harlan, could in the goods of the partnership is leviable, have avoided injuring him.
and such goods must be present at the sale. The failure to ring the bell on the Action for an accounting. The engine, and the sound of bells on the plaintiff claims to have become vested freight train, might have misled Har- with the interest of the defendant's lan, if he trusted to hearing alone, partner Coxe in the partnership effects although the evidence on both sides by virtue of a sale on execution of clearly shows that the movements of the interest of said Coxe in the partthe pony-engine without a bell could nership, and has bronght this suit for be heard at least fifty yards. This, an accounting. It appears that Coxe's however, does not account for the interest in the partnership had ceased failure of Harlan to see the engine before the execution was issued, but when he stepped from behind the the Court in deciding the case ascars on the side-track. He was seven sumed that he had an interest therein. feet still from the main-track, on The officer, who did all that was which the switch-engine was clearly done under the execution, was examin sight and in motion, and it was ined as a witness. He testified that about the middle of a clear day, be- he went to the store where the goods tween 1 and 2 o'clock. He inust, were, showed the execution to Coxe, therefore, either have been totally ab- the judgment-debtor, and demanded sorbed on other subjects, or have con- the money; that Coxe told himn he cluded to take the risks. There is no had no interest in the business, and ground for holding the railroad com- that he (the officer) said he would do pany responsible for the result of nothing that night, and that he went such recklessness.
down the next morning, and put his Judgment reversed, and the case brother-in-law in possession; that he remanded.
did not put his brother-in-law in the Opinion by Napton, J.
store, but left him outside in charge of the property ; that he did not want to run the risk of trespass; that he made no inventory, and his testimony leaves it in doubt whether he even de