and called, 'The Dougherty Ameri- R. S., p. 728, § 55), in the Revised can Institute.' "Tenth. I order and direct that, until my real estate is sold, as hereinbefore directed, my executors hereinafter named rent my said real estate, and, after paying all taxes, assessments, water-rates, insurance, and other charges thereon, to deposit the balance of the rent received from said premises in some good savings bank in the City of Brooklyn, and the said money so deposited by them shall form a part of my residuary estate, and be payable with the proceeds of the sale of the real estate as hereinbefore directed." The Court below held that the four years' estate in the land to rent the same is invalid, and that the gift to the Bishop of Raphoe as to land is invalid. Jesse Johnson and Abraham Lott, for applt. S. P. Nash and T. B. Hewitt, for executor. Chauncey Shaffer, for respt. Held, The foregoing provisions of the will do not create a valid trust, or a valid power in trust. It does not create a valid trust because it contravenes our statute against perpetuity (1 R. S., page 723, § 15), which provides that no conveyance is valid which suspends the absolute power of alienation, for more than two lives in being at the creation of the estate. The authorities hold that the limitation, to be valid, must be measured by lives and not suspended for a definite period, no matter how short. The estate created is therefore void. It is invalid as a power in trust, because it is one of the trusts enumerated as valid trusts (1❘ Statutes. And such trusts cannot be reanimated as powers in trust. It is only trusts not enumerated as valid trusts in our Revised Statutes, which may be sustained as powers in trust, provided they, as powers, have a legal foundation. 1 R. S., p. 729, $58. The foregoing provisions of the will, establishing either a valid trust or power in trust, cannot be carried out. Judgment affirmed. Opinion by Brady, J.; Davis, P. J., and Daniels, J., concurring. FORMER JUDGMENT IN BAR. TERM. SECOND DEPT. William S. Verplanck, Receiver, &c., applt., v. Lorenzo Van Buren et al., respts. Decided July, 1877. A former adjudication is a bar to a subsequent action upon the same transaction, although it be claimed that full relief in the former action was prevented by fraud or false evidence. Appeal from an order setting aside a verdict for plaintiff, and granting new trial. Defendants and one Thomas W. Chrystie, in 1870, entered into an agreement by which defendants were to carry on the business of manufacturing brick on shares, on Chrystie's premises, for five years. In 1871, a receiver of the goods of said Chrystie was appointed, who subsequently commenced an action against defendants for an accounting of sales of brick during the years 1870, 1871, and 1872. Judgment was rendered in said action for the receiver for $3,278.49. Calvin Frost and Charles Wheaton, for applt. 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 fraudulently might be found to be overstated or concealing the actual sales on said overestimated, is not the kind of fraud accounting. Judgment was rendered which will authorize the Court to set for plaintiff for $6,476.42. aside a judgment. Patch v. Ward, Law R., 3 Chan. App., 207. Nor will a party against whom a judgment is rendered be permitted to impeach it by proof that the evidence upon which it is founded was false. Ross v. Hood, 8 Hun., 185-S. C. Court of Appeals MSS. A great wrong, no doubt, is done, and a high crime is committed by such a use of false witnesses. But the remedy for the pub Milton A. Fowler, for respts. Held, That the former adjudication is a bar to this action. There is no occasion to dispute the principle that fraud vitiates all acts, however solemn or even judicial. That principle is an exception to the general rule rejecting extrinsic evidence to affect written instruments or public lic crime is the indictment and punrecords. 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., §§ 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 seem to be inconsistent with each other. But, in truth, there is no repugnancy between them. The fraud that vitiates a judgment consists of acts or omissions, whereby the Court is deceived, and in consequence of such deception a judgment is given Upon principle as well as upon authorities, we are convinced that the former judgment is a bar to this action. Smith v. Nelson, 62 N. Y., 286. State of Michigan v. Phenix Bank, 33 N. Y., 25, distinguished. Order affirmed, with costs. MUNICIPAL CORPORATIONS. LIABILITY OF. A municipal corporation cannot be held liable for injuries arising from defects in the plan of a public work; but only for negligence in the execution of the plan adopted, or some other distinct wrong. 1 Toolan brought suit against the city of Lansing to recover damages for an injury received by him from falling into a ditch, which, he alleges, was cut by authority of the city across one of its streets, and negligently left uncovered and unguarded. The facts appear to have been that one Van Keuren was employed by the city to build a wing to one of the bridges over Grand River, and that in the prosecution of that work he found it necessary to cut the ditch in question across a street near it to keep the water, after a heavy rainfall, from rushing against and destroying his unfinished wall. This he did on his own responsibility, covering it with plank to the width of sixteen feet. While it remained in this condition, Toolau, in turning off the street in passing along one evening, fell in the ditch, and was injured. There were questions of his negligence on the trial below, which are immaterial here. The city afterward paid Van Keuren for his work, and allowed the ditch to remain for a sewer. The case was put to the jury as one of negligence, and plaintiff recovered. It is claimed, in support of the judgment, that the city has accepted and ratified the act of Van Keuren in cutting the ditch and partially covering it, and is therefore liable. Held, That a lawful exercise of legislative action cannot be a wrong; and as the determination of the plan of a public work is in the nature of legislative action, there must be something besides the proper execution of the plan-some negligence in its execution, or some other distinct wrong -before the municipality constructing the work could be held responsible for a tort. Detroit v. Beckman, 34 Mich., 129. Now, had Van Keuren been employed by the city to cut the ditch for a sewer, and cover it for the passage of teams as he did, putting it precisely in the condition in which it was when Toolan was injured, the city, under the decision in Beckman's case, could not have been held liable as for negligence in not providing for covering it further. In planning a public work, a municipal corporation must determine for itself to what extent it will guard against possible accidents. Courts and juries are not to say it shall be punished in damages for not giving to the public more complete protection; for, as was shown in Beckman's case, that would be to take the administration of municipal affairs out of the hands to which it has been intrusted by law. What the public have the right to require of them is, that in the construction of their works after the plans are fixed upon, and in their manage ment afterward, due care shall be observed; but negligence is not to be predicated of the plan itself. If we assume the original responsibility of the city for Van Keuren's act, then the only fault in the case was in not providing further covering 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. Judgment reversed with costs, and a new trial ordered. Opinion by Cooley, C. J. RAILROAD COMPANIES. LIGENCE. The one hundred to two hundred yards. The engineer of this locomotive did not see Harlan till he was run over, the engine going backward. track was a straight one, and the engine could have been seen at a conNEG-siderable distance. There was no SUPREME COURT OF MISSOURI. possibility of stopping it, had the engineer seen Harlan before he was Harlan v. The St. Louis, K. C. & struck, so as to avoid the disaster that N. R. Co. Decided April, 1877. Although the employees of a railroad company The deceased, who lived in the town of Moberly, was passing from the east side of the railroad, on a frequented path leading over the tracks, in the middle of a clear day in November, and was killed by what is called the pony-engine, running backward on the main track. He stepped from behind some cars standing on the side-track, which was seven feet from the main track, and was killed by this engine almost immediately. He wore a fur cap with ears to it, but it seems from the testimony that his hearing and eyesight were ordinarily good. The bell on the pony-engine having no rope to it, was not sounded by the engineer, and there was a freight train on the adjoining track, about fifty feet off, on which there was a bell ringing which could be heard all over the town. occurred. The instructions given by the court to the jury distinctly declared that the plaintiff could not recover if the disaster was produced by Harlan's own negligence, although the bell was not sounded, provided the engineer could not have prevented the accident. The jury, however, found a verdict for the plaintiff. Held, That a person who goes on a railroad track, or proposes to cross it, must use his eyes and ears to avoid injury. A neglect of regulations in regard to bell-ringing may amount to negli gence in law on the part of the railroad employees; but that does not absolve strangers, who propose to cross the track, from ordinary care. Indeed, every intelligent person who has arrived at years of discretion is presumed to know that it is dangerous to be on a railroad track. When trains are passing to and fro, and when crossing, he is expected to be vigilant and watchful of the approach of a locomotive. The failure to exercise such vigilance is negligence per se. Conceding, in this case, that the failure to ring the bell 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 TERM. SECOND DEPT. Carmelo F. Caruana, applt., v. Aaron B. Cohn, respt. Decided July 6, 1877. stepping on the track, on the approach of the engine, at a slow rate of speed, appears unaccountable. Не seems to have been either absorbed in thought, or concluded, after he saw the engine, that he could cross safely, although it was so near as to make the experiment exceedingly hazardous. The company are not responsible for the result of such experiment, A partner's interest in the firm is not the subunless the engineer, after seeing the hazardous position of Harlan, could have avoided injuring him. The failure to ring the bell on the engine, and the sound of bells on the freight train, might have misled Harlan, if he trusted to hearing alone, although the evidence on both sides clearly shows that the movements of the pony-engine without a bell could be heard at least fifty yards. This, however, does not account for the failure of Harlan to see the engine when he stepped from behind the cars on the side-track. He was seven feet still from the main-track, on which the switch-engine was clearly in sight and in motion, and it was about the middle of a clear day, between 1 and 2 o'clock. He must, therefore, either have been totally absorbed on other subjects, or have concluded to take the risks. There is no ground for holding the railroad company responsible for the result such recklessness. of To constitute a valid levy there must be actual control or dominion of the property. The legal test of a valid levy is whether anything has been done which will subject the officer to an action of trespass if the execution does not afford him protection. ject of sale on execution; only his interest in the goods of the partnership is leviable, and such goods must be present at the sale. Action for an accounting. The plaintiff claims to have become vested with the interest of the defendant's partner Coxe in the partnership effects by virtue of a sale on execution of the interest of said Coxe in the partnership, and has brought this suit for an accounting. It appears that Coxe's interest in the partnership had ceased before the execution was issued, but the Court in deciding the case assumed that he had an interest therein. The officer, who did all that was done under the execution, was examined as a witness. He testified that he went to the store where the goods were, showed the execution to Coxe, the judgment-debtor, and demanded the money; that Coxe told him he had no interest in the business, and that he (the officer) said he would do nothing that night, and that he went down the next morning, and put his Judgment reversed, and the case brother-in-law in possession; that he remanded. Opinion by Napton, J. did not put his brother-in-law in the 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 |