interests. The vice in receiving it ployed until June 15th, and to atwas in the nature of it, and not that tend to his work until October it was aimed at this or that person thereafter. He further testified, in as a party to the action on trial. 2 answer to questions put to him by Camp., 578; 4 T. R., 753, 760; 12 his own counsel, that his regular Eng. L. and Eq., 299. wages were $70 per month, and bcard. He was asked, upon crossexamination, if, while he was sick, his employer did not pay his wages. This was objected to, and the objec Judgment of General Term, so far as it affirms judgment against defendant F. reversed, and new trial as to both defendants. Opinion by Folger, J. All concur. tion sustained, TORT. EVIDENCE. N. Y. COURT OF APPEALS. Drinkwater, respt., v. Dinsmore, applt. Decided March 19, 1880. In an action to recover damages for a personal injury, evidence tending to show that plaintiff lost no wages during his sickness is admissible. In such an action defendant has a right to show that plaintiff would not have earned any wages if he had not been injured; or that he was under such a contract that his wages went on without service; or that his employer paid his wages from mere bene vo Charles A. Davison, for applt. William R. Woodin, for respt. Held, error; that the question was a proper one; that plaintiff in this case could only recover, in addition to what a jury might award him for his sufferings and physical injuries, his pecuniary loss. 15 N. Y., 415; 53 id., 25. Before plaintiff could recover for the loss of wages he was bound to show that he lost the wages in consequence of the injuries, and how much they were. Defendant had a right to show that he lost no wages; or that they were not as much as claimed; or that, for some particular reason, plaintiff would not have earned any wages if he had not been injured; or This action was brought to re- that he was under such a contract cover damages claimed to have been with his employer that his wages occasioned by the upsetting of a went on without service; or that wagon driven by plaintiff, by reason his employer paid his wages from of which one of his legs was broken, mere benevolence. Plaintiff could and which was caused by an ob- not recover for the expenses of struction placed in the highway by nursing, or for medical services, if the servants of defendant. It ap- defendant had shown that he was peared that plaintiff was an engineer nursed by a sister of charity, or that in the employment of the Knicker- he was doctored gratuitously. bocker Ice Company. He was injured on the first day of April; and he testified that he was unable, in consequence thereof, to return to plaintiff, reversed, and new trial the boat upon which he was em- granted. lence. Reversing S. C., 7 W. Dig., 374. Barb. 628. 50 Judgment of General Term, affirming judgment on verdict for the Opinion by Earl, J. All concur, except Miller, J., dissenting. GIFT. TRUSTS. N. Y. COURT OF APPEALS. Young, adm'r, respt., v. Young al., applts. Decided April 6, 1880. A valid gift in præsenti of an instrument securing the payment of money, reserving to the donor the accruing interest, can only be made by an absolute delivery of it to the donee on his undertaking to account to the donor for the interest he may collect thereon. A gift cannot be made by creating a joint possession of donor and donee. To create a trust, the acts or words relied upon must be unequivocal, implying that the person holds the property as trustee for another. The declaration of trust need not be in ex to W. and J. and their heirs. The memorandum on the envelope containing the U. S. bonds stated that 4 belonged to W. and 3 to J., and made the same provision as to interest. The intestate then took these envelopes to the wife of W., and exet hibited them to her, and declared that what he had done was in pursuance of a settled purpose, and that he believed he had made a valid disposition of the bonds according to the memoranda. W. was the son of the intestate, and J. was his grandson. He had lived with W. for several years. He deposited the envelopes containing the bonds in a safe, which had formerly belonged to him, but which it was claimed he had given to J.-reserving the right to use it, and in fact using it as a place of deposit for his valuable papers. W. also kept papers in this safe, but rarely went to it himself, the deceased being in the habit of depositing in it such things as he desired, and taking them out at his request. The upper part of the safe was divided into pigeon-holes, and the deceased kept his papers there, Plaintiff is administrator of the and until the time of the transaction estate of Y., his father. Among the kept the bonds in controversy there. assets there were twelve one thou- The lower part was divided into sand dollar railroad bonds and seven large open compartments, one of one thousand dollar U. S. bonds. which had been appropriated as a These bonds were placed by plain- receptacle of W.'s papers. tiff's intestate in two envelopes, putting the bonds in the envelopes, upon each of which he pasted a and showing the memoranda upon memorandum. The one upon the them to the respective wives of the envelope containing the R. R. bonds donees, the deceased put the two stated that the inclosed bonds be- packages back in the safe, and after longed 6 to W. and 6 to J.-but the his death they were found, not in interest to accrue thereon was owned the pigeon-holes where they had and reserved in the intestate during formerly been kept, but in the comhis life, and at his death to belong partment where W.'s papers were plicit terms, but the donor must have evinced by acts which admit of no other interpretation that such title as he retains is held by him as trustee for the donee. He must transfer the property to a trustee, or declare that he holds it himself in trust. In case of voluntary settlements or gifts, a trust will not be implied where one was not in fact contemplated. Reversing S. C., 9 W. Dig., 73. After A court of equity cannot, by its authority, render a gift perfect which the donor has left imperfect, and cannot convert an imperfect gift into a declaration of trust merely on account of that imperfection. 44 L. J., N. S., Ch. App., 279; 2 Story's Eq., 987; 1 id., § 433; 8 Sim., 325; 1 C. & P., 138, 141. To establish a valid gift, a delivery of the subject of the gift to the donee, or to some person for him, so as to divest the possession and title of the donor, must be shown. kept, where they had been generally Sim., 325; 8 Eng. L. & Eq., 281; 1 kept in that compartment. The Hare, 476. memoranda were made March 14, 1875, and the intestate died Nov. 12, 1875. In the meantime, for the instalments of interest which became due, the deceased cut off the coupons, W. sometimes assisting him; but W. testified that he never asserted any ownership over the bonds against his father, and they were at all times under the control of the latter, although W. and J., both, had access to the safe. It also appeared that, after the alleged gift, when applied to for a loan, the deceased said he supposed he might, with the boys' consent, take some of these bonds; that he called J.'s attention to the memoranda, saying, "you see what I have done with them;" that he declared to one G. that what he had left he had given to W. and J., and that, in September, 1875, he took $1,000 from one of the envelopes, and gave it to a third party; but it also appeared that he had, before making the memorandum, presented J. with $1,000. Hezekiah Watkins, for applts. Homer A. Nelson, for respt. Held, That, as there was no immediate delivery of the bonds, there was no executed gift. 2 Schouler on Personal Property, 118; 3 Murphy, N. C., 494; 2 Dev., 186; 5 Jones' L. R., 413. The transaction amounted only to a promise to make a gift, which is nudum pactum. 2 Bailey, S. C., 588. A valid gift in præsenti of an instrument securing the payment of money, reserving to the donor the accruing interest, can only be made by an absolute delivery of the subject of the gift to the donee, vesting in him the entire legal title and possession, on his undertaking to account to the donor for the interest he may collect thereon. If the donor retains the instrument under his own control, though he does so merely for the purpose of collecting the interest, there is an absence of the complete delivery which is absolutely material to the validity of a gift. A gift cannot be made by creating a joint possession of donor and donee, even though the intention be that each shall have an interest in the chattel, especially where the line of division between these interests was not ascertainable. 47 N. Y., 580. Also held, That there being no consideration, the transaction could not To create a trust, the acts or be sustained as a declaration of words relied upon must be unequivtrust. Story's Eq., 787, 793, 706; ocal; implying that the person holds 12 Ves., 39, 43; 1 M. & C., 226; 7 the property as trustee for another. shown which tended to show the guilt of the principal. John O. Mott, for plff. in error. Benj. K. Phelps, Dist. Att'y, for defts. in error. 75 N. Y., 134. It is not necessary fact to the crime of arson in the first that the declaration of trust be in degree. Upon the trial facts were terms explicit; the donor must have evinced by acts which admit of no other interpretation that such legal right as he retains is held by him as trustee for the donee. 44 L. J., Ch. App. N. S., 277. The settlor must transfer the property to a trustee or declare that he holds it himself in trust. 4 De G. F. & J., 264. In case of voluntary settlements still the question of his guilt was or gifts, a trust will not be imputed not thereby put entirely at rest as where a trust was not in fact contemplated. L. R., 18 Eq. Cas., 11. Judgment of General Term, reversing decree of surrogate, reversed, and decree of surrogate affirmed. Opinion by Rapallo, J. All concur. CRIMINAL LAW. ARSON. N. Y. COURT OF APPEALS. Held, no error; that, although doubtless the record showing the conviction of the principal was proof sufficient prima facie of that fact, against an accessory. It has been held that it must be established by other means. R. & M. Crim. C. Res. 347; 1 Lewin, 119, 121; 2 Phil. on Ev.,* 49; 13 Wend., 592. Coleman v. People, 55 N.Y., 81, distinguished. That it did not go to prove a crime upon the prisoner different from that for which he was on trial; that he was to be convicted, if at all, on proof that he induced or advised the Levy, plff. in error, v. The People, principal crime; and in the lack of defts. in error. Decided March 9, 1880. On the trial of one accused of being accessory Evidence that the prisoner conferred with the several persons, one of whom was K.; that will not set it aside. direct evidence, the people had the right to avail themselves of circumstances to show that, and what the principals did, and the manner in which they did it. The indictment charged that fire was set to and burned the dwelling house of one K. It appeared that the fire was set in the night time, within the four walls and under the roof of an edifice which was usually occupied by several persons, who lodged there at night, one of whom was K. It was a house of many rooms, all under the same roof, within the same outside and party walls, having the same way out of doors and the same halls and stair The plaintiff in error was con- ways, and each having internal victed of being accessory before the communication with every other. K. was the tenant of but three of the McL., 256. That although the case rooms, and the fire was set and comes to this court as res novœ, 35 burned the realty only in other N. Y., 125, the testimony must be rooms, of which the prisoner was the tenant. The proof upheld the averments of the indictment. looked at, to see if it brings to the minds of the court conviction that the prisoner was guilty as charged in the indictment. Judgment of General Term, affirming judgment of conviction, af Held, That a conviction thereunder of arson in the first degree was proper. 1 Park. Crim. R., 252; 19 N. Y., 537; 26 id., 200; 16 Johns., firmed. 203. Evidence was given that the prisoner conferred with the principals after the fire. Held, no error; the fact that he was with them served to show his knowledge of them, and the close Opinion by Folger, J. All concur. REFERENCE. N. Y. COURT OF APPEALS. Wood et al., respts., v. The Equit applt. ness of his companionship and the able Life Ass. Soc. et al. Swift, frequency of it would show how intimate his acquaintance was. It was also competent, as an act in the prisoner's life at the time of the occurrence, with guilty participation in which he was charged. The prisoner asked the court to use the power given it by Chap. 337,Laws of 1855, as amended by Chap. 330, Laws of 1858, in cases coming from the General Sessions in New York, to order a new trial if satisfied that the verdict against the prisoner was against the weight of evidence or against law, or that justice requires a new trial, whether any exception shall have been taken or not in the court below. Decided April 13, 1880. After a case had been finally submitted to a referee for decision, an order was made bringing in additional parties defendant and requiring them to accept the referee who had been appointed and the evidence taken before him. The action did not appear to be one which could be referred without consent. Held, That even if the court had power to bring in new parties, it could not compel them to accept the referee and the evidence taken, even with the right of cross-examination. This was an appeal from an order of General Term affirming an order of Special Term adding parties defendant in the above entitled acHeld, That unless a verdict was tion. It appeared that when that clearly and manifestly against the order was granted the action had evidence, the court will not set it been pending and at issue between aside. 2 N. & McC., 261. The plaintiff and the other defendants verdict must be presumed to be for a long time; that it had been right till the contrary appears, and referred, and the referee had taken should be sustained by the court, if much evidence, and the case had the evidence, by fair construction, been finally submitted to him on will warrant such a course. 2 the merits for decision. The order |