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sum of $150,000 to and among such jects entitled to consideration in incorporated societies organized the distribution of his estate, it under the laws of the State of New does not give such unlimited and York or the state of Maryland, unbounded authority as would inhaving lawful authority to receive clude all and every object which and hold funds upon permanent the testator himself might select in trust for charitable or educational the free exercise of his own will, uses, as my said executors, the sur- discretion and judgment. There vivors or survivor of them, shall must be some limit to the testator's elect for that purpose, and in such power to dispose of his estate. several sums, not exceeding in any. The executors named are mere case the amount that such incor-naked trustees with authority to porated body is empowered by law distribute in their discretion. No to take and hold upon the uses object being designated there is no aforesaid, as they, my executors, imperative duty imposed upon the survivors or survivor of them, them and a court of equity could shall determine. And I further di. not enforce a performance of the rect that the selection and distri- trust. Until a selection by the bution aforesaid be made and fully trustees the beneficiaries would completed within the lifetime of have no such interest as would give the longer liver of the two persons them a standing to compel an enlastly named in the fourteenth forcement of the bequest. Where a clause of this, my will, as my gift to a charitable use is so indefiexecutors; and it is my expecta- nite as to be incapable of being exetion that the same shall be com- cuted by a judicial decree it must pleted at any rate before the ex- fail. 8 N. Y., 526. piration of three years after my Power v. Cassidy, 79 N. Y., 602, decease.” The testator died with distinguished. out having executed any codicil Judgment of General Term, afto his will. The plaintiff P. and tirming judgment establishing the defendant were two last named validity of the tenth clause of the executors.

will, reversed. Edward H. Hawke, for applt. Opinion by Miller, J. All conDuncan Smith, for respts.

cur. Held, That the provision made was void by reason of indefinite

ARREST. COSTS. ness and uncertainty in failing to designate any particular institu- N. Y. SUPREME Court. GENERAL tions or any class of institutions

TERM. FIRST DEPT. which were to be the recipients of

Stephen Tunstall, respt., his bounty.

Walter H. Winton, applt. While the law in many instances sanctions the right of a testator to

Decided Jan. 25, 1884. confer upon his executors or trus

When a deposit is made in lieu of an under. tees the power of selecting the ob

taking on an order of arrest, and the order Vol. 18-No. 22a.

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of arrest is finally vacated, the balance of moving party to show that there such deposit, after the payment of defend

were no damages, or at least to ant's costs of procuring such vacation, will be ordered to be paid over to plaintiff, on

assert that fact in his moving his motion for that purpose, if the defend- papers, so as to put it in issue and ant, in opposition to such motion, does not give defendant an opportunity to claim that, in addition to his costs, he has contradict it. suffered other damages by reason of the order of arrest.

UNDERTAKING ON APPEAL. Appeal from order granting plaintiff's motion to withdraw N. Y. SUPREME COURT. GENERAL from the County Clerk of New


. York county the balance of $250,

David M. Hollister, applt., v. deposited by plaintiff in lieu of Charles McNeil, respt. the usual undertaking on an order

Decided Feb. 1, 1884. of arrest, remaining after paying the costs recovered by defendant An undertaking, given to stay execution on in procuring the final vacation of appeal from a judgment, by which the sure.

ties undertake “that the appellant will pay such order of arrest.

all costs and damages which may be The motion was resisted by de

awarded against him on said appeal, not fendant, but it was not claimed on exceeding $500, and that if the judgment his behalf that he had suffered appealed from, or any part thereof, is any other damages besides his

affirmed, or the appeal is dismissed, the

appellant will pay the sum recovered or costs by reason of the order of

directed to be paid by the affirmance, or the arrest.

part thereof as to which it is affirmed," Benjamin F. Sawyer, for applt.

does not comply with $ 1327 of the Code of Edward P. Wilder, for respt.

Civ. Pro. and will not be approved. Held, That, since no damages Appeal from an order of Special other than his costs were claimed Term, approving an undertaking by defendant to have been occa- given by defendant to stay an sioned by the arrest, there were no execution on appeal from a judgcharges affecting the balance after ment. The undertaking was in deducting the costs allowed to the following form : defendant on vacating the order We


* * do, jointly and of arrest, and such balance was, severally undertake that the aptherefore, rightly claimed by pellant will pay all costs and damplaintiff.

ages which may be awarded Order affirmed.

against him on said appeal, noi Opinions by Brady and Daniels, exceeding $500, and * JJ.; Davis, P. J., dissents on the if the judgment appealed from, or ground that, since the condition any part thereof is affirmed, or the of the deposit was the payment of appeal is dismissed, the appellant all costs and damages defendant will pay the sum recovered, or should sustain, it must appear that directed to be paid by the affirmhe was entitled to no damages, ance, or the part thereof as to and that it was the duty of the which it is affirmed."

* that


Plaintiff excepted to the form Appeal from order discharging of this undertaking, claiming that relator from the custody of The in order to comply with $ 1327 of House of Refuge for the Reforthe Code of Civ. Pro. the words mation of Juvenile Delinquents. “by the judgment or order" Nicholas Roach was committed should be substituted for "by the to the said institution for vagrancy, affirmance.

&c. The language of the commitIra Shafer, for applt.

ment was as follows:

"To the Policemen of the City of · John J. Armstrong, for respt. New York, &c..

Held, That the objection to the " You are commanded to take undertaking was well taken. The and convey to the House of Refuge statute as to the effect of the un

the body of Nicholas dertaking is undoubtedly manda. Roach, aged fourteen years, &c. tory. It cannot be disregarded. There is a wide difference between A writ of habeas corpus and an obligation to pay a sum which certiorari was procured to inquire shall be directed to be paid by the into the cause of detention, and judgment or order appealed from, upon the hearing thereon the and that which is to be paid by Court discharged relator on the the affirmance of a judgment on ground that the commitment did appeal by the appellate court. not show the child's age, since the

Order reversed, and defendant statement that he was “aged fourordered to execute a new under- teen years," without words of taking in proper form within ten limitation, such as "and no more, days.

did not show that he was under Opinion by Brady, J.; Davis, the age of sixteen years, as was P. J., and Daniels, J., concurred. necessary in order to commit him

to the House of Refuge. Penal

Code, $ 291 ; Laws of 1882, Chap. COMMITMENT.


George F. Murray, for applt.

Howe & Hummel, for respt.
In re petition for a habeas cor-

Held, Error ; that the commitpus on behalf of Nicholas Roach. ment stated that he was aged

fourteen years, and in the absence Decided Feb. 1, 1884.

of anything tending to discredit

the accuracy of this statement it A commitment to the House of Refuge for

the Reformation of Juvenile Delinquents should be deemed correct, and it which commits to that institution “Nichoestablished the fact that the relat. las Roach, aged fourteen years,"contains a or was liable to be arrested and sufficient statement of the age of the person committed to the House of Refuge so committed and shows sufficiently that he is under the age of sixteen years as re

under S$ 291, 292, of the Penal quired by statute.


Order reversed and relator re- Procedure to females not over the committed to custody.

age of fourteen years. Opinion by Daniels, J.; Brady, George F. Murray, for applt. J., concurs.

A. H. Hummel, for respt.

Held, That it was evident from

the language of the commitment DISORDERLY PERSONS.

that the relator was convicted and N. Y. SUPREME COURT. GENERAL committed under Chap. 172, Laws TERM. FIRST DEPT.

of 1865, by the fifth section of

which authority was given to the In re petition for a habeas cor

magistrate before whom the propus on behalf of Mary Riley.

ceedings were instituted and carDecided Feb. 1, 1884.

ried on to commit any children

under the age of sixteen years Section 5, Chap. 172, Laws of 1865, giving deserting their homes without authority to a magistrate to commit any children under the age of sixteen years de- good and sufficient cause, or keepserting their homes without good and suf- | ing company with dissolute or ficient cause, or keeping company with vicious persons against the lawful dissolute or vicious persons, against the law

commands of their parents, to the ful demands of their fathers, moihers, &c., to the House of Refuge in the City of New House of Refuge in the City of York, is not inconsistent with any of the New York. That neither the Code provisions of the Code of Criminal Pro- of Criminal Procedure nor the cedure or of the Penal Code, and conse

Penal Code in any manner proquently is not repealed thereby.

vided for this particular class of Appeal from order discharging cases, and the law of 1865, supra, Mary Riley from the custody of therefore, was not inconsistent the Superintendent of the House with the provisions of said Codes, of Refuge.

and was not repealed by them, Mary Riley was committed by Code Crim. Pro., $ 726; Penal a magistrate to the House of Code, $ 724, and, consequently, Refuge in the City of New York was still in full force and effect. as a disorderly child, having de- Order reversed and relator again serted her home without good and committed to custody. sufficient cause and kept company Opinion by Daniels, J.; Brady, with dissolute and vicious persons J., concurs. against the lawful commands of her parents. It appeared from the

CORPORATIONS. commitment that she was of the age of fifteen years, and, habeas N. Y. COURT OF APPEALS. corpus proceedings having been

Veeder v. Judson, impld. instituted in her behalf she was discharged, because it was sup- Decided March 18, 1884. posed that the right to commit to

A manufacturing corporation increased its the House of Refuge was limited

capital without complying with the proby & 291 of the Code of Criminal visions of law in relation to publishing

notice of the meeting or filing certificate. the amount of provable claims pro The increased stock was issued though rata against both classes of stocknever fully paid in, and the holders thereof shared the dividends and acted as holders holders, which was affirmed by of legal stock. Five years later a certificate the General Term. was filed stating the capital at the amount J. B. Perkins, Theodore Bacon as increased and that it was actually paid and J. Van Vorhis, for applts. in. Held, That the certificate was sufficient

Edward C. James, for respt. to exonorate the holders of the original stock but was not conclusive as to creditors that Held, That the assessment should the increased stock had been paid in; that have been made against the holdthe holders of such stock were estopped from

ers of the increased stock only; setting up the informalities in its issue and

that the certificate, although statthat the debts provable under $ 24 of the act of 1848 should be assessed against the ing the amount at $300,000, was holders of the increased stoek only.

sufficient to exonerate the holders

of the $200,000 of original stock, In 1868 the R. Iron Co. was or- which had all been paid in, but ganized with a capital of $200,000, was not conclusive upon the crediwhich was paid in, but no certifi- tors that the increased stock had cate thereof was recorded.

In been paid in and that the holders 1869 the capital was increased to of the increased stock were estop$300,000 by a vote of two-thirds ped from setting up the informaliof the original stockholders at a ties in the issue of said stock as stockholders' meeting. No notice against the creditors. of this meeting was advertised as Judgment of General Term, required (Laws 1848, chap. 40, $ 21), affirming judgment for plaintiff, nor was any certificate of its pro- reversed, and new trial granted. ceedings made or filed as required Opinion by Finch, J.; Rapallo, ($ 22), but all the increased stock Miller and Earl, JJ., concur; was issued although never fully Ruger, Ch. J., and Andrews, J., paid in. The increased stock shar- dissent, holding that defendants ed in the dividends and the hold- were liable on both the original ers of it voted and were, in every and increased stock; Danforth, J., respect, treated and acted as the taking no part. holders of legal stock. In 1873 a certificate was made and filed, stating the capital to be $300,000 PROBATE. REVOCATION. and that it was actually paid in.

N. Y. COURT OF APPEALS. In 1877 the company failed and a receiver was appointed. The In re probate of will of Gouraud, debts amounted to about $300,000, dec'd. of which about $134,000 were prov.

Decided March 11, 1884. able under $ 24. This action was brought by one of the creditors, in The Surrogate cannot refuse to hear allegabehalf of all against the stockhold

tions filed for a revocation of probate on

the ground that they are substantially those ers, and a recovery was had in

filed against the original probate. favor of the creditors assessing The mere filing of allegations against the pro

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