appeals therefrom. If the defendant's continued possession during that interval was a wrong at all, it was not new or separate, but a continuance of that sued upon, and dependent upon the demand proved in that action. At the most the complaint shows an extension of the damages beyond the date of the trial judgment, and growing out of the delay inseparable from the defendant's right of appeal; and so we are required to say, if we affirm this judgment, either that the damages flowing from a single wrong may be divided into two parts and each part form the subject of a separate action; or that the exercise by the defendant of the right of appeal upon the precise terms and conditions dictated by the law constitutes a new and illegal detention of the property in controversy. The first proposition is of course inadmissible, and the judgment must stand, if at all, upon the second; and that necessarily involves a conclusion that the appeals taken, by reason of the delay which they occasioned, constituted a new detention and a new wrong for which a separate action could be maintained. Neither reason nor authority jus tify that conclusion. The appeals were taken by the defendant in pursuance of a lawful right and in performance of a clear duty. No question of his good faith is raised and the damages claimed were caused by no act of his. Appointed receiver of the bank he found these bonds among the assets, and took them into his possession lawfully and as his duty was. When the plaintiff made his demand the receiver was justified in resisting it in behalf of those whom he represented, and in submitting the controversy to the determination of the courts. The bonds were of course liable to fluctuations in value, and having that fact in mind the plaintiff deliberately selected his remedy. He might have sued simply for the conversion of the bonds and recovered their value and damages for their detention, and so have thrown upon the defendant their ownership after judgment and the risk of future depreciation incidental to that ownership. Instead of that he chose to pursue the bonds themselves and seek their recovery under the provisions of the Code. He knew that his judgment, in the event of his success, would be in the alternative, and that the defendant would be at liberty to return the property itself instead of paying the adjudged value, and that depreciation would follow the ownership when not awarded as an element of damages in the action. Accordingly he replevied the bonds. But the defendant had the lawful right to require their return to him pending the litigation, upon executing the required affidavit and undertaking. Section 1702 of the Code provides that "a sheriff who has replevied a chattel must retain it in a secure place until the person who is entitled to the possession thereof is ascertained as prescribed in this article." And so the sheriff took the property and it passed into the custody of the law, and the defendant's detention considered as a tort or a wrong ended. But he could become "entitled to the possession" under the Code as a stockholder, so to speak, for the purposes of the litigation, and he did so become "entitled to the possession," executing as a condition the required

undertaking. The sheriff lawfully delivered him the property and he accepted it in accordance with the law of the remedy, and it might seem that from that moment the risk of depreciation rested upon him who should prove to be the ultimate owner, had not the Code formulated the rule, which this court, in the interest of justice, had already declared, that depreciation down to the date of the trial could be recovered as damages for the detention. Brewster v. Silliman, 38 N. Y., 423; Code, & 1722. Neither the case nor the Code go any further. The former explicitly declares that "if the property had depreciated the defendants have it in their power (unless by their further voluntary act they have deprived themselves of the power) to restore the property when the execution issues, and pay no damages for depreciation, but only the interest on the value when taken."

And the Code provides that where the property has depreciated while in defendant's possession under such circumstances that a recovery therefor could have been had in a personal action against the defendant, the same damages may be recovered in an action in the nature of a replevin. Neither the case cited nor the Code authorize an action for depreciation after judgment and pending an appeal.

The respondent relies somewhat upon § 1691 of the Code. That provides that, where a chattel is replevied and a final judgment awards the possession to the defendant, no subsequent action can be maintained by the plaintiff for the same cause of action; "but the judgment does not affect his right to maintain an action to recover damages for taking or detaining the same or any other chattel unless it was rendered against him on the merits." The section relates to an unsuccessful plaintiff not beaten on the merits. Here the judgment was rendered on the merits and in favor of the plaintiff.

We cannot admit that the taking of an appeal by the defendant constituted a new and separate detention of plaintiff's bonds because they remained in defendant's possession after delivery to him by the sheriff in accordance with the law of the chosen remedy. If that be so, added perils will surround appeals, and a prolific source of new actions will come into existence, and it will be difficult to say that one class of damages resulting from the law's delay may be recovered and all others be excluded. We think the right of appeal cannot be converted into a tort or wrong, and the delay it produces serve as a basis for a new action, and that the judgment already rendered closed the entire controversy.

The judgment should be reversed, and final judgment be rendered upon the demurrer in favor of the defendant, with costs. All concur.

TORONTO GENERAL TRUSTS COMPANY, as Trustee, App'lt, v. THE CHICAGO, BURLINGTON & QUINCY R. R. Co. et al., Resp'ts.'

(Court of Appeals, Filed October 7, 1890.)

1. PARTIES-POWER OF FOREIGN TRUSTEE TO SUE IN THIS STATE.

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One Dunscomb, a resident of Canada, by his will gave the income of ' Reversing 21 N. Y. State Rep., 903.

his estate to his wife for life, and appointed Muirheid, of Philadelphia, Penn., as trustee. Mrs. Dunscomb, having received letters testamentary as executrix, transferred 161 shares of defendant's stock to Muirheid as trustee, who surrendered it to the defendant, which issued new stock to him as trustee, and he sold it and converted the proceeds to his own use and died insolvent. Proper proceedings were taken in the Canadian courts, and plaintiff was appointed trustee to collect in the outstanding assets of Dunscomb's estate, and brought this action to obtain the shares of its stock, or their value. After the commencement of this action, the parties to the Canadian action appeared in the Canadian court and plaintiff was appointed trustee of Dunscomb's estate and directed to pay any moneys collected into court to the credit of the cause, the amendment to "take effect as of the date of said judgment." Held, that plaintiff had legal capacity to sue in this state.

2. SAME.

As plaintiff was clothed with the title to the trust estate in Canada by proceedings in the Canadian action, it could, standing upon that title, maintain an action here as trustee.

APPEAL from judgment of the supreme court, general term, first department, affirming judgment of special term dismissing plaintiff's complaint.

On the 14th day of October, 1870, George H. Dunscomb, a resident of Coburg in the province of Ontario and dominion of Canada, made and executed his will disposing of his estate, in which he appointed his wife, Harriet Catharine Dunscomb, and his brother, John William Dunscomb, executors thereof, and afterward on the same day he executed a codicil to his will as follows:

"I, George Hoyles Dunscomb, in the within will mentioned, declare this to be a codicil to my last will and testament.

"In the event of my having issue by my wife, Harrietta Catharine Dunscomb, I give, devise and bequeath to my said wife for the terin of her natural life, the income from all the real and personal estate that I may die possessed of, and on her death to the child or children of our marriage now living or who may be living at the time of my death, or born after my death, to be divided equally among them, share and share alike.

"The real and personal estate to be realized by my trustee, either at public or private sale, whichever may in the discretion of the said trustee be deemed best for the interest of my estate, at the death of my wife, and divided among the issue of my marriage as above directed.

"And I do appoint Charles H. Muirheid, of the city of Philadelphia, in the state of Pennsylvania, in the United States of America, as trustee under this my will, to collect and receive and pay over the income of the trust estate, therein comprised, to my wife, if she survives me, during her life, and at her death to dispose of the said real and personal estate as above described.

And I bequeath to the said Charles H. Muirheid for his services as trustee, the usual commission."

Thereafter the testator died and his will was duly proved and admitted to probate in Canada, and, John W. Dunscomb having renounced as executor, letters testamentary were issued to Mrs. Dunscomb. At the time of the death of the testator he owned. one hundred and sixty-one shares of the capital stock of the Chicago, Burlington & Quincy Railroad Company, and Mrs.

Dunscomb, as executrix, transferred the certificates of stock to Charles H. Muirheid, as trustee, and he surrendered the certificates thus transferred to him to the railroad company, and it by the National Bank of Commerce as its agent, issued new certifi cates of the stock to him as trustee for Mrs. Dunscomb under the will of her husband. He subsequently sold the stock, and the railroad company, through its agents, issued new certificates of stock to the purchaser thereof, and Muirheid converted the proceeds to his own use and subsequently died insolvent. Thereafter an action was commenced in the high court of justice, chancery division, in Canada, for the appointment of a successor in the trust of Muirheid, in which Mrs. Dunscomb was plaintiff and the administrator of the estate of Charles II. Muirheid and George Hoyles Dunscomb, an infant son of the testator, were defendants. In that action the plaintiff asked for relief that a new trustee be appointed in the place of Charles II. Muirheid, deceased, and that such new trustee be authorized to take, accept and receive the securities and have the management and control thereof according to the provisions of the will and codicil of George H. Dunscomb, deceased, and to dispose of the income, revenue, dividends and receipts thereof in accordance therewith, and to carry the same into effect. The defendants in the action were properly served with process and brought into court, and all parties being in court, and upon reading the pleadings and affidavits, and after hearing counsel, the court on the 30th day of May, 1883, ordered and adjudged, "that the Toronto General Trusts Company be, and they are hereby appointed trustees to collect and get in the outstanding assets and estate of George Hoyles Dunscomb, deceased, the testator in the pleadings named, as they accrue due, and to pay any moneys when collected into court to the credit of this cause, subject to further order;" and it made provision for the costs of the parties to the action.

The Toronto General Trusts Company was by the Canadian law authorized to act as trustee in such a case and this action was commenced on the 6th day of July, 1883, and the foregoing facts, and other material facts were alleged in the complaint; and the complaint prayed judgment "that the defendants be ordered to deliver and transfer to said plaintiff 295 shares of the sai Chicago, Burlington & Quincy Railroad Company, and to issue to this plaintiff, as trustee as aforesaid, certificates of stock for said 295 shares, and to pay to said trustee all dividends on said shares since the alleged transfer thereof, with interest thereon from the date the same were payable.

And plaintiff further prays that if it is impossible for the said defendant companies to issue or transfer stock to plaintiff that then, and in that case, the said companies be decreed to pay over to said plaintiff the value of said stock, together with all such dividends as aforesaid, and interest thereon, and that the plaintiff may have such other and further relief as in the premises as may be just, besides the costs of this action.”

After the commencement of this action, on the 27th day of July, 1883, the parties to the Canadian action again appeared in the

Canadian court, and the following order was entered: "This court doth order and adjudge that the Toronto General Trusts Company be, and they are hereby appointed trustees of the estate of George Hoyles Dunscomb, deceased, the testator in the pleadings named, and that they do pay any moneys when collected into court to the credit of this cause subject to further order;" and "that such amendment take effect as of the day of the date of the said judgment."

This action was put at issue by answer on the part of the defendants and was brought to trial at a special terin of the court, and the court after hearing the evidence produced by the parties dismissed the complaint on the sole ground that the plaintiff did not have capacity to sue in this state; and a judgment was entered in favor of the defendants. From that judgment the plaintiff appealed to the general term where it was affirmed upon the same ground, and then it appealed to this court.

P. K. Pendleton, for app'lt; Elihu Root and Frederic A. Ward, for resp'ts.

EARL, J.-The complaint in this action was dismissed on the sole ground that the plaintiff did not have legal capacity to sue in this state; and therefore it is proper for us to consider only the question whether it did have such capacity.

The codicil to the will of the testator created a valid trust, and although there were no words of gift to the trustee, he took the legal title to the trust estate. Such a title is necessary for the purposes of the trust, and hence it must be presumed that the testator incant to give it. Oates v. Cooke, 3 Burr., 1684; Doe v. Homfray, 6 Ad. & Ell., 206; Doe v. Woodhouse, 4 T. R., 89; Leggett v. Perkins, 2 N. Y., 297; Tobias v. Ketchum, 32 id., 319; Killam v. Allen, 52 Barb., 605.

Muirheid, the trustee, could have maintained an action in the courts of this state to recover any of the trust property by any one wrongfully detained here or for the wrongful conversion of such property, or for damages thereto. Such an action would not have been in a representative capacity, but in his own right as the legal owner of the property. It might have been necessary for him upon the trial of such an action to prove the will and put it in evidence for the purpose of showing his title; but it would not have been necessary for him to have the will admitted to probate in this state. Williams on Executors, 2d Am. ed., 226, note, and 7th Lond. ed., 362, note; Judson v. Gibbons, 5 Wend., 224; Middlebrook v. The Merchants' Bank, 3 Keyes, 135; Smith v. Webb, 1 Barb., 230. So much is true as to the trust property generally. But here there is more. The executrix of the will assigned this stock to the trustee, and the defendants issued to him as trustee a new certificate therefor, and thus he became the legal owner thereof, and could, as such, have maintained an action here in reference to the same without probate of the will here, as a legatee under a foreign will of specific chattels can after assent to the legacy by the executor maintain an action here to recover such

N. Y. STATE REP., VOL. XXXIII.

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