author: Thompson. J. Livingston, J. Kent, C. J,

text:
    Jackson, ex dem. George Clark, against John Reeves.
    NEW-YORK,
    Nov. 1805.
    EJECTMENT, for lands in the town of Catskill, cla m- . ed by the plaintiff under a patent to Helmer Jansen, dated the 15th of January, 1703 — ⅛, which in 1733 escheated to the crown, and were, on the 22d of August, 1738, re-granted to John Lindsey.

    The cause was tried in September, 1802, when the defendant set up a title under the Catskill patent, granted the 28th of July, 1688, and to 'maintain it, contended, that the first of the five plains mentoned in that patent began at the junction of the Catskill and Katerskill. He also insisted on an adverse possession, to support which, he relied on the recital in a lease for 20 years, granted in 1784, setting forth a former demise for the same period from 1771, and surrendered on taking the n‘W term in 1784. On the part of the plaintiff, it was urged at nisi priiis, that the premises could not be covered by the Catskill patent, as the first of the five plains commenced at Catskill church, to which, if the four other plains were added, and from the northern, southern, eastern, and western extremities of the whole four lines, due north, south, east, and west,- were run, the terminations to be closed by straight lines, which it was insisted was the true construction of the patent, the premises would be excluded, and therefore could not be, from the defendant’s own shewing, his right. Of the adverse possession, the plaintiff denied the recital to be any evidence.
    The judge having charged for the plaintiff’s construction of the patent, the jury found a verdict in his favor.
    The application now was, to set it aside, on account of the misdirection of the judge, and because the verdict itself was against evidence.
    The case was most ably argued by TV. W. Van Ness and Van Vechten for the defendant, and Henry for the plaintiff, but, as it would be impossible to do justice to their positions, without diagrams of the locations they supPoríed, and as the principles most relied on, would be applicable to no other grant, not worded exactly like the one ™ question, the decision of the court has been thought to contain all that need be reported.

      The first plain in tiie Catskill patent, is not at the j. net on of the Catsull and js.attr-skill, but com-menees at Catskill chinch. The four miles from, the five plants mentioned in the Catskill patent, are four miles due north, south, &c.from the northern, southern, &c. extremity of the-plains, ut semb. In running out patents, a Une noi Award, &c. means a line due north, &c. Where a grant is susceptible of two constructions, that which is most favorable to government is tobe adopted.
   Thompson. J.

The lessor of the plaintiff claims title to the premises in question, under a patent to Helper Jansen, bearing date the 15th day of January, 1703. It is admitted that the premises in question, are covered by this grant, and the plaintiff has deduced a clear and un- ' disputed title to himself under that grant. His right to recover is therefore undeniable, unless taken away by some older patent, or the defendant is protected by length of possession. The defence set up embraces both these grounds. I shall examine them in their order. In the first place, it is contended that the premises are covered • by the grant, usually known by the name of the Catshill patent, bearing dat e the 28th of July, 1688. - This being the oldest patent, it must first be satisfied, wherever the two come in collision with each other. It becomes necessary^ therefore, to locate the Gatslill patent. The description of the land as contained in the grant, is as follows : “ a certain tract of land with the appurtenances, lying, situate, and being at a certain place, called Catshill, in the county of Albany, on the west side of Hudson's river, and on the south and north sides of the creek or kill, consisting of five great plains, the first called Waihackeek, the second Wichquanachtekak, the third Pachqitgací, the fourth Apis-kaxvaehkok, and the fifth Potick, together with the woodland adjoining to the said plains, extending, four English miles round the said plains, that is to say four English miles from the said plains eastward, four English miles northward from the said plains, four English miles westward from the said plains, and four English miles southward from the said plains.” In the location of this patent, two objects of inquiry present themselves, 1st. Where the five great plains intended by the grant are ? and 2d. the manner of locating the wood-land adjoining them It is contended, on the part of the defendant, that the first plain is at the junction of the Catskill and Kater skill. Ifso? then upon any of the locations contended for, on either side, the premises would be included in the Catskill patent. On this point, the testimony is somewhat contradictory. Several very ancient witnesses were examined on both sides . those on the part of the defendant, tending very strongly to establish the first plain at the junction, and those on the part of the plaintiff as strongly contradicting it, by locating the first plain in another place. Thus, from these witnesses, some doubt and difficulty might arise, respecting this part of the case. But there are certain facts, either admit:ed on both sides, or established by uncontradictory testimony, that appear to me to afford an irresistible conclusion, that neither of the plains intended by the grant? could be at the junction of the Catskill and Kater skill. In the first place they are called in the patent, great plains, and none of the witnesses pretend to describe the plain at the junction, as containing more than about two acres of land. Again, the junction of the two creeks is upwards of two miles distance from the other four plains, acknowledged on all sides, which renders the defendant’s claim highly improbable. But, what I think puts an end to the question is, that in the first patent, in the year, 1680, these plains are described as lying above the land of Eldcrt Dc~ got/, which are admitted to be the lands now owned by Samuel Van Vechten, a part of which lie along up the Catskill .and Katerskill. These circumstances I consider as affording unanswerable evidence, that the first plain is not at the junction of the two creeks. The witnesses on both sides, who were examined at to this plain, might have been very honest in their testimony. From the very nature of the subject, the fact was to be established in some-measure, by reputation; and from several of the witnesses it appears, that the location of the first plain has a long time been a subject of dispute, and it is not be wondered at, that different reputations should be in circulation on the question. The location of these plains was matter of fact for the jury, to be ascertained from all the light given them upon the trial; and they have by their verdict determined, that neither of the great plains mentioned in the patent, is at junction of the Catskill and Katerskill, with which determination I am fully satisfied. T his point being settled, the five great plains must be taken as lying together upon the Catskill, in the manner contended for by the plaintiff, forming a very irregular figure.'!. he next question then for examination is, the location of the wood-land, round these plains. On the part of the defendant' it is contended, that the patent ought to be located in such a manner, that from any part of its out-bounds, a line of four miles would touch some part or other of the flats ; or in other words, that the plains should be considered as rolled out or extended four miles in every direction. This location is certainly impracticable, on account of the irregularity of the figure formed by the five great plains. The sinuosity of .the exterior lines being such, that by such extension, many of the lines would interfere one with the other. Where the given objectis a regular figure or base, no difficulty or absurdity will arise in locating a rolling patent; It is otherwise, however, when the base is irregular like the one before us. If the terms of the grant were such, that it was. susceptible of no other location, we might be bound from necessity, to adopt the one above mentioned. But I think that is not the case in the present instance. 1 here appears to me to be a location more rational, more conformable to the terms of the grant, and free from any difficulty or absurdity in practice, and by which the patent will cover but about one half the land it would, according to the construction contended for on the part of the defendant; and it is an established rule, that when a grant is susceptible of two constructions, that should be adopted which is most favorable to government. The enormity of this grant, according to the defendant’s location, is much against adopting his construction; it will contain 57000 acres of land, swallowing up five whole patents, and interfering very essentially with several others. This inconvenience is indeed in some measure experienced, upon all tbe locations contended for; but less in proportion as a lesser quantity of land is included. Much stress has been laid by the defendant’s counsel, in support of their location, upon a survey of the out lines of this patent, made by John Beaty, deputy surveyor-general, in the year 1719, and who appears to have adopted the construction now contended for, as far as the same was practicable. This it is said, being done by a public officer, must be considered an act of government, and entitled to great weight. For what purpose this survey was made, does not appear, nor is it easily perceived. No instruction accompanied the warrant of council; no construction appears to have been given by government to this grant; and no possible object could have been answered by it, as an act of government, except to serve as a guide to prevent any interference in subsequent grants. That this could not have been the object, however, is pretty evident, from the acts of government soon after ; for in the year 1733, we find, by the proceedings under the writ of escheat, that Helmer Jansen died intestate, leaving no heir, by reason whereof, the title to the lands contained in the grant to him and of which he died seized, became re-vested in the crown; and in -he year 1738, were again granted to John Linsey, all which lands according to the defendant’s construction, and Beaty’s survey, are covered by the Catskill patent. If Beaty’s survey was intended as a guide to government, in issuing subsequent grants, it is not probable that so recently thereafter, a patent would have been issued for lands, comprised within the Catskill p&tent, according to Beaty’s survey ; I cannot therefore, view this survey in any other point of light, than as an ex parte act, or at most, as the opinion of Beaty. Probably, however, he run according to the direction of the patentees, because we find him assuming one of the great plains, to be at the junction of the Catskill and Katerskill, than which nothing appears to me, more unwarrantable or less founded. This survey, therefore, I think not entitled to much weight or influence, upon the present question. ,

If the defendant’s construction of the Catskill patent be rejected, the plaintiffs right of recovery is disentangled from every embarrassment, with respect to paper title ; because, upon no other possible construction, can that grant be extended to the premises in question. It may, however, be proper to examine whether that patent be susceptible of any other, and what location ; several have been suggested by the plaintiff’s counsel, one of which contemplates finding a common centre of the five great plains, from thence circumscribing a circle round these plains, with a radius of four miles in length. I cannot adopt this location, although the one principally relied upon on the part of the plaintiff. There are no words in the grant necessarily implying, that the exterior line must be a circle. The only term made use of in the description of the premises, that looks like requiring a circular figure, is the word round\ “ together with the wood-land adjoining to said plains, extending four English miles round the said plains.” This term round may,however, grammatically as well as in common parlance be satisfied, by giving land on every side of the plains, let the exterior lines be either circular or straight. It is difficult, if not impracticable to find a common centre, to a figure so irregular as the one formed by these plains. It is impracticable with a chain and compass, to run out a circle. It is true, yóu may, from a given centre, run such a number of radii, as that a straight line from one to the other, would very nearly approach to a circle, but the difficulty and inconvenience attending it, appears to me a sufficient objection to this mode of location, unless compelled to adopt it, by the most direct and unequivocal terms of the grant. So far from that being the case in the present grant, _ I think it contains words which will exclude any location contemplating a common centre. This patent gives the five great plains, and then the woods round the same, extending four English miles from the said plains, which I understand the expression four miles from, means four miles exclusive of the plains ; that is, beginning at the exterior part of the plains, and from thence running four miles. If a common centre be taken, and the four miles calculated from that, there would be a diminution of that line equal to the whole extent of the plains, which would be contrary to the terms of the grant. When any monument whatever is given as an object to run from, the exterior part, and not the centre, is the place of beginning. This objection will also apply to that location, which contemplates a square, formed from a common centre. The only remaining location which has been suggested, is the one adopted upon the trial, and which, from the best examination I have been able to give the subject, is, in my judgment, the one best warranted by the terms of the grant. This location is made by running lines of four miles in length, due north, south, east and west, from the extreme northern, southern, eastern and western parts of the plains, and closing those lines from the extremities by stra'ght lines. This mode appears to me to be supported by legal principles, and will give eiFect to every part of the description of the premises, contained in the patent. The great and leading requisites in the location of every tract of land, are to have fixed places to start from, courses and distances given, and, closing the exterior lines: a recurrence to the description in the grant is again requisite, to see whether it furnishes these data. The five great plains are given, “• together with the wood-land adjoining the said plains, extending four English miles round the said plains, that is to say, four English miles from the said plains eastward, four English miles northward from the said plains, four English miles westward from the said plains, and four English miles southward from the said plains.” The given object to start from here, is the plains; the distance to run is four miles; the courses are northward, southward, eastward and westward ; and it is a settled rule of construction, that when courses are.thus given, you must run due north, south, east and west. The place of beginning must be at the exterior part of the plains, because the distance is four miles from the plains, which, as I have helare observed, must mean exclusive of them. By this process, then, the four corners of the tract aré ascertained. These {turners must be closed by lines of some description, ⅛ order to satisfy the terms in the grant, because the wood-^anc^ *s to round, that is to say, on every side of the plains ; and when two objects are given, and a line to be r.un ^rom one t0 otker, no rule can be more proper than to run a straight line. By this mode of location, it is admitted, that the premises in question will not fall within the Catskill patent. The only remaining question for consideration is respecting the adverse possession set up against the plaintiff’s right of recovery in this action. The possession of Abraham Van Gordon, who took a lease under the Catskill claim, in the year 1784, must be deemed adverse to the plaintiff’s title. This however, is not a sufficient length of time to protect the defendant. It is contended also, that Jo-hannis Van Gordon, the father of Abraham, was previously in possession under the same title, and the recitals in the lease to Abraham, of Jolmnnis having taken a lease in the year 1771, have been in some measure relied on to establish the fact. This lease has justly been made the subject of some severe criticism by the plaintiff’s counsel; it is enough however, to observe, that these recitals are no evidence in the parties own favor, and therefore afford no proof of the existence of a lease to Jolmnnis Van Gordon. The parol testimony respecting the possession of Johannis is vague, uncertain and contradictor}’. The characters of some of the witnesses have been impeached, and the matter involved in some doubt and obscurity. The, question of adverse possession was a subject proper for the determination of jury. The whole matter was fairly submitted to them, and the verdict is, I think, with the justice of the case.

My opinion, therefore is, that judgment ought to be given for the plaintiff.

Livingston, J.

It is not easy to pronounce this a verdict against evidence, as it regards either the defendant’s possession, or the location of the first flat or plain mentioned in the Catskill patent, both of which the jury .have found against him. There was much and contradictory testimony on both points. In such cases, we cannot disturb a verdict, without encroaching on an essential pre-yocative of a jury, which is to ascertain the degree of credit due to different witnesses. With respect to the firs flat, I should, if on the jury, have decided as they did. The survey of Beaty proves little more, 'than that at an early period,the flat,at the junction of the Catskill and Rater skill, was shewn to him as such. This survey, being made for those whose interest would be promoted by this location* it would not be difficult, at a time when land was not of much value, for the patentees first to talk of this as the first flat, and then procure others who would be willingto shew it as such. Government paid no attention to what was going on, and those who might have been interested in fixing the flat elsewhere, may not have known when the survey would be made. As to the surveyor himself, it is not very probable he took uncommon pains in deciding- where it lay. lie was acting under the immediate direction of the patentees, and must have known that if the lines run, were not conformable with their boundaries, it-would be their own fob ly, and that neither the public nor strangers could be prejudiced by it.

The plaintiff’s ‘witnesses, who in general are very aged men, declare theyneverrememberanyfiatatthe junction of these kills. From this and other circumstances, particularly the distant position of this spot from the other flats, and that they are described in the first patent as lying above Eldert Begay, I cannot help thinking the plaintiff’s location the most correct. I am as little inclined to send the cause back to have the question of possession re-examined. Whatever doubts may exist on this point, they are not so great as to require a further investigation, or to warrant a conclusion that the jury did wrong-.

The only important point, therefore, according to my view of this cause, arises out of the judge’s charge. If his opinion on the defendant’s construction were incorrect, considering that the question on which it was given, involved the great merits of the controversy, a new trial must he the consequence ; but before this be done, we must be. satisfied that there is no other way of locating or survey* ing the Catskill patent, than the one suggested by the de». fendant, who insists, “ that from eveiy part of its external “ bounds, a line of four miles should touch some part or oth* “ er the exterior of one or other of the flats, and should "never be farther from, or nearer, to the plains.” In this way of laying out the patent, it will contain 57,000 acres, The objections to it are strong.

If the first and second patents, between which is an interval of only eight years, are compared, we are astonished at the difference of their contents on the defendant’s principles. The first comprizes.a small tract whose circumference was by estimation, only four English miles, which would contain only- 640 acres. There are no-words in the second, from which.can be inferred an intention of the patentees to ask, or of the governmeht to grant, a single acre more than passed by the former. The first grant was to Elizabeth Salisbury, in trust for the children of Silvester Salisbury, and to Martin Garretson. — ■ The estate, as it respects the children of Salisbury, not being thought sufficiently definite, a new patent is obtained, for the purpose of more certainly limiting the estate, than was .expressed in the first. If so, and no extension of limits were in view, it is a reason for examining the defendant’s pretensions with more than usual severity. A grant had been obtained from the Indians, in 1678. In less than two years after a patent issues. At that time the patentees must well have known what they had purchased from the Indians, or intended to ask of government, and with this knowledge we find them content. with a tract containing only four miles in circumference. Surely after this understanding and exposition of their rights, they should not be indulged without very conclusive reasons in an interpretation so very variant from the first-; especially, when instead of alleging that the first grant contained less land than they were entitled to, a different motive is stated for asking a confirmation. Unless, therefore, it be utterly impracticable to locate this patent in any other way than the sue which has been already mentioned. I should be opposed to it, on the ground of its extravagance, and its being- manifestly either against the sense of the parties themselves, or a surprise and deception on government.

But independent of any rule which may be applicable to the present case, as drawn from the conduct and cotempo-raneous sense of the patentees, it is a general rule of law, that in the exposition of governmental grants, that construction, when the terms are inexplicit, shall be adopted, which is least favorable to to the grantee. No one one will pretend to say, that the location of this patent is free from difficulty, nor that the defendant’s interpretation of its boundaries, is not the most extensive and advantageous for him that can be devised.

It is admitted, that to run the outline on this principle, if not impracticable, would be a work of uncommon la-bour. This is something against the principle itself. Government would hardly think it necessary to impose on the patentees a labour so unusual, for no patent perhaps, ever issued under which a similar or circular location was necessary. It is true, some surveyors admitted the practicability of running out the patent in this way, but its being merely so, with infinite labour, is no great argument in favor of that mode alone being correct. If surveyors had not sworn to its practicability, I should entertain very strong doubts, whether it were possible, with any pains whatever, to survey this tract so as exactly to correspond with the defendant’s location.

Beaty's survey, unless possessions under it had been acquiesced in, is not worth much. Such acts generally are ex parte, and cannot bind the government or third persons. It is evidence of one thing only, that the patentees were determined to lose nothing which the patent, by any possible construction, could embrace. So far from govern- , ment assenting to this extravagant location, patents without number have been granted for lands, and which are possessed accordingly, within what are now pretended to be the bounds of Catskill. It is no answer to this objection, , i . . _ , . _ . . , tnat even on the plaintiffs construction this is the case.— I his only proves, that the plaintiff may be willing to allow, that the patent contains more land than it really does, so that it does not interfere with him, but not that either construction is right. Still less is the difficult)’' satisfied by asserting, that patents frequently interfere with each other.1 This must sometimes happen, but can an instance be mentioned in which entire tracts have been granted within the limits of a former patent ? If this, with the acquiescence of the Salisburys to the possession under these patents, with Gar rets oil’s being a patentee in one of them, and the Indian deed to Outen Bougert, executed before Garretson, in 1684, be not regarded as a cotemporaneous Understanding of government and of the parties, I hardly know what is to satisfy us of such an exposition. Upon the whole, the defendant’s construction appears to me so very extravagant, so contrary to the sense of the original parties, so much at variance with other acts of government, and so extremely difficult to carry into effect, that I think the judge was right in not adopting it. It cannot, therefore, be very necessary, to examine either of the other constructions, or whether the right one was adopted at the trial, for even if the judge were mistaken in his opinion as to the true mode of location, if the premises are not within the patent, according to the bounds as set up by the defendant, it can be of no service to him to grant a new trial. Here, therefore, I shall only say, that the opinion, expressed to the jury was, full as liberal as the defendant had a right to expect, and probably leaves within this patent, a much more extensive tract than it was intended to grant, or than the expressions used necessarily comprehended. But of this error, if it be one, the defendant has no right to complain. His motion, therefore, for a new trial must be denied.

Kent, C. J,

Two questions are raised upon this case, 1st, as to the construction of the Catskid patent, and 2d, as to the length and effect of the adverse possession of the , , defendant.

1. There cannot be much doubt, I apprehend, but that the first of the five great plains was at the church, as contended for by the plaintiff, and notat the junctionof the Catskill and Kater.skill, as asserted on the part of the defendant. In addition to the weight of traditional information, the words in th.e elder Catskill patent, locate the plains on the Catskill creek, above the land of Eldert Degoy. The patents also speak of five great plains, and there is no evidence that there ever was any thing like a great plain at the junction of the two creeks. This is a decisive faetón the subject, and assuming it then as correct, that the plains are to be located at the Catskil' church, and upwards, the question is how the wood-land adjoining the plains is to be laid out. The plains appeal' to have been considered as the substantive part of the grant, and the wood-land as an appendage merely, still the wood-land round the plains is granted, and the only difficulty is as to the mode of location. Several modes of location have been presented, and perhaps none of them altogether free from objection. The wood-land is to adjoin the plains and to be round them, and to extend four miles in each direction from the plains. In the elder patent the wood-lands are not so particularly described as in the younger, and yet the latter professedly intended merely to confirm the grant of the land contained in the former patent, and which description was taken from the original Indian deed of 1678. The 1st patent and Indian deed speak only of wood-land for outdrift for cattle, containing by estimation, in circumference four miles. A circumference with a radius of four miles from a common centre of the plains will best comport with the words of the patents, in circumference or round the plains. Nor is this boundary altogether unknown, for the northern line of the state of Delaware, usi parva magras f is ascertained in the same manner by a circle, whose centre is the middle of the town of Newcastle, In the case of Penn v. Lord Baltimore, (1 Vez. 444,) one question was about drawing part of a circle about the town of Nexvcástle, and Lord Hardxvkle i held, that the centre must be a mathematical point frfam the middle of the town, as nearly as the same could be computed, and that such a mode was the fairest way, for oiher-wise the exterior line would be too far in some parts of it. But this plan will not strictly answer all the words of the description, for the line is iri each direction to be four miles from the plains, and'the circumferencé of the circle might be only half that distance in some parts of it. There are some reasons Why I should prefer the first mode contended for by the plaintiff at the trial,and that is, because it interferes the least with the surrounding patents, as it takes in the least quantity of acres, and because, incases of such vague description, the patentee should take the construction the least favorable to an extension of his grant. But the objection to this mode is the same as- to that of the circle ; the exterior line will not extend four miles in each directionfrom the plains,- arid it does riot,like the circle,-comport with any of the words.in the description. The principle of location adopted by the judge at the. trial, seems to correspond more nearly with the words of the grant. It goes four miles from the plains in each direction, and it inay be said and understood well enough in common Ian-guage which the patent intended to use, to be round the plains. The difficulties that might apply to this lo'cation, if the plains were of different positions and shapes, is immaterial, for we are to adopt a construction that will best comport with the subject matter before us, as it actually exists. The idea of rolling out the patent to the extent of four miles from every part of the plains, is literally impracticable, and when so modified as to be practicable, it would give too difficult, and inconvenient a shape fori location, and in a case of a description vague ánd doubtful, it- would be stretching the grant over all the surrounding patents to an unreasonable degree ; a construction more convenient and practicable, better answering the words of the grant, more favorable to the rights of the crown, and to the security of adjoining patents,-ought to be preferred* And it is not essential thaí we should absolutely decide which of the other modes of location ought to be prefer" fed, since either of them would exclude the premises from the Catskill patent. If it was necessary, ho wever, to adopt a specific location, I should incline to ' adopt the location which was preferred by the judge at the trial, as least liable to objection, and most comporting.with the grant.

2. The next inquiry is as to the adverse possession set up by the defendant. In the first place, it ought to be observed, that the lessor of the plaintiff deduced a regular and complete title to the premises. The first decisive evidence of adverse, possession in the defendant, was by the lease of 1784. The recital therein of a former lease cannot be evidence of such a lease, as against the plaintiff, and as to the prior possession by Johannis wad. Abraham VanGor-⅛ don, the credibilty of the testimony, as to the tenure of that possession, has been passed upon by the jury, and I see no • good reason to question the correctness of their conclusion. On this point-, I think the verdict ought not to be disturbed, and that judgment ought to be entered for the plaintiff.


source: Caselaw Access Project

author: SpeNcer, J. LiviNCíston J. THOMPSON, J. Kent, C. J.

license: Public Domain

text:
    Beriah Palmer and others against Amos Mulligan and others.
    NEW-YORK,
    Nov. 1805
    THIS was an action on the case for erecting and continuing a nuisance to the plaintiffs’ mills and dam, situated upon the river Hudson, at Stillwater, in the county of Saratoga, by building above the same a dam, and thereby directing the water from its ancient and accustomed course, and from the mills and dam of the. plaintiffs, in consequence whereof they had not a sufficiency of water for working.
    The declaration set forth other gravamina in obstructing the rafting of timber into their dam, which was used as well to keep logs to be sawed, as to collect and retain water for working their mills in also opening the sluice-way of the defendants’ dam, and causing the rubbish col*' kcted therein, to be carried into that of the plaintiffs, by means whereof it was choaked up, and rendered useless,-80 that they lost the benefit and advantage of their mills.

      1⅝ Hudson ⅛ a public rive:-, above tide water, «f temOir. An action will not lie for diverting the _ water of a river from its xw sual course, by erecting a dam for mills above the mills of &- noilier, if sufficient water be left to work the lower mills though,in cob-seqncuce of such erection, it be necessary to run the mill-dam of the lower miilsfur-ther into the stream, and the difficulty of getting logs to the lower mills he increased so much us to require one hand more for every 25 logs.
    Where persons have an equal right to erectmill-dams on a river, the rubbish which comes from a newly erected upper dam, to an old lower dam, though it nknceTothe6' lower of about 250 dollars a year, will, if a juryhavefound M favor oí the defendant, and tíiePfíoatii<gllat rubbish of the river be lessen-edbythe erection of the upper dam, be damnum ab-NoVewtrial will be allowed on account of newly discov-ifTtappeSthat nt might have been procured on the first feial.
    From the evidence at the trial, it appeared that the plaintiffs’ mills were erected on the first settlement of that part of the country, about forty years ago, upon their own ground, and were fed with water by a dam run .out into the river. That at their first building they consisted of a grist and saw-mill, which, after being burnt down, were, within a year, rebuilt on the same spot. That after this, the saw-mill was a second time consumed by fire, and though the grist-mill, (on which point there was a small contrariety of testimony) was worked from time to time, the saw-mill was not reconstructed, till seven or eight years afterwards. A year or two before this period, the defendants erected their mill and dam, about two hundred yards above those of the plaintiffs. That the unavoidable consequence of the dam of the defendants, was f0 oblige the plaintiffs to run their’s further out into the stream ; but even then, the current was so turned off ^nt0 ^16 river, as necessarily to increase the difficulty of brinp:mQ' timber into the saw-mill of the plaintiffs ; inso- ... . , , . much that it was impossible to avoid losing a great many ¡og.s or reclaiming them at a considerable expense, to ob- ° 1 ° / viate which, the defendants had, when applied to, by the plaintiffs, refused permission to have a way made through tlueir dam. That the rubbish from the defendants’ mill, which it was more difficult to clear, at low than high water was a continual inconvenience to the plaintiffs, who 5 . . r . sustained an injury of about 8 shillings a day, exclusive °f an increase of labor, which, since the erection of the defendants’ dam, required about one hand more to every * . 25 logs, than was formerly necessary to get them in.
    The jury finding in favor of the defendants, application was now made, to set aside that verdict, as being , . , , , , .. „ contrary to the testimony adduced, and on a discovery ox new testimony, wbicb it appeared might have been obtained on the first trial.

      Emott, for the plantiffs.
    On the first point stated, and upon which we intended to rely, the mere reading the ease shews there can be no dispute ; but the defendants„ mean to contend, that the mills and dam of the plaintiffs, being on a public river, are in themselves public nuisances, and therefore the obstruction to them, does not give any right of action. To prove the suit maybe maintained, it will be necessary to establish that the Hudson is not a public river, in the sense which will make these mills a nuisance. For if it be one of such a nature as to permit the plaintiffs to acquire property in the bed of it, their mills and dam cannot be nuisances. It is laid down in the case of the Fishery of the Banne, Davis 56, that there are two kinds of rivers, navigable, and not navigable ; the former extending as high as the sea ebbs and flows, and belonging to the king ; the latter being such, where the sea does not ebb and flow, and belonging to the landholders on each side. This exactly answers the description of the Hudson where the mills in question are erected; for ai Stillwater, there is neither flux, nor reflux of the tide. We find the doctrine in Davis, confirmed in the treatise of Lord Hale, de Portibus Maris, • JLarg* Tracts, 5.

    SPENCER, J. Has not the legislature granted islands above the site of these mills, and by that shewn that they consider the Fludson to be a public river ?■

      Ematu

    Where they have done this, the river has' formed the boundaries of the adjoining patents, which have been granted to the river. Otherwise the common law prevails, and that was the very reason which induced the legislature to declare that certain rivers, coming within the description above given, of private rivers, should, notwithstanding, be deemed highways. 1 Rev. Laws 601, 2. Sec. 34. But although we claim property in this river, we admit the public have a right to it for all the purposes of navigation. Harg. 6. We do not insist on the power to stop up the river. That, for the convenience of the-people at large is open, but this does not impair our-right of property against individuals. Admitting the Hudson t0 a public river, all erections on it are not to be’ considered nuisances. They can be deemed so, only under .the idea that a public river is a highway. Buller J. observes in Ball v. Herbert, 3 £). & E. 263, “ no two cases “ can be more distinct. In the latter, if the way be found- “ erous and out of repair, the public have a right to go on “the adjoining land; but if a river should happen to, be “ choaked up with mud, that would not jgive the public a “ right to cut another passage through the adjoining lands.’51 To make the. mills-and dam nuisances they must, allowing the river to be public, narrow the river so as to impede the navigation, “ and this is matter of fact. It is not eve- “ ry building below low water mark that is ipso facto in “ law a nuisance ; for that would destroy all the keys that “ are in all the ports in EnglandR Per Lord Hale in Harg. Tracts, 85. The grants to erect wharves beyond low water mark, are proofs that so long as the navigation is uninterrupted, a building, even on the public river, is not a nuisance. At all events, our nuisance will not justify theirs. It may, however be said, that the defendants are as well entitled to run out a dam from their shore, as we from ours. This, with some qualifications, is true : for it must be so done as not to injure us in the accustomed use of the water. In Brotun v. Best, 1 Wils. 174, in an action for diverting a water course which arose in the defendant’s own grounds, the plaintiff declared simply on his possession of the place to which it used to run, and the court held it good, for the defendant could not divert so as'to interrupt the ancient enjoyment of the stream. The same principle is recognised in Duncomb v. Sir Edward Randall, Hetley 34. To maintain the action it is not necessary that mills should appear to be ancient. That-js requisite only when the water belonging to another is prescribed for. Palmis v. Heblethwait⅛ Skin. 65. “ If a “ man,” says Lord Hale, “ erect a mill on a water course *c running- through his land, he may bring his action for “ diverting the stream, and not say antiquum molendi-mini.” Cox v. Mathews, 1 Pent. 237. The same doctrine is laid down in Rutland v. Bowler, Palm. 290, and Hutton 100. For by the mere erection of the mill, the plaintiff acquired a right, which even the purchase of the land on which it stood, would not take away, as a right to water is not extinguished by unity of possession. Shumj v. Plggct, 3 Bulst. 339. Was it necessary even to presume a grant for the stream, it ought, after a use, like ours, of forty years, to be presumed. Thirty years enjoyment of a highway is said to warrant one. Bull. N. P. 7.1. In the case of lights, twenty years possession have been held enough. 3 'D. & E. 159. It may, however, be thought, that because the mills -were burnt down, the defendants had a right to divert; but even pulling down the mills by the plaintiffs themselves, would not have impaired their title to the water ; they might even in such a case prescribe. Pahnis v. Hehletlnvait, as reported in 2 Show. 261. The same position is laid down in LuttrePs case, 4 Rep. 86, 7. The present, therefore, is still stronger; for the mills were burnt down.
    /'bofe, contra.
    The lapse of time before the plaintiffs attempted to rebuild their mills, is alone an answer to their claim of right. The convenience of a new country demands that mills so long left unrebuilt, should be deemed to be abandoned and the right to the water relinquished. The authorities cited, appfy to mills on private streams. The Hudson at Stillwater is a public river.

         The book is mispage, for through printed, it is 32.

         Darwin v. Up, cited there.

   SpeNcer, J.

A motion has been made on the part of the plaintiffs for a new trial on two grounds. 1st. That the verdict is against the weight of evidence, and 2d, on discovery of new evidence.

The plaintiffs’ witnesses generally accorded in saying, that the only injury to the plaindffs by the erection of the defendants’ dam, is this, that it occasioned additional labor and expense to the plaintiffs to carry logs into their dam. None of them pretend thatthere has been any diversion of the water since the defendants erected their dam, which was seven or eight years ago. Some of the plains tiffs’ witnesses think the rubbish increased in the plaintiffs* dam, since the erection of that of the defendants’; others think it not increased.

It is conceded that the plaintiffs and defendants own the lands respectively on the bank of the river, opposite their mills and dams.

Whether the Hudson river be considered as a public highway, or the bed of it as belonging to the owners of the adjacent shores, will not, I think, vary the \result. — - I cannot, however, but consider it as a common highway, independent of its being navigable witli small craft and rafts above the place in dispute, the legislature have con, stantly considered this river as public, and common to all the citizens of the state above tide water, and above Still-water. They have granted islands in this river at Glens Falls, and in the town of Greenwich, in Washington county.

The act declaring certain waters highways not extending to this river, has been considered as impliedly sanctioning the idea that it is not public property; I should draw the contrary inference, for if the legislature have declared such.rivers as the Qonhocton, the Unadilla, the east branch of the Chenango, and the great variety,of other inland waters, public highways, as necessary to the public convenience, it must have been taken for granted, that the Hudson river was already a pjiblic highway, and needed not an act declaring, it to be so. If then this river is to be deemed a highway, the erection of both dams are nuisances, 'and it is questionable whether the plaintiffs can, without right or title, complain that the defendants’ nuisance is injurious to their nuisance ; but on this point it is unnecessary to express an opinion,

If this river be considered as private property, belong; ingto the owners of the adjacent shores, the plaintiffs caii-not maintain their action from the evidence before us ; because there is no pretence of the waters being diverted ; the use of the plaintiffs’ property is rendered less commodious by the defendants’ dam. The act itself, in erecting the dam, on the principles contended for by the plaintiffs’ counsel, was a lawful act; and though in its consequences slightly injurious, the plaintiffs are remediless. It would have been as tenable ground if the plaintiffs had declared on the loss of custom to their mill, by the erection of the defendants ; it is a ‘damnum absque injuria. T he . erection of dams on all rivers, are injurious in some degree to those who have mills on the same stream below, in withholding the water, and by a greater evaporation in consequence of an increased surface, yet such injuries, I believe, were never thought to afford a ground of action. In any and every view of the subject, the verdict was legal, and just. The second ground of th e motion does not alter the case, even if the testimony could be considered as newly discovered, and that there had been no laches on the part of the plaintiffs ; but for aught that appears, John White, one of the plaintiffs, knew of this testimony and neglected to procure it. I am averse, however, to putting it at all on that ground ; the testimony discovered is wholly irrelevant and immaterial. In my opinion, the plaintiff takes nothing by his motion.

LiviNCíston J.

In determining this cause, I am willing to admit that the erection of the plaintiffs’ mills and dam is not only no nuisance or obstruction to the river, but a public as well as private benefit. Still I am not satisfied of their right to recover. Whatever their pretensions to build a dam and mills adjoining their own land may have been, it must be conceded that, as far as the public are concerned, the defendants had the same right opposite their ground, provided it could be done without injury to the navigation of the river. This is not pretended to be the case, but as the plaintiffs’ mills were first erected, it Is said, that if the defendants have any right of this kind, they must so use it as not to injure their neighbours. Without denying this position, which is indeed become a familiar maxim, its operation must be restrained within reasonable bounds so as not to deprive a man of the enjoyment of his property, merely because of some trifling’ inconvenience or damage to others — of this nature is the injury now complained of, so far at least as it is supported by proof. It is not pretended that the water is diverted, or that less business can be now done at the plaintiffs’ mills than formerly, but they are obliged to bring their logs a very little farther round in the river, (in order to get them into the dam) which is the principal, if not only inconvenience they are exposed to by the defendants’ conduct. Were the law to regard little inconveniencies of this nature, he who could first build a dam or mill on any public and navigable river, would acquire an exclusive right, at least for some distance, whether he owned the contiguous banks or not; for it would not Be easy to build a second dam or mound in the same river on the same side, unless at a considerable distance, without producing some mischief or detriment to the owner of the first. Were this not permitted for fear of some inconsiderable damage to other persons, the public, whose advantage is always to be regarded, would be deprived of the benefit which always attends competition and rivalry. As well, therefore, to secure to individuals the free and undisturbed enjoyment of their property, as to the public, the benefits which must frequently redound to it from such use, the operation of the maxim sic títere tuo ut alicnum non ladas should be limited to such cases only, where a manifest and ' serious damage is the result of such use or enjoyment and where it is very clear indeed, that the party had no. right to use it in that way. Hence it becomes impossible, and indeed improper, to attempt to define every case which may occur of this kind. Each must depend on its own circumstances, and the fewer precedents of this kind which are set, the better. Confining myself, therefore, strictly to the case before us, my opinion is, and the jury probably proceeded on that ground, that the plaintiffs proved no injury, or one so remote and insignificant, as not to justify their insisting on an abatement of the defendants’ dam, or damages for its erection.

If this view of the subject be correct, it will account for my passing over some points which were made on the argument without giving an opinion on them. This I avoid doing, because experience has already convinced me that it is always best in a judge to be silent on every point which he does not regard important and necessary in the decision of a cause.

I will only add, that the further testimony which is expected from Schuyler, will not change what appears to me the merits of this cause.

Neither, therefore, as a verdict against evidence, nor on the ground of newly discovered evidence, can I consent to a new trial.

Tojipkins, J. I concur in the result of the opinions deliver e 1.

THOMPSON, J.

On the argument, the right of the plaintiffs, to maintain an action, even admitting them to have sustained an injury, has been called in question, because as is alleged, their mills being erected on a public river, are in. judgment of law-a nuisance. How far this allegation is founded in point of fact, is not now a subject of inquiry; that is a question between the public and the plaintiffs, and cannot be tried in this collateral way, 4 Bur. 2163. Har. Law Tracts, 8. 9. It is a fact of public notoriety, and therefore proper to be assumed as such, that the tide does not ebb and flow as high up the Hudson river, as the place in question ; and therefore, the land under the water is, I apprehend, as much the subject of a private grant, as the land adjoining the river, subject however, to be used by the public for the purposes of boating, and rafting, and other objects of this description, as far as shall be necessary for public use and accommodation, Har. Law Tracts, S. 9. These are the rules and distinctions adopted by Hargrave„ and which appear to me to be just and reasonable. The right thus claimed by the plaintiffs, being a subject of private and individual interest, we have only to look to the facts in the case, to see how far the plaintiffs have established this right in themselves, and without examining such fact in detail, I am warranted in saying, they have all the right that may le* gaily be presumed to result from a possession of about forty years; and which I consider amply sufficient to raise the presumption of a grant. Lord Ellenborough in a late case in the court of King’s Bench, in England, says, the general rule of law is% that independent of any particular enjoyment, used to be had by another, every man has a right to have the advantage of a flow of water, in his own land, without diminution or alteration ; but an adverse right may exist, founded on the occupation of another, and if this occupation has existed for so long a time, as may raise the presumption of a grant, other parties must take the stream subject to such adverse right, and that twenty years exclusive enjoyment of the water, in any particular manner, affords a presumption of right, in the party so enjoying it, derived from grant or act of parliament, 6 East Rep. 214. 215. . If the rules there laid down, are, as I apprehend them to be, undeniable principles of the common law, and we apply them to the present case, they will establish beyond contradiction, the plaintiffs’ right to the use of the water, in the same manner it was enjoyed, before the erection of the defendants’ mill and dam. No presumption of right derived, from a grant, can attach to the defendants, they not having been in possession more than eight or ten years. If I am correct then with respect to the law, as applicable to the case, it remains only to examine the facts touching the injury alleged to have been sustained by the plaintiffs, in order to test the propriety of the verdict. The broad question for the determination of the jury was, whether the plaintiffs had sustained any injury by the mills and dam erected by the defendants, about two hundred yards above those of the plaintiffs. One cause of injury complained of was, the increased difficulty of getting logs into their dam. On this subject there was no contradiction of testimony. That the upper dam would increase this difficulty, was not only fully established by the plaintiffs’ witnesses, but strengthened and confirmed by those of the defendants. The injury on this account, is not merely nominal, but real" and permanent, and 'chat to a very considerable extent. One of the witnesses testified that before the defendants’ dam was built, the plaintiffs might bring into their dam, from one hundred to one hundred and fifty logs at a time, whereas at present, they cannot more than twenty-five, and that logs are frequently lost in getting them over, or past the upper dam ; that by reason thereof, within four years past, he supposed the plaintiffs had lost as much as four hundred logs, worth from thirty-five to forty pounds per hundred. Another witness \vho had been a sawyer in the plaintiffs’ mill, swore that it was impracticable to go round the upper dam with logs, and get into the lower dam, the course of the current being so al-> tered, that they would run past, and that being obliged to run over the upper dam, the cribs or rafts were frequently broken and the logs lost: that the rubbish from the upper mill was a daily inconvenience to the lower one; that he never was employed twenty-four hours in sawing, without clearing it away, which would not have been the case but for the upper dam, and he estimated the damage in the mere stoppage of the mill, at eight shillings per day. From the testimony in the case, it appears that these dams are formed by throwing wings out diagonally into the river ; that the upper dam stands on the channel, through which logs used to pass to the plaintiffs’ mill; that the course of the current is thereby changed, set further out into the river, and rendered more rapid; that the upper dam made it necessary for the plaintiffs, to extend theirs further into the river, for the purpose of getting more water, and to enable them to bring logs into their dam, which would have been impracticable without such extension. From the whole current of testimony, I think it is manifest, that the plaintiffs have sustained very essential injury. If the facts in the case will warrant the presumption, that the plaintiffs’ right is derived from a grant, that right must be understood to secure to them the use of the water, in the manner they enjo}-ed it before the erection of the defendants’ dam. I admit that actions of this kind ought not to be countenanced, where the damages are merely nominal, or a party is put to some trifling inconvenience, but I do not consider this a case of that description, the damages here are real and permanent, and are occasioned by a diversion and alteration, of the usual and ordinary current of the water. Under these circumstances, I cannot think the jury confined themselves to the question of damages, but undertook to pronounce upon the law, as applicable to the rights-of the parties. In whatever point of light, therefore, the case is viewed, I think the verdict is both against law and. evidence, and that a new trial ought to be granted.

I have not thought it necessary, to say any thing respecting the newly discovered testimony, because I do not consider that the evidence on the trial, could afford any presumption of an abandonment, or dereliction by the plaintiffs, or those under whom they claim, of the right to the use of the water as formerly enjoyed. If any doubt, however, could arise on that subject, it would, I think, be removed by the affidavit accompanying the present application.

Kent, C. J.

The first object of inquiry, as arising upon this case is, whether the fact proved by the plantiffs will authorise a recovery ?

The plaintiffs, and those from whom they derive title, own the land on the Hudson river at Stillwater, and liad for upwards of thirty years before the erection of the dam complained of, owned and enjoyed a grist and saw-mill upon that river. The Hudson at Stillwater is a fresh river, not navigable in the common law sense of the term, for the tide does not ebb and flow at that place. In the case of the Royal Fishery, in the river Banne, Davies Rep. 152, 155, 157. it was resolved, that by the rules and authorities of the common law, every river where the sea does not ebb and flow was an inland river not navigable, and belonged to the owners of the adjoining soil. This case was cited by Mr. Justice Tates, in Carter v. Murcot, 4 Burr, 2162. as a very good case, and a solid authority, and in that latter case recognized this distinction between rivers navigable and not navigable, and in the King v. Wharton, 12 Mod. 510. Lord Holt laid down the same doctrine. In Sir Matthew Hale’s excellent treatise, . . . , , , ,. , • de jure mans, tsrc. Hargrave s law tracts, and wmcn is considered by Mr. Butler as exhausting the whole law on the subject, he lays down the law generally that fresh rivers of what kind soever, do of common right belong to owners of the adjacent soil,buthe admits that freshrivers, as well as those which ebb and flow, may be under the servitude of the public interest, and may be of common or public use for the carriage of boats, &c. and in that sense may be regarded as common highways by water. Thus, he adds, that the Wey, Severn, Thames, &c. as well above as below the flowing of the tide, and as well in the parts where they are of private as of public property^ are public rivers juris publicly and nuisances a,:d impediments therein, are liable to be punished by indictment. They are called public rivers not in reference to the property of the river, but to the public use. Hargrave, p. 5, 8, 9. This is the true and just rule which harmonizes private right, with the public interest. The Hudson at Stillwater is capable of being held and enjoyed as private property, but it is, notwithstanding, to be deemed a public highway for public uses, such as' that of rafting lumber, to which purpose it has heretofore been, and still is beneficially subservient. To obátruct this and other public uses of the river, by dams, &c. would be a nuisance, but of this question we have nothing to do in the present case. Whether a dam or mill be a nuisance, is a question of fact which is not examinable in this present action, and if it was, there is e-very reason to conclude that neither of the dams or mills are nuisances from the length of time that they have been permitted to remain.

It is not stated whether the river %vas, or was not' excepted out of the grants under which the parties, in this suit, hold their property. The case admits that the right of the premises, whatever it is, was in the plaintiffs, and we have seen that the river at the place in question is susceptible of being granted without any public inconvenience, because the right of the public, to the use of the water for navigation would remain incontestible. As between the Parlaes t0 su-it and the question litigated by them, the water may be considered as if included in their grants, whatever .the real fact may be. The defendants have clearly therefore no' right to obstruct the plaintiffs in the enjoyment of the water. They have an equal right to build a mill on their soil, but they must so use the water and so construct their dam as not to annoy their neighbour below in the enjoyment of the same water. The plaintiffs had used and enjoyed their mills even beyond the present period of limitation in a writ of right, when the defendants built their dam. It was not requisite, however, that the plaintiffs should have been able to prescribe for the enjoyment of their mills. It is sufficient that they had an interest in the water, and the defendants cannot lawfully divert the natural course of the river, or injure the plaintiffs in the exercise of their rights. A water-course doth not begin by prescription, as Whitlock, J. observes, nor yet by assent, but the same doth begin ex jure natures, having taken this course naturally, and cannot be diverted. All the cases agree that the plaintiff need not aver his milito be an an-dent mill, where a natural water-course is diverted. 1 Vent. 237, Skinn, 65, Palm. 290, 1 Wils. 174. 3 Bulst. 340, The fact then, of the interruption of the use of the water, after the miU was burnt, and before it was rebuilt, is perfectly immaterial. The question is, have not the defendants materially and permanently inj ured the plaintiffs by giving a different direction to the course of the main current ? Many cases may be supposed which would be dam-naabsquf injuria; such, for instance, as the insensible evaporation and decrease of water by dams, or the occasional, ^increase ancl decrease of the velocity of the current, and of the quantum of water below. Many such circumstances maybe inevitable from the establishment of one dam above another upon the same stream. The question in such cases would turn upon, the nature and extent of the injury..— Here the injury is a continued and permanent one, and very material to the party. The defendants have not attempt» ⅝-d to shew that the imury was inevitable, and that they , , . . , , , , . , cannot have and enjoy a mill m the place they do, without creating this injury. What would be the effect of this proof if shewn, would be another question, but no such defence has been attempted, and I may take it therefore, for granted, that the defendants can, if they please, so alter their dam as to be able to enjoy their mill and avoid giving the injury.

If a right of action in the plaintiffs be assumed, I think this a case proper for the interference of the court. The verdict is clearly against evidence. The plaintiffs had eight witnesses who established the fact that the dam and mills of the defendants did materially injure and disturb the plaintiffs. One witness estimated the damage from $90 to $100 a year. The four witnesses on the part of the defendants do not attempt any direct contradiction of this fact. They prove only that the plaintiffs had felt inconveniences before the erection of the defendants’ dam, but they do not deny but that these inconveniences have been increased.

For these reasons I am of opinion that the verdict ought to be set aside.


author: Per Curiam.

text:
    John M’Vickar against Oliver Woolcot.
    NEW-YORK,
    Nov. 1805.
    ■ HOPKINS, in consequence of the death of a witness xo be examined on a commission sent to England, and sued out early in the last spring, moved, on behalf of the defendant, to amend by inserting the name of a new witness, who could prove the fact the testimony of the deceased would have gone to establish, or to be at liberty to issue a new commission.
    On the death of a witness to be examined on a commission, the court' will not permit a new name to be inserted, though they may allow a new commission, at the peril of the party,
   Per Curiam.

Were we to permit the amendment, the opposite party might lose the benefit of cross-examining; for the interrogatories exhibited to one, might not be proper to administer to another, from whom it might be wished to extract new evidence. The first part of the motion must, therefore, be denied; but you may take a new commission at your peril, without however, any stay of proceedings on the part of the plaintiff. .


text:
    Cook and others against Campbell & Loraine.
    NEW-YORK,
    Nov. 1805.
    To warrant proceedings against bail, there need not be eight days between the teste andretum ,of the ca. s(t. against the principal, it is enough if it have lain four days in the sheriff’s office.
    IN debt on recognizance of bail, the defendants pleaded 1st. 7ml tiel record. 2d. that the ca. sa. against the principal was not duly issued. The plaintiffs replied, taking issue on both pleas.
    Under these circumstances, the plaintiffs gave notice of bringing on the trial by record, and the defendants of setting aside the whole proceedings, for irregularity in the ca. sa.

    Both motions came on together, and the record being admitted, judgment was demanded, against which the defendants relied on the irregularity, to prevent its being allowed.

      Boyd for the defendants,
    insisted that to warrant any proceedings against bail, there must be 8 days between the teste and return of the capias ad satisfaciendum. 1 Sell. •' Prac. 550. 2 Salk. 601. Ball. v. Manucaptors of Russell. 2 L. Ray, 1176, S. C. This objection appearing-on the face of the record, was, he urged, a sufficient, reason for refusing the application for judgment; and though the matter ought not to have been availed of by plea, still that informality would not prejudice. In favor of bail the court go great lengths, and 1 Black. 74. would be found a stronger case than the present.

      Van Wyck contra.
    There cannot be any cause assigned,' for the practice mentioned. The writ has lain four days in the sheriff’s office, and is all which is-requisite.
   Per Curiam.

The plaintiffs must have their judgment, and the motion on behalf of the defendants be denied. There is no such practice of this court, as that of requiring eight days between the teste and return of the ca. sa. nor is there any reason why it should be necessary.


text:
    Van Winkle against Ketcham.
   THE court decided in this cause,hhat the promissory note of an infant, carrying on trade as an adult, could not be enforced against him by the payee, who had taken it . . r i . , ' , . , - r m the course or business,- without knowing tne d ant’s nonage.


author: Livingston, J.

text:
    Lenox, Maitland and Renwick against Howland, Russel and others.
    NEW-YORK,
    Nov. 1805.
    The note of an infant given in the course of trade,- cannot be enforced against him by the payee.
    For all demands arising ex contractu, though the amount be unli-quidated, an attachment may be issued against the property of absconding and absent debtors, under the act granting relief against them.
    THE court having on a former day' allowed the plaintiffs to shew that they had such a demand against the defendants as would warrant the attachment.

      Hoffman now read an affidavit by which it appeared, that their claim was founded on the contract contained in a bill of lading, for the delivery of goods shipped on board the defendants’ vessel.

       See ante 257.

   Per Curiam delivered by

Livingston, J.

We are to determine, not whether the affidavit now read would have been the proper basis of an attachment, but whether the demand, as now disclosed, is sufficient to support it. Al-thoughby the terms of the oath the creditor is to swear that the party is indebted to him, in the sum of one hundred dollars or upwards, it does not follow that the demand is to be so certain, as to fall within the technical definition of a debt, or as to be susceptible of liquidation, without the intervention of a jury. The law is remedial, and should be so construed as to embrace as many cases as possible. Being indebted is synonimous with oxving ; it is sufficient, therefore, if the demand arise on contract. The other provisions of the act plainly indicate, that its relief was to extend thus far at least, and, if the whole act be construed together, leave but little orno doubt on the subject. The 16th section declares, that in case a controversy arise concerning any claim, <&óí, or demand, respecting the estate of the debtor, the trustees may have it settled by reference, and by the 21st section, the attachment may be superseded, if the debtor will give security to appear and plead to any ' . , , , , , . . ^ r , J action to be brought against him m any court of law or e1u^yianc^t0 Pay such sum as shall be recovered against him. It is very evident from these sections, that it was not intended to confine the remedies, either in favour of, or against such estate, to cases of ascertained and liquidated debts. Else why speak of any claim in the first, and why compel by the other, the party, in order to get rid of this process, to appear to any suit in law or equity. These terms are broad enough to include at least all demands originating in contract. Nor can it make any difference whether the goods in the present case were not delivered at all, or delivered in a damaged condition. In either case the demand arises on the bill of lading. Nor ought the form of declaring to vary the case. In the first case, the party might certainly declare, generally, that the goods did not come to hand, without stating that this was owing to the negligence or carelessness of the master, and _ if this general form of declaring cannot be pursued in the latter case, it can and ought to make no difference. In both cases the owners are liable on the contract of the master, as much as if they had signed it themselves. Nor can the difficulty of ascertaining the precise damage make any difference. This must always be more or lets liable to some uncertainty. To obtain a liquidation a reference may be resorted to, and if the trustees will not submit to one, they may be sued, and a jury will settle the quantum of the demand. If a carpenter contracts 'to build a house for a given sum and does it so negligently that it falls the very day it is finished, and then absconds possessing a large property, it would be strange that I should have no remedy, because it be necessary to declare against him for a misfeazance or non-feazance, or because it may require some little calculation to settle the damages. The substantial inquiry, in this stage of the proceeding must be, to ascertain whether the party has a legal claim arising on contract, not by what kind of action it is to be enforced, which has ever appeared to me a very fallacious mode of testing questions of this kind. From the whole tenor of the act it is very evident, whatever may be the phraseology of its first clause, that its design was, to place the property of a debtor in trustees for the payment, not solely of debts within the legal acceptation of that term, but of every demand contracted against his estate, as well those due to the attaching party, as to others, and in like manner to give the trustees a remedy as broad, against third persons. If we once begin to refine or make nice distinctions on this subject, no one can say where we shall land. The act will soon be repealed, or become a dead letter. As this demand then is founded on contract, it can be of no importance in what way the injury arose, nor can we say it is of a kind not to support the attachment. The supersedeas is therefore denied.


text:
    Zachariah Link against Hendrick Beuner.
    NEW-YORK,
    Nov. 1805.
    THIS was an. action to recover the amount, paid for the services of a negro man named Bartley, and brought up On the following case.
    By an act of the legislature passed in If83, proprietors introducing slaves into this state, after the 1st day of June, 1785, were prohibited from selling them as slaves, and such persons if “ sold contrary to the true intent and meaning of “ the act,” were declared to be free.
    In 1794, Jasper Parsons, the former owner of the negro in question, brought him into this state. On the 8th of April, 1801, by the 5th section of another law respecting slaves, u it was enacted, a That if any person whatsoever, within u this state, shall, under any colour or pretext whatever, “ sell as a slave, or transfer for any period whatever, any “ person who shall hereafter be imported or brought into “ this state as a slave,” “ every person so imported or brought into this state, and sold contrary to the true in- “ tent and meaning of this act shall be free.” On the same day it was .ordained by another statute, 1 Rev. Laws, 619, chap, 189, that “ all acts and parts of acts, heretofore passed “ by the legislature of this state, which come within the pur- “ view or,operation of any of the acts passed during the “ present session of the legislature, commonly called the “ revised acts, shall be and the same are hereby repealed “ from and after the first day of October next; provided “ however, that such repeal shall not affect any act done, “ right accrued, &’c. previous to the said first day of Octo- “ her next, but every such act and right shall remain as va- “ lid, &c. as if all the acts and parts of acts, hereby intend* “ eel to be repealed, had remained in full force.”

      A sale of tíre services of a slave, is the same as a salo of a slave. A slave imported into this state, after June 1785, and sold after October 1801, is within the protection of the act of 1788, and entitled to be free, notwithstanding the law of 1788, is repealed by that of April, 1801, he having acquired under the statute of 1788, s right not to be sold, which right is preserved to him by the proviso in the repeal. ⅜ act of ISOlr

      In March, 1803, when the negro above named was 18 years old, Parsons, for a bona fide consideration, transferred to the defendant his services for 20 years, by a regular indenture, containing a clause of manumission at the expiration of that time. In April 1804 the defendant for the sum of $225, by indorsement assigned the residue of the term to the plaintiff, into whose service the negro entered, but on the ISth of August following deserted it, claiming to be free.
    It was now submitted to the court, whether, under the above circumstances, he was entitled to freedom? if so, the right to recover was admitted.

      Harison for the plaintiff.
    This is a casej arising on the law, as it stood antecedent to the last statute on this subject. It must be considered on the footing of the act of 1788.; for, that of 1801, did not introduce new regulations, so much as confirm the old, of which it makes a part. By the first of these statutes, slaves introduced into this state, after the first of June, 1785, and sold as such, are declared to be free. • .
    But here it may be said, the .negro in question was not sold as a slave. Allowing him not to have been disposed of in totidem. verbis as a slave, the transfer is, in effect, the same, for it is to last for 20 years.of the life of a man of eighteen. This would exhaust all the valuable portion of his existence, and if not within the strict letter of the law of 1788, is clearly within the proviso of the 5th section of that of 1801. It is there declared, any person “ under any colour or pretext,” sold as a slave “ ortrans- “ ferred for any period whatever,” “ contrary to the true “ intent and meaning,” of the act shall be free. The true intent and meaning of the legislative provisions, on this subject, were from the first, to prevent the importation and traffic in slaves. Courts have, therefore, been liberal in the exposition of these ordinances, and extended their principles to transactions not within the words, but the mischief, A case arose, where a man who had deserted from his master’s service in another state, was sold here for a period, which would wear out the prime of his days, and yet, though he was not imported, nor sold as a slave, the court held the manner of a slave’s entering into this state, to be an immaterial circumstance not inquirable into; and that the transfer, was a mere evasion of the act, which would become a dead letter, if sales of services were to be tolerated. It follows that the insertion of that word in, the conveyance from Parsons, does not make this transaction less a sale, nor in the least impeach the negro’s title to freedom.

      Radcliff contra.
    The act of 1788 having been repealed in 1801, cannot affect a sale in 1803. But allowing that this case might be covered by the act of 1788, still we contend it is not within the provisions of that law, because they are applicable only to sales for life. In Saber v. Hitchcocks decided in this court iti October 1800, and from hence carried into the court of errors, it was adjudged that the sale by the executor in that case, of the services of a slave to continue in service so long as the parties should agree, was not within-the statute. In the same term, the determination alluded to by the learned counsel on the opposite side, took place. It was in the case of Fish v. Pitcher, but that was essentially different from the one now before the court.-There a run-awav slave from Nexo-Jersey, of 25 years of age, was sold for 20 years, with a power of exercising during that period all the authorities of a master in correcting, imprisoning, 8cc. and at the expiration of the time to revert to his former owner. This was ruled to be an evasion of the act; but the decision was only by a majority of the court, Lewis and Benson, justices, dissenting.
    Kent, C. J. The principle ofthe judgment was, thatá mere alteration in the words of sale, clid not vary the construction we ought to give to the statute.

      Radcltff.

    Whatever may have been the principle of the decision, as it arose under the act of 1788, it cannot govern the present case, which must be determined according to the provisions cf the law of 1801, repealing, without reservation the, statute of 1788. It was a substitute for the former regulations, which were then totally done away, and had only a prospective view to future cases; to slaves “ thereafter1’ imported, a sale, thei-efore, in 1803, of a'slave brought into this state in 1794 cannot be within the operation, of the law of 1801. And as the act of 1788 was in 1801 totally repealed, a transaction in 1803 must be equally without the statute of 1788. The repealing act of 18Q1, abrogates all acts within the purview of the revised laws ; the law of 1788 was within the purview of that of 1801, and being so repealed, cannot forin one system with the revised laws. i
    Kent, C. J. Are not all rights acquired, saved by the repealing act of 1801 ? and had not the negro undér the act of 1782 acquired some right ?

      Raddiff.

    No. A right not to be sold is not a legal right within the act. To acquire a right some act must be done, and the very transfer gave him ⅛ right he had not before, for it contains a manumission.
    Livingston, J. Was the declaration that he should be manumitted, a manumission ? and supposing the negro not to be free, would he not, if no further act had been done, have continued the servant of his former owner, and entitled under our present Jaw, to demand support of Parsons ?

      Raddff.

    I conceive not; for the words are like those in a lease where words in prasentí are used. There is nothing to prevent the operation of such a manumission.
    Har%son, in reply.
    The case of Saber v, Hitdicock proceeded on the ground of its being a sale by an executor, therefore to be considered as a sale by due course of law, and not as the voluntary act of the party, which alone the statute was meant to prohibit. All slaves imported under the act of 1788 had a clear legal right of not being sold to any new master, and to be free if they were so sold. This right is preserved by the clause in the repealing statute of 1801. That law did not change the situation of slaves ; it preserved all their rights entire. As to the manumission, it ought to have been by way of covenant. There is no making free hi futuro. • ;
   Per Curiam.

The sale in this case is within the principle of Fish v. Fitcher, and an evasion of the act of 1788.-— Under that law, the negro acquired a right not to be sold ; an important right which secured him against a change of master: he also acquired a further right of being free, if that right was invaded. These rights the proviso of the repealing act of 1801 continued to him unimpaired, for it is not possible to suppose that the legislature intended to leave all slaves imported between June 1785, and October 1801 out of the protection of every law. Judgment must therefore be for the plaintiff.


author: Livingston T.

text:
    Ezekiel Gilbert against Joseph C. Field.
    NEW-YORK,
    Nov. 1805.
    CASE for words spoken of the plaintiff in his character of attorney, and a member of the legislature.
    The declaration, after the formal introductory matter of good fame, &c. without alleging any colloquium respecting the profession of the plaintiff stated, with the proper innuendos that the defendant had said “ I have frequently seen “ him as drunk as a coot in the assembly of this state ; in the “ assembly while a member thereof; that he was unfit for a “ member gí the assembly, and if his character were known “ to the electors of the county of Columbia, they would not “ erect him to represent them in the assembly; for during “ the last session of the assembly, and while a member there-?⅞ of, I have seen him a number of times come into the as- “ sembly-room and fall asleep therein. That he was unfit “ and unqualified to be a member of the assembly of the state “ in the legislature, for I have frequently seen him drunk, U and unfit for any business.’5

      ín an action fov words spoken of an attorney, the declaration must allege a colloquium respecting his profession, or it will be fatal on a motion in arrest of judgment. So if two grava, •mina be stated, one of which affords us cause of action, and entire damages be given, judgment will be arrested. It does not seem to be actionable to say at the time of election of a seatin tliíle-3, gislature, that he has been seen drunk and asleep m the assembly room and is unfit to «e a mem er.
    Woodworth for a variety of reasons,
    but principally for want of a colloquium, and because the words were not in themselves actionable, argued that the judgment must be , arrested. ’ /

      jy, jy. YanNess contra,
   Per Curiam, delivered bv

Livingston T.

In arrest of judgment, several objections are taken to the declaration, two of which, according to decided cases are fatal.

That it should appear either from the words themselves, or from the pleadings, or be clearly intended, that at the time of publishing the words, there was a colloquium concerning the profession of the party of whom the slander is uttered, has been long and repeatedly settled. Nor is this form of declaring, if it comport with the fact, more difficult to pursue, than the one which has been adopted. If from the words here it may be inferred, or intended as we think it may, that there was a discourse concerning the plaintiff’s fitness for the office of member of the legislature, the declaration is entirely silent as to any conversation about his professional character ; and as his injury on this score forms a very essential part of the gravamen, and the damages are entire,a colloquium concerning his profession was absolutely necessary. For this omission judgments have been arrested, or the plaintiff in other stages of a suit defeated of his remedy. The reason assigned for the rule is, that unless the words appear to be spoken concerning one’s profession, office or trade, he cannot lose orbe discredited thereby. If this be thought by some not very satisfactory, it would be too much without shewing its palpable absurdity to shake so many authorities by permitting a looser mode of declaring at this day. Judgment must therefore be arrested.


author: SHENK, J.

text:
    [L. A. No. 14530.
    In Bank.
    May 17, 1934.]
    In the Matter of the Estate of MARY L. LEONARD, Deceased. LORETTA G. NEILSON et al., Appellants, v. R. E. BARNES, Respondent.
    Oliver 0. Clark and Frederick Newhouse for Appellants.
    W. R. Barnes and Leonard S. Barnes for Respondent.
   SHENK, J.

The appeal herein is taken by some of the heirs at law and next of kin of Mary L. Leonard from an order denying admission to probate of a document claimed to be the holographic will of the decedent. The document was entirely written and dated by the hand of the decedent. Objection to its admission was made on the ground that it was not executed in accordance 'with legal requirements, in that it was not signed by the decedent.

The instrument is dated “May 20 1929”. It commences in the following manner:

“In the name of God I
Mary L. Leonard
Los Angeles Calif at the age of 70 years and being of sound and disposing mind and memory.”

It bequeaths $2,000 for a monument for her mother’s grave and her own. It states that $5 is given to each of her brothers and sisters and the children of deceased brothers and sisters, and no more. It then recounts in detail her reasons for giving no more to those relatives; mentions hurts and heartaches; that she had given thousands of dollars to certain of them and real property to others and had not been appreciated, but that she had been turned out. The instrument provides that the entire estate is to go to erect a home for aged couples and makes certain restrictions as to its use and as to the qualifications of those who shall be ad: mitted. She appoints a niece, Loretta G. Neilson, one. of the appellants, as the executrix to act without bonds and forbids her to employ one of the decedent’s brothers, W. R. Barnes, as her attorney. It then states some of the facts relating to a controversy with her brother Ed Barnes, which resulted in a suit by the brother against her. The last words and punctuation in the instrument are “We had our suit and he got licked-”, No signature appears at the end of the instrument. It is also apparent from the instrument that the year of the date had been changed from 1922 to 1929. The decedent died on December 28, 1932, at the age of about 76 years.

The probate court found that the instrument was not signed by Mary L. Leonard so as to constitute it a last will and testament. The court found further that the decedent’s name appearing at the top was descriptio personae and not intended as an executing signature; that the instrument was incomplete and unfinished, and ended abruptly several inches from the bottom of the page, with a dash following the last word; that the date had been changed by erasing the figure 2 and substituting the figure 9, so as to make the year appear as 1929; and that there was nothing on the face of the instrument which showed an intention on the part of the author to adopt the name appearing in the exordium clause as an executing signature.

The main ground of the appeal is that the. evidence does not support the findings of the probate court. This ground obviously lacks merit. In Estate of Streeton, 183 Cal. 284, one of the cases relied upon by the appellants, it is stated at page 288 [191 Pac. 16, 18] : “The test to be applied in determining whether a will has been ‘signed by the hand of the testator himself’ as required by section 1277 of the Civil Code, was stated in Estate of Manchester, 174 Cal. 417 [163 Pac. 358, Ann. Cas. 1918B, 227, L. R. A. 1917D, 629], as follows: ‘The true rule, as we conceive it to be, is that, wherever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature, ’ . . . Had the name appeared in the exordium, the logical inference from the context would probably have been that it was intended merely to identify the person making the will, and additional facts might have been necessary to raise the inference that it was also intended as a signature in execution of the will . . . (citing cases).” The holding in that case that the due execution of a will is a question of fact, and its determination by the trial court is not to be overthrown unless that determination is without support in the evidence (Estate of Streeton, supra, p. 289), is applicable on an appeal from a judgment denying admission of an instrument to probate as a will.

The evidence in the present record fully supports the findings of the probate court. (See Estate of Bernard, 197 Cal.

38 [239 Pac. 404] ; Estate of Devlin, 198 Cal. 721 [247 Pac. 577].)

The contention is also made that the court erred in admitting in evidence certain alleged declarations of the decedent made after the writing of the instrument, to the effect that she did not intend it as her last will and testament. Assuming error in this respect, in view of the foregoing showing that the instrument itself fully supports the court’s findings, and that the judgment would be affirmed on that evidence alone, it cannot be said that any prejudice resulted to the appellants by the admission in evidence of such declarations.

The order is affirmed.

Preston, J., Waste, C. J., and Seawell, J., concurred.