author: Sandford, J.

text:
    Stanton v. Schell.
    Where affidavits and papers on which a warrant of arrest is applied for under the act abolishing imprisonment for debt, state that a suit has been commenced by the applicant upon a judgment obtained by him .against the party for whom the warrant is asked, stating its date and amount ; this is a sufficient allegation of a cause of action arising upon contract for which the party cannot he imprisoned.
    The proceedings being founded upon the suit, and not on the judgment, it is unnecessary that there should be any proof of a demand and refusal to apply property in payment of the judgment, to authorize a commitment.
    When a judge, upon a hearing before him, admits evidence which is insufficient or incompetent, it constitutes an error of judgment, which is remediable only in a direct proceeding to reverse his commitment. The jurisdiction of the judge does not depend on his deciding correctly in respect of the kind or weight of evidence adduced, when the allegations are properly made, and the testimony offered tends to sustain them.
    When an inferior tribunal acts without acquiring jurisdiction, its proceedings afe void, and ail concerned are trespassers. But where it has jurisdiction, and then errs iri the exercise of its powers, the act is erroneous, and may be avoided oil certiorari, but it is not void.
    Where, after a judge has acquired jurisdiction of an application for a warrant of commitment under the non-imprisonment act, an injunction, staying further proceedings in the matter, is served, whereupon the judge suspends the, matter, pending the injunction, instead of adjourning it, and after the injunction is dissolved, pronounces judgment in the absence of the defendant, these errors, if they be such, are mere errors of judgment, and do not oust the judge of his jurisdiction, nor subject him or the applicant to an action of trespass or false imprisonment.
    (Before Oakley, Cn. J., and Vaxuerpoel and Savdford, J.J.)
    Nov. 12;
    Nov. 24, 1849.
    Tins was an action of trespass and false imprisonment. The complaint alleged, that, in August, 1848, the plaintiff obtained from the Hon. John W. Edmonds, one of the justices of the supreme court, a warrant of commitment against the plaintiff, under the pretence of a conviction under the non-imprisonment act; that the warrant was issued without any authority or jurisdiction on the part of the justice ; and that under it the plaintiff was arrested and imprisoned for the space of four hours.
    The answer of the defendant averred, that, on the 5th of August, 1845, he recovered a judgment in the supreme court for the sum of $1,936 02 against the plaintiff, upon which judgment he had commenced a suit. That, subsequent to the commencement of the suit upon the judgment, and on the 10th of April, 1848, he applied to Judge Edmonds, for a warrant of arrest against the plaintiff under the non-imprisonment act. That the application was accompanied by satisfactory evidence of the existence of a debt due from the plaintiff, specifying the nature and amount thereof as near as might he, and also evidence, that the plaintiff liad property which lie fraudulently concealed, and that lie had assigned and disposed of some of his property with intent to defraud his creditors. That evidence was adduced by the affidavit of the defendant, and the answer and depositions of the now plaintiff upon the judgment. That, upon the hearing, the plaintiff controverted none of the facts and circumstances, and the hearing was adjourned until April 26, 1848, at which time the parties appeared, and an order for an injunction was exhibited to Judge Edmonds, issued out of the supreme court., on the prayer of the plaintiff, commanding the defendant to desist from further proceeding in the matter until the further order of the court. That thereupon the proceedings were suspended until the dissolution of the injunction ; after which, and on the 23d day of August, Judge Edmonds, deciding the facts to be sufficiently established, granted the warrant of commitment, under which the plaintiff was arrested. The warrant was set out at length in the answer. The answer denied the want of jurisdiction in the judge.
    The reply stated, that the affidavit of the defendant, upon which the application to Judge Edmonds was made, did not specify the nature and amount of indebtedness as near as it might be, and that it was impossible to determine from the affidavit, whether the same was upon the judgment or the proceedings upon the same. That, upon the hearing, the plaintiff controverted the facts and circumstances of the application, and no proof was offered by the defendant, and no hearing had ; that no judicial determination was made by Judge Edmonds, as averred in the answer, and that he had no authority over the matter by reason of the proceedings being suspended at the time of the injunction. That the plaintiff was not in the presence, or under the jurisdiction, or control of the judge at the time of the issuing the warrant, and that he had no notice to appear before him on that day, or any information thereof, and that tliere was no jurisdiction or authority for the commitment.
    The cause was tried on the 10th of May, 1849. Upon the trial, after reading the pleadings, the counsel for the plaintiff offered in evidence the affidavit and papers on which the application for the warrant was founded, in order to show their insufficiency.
    The parts thereof which were applicable are as follows :
    “ City and County of New York, ss :
    “ 'Robert Schell of said city, being duly sworn, saith, that Henry Stanton, of the city of Rochester, in the county of Monroe, is justly indebted to this deponent in the sum of two thousand dollars and upwards, upon a judgment rendered in the supreme court of the state of New York, and also in the sum of two hundred and thirty-five dollars and upwards, upon another judgment rendered in the same court, which said judgments respectively are founded upon contract, and for which said demands the said Henry Stanton cannot be arrested or imprisoned, according to the provisions of an act entitled, ‘ an act to abolish imprisonment for debt, and to punish fraudulent debtors,’ passed April 26, 1831 ; and this deponent further saith, that an ordinary creditor’s suit in equity has been instituted by this defendant against the said Henry Stanton and others, and is now pending in the supreme court of this state, for the purpose of recovering and obtaining satisfaction of the said judgment herein first mentioned, and this deponent further saith, that he verily believes that the said Henry Stanton has property and fights in action, namely an interest in a stock of jewelry and other merchandise, in a store in the city of Rochester, and in the proceeds of jewelry and merchandise heretofore sold in said store and elsewhere, which he fraudulently conceals, and that he has rights in action, money, and evidences of debt, which he unjustly refuses to apply to the payment of the said judgments, or either of them, and that he has assigned and disposed of some of his property with the intent to defraud his creditors, — and this deponent further saith, that a copy of the amended bill of complaint, filed by him in the suit, aforesaid, is hereto annexed, marked schedule A; that a copy of the answer put in by the said Henry Stanton, to the said amended bill, is hereto annexed, marked schedule B; and that the paper hereto annexed, marked schedule C, is a copy of an examination and deposition of the said Henry Stanton, made before John. W. Dwinnelle, Esq., who at the date thereof was one of the masters in chancery, in and for the said county of Monroe, — and this deponent, further saith, that on or about the 25th day of November, 1846, deponent requested the said Henry Stanton to apply certain securities, which he then had, and as deponent believes the bonds and mortgages hereinbefore mentioned, on deponent’s said debt for what they were worth, and that the said Henry Stanton refused so to do, but offered to transfer them to deponent absolutely in payment of the same.”
    It appeared by the copy of the amended hill of complaint annexed to the affidavit, that the original bill, of which that was a copy, was duly verified by the oath of .Robert Schell, and stated that on the fifth day of August, 1845, Schell recovered a judgment in the supreme court, against Stanton, for the sum of $1936 02, for the damages vdiieli Schell had sustained, as well by reason of the non-performance of certain promises and undertakings then lately made by Stanton to him, Schell, as for the costa of the suit in which the judgment was recovered. The plaintiff’s counsel then read in evidence the affidavit of the plaintiff controverting the facts and circumstances on which the application for the warrant was founded, the substance of which is as follows:—
    “Henry Stanton, of Rochester, Monroe county, being duly sworn, deposes and says, that he has no right in action or property, except such as by law is exempt from execution, that he has no interest in any stock nor in the proceeds of any jewelry or merchandise heretofore sold in any store, which he fraudulently conceals, and that he has no right in action which he unjustly refuses to apply to the payment of the judgments named in the affidavit of Robert Schell in this matter or to either of them, and that lie has not assigned or disposed of any of his property with intent to defraud his creditors,
    “And this deponent further says, that in or about November, 1846, this deponent had an interview with Robert Schell, and told him that he would get some bonds and mortgages, and pay him off if he would take them. He wished to know what they were, and deponent said that if he would say that he would take them, then tin's deponent would see what ones he could get. But this deponent did not mention any particular bonds and mortgages, and this deponent verily believes that the bonds and mortgages hereinbefore mentioned, had then been disposed of,”
    It was admitted by defendant’s counsel, that during the spring of 1847, a receiver had been appointed in the creditor’s suit named in the application of the defendant against the plaintiff for a warrant, and that the plaintiff had, at that time, executed an assignment to the receiver, of all his assets and effects.
    The plaintiff’s counsel then read the commitment, from the answer, from which it appeared that no adjournment of the proceedings before Justice Edmonds was made from and after the 26th of April, 1848, and he contended that Mr. Justice Ed-monds lost jurisdiction of the proceedings, by reason of such non-adjournment. The plaintiff then rested his case.
    The defendant’s counsel then moved for a non-suit, but the court denied the motion.
    The deputy sheriff testified to the arrest of the plaintiff, under the warrant of the commitment, It was admitted that at the time the commitment was made, the plaintiff was not present before Judge Edmonds,
    The case was submitted to the jury upon the question of damages: the question of law involved being reserved for the consideration of the court, with liberty to the defendant to move to enter a nonsuit. The jury found a verdict in favor of the plaintiff for $50 damages.

      A. Crist^ for the plaintiff.

      J. W. Gilbert, for the defendant.
   By the Court.

Sandford, J.

The plaintiff’s first point is, that the judge who granted the commitment never acquired jurisdiction in the proceeding against the plaintiff under the act of 1831.

We think that this view of the matter is erroneous : —l. The affidavit and papers on which the warrant for the plaintiff’s arrest was issued, do state both the nature and the amount of the indebtedness in precise terms. They show that Schell had commenced a suit on a judgment, stating its date and amount. This was a sufficient allegation of a cause of action arising upon a contract, for which the plaintiff could not be imprisoned.

2. The proceeding was evidently founded upon the suit brought to obtain satisfaction of the judgment. This disposes also of the fourth objection taken by the plaintiff. The proceeding was not founded upon his refusal to apply his property to the payment of the judgment.

3. The remaining objection, was to the judge’s reception of the answer and examination of the plaintiff in the pending suit, as a part of the evidence on which the warrant for the arrest-issued. Whether the judge were right or wrong, in receiving tills evidence, we need not determine; because, if he were wrong, it does not affect the question of jurisdiction. There was other evidence of undoubted propriety, which tended to prove the case alleged before the judge. If that evidence were insufficient., or if the judge admitted evidence that was incompetent, it constituted an error of judgment which was remediable only in a direct proceeding to reverse his commitment. It cannot affect tbe warrant, in a collateral suit. The jurisdiction of the judge does not depend upon his deciding correctly in respect of the kind or -weight of evidence laid before him, when the allegations are properly made, and the testimony offered tends to sustain them.

We have no doubt, therefore, that the judge acquired jurisdiction. The plaintiff was regularly arrested and brought before him, was subsequently adjudged to be guilty of the offence alleged, and was committed.

It is next claimed on his behalf, that the commitment was void, because the judge lost jurisdiction, intermediate the arrest and the adjudication.

Granting to the plaintiff all that he argues, as to the irregularity of the proceedings, and that he can be permitted, after suspending the judge’s action by an injunction, to urge such suspension as having wrought a discharge to him from his arrest under the warrant; it does not follow that the commitment was void.

The principle is, that where an inferior tribunal acts without acquiring jurisdiction, its proceedings are void, and all concerned are trespassers. But where it has jurisdiction, and then errs in the exercise of its powers, the act is erroneous, and may be avoided on certiorari, but it is not void. Here the judge had acquired jurisdiction. The plaintiff contends that he erred in suspending the matter pending the injunction, instead of adjourning it, and in pronouncing his judgment in the absence of the party accused. If the judge erred in both of these particulars, they were errors of judgment, and the plaintiff might have reversed the adjudication. They did not, however, oust the judge of his jurisdiction, nor subject him, or, consequentially, the party prosecuting before him, to an action of trespass or false imprisonment. We might refer to many analogous cases decided in the courts of this state. The principle is very well exhibited in Horton v. Auchmoody, 7 Wend. 200. We have looked into all the authorities which were cited by the plaintiff, and find that they were cases in which the court or officer never acquired jurisdiction of the subject matter, or of the party proceeded against. They do not conflict with the principle on which we rely, and in some of them it is expressly sanctioned.

The judgment entered for the plaintiff, at the special term, must be reversed, and a judgment of nonsuit entered, pursuant to the stipulation between the parties.


source: Caselaw Access Project

author: Oakley, Ch. J.

license: Public Domain

text:
    Gilhooly v. Washington.
    Where a lessor lets parts of a tenement to different tenants, one of whom, (who received the first demise in point of time,) occupied his portion of the tenement as a place of debauchery and prostitution, but the lessor was ignorant that he designed so to use it, and did not connive with him therein ; it was held, that the facts did not constitute an eviction of tenants of other parts of the same tenement, or bar the lessor from recovering from them their stipulated rent.
    The omission of the lessor to procure the indictment and conviction of the disorderly occupants, and then to terminate their lease under the statute, is neither a connivance with them nor such an acquiescence in the nuisance, as to furnish evidence of an eviction.
    If the other tenants, or any prosecutor, had procured such conviction, it would then have been the lessor’s duty to remove the disorderly tenants. Semb.

    (Before Oakley, Ch, T, and Vaydkxipoel and Sandford, J.J.)
    Nov. 21 ;
    Nov. 24, 1849.
    Tins was an action to recover one quarter’s rent of tlie upper portion of house 23 Dey street, in the City of Yew York, payable in advance, and due May 1,184-9, being the sum of one hundred thirty-seven dollars and fifty cents.
    The answer of the defendant set up, that at the time of the commencement of defendant’s term, the basement of the premises had, without his knowledge, been let by the plaintiff for the purpose of prostitution, that the same had been fitted up with reference to such uses, and was resorted to constantly by persons of abandoned character, in consequence of which, the premises leased to the defendant became unfit for occupation, and the same were abandoned by the under tenants of the defendant, who refused to pay rent therefor; that defendant had notified the plaintiff of the existence of the nuisance in question, and offered to relinquish his lease, which the plaintiff refused to accept, but promised that the nuisance should be abated; that in consequence of such assurance, the defendant had paid the rent of the premises during the first year, which by the terms of the lease, was made payable in advance ; but that the nuisance continued to exist, and in con sequence thereof, the defendant had been unable to underlet the premises, and had been deprived of all use and benefit of them, and that the same had been wholly abandoned by him during the whole of the quarter ending May 1st, 184-9. The defendant claimed to recover from the plaintiff the sum of one hundred thirty-seven dollars and fifty cents, being the amount of one quarter’s rent, ending on the 1st day of May, which had been paid by him at the commencement of the quarter, and that the lease in question should be given up and cancelled.
    The reply denied that the plaintiff rented the lower part of the premises in question, for the purposes complained of, and denied all knowledge and belief of their having been so used, or that the defendant had sustained any damages.
    The cause was referred to a sole referee, to hear and decide the same. Upon the trial before him, it appeared, and he reported, that during the defendant’s term, the basement in question had been occupied as a drinking saloon, and as a place of prostitution and ill fame, and that great noises and disturbances frequently took place therein. It also appeared that on the 19th of March, 1849, the defendant caused a written notice to be served on the plaintiff, stating the manner in which the premises were kept, and desiring him to remove the nuisance.
    The referee reported, that previous to the execution of the lease to the defendant, the lower part of the house had been let by the plaintiff to some person other than the defendant, but that it did not appear that the same was used by the plaintiff for the purposes complained of, or that the nuisance was continued in any way by the consent or connivance of the plaintiff, or by any person deriving any right through him. The referee reported in favor of the plaintiff for the amount claimed; and the defendant appealed from the judgment thereupon entered.

      F. Byrne, for the plaintiff.

      J. Coil, for the defendant,
    relied upon Dyeti v. Pendleton, 8 Cow. 727. He also cited 'Ogilvie v. Hull, 5 Hill 52 ; People v. Erwin, 4 Denlo 130; Fish v. Bodge, Ibid. 317; Smith v. Marrable, 1 Carr. & Mar. 479 ; 2 R. S. 702, § 29.
   By the Court.

Oakley, Ch. J.

The referee reported as matter of fact, that the basement of the premises in cpiestion had been leased by the plaintiff to some person other than the defendant, prior to the lease of the upper portion of the premises. The question is, whether if a landlord rent a part of a house to one tenant, and then a part of the same house to another, and the former enters upon the occupation of the portion let to him, and appropriates it to purposes of the description complained of in this case, so as to render the other portion no longer habitable; the lease to the latter is thereby determined, or he may refuse to pay rent.

The defendant’s counsel, upon the argument, relied upon the case of Dyett v. Pendleton, 8 Cowen 727, which decided, that where the lessor habitually brought lewd women into the same house, a part of which he had demised to a tenant, so as to compel the latter to remove his family by reason of the noise and disturbance, it would warrant a jury in finding an eviction, and debar the lessor of Ins rent.

This doctrine has never been applied to a case where the plaintiff himself has not been instrumental in producing the state of things set up as an eviction. ¥e do not see on what principle the rule can be applied, where the landlord lets in good faith the part of the tenement whence the annoyance proceeds, and without any reason to suspect the purposes for which the premises are to be used.

It is said, however, that it was the duty of the landlord, upon ascertaining the character of the persons occupying his premises, and the uses to which they were perverted, to cause those tenants to be turned out, and thus to terminate the lease to them, under the remedy afforded him by the statute, which provides that whenever the lessee of any dwelling-house shall be convicted of keeping the same as a bawdy-house, the lease for the letting of the same shall thereupon become void, and the landlord may enter and obtain possession in the same manner as against a tenant holding over. (2 R. S. 702, § 29.)

The remedy conferred by the statute is not, however, to be set on foot by the landlord merely. Any person may institute a complaint against persons of such a disorderly character, and procure their conviction. If the occupants of the basement in question had been convicted, we do not say, that the plaintiff would not have been obliged to resort to his remedy, and remove them from the premises. But it was not more his duty than that of the defendant, to proceed to have them indicted, or to resort to the remedy against them on the ground of nuisance.

The extension of the doctrine of Dyett v. Pendleton to cases like this, would have an important influence on the rights of landlord and tenant in this city ; and we are unwilling to establish the precedent. We do not consider this case as falling within any of the grounds which have been sanctioned as showing an eviction ; and the judgment must be affirmed.

       Affirmed in the court of appeals, Dec. 30, 1850.


author: Vanderpoel, J.

text:
    Lawrence v. Delano.
    A purchaser at a mortgage sale, acquires no other or greater estate than would have vested in the mortgagee, if the equity of redemption had been foreclosed.
    Where the owner of premises covered by a mortgage executed by his grantor, assumes the payment of such mortgage, and subsequently, after the time of payment has expired, executes a stipulation, by which, after reciting that he is desirous of extending the loan for the term of four years, he promises and agrees to pay to the holder of the mortgage, interest upon the mortgage debt, for the period of four years, such stipulation will not be held to be equivalent to a new mortgage covering the property as it stands at the date of such stipulation, or embracing other land than that described in the original mortgage.
    Where a person, for his own convenience, annexes another piece of land to premises which he or his grantor has previously mortgaged, and erects on both parcels, a building which is accessible only from the land so annexed, this will not subject such piece to the operation of the mortgage, so as to carry it to a purchaser of the mortgaged premises, at a sale under the mortgage.
    Land not mentioned in a deed, cannot pass as an appurtenant to another parcel expressly granted and particularly described.
    (Before Oakley, Ch. J., and Vandeepoel and Sandford, JJ.)
    Nov. 9 ;
    Nov. 24, 1849.
    This was an action of ejectment, brought to recover the possession of a piece of land 2 feet 6 inches wide by 27 feet long, being in the rear of premises known as Ho. 39 Lafayette Place, iu the city of Hew York, and which piece was formerly a portion of the lot fronting on Broadway on a line with Ho. 39 Lafayette Place.
    The cause came on for trial before Yaxdeepoel, Justice, on the 6th day of June, 1849. Upon the trial, the plaintiff’s counsel read in evidence a deed to him from Charles F. Moulton and wife, hearing date May 1st, 1836, conveying certain lands, of which the premises in question were a part, and proved that he took possession of the premises by virtue of the deed. Tie also proved that the defendant was in possession at the time of the commencement of the suit, and thereupon rested.
    The defendant produced in evidence a mortgage from Benjamin F. Lee and wife to John J. Astor, dated Jan. 19, 1835, and duly recorded, to secure the payment of $18,000, on the 19th January, 1840. This mortgage covered the premises known as Ho. 39 Lafayette Place, in the immediate rear of which, adjoining, and extending its whole width, was the strip of land, to recover which this action was instituted. Also, a deed from Benjamin F. Lee and wife to the plaintiff, dated February 5th, 1835, conveying the same premises, Ho. 39 Lafayette Place, subject to the above mentioned mortgage, the payment of which was assumed by the plaintiff as a part of the consideration of the purchase.
    The defendant’s counsel also read in evidence a several agreement entered into October 29, 1846, between the plaintiff, Benjamin F. Lee, and Benjamin Curtis, by which it was provided that a certain alley in the rear of the premises on Lafayette Place, owned by the parties, and adjoining each other, should be kept as an “ alley in common,” and a right of way through the same was made appurtenant to the premises on Lafayette Place, owned by the respective parties. The piece of land, for the recovery of which this action was brought, was intermediate the east line of the “ alley in common,” and west line of the premises, Ho. 39 Lafayette Place, then owned by the plaintiff.
    The defendant’s counsel also read in evidence, a deed from the plaintiff and wife, to the Unitarian church on Broadway, dated Feb. 13th, 1838. This deed conveyed the lot on Broadway, which was conveyed to the plaintiff by the deed of Moulton and wife, except the strip of land in dispute in this action. The description of the easterly boundary of the lot thus conveyed is as follows: “ Easterly in the rear by property now belonging to Alexander Mactier, fronting on Lafayette place, and a atrip of tv)0 and a half fad in width helonping to the said William Li, Lawrence, taken In/ him from the said lot (J. (the lot conveyed to the plaintiff by Moulton and wife) and added to the lot owned and occupied; by him, f rending on .Lafayette-place, &c., reserving the use of ti e alley in common,” &e.
    Also a certain agreement entered into by the plaintiff with the trustees of Mrs. Emily Ward, on the 3d day of April, 1840, by which the time for paying the mortgage of $1800, executed by Benj. F. Lee and wife, to John J. Astor, which became due Jan. 19, 1840, and seas held by those trustees, was extended for four years; the plaintiff stipulating to pay the interest to the trustees. Also a mortgage from the plaintiff and wife to Isaac Lawrence, dated February 12th, 1840, upon the premises on Lafayette place, covering, in addition to the premises mortgaged by Benj. F. Lee and wife to Astor, the strip of land in the rear, the subject of this action.
    It appeared that the mortgage of Benj. F. Lee and wife to Astor, was foreclosed in January, 1842, and the premises thereby mortgaged sold at a master's sale, at which the defendant became the purchaser. The master’s deed bore date May 1, 1843. It was admitted that the stable on the rear of lot No. 39 Lafayette place and in -part on the premises in dispute, was built in 1837, by the plaintiff. The access to the stable was through this part, by means of the alley in common.
    The testimony here closed, and the judge charged the jury, that the matters given in evidence, if the jury believed them, were sufficient to entitle the plaintiff to recover.
    The jury found a verdict for the plaintiff) and the defendant moved for a new trial.

      J. Coit, for the defendant.

      I, By taking the deed from B. F. Lee, the plaintiff assumed the payment of the mortgage as principal. • The liability of Lee becoming thenceforth only that of surety. (Cherry v. Monro, 2 Barb. Ch. R. 628.)
    II. The plaintiff afterwards by covenant with B. F. Lee, annexed fire right of way through the alley on which the stable abuts, as an appurtenance to the lot. This covenant, therefore, enures the benefit of the defendant as the grantee of the premises. Lee was then surety for L. in respect of the mortgage, and the covenant attached to and run with the mortgaged premises for Lee’s benefit as such surety. As to what passes as appurtenant, see 2 Bacon’s Abr. 669; Grant, J. 4; 4 Kent’s Comm. 46T, 473.
    III. The stipulation of W. B. Lawrence to the trustees of Mrs. Emily Ward, was made after the expiration of the original term of the mortgage, and after the stable was built on the lot, and was equivalent to a new mortgage, which must be taken to cover the property as it then stood. (3 Kent Com. 420; 4 Ibid. 467; N. Y. Life Insurance Company v. Milnor, 1 Barb. Ch. R. 353.)
    IY. The foreclosure of the mortgage thus given, to which W. B. Lawrence ivas a party defendant, was in legal effect the same as if the mortgage had been executed by him at the date of the stipulation with Astor, and the statute declares the foreclosure to be as valid as a deed by the mortgagor. The master’s deed operates as if it had been executed by all the parties to the suit.
    V. The plaintiff is bound by his recitals in his recorded deeds to the Unitarian church, and to Isaac Lawrence — stating that the piece of ground in question was annexed to the lot in Lafayette place. (1 Ph. Ev. 89; Van Cortlmult v. Brandi, 17 J. E. 335.)
    VI. The plaintiff by himself building his stable on the rear of the lot, so fixed the boundaries, that a purchaser could not but believe that the lot built on was the lot described in the deeds. He cannot now be suffered to allege that he misled the defendant in regard to the boundaries of the lot. {Rockwell v. Admns, 6 Wend. 467; S. C. 7 Cow. 762; Tarrant v. Terry, 1 Bay 23,9.)
    VII. The plaintiff, who was liable for the deficiency on the mortgage, had a direct interest in enhancing the value on the foreclosure sale — suffering him therefore to remain silent at the sale, and afterwards to claim that the property apparently conveyed, did not in fact pass, would be a fraud on the defendant. (1 Story Eq. Jur. § 395, 439; Wendell v. Van Rensselaer, 1 J. C. R. 354; Stores v. Barker, 6 J. C. R. 166; 2 Cowen & Hill's Notes, 200.)

      W. B, Lawrence, plaintiff in person.
    I. The evidence, which is not contradicted, shows a complete legal title in the plaintiff.
    II. The master’s deed, in the foreclosure suit, vested in the defendant the same estate, (and no other or greater,) that would have vested in the mortgagee, if the equity of redemption had been foreclosed ; which was the same title he had at the execution of the mortgage. (2 R. S. 192, § 158; Miller v. Bristol, 12 Pick. 551.)
    III. Land cannot pass by implication, nor can land ever he appurtenant to land. {Jadcso-n v. Hathaway, 15 J. R. 447; Harris v. Elliot, 10 Pet. 25; Grant v. Chase, 17 Mass. 443.)
    IV. The title to the alley is not in controversy in the present suit; nor does the defendant fulfil the conditions to entitle him to the benefit either of the covenant between the plaintiff and Curtis and Lee, (as the owners of the adjacent property.) or of the reservations in the deed to the Second Unitarian Congregational Church.
    V. The agreement between plaintiff and the trustees of Mrs. Ward, is not a mortgage, nor does it either in terms or by implication relate to the premises in controversy.
   By the Court.

Vanderpoel, J.

The plaintiff, when he rested his cause, had shown a clear legal title to the premises in question. The deed from Moulton and wife to him, bearing date the first day of May, 1836, includes the premises. Has the defendant succeeded in showing, either a paramount title in himself, or any other state of facts, that should operate as a bar to his adversary’s legal claim?

It must be borne in mind, that the action is not brought for any portion of the alley which was appropriated by the agreement of the 29th day of October, 1836, between the plaintiff, Benjamin F. Lee, and Benjamin Curtis, and called the “ alley in common.” The plaintiff, as the defendant contends, may have owned the right of way through the alley, on which the defendant’s stable abuts as an appurtenance to the lots adjoining the alley. It may be true, that such a covenent enures to the benefit of the grantees of the premises upon which the stable stands, and yet the real point in the case is untouched. The question then arises, is the defendant the grantee of the premises adjoining the alley; if not, the argument, that the alley is an appurtenance, is irrelevant to the real question involved in the case. It can avail a party but little to show that a right of way is an appurtenance to a piece of land, unless he proves a legal title to such piece of land. The proof of the title to the land may draw after it the appurtenance as an incident; but proof of an easement as an incident to a lot, does not satisfy the inquiry, who owns the principal, the lot itself.⅛ or that part of it which borders upon the premises dedicated to the use of a way.

The defendant claims under the foreclosure sale of a mortgage executed by Benjamin F. Lee and wife to John Jacob Astor, on the 19th January, 1885. If this be the source and only ground of his title, it must fail. The mortgage does not contain the strip of land in question, and a purchaser under a mortgage sale acquires no other or greater estate than would have vested in the mortgagee, if the equity of redemption had been foreclosed. (2 R. S. 2d Ed. 119, § 164.) The defendant’s deed, not embracing the premises, he has no paper title. Can the other facts and points relied upon by him, help him ?

Hie defendant relies upon the stipulation to the trustees of Mrs. Emily Ward, of the 3d of April, 1840, by which the plaintiff agreed to pay the interest upon the mortgage at the rate of seven per cent, for the term of four years. It is said, that this stipulation was given after the stable was built upon the lot, and was equivalent to a new mortgage which must be taken to cover the property as it. then stood. We cannot see how this stipulation can, legitimately, be held to stretch the mortgage, so as to make it cover the strip in question. It speaks of an existing mortgage on the house and lot, in Lafayette Place; but there is nothing in the stipulation whereby premises other than those described in the mortgage were subjected to its control or operation. There is, surely, nothing in the stipulation indicating even an intention to enlarge the mortgage, in respect to the premises covered by it. The stipulation cannot therefore aid the defendant.

It is urged, that the plaintiff is bound by his recitals in his recorded deeds to the Unitarian church and his mortgage to Isaac Lawrence. As to the latter, which is dated the 12th clay of February, 1840, if that included the premises in question, it proves nothing in favor of the defendant, as he neither connects, nor attempts to connect, himself with it. It is scarcely necessary to add, that in this mortgage, given six years after the date of the mortgage under which the defendant claims, it was competent tor the plaintiff to include, with the lot in. question, all the lands he then owned in the city, without creating, even by implication, in the defendant, a title to land not included in the deed or mortgage under which, he claims.

In the recitals of the deed to the Unitarian church, dated the 13th day of February, 1838, we find nothing that can. prejudice the right or claim of the plaintiff. It bounds the premises conveyed, easterly in the rear by property now belonging to Alexander Maetier, fronting on Lafayette Place, “ and by a strip two and- a half feet in widths taken by Mm from, the said Zed, ¿7, and added, to the lot owned and occupied by him. fronting on Lafayette Placed It is contended, that this shows the fact, that the plaintiff had then annexed the strip in question to the lot covered by the mortgage under which the defendant purchased. Suppose he did, for his own convenience, annex another piece of land to the premises which he or his grantor had previously mortgaged, we have yet to learn, that such an act would so subject such piece to the operation of the mortgage, as to carry it to the purchaser under the mortgage sale. The recitals and description in the deed to the Unitarian church, cannot help the defendant.

Mor can we accede to the soundness of the sixth point taken by the defendant, that the plaintiff himself by building his stable on the rear of the lot, so fixed the boundaries, that a purchaser could not hut believe that the lot built on "was the lot described in the deeds, and that he cannot therefore now, in a court of law, be suffered to allege, that he lias misled the defendant, in regard to the boundaries of the lot.

The defendant assumes that the plaintiff ought to have been present at the master’s sale, and given the purchaser notice of his claim to the strip in question ; and this, upon the principle, that he who does not speak when good conscience requires him to speak, shall ever afterwards remain silent. Whether the plaintiff must be presumed to have been present at the sale, and being present, was obliged to speak, in order to save his right to land not included in the mortgage or decree of sale under which the defendant purchased, are questions that will more properly arise on an appeal to the equity side of the court. Whether the defendant could successfully raise them in equity, it is not necessary or proper for us here to consider ; more especially as we are informed, that he has taken the incipient step towards invoking the equitable power of this court. It is enough to say, for the purposes of this action, that we do not find enough in the defendant’s sixth point to bar the legal right and title of the plaintiff. This we say, without indicating any opinion as to the weight of tins point, when it shall be addressed to the conscience of the court. Suffice it to say, that in this court of law, the legal title of the plaintiff cannot yield to the equitable considerations now addressed to us.

As the title to the alley is not in controversy in this suit, it is needless to inquire, whether the defendant has entitled himself to the benefit of the covenant between plaintiff and Curtis and Lee, as the owner of the adjacent property, or to the reservations in the deed to the Unitarian church. It cannot be held, that this strip of land can go as an appurtenance to the defendant’s lot. Platt, Justice, well remarks, in Jackson v. Hathaway, 15 John. 454, — “ a mere easement may, without express words, pass as an incident to the principal object of the grant; but it would be absurd to allow the fee of one piece of land, not men-tionecl in the deed, to pass as an appurtenant to another distinct parcel, which is expressly granted by precise and definite boundaries.

Motion for new trial denied.


text:
    Cook v. Hill.
    A memorial to the Postmaster General, in reference to the business of his department, e. g. the bidding for contracts which he is authorized to make by law, is a privileged communication.
    So held of a memorial by one who had submitted proposals, protesting against the execution of a contract to another, whose proposals had been accepted, charging upon the latter fraud and collusion with other bidders.
    Such a memorial is not absolutely or unqualifiedly privileged, and if it he proved that there was not probable cause for its statements, the law infers, that it was malicious as well as false, and the writer will he liable for it as a libel.
    If the statements are true, they are not libellous, no matter how maliciously they were made.
    If the statements are untrue, but the memorialist made them in good, faith, believing, or having probable cause to believe them to be true, they are privileged.
    The burthen of proving the want of probable cause, is upon the plaintiff, as in an action for malicious prosecution.
    Absolutely privileged communications are confined to two classes of cases, viz. proceedings in courts of justice, and applications, memorials, &c., presented to the legislature, or growing out of legislative proceedings. And in these eases, the privilege is confined to matters pertinent to the legal or legislative proceedings to which the communication relates.
    Where it appears upon a case, that no exception was taken to the ruling of the judge upon the trial, the party will not be permitted to object to it upon a motion for a new trial.
    The practice of this court stated, in respect of cases made with leave to turn them into bill of exceptions.
    The- power to grant a new trial on the ground of excessive damages, in an action of tort, is sparingly used ; and is not exercised when the amount of the verdict does not shock the sense of the court as to its propriety.
    (Before Oakley, Ch. J., and Vanderpoel and Sandford, J.J.)
    Nov. 13;
    Nov. 24, 1849.
    Tins was an action of libel. The cause of action consisted in certain charges made against Carroll & Cook, a firm of which the plaintiff was a member, in a memorial addressed by the defendant to the Postmaster General, in which he protested against the execution of a contract with the plaintiff’s firm, for furnishing supplies for the Post-office Department, in consequence of alleged fraud on their part in submitting proposals.
    The cause came on for trial before the Chief Justice on the 22d of December, 1848.
    Upon the trial, it appeared, that, on the 24th of November, 1846, the Postmaster General advertised for proposals for furnishing various descriptions of blanks to his department. In accordance with the advertisement, sealed proposals were submitted to the department, among others, by John T. Crowell of New York, Jewett and Thomas of Buffalo, Carroll and Cook of Troy, and bv Isaac Hill and Sons, of which firm the defendant was a member. The bids which were submitted, were opened on the first day of January, 1847, when it was ascertained, that Carroll ’and Cook were the lowest bidders for a large proportion of the states, in which the blanks were to be furnished, and Crowell, and Jewett and Thomas were the lowest bidders for the residue. The contracts were accordingly awarded to those parties on the 10th of January, 1847.
    After the awarding of the contracts, the defendant made a complaint to the Postmaster General, charging tli;u tier, was fraud on the part of the plaintiff's firm, and eolio-i >o m d c->w-nivance between them and some of the other parti*-,. who bad made successful bids. The defendant also ehurg *d. thai ibe plaintiff’s firm forged the bid, which had been put in, in the name of Crowell. It also appeared in evidence, that similar statements had been, made by the defendant to various other parties, and that the defendant had used very harsh language in reference to the plaintiff’s firm.
    The defendant was directed by the Postmaster General to put his charges in writing, which he accordingly did in the shape of the memorial complained of, which was addressed to the Postmaster General, and was signed by the defendant in behalf of the firm of Isaac Hill and Sons. The memorial protested against the execution of the contract to the firm of Carrol] and Cook, and assigned, among others, the following reasons:

      “ Tliere is good reason to believe, that the bids of the said Crowell, and Jewett and Thomas, were entered with no view to their ultimate execution, but for the threefold purpose of affecting and ranging below our aggregate bid, for securing to Carroll and Cook the option, and claim as the next lowest bidder, and with the direct intention of cutting off every bond fide bidder.
    ” 2d. We object further against the acceptance of any bid proffered by the said Carroll and Cook, because there is good reason to believe that the bid of the said Crowell, purporting to be dated at New York, December 26th, 1846, was not at that, or at any other time, written or executed at that place; that Crowells signature with the protended post-marks are simulated and false ; that the said Carroll and Cook, one or both of them, were cognizant of the facts of the simulation and falsification of the paper, and that it was done with the view of cutting off the bids which the firm represented by your memorialist have entered.”
    The memorial was verified by the oath of the defendant, and it demanded an investigation by the Postmaster General of the charges contained in it.
    After the memorial was submitted, copies of it were sent, by the direction of the Postmaster General, to Carroll and Cook, Crowell, and Jewett and Thomas. Crowell thereupon filed with the department an affidavit, and the other parties statements, denying positively the allegations of the defendant, and affirming the entire good faith of their proposals, and the absence of any collusion between the parties. Copies of these statements were submitted to the defendant, who, in return, in a letter to the department, declared, that his opirtion of the correctness of bis charges was thereby confirmed, and requested a further investigation to be made, in the city of New York. It appeared, by the testimony of the Postmaster General and the Assistant, that no official action was taken by the department, to procure the investigation demanded, and that it -was decided, that there was no authority for that purpose ; but the Assistant Postmaster General being about to visit New York, he took with him the papers pertaining to the case, for the purpose of bringing the parties together, and making an informal examination for the satisfaction of the defendant. That this was done, however, without the authority or direction of the head of the department. who simply expressed a willingness that it might be done for the defendant’s satisfaction. That, accordingly, a letter was addressed to the plaintiff’s firm, desiring their attendance for the purpose of such examination. That the examination was proceeded with on the 23d of March, 1847, and resulted in the failure of any evidence to sustain the allegations of the memorial.
    The Assistant Postmaster General testified, that at the time of the proposals being submitted, he knew of no reason for suspecting the fraud or collusion charged by the defendant; and that he had so informed the defendant at the time. It. also appeared that the head of the department had assured him there were no grounds for the suspicions he entertained.
    There was some testimony to the effect that copies of the memorial of the defendant were exhibited by him to individuals not connected with the department; though the evidence of this was somewhat vague.
    Evidence was given of the good faith of Carroll and Cook in the affair, and the absence of all fraud or collusion between the parties mentioned in the charges of the defendant. After the plaintiff rested, the defendant’s counsel moved for a nonsuit, on the ground that the memorial in question was a privileged communication, and that no action would lie upon it without express proof of malice and want of probable cause, to be given affirmatively by the plaintiff, and that no such proof had been made ; which motion was denied.
    On the part of the defence, some evidence- was adduced to show the similarity and general resemblance between the handwriting of the proposals submitted by the plaintiff ’s firm and by Crowell, who were the successful bidders. Mr. Burke, the late commissioner of patents, testified that at the time of the opening of the proposals, the defendant had requested him to examine them, stating that his suspicions were excited in consequence of the strong resemblance between them, Crowell’s and Carroll and Coot’s; and that the witness had examined them attentively, and was led to the same conclusion as the defendant, and had advised him to institute an investigation. That upon the termination of the investigation in New York, the defendant had expressed his entire satisfaction of the incorrectness of his charges, and his acknowledgment of his mistake.
    The evidence here closed, and the court charged the jury—
    1. That the memorial in question was, under the circumstances, a privileged communication, and that malice is not to be presumed, and therefore that the defendant was not liable for presenting it to the Postmaster General, unless the jury should find that he had no reasonable or probable cause for the statement made by him. 2. That if the jury should believe that the memorial was shown by the defendant to any other person than the Postmaster General, and those official characters connected with the government post office, then he is liable on that ground.
    And with these directions the judge left the case to the jury; who returned a verdict for the plaintiff for six hundred dollars damages. The defendant moved for a new trial on a case.

      W. C. Noyes, for the defendant.
    I. The memorial having been addressed to a public officer, to whom was confided the duty of giving out post-office contracts, was an absolutely privileged one, and no action was sustainable upon it, even if the statements contained in it were untrue, and were made without probable cause. (Thorn v. Blanchard, 5 John. R. 508; Lake v. King, 1 Sauncl. E. 131; Cutler v, Dixon, 4 Coke R. 14; Bex v. Bailie, 2 Esp. N. P. Ed. of 1820, by Gould; Bac. Abr., Libel, A. 2; 5 Bos. & Pull. 341, Jekyll v. Moore; 2 Tyler’s R. (Vt.) 129, Harris v. Huntington; 2 S. & R. 23, Cray v. Pentland'.) The distinction is, that where the matter alleged is immaterial, the party is liable. But if material, no matter how false or malicious, it is not the subject of an action of libel.
    II. But if the action was maintainable at all, the plaintiff should have been non-suited, there not having been, at the time the plaintiff rested, nor at any other time, any proof of malice, or want of probable cause. (12 Wend. 545, Vanderzes v. Mc-Gregor; 21 Wend. E. 319, Howard v. Thompson / 2 Car. & Erevan, 4, James v. Boston.)

    III. The charge of the judge was erroneous. 1. Because it omitted to direct the jury in regard to the question of malice, without the existence of which no action could be sustained. 2. The jury were liable to be misled by the charge, as it did not state all the requisites to sustain the action, even if it was maintainable at all. 3. It was also erroneous in submitting to the jury the question whether the. memorial had been shown to any other person than the Postmaster General and the other government officials, leaving it to be implied that if it had been shown to the person claimed, the defendant would be liable, which under the circumstances disclosed was incorrect; as it was exhibited to him, if at all, in connexion with inquiries defendant was making as to the matters stated in it, and in perfect good faith. The whole charge is open for review upon a case. (4 Wend. 514, Ilubbell v. Archer.)
    IV. The verdict was against evidence, and the damages excessive.

      S. J. Tilden,, for the plaintiff.
    I. If the facts alleged to show the existence or absence of probable cause are disputed or doubtful, the question belongs to the jury. If those facts are numerous and complex, and without prominently distinctive characteristics, from which, by some rule of law, the inference of probable cause can be established or excluded, the question should properly go to the jury. (1 Stark on Slander, by Wendell, 2-79, and note e; 1 Stark on Ev. 472, note p.)
    Conditionally privileged communications, are such as where the character of servant or a trader is given. The action is in form, that of libel; in proof, it resembles that of malicious prosecution.
    This is a case of a conditional privilege, not an absolute one. (1 Stark on Sland. by Wendell, 219, note 1; 21 Wend. 319, 328;
      Fairman v. Me, 5 B. & Aid. 647.) No case is to be found, where the application or communication was made to an executive or administrative officer, and it was decided that the party attacked cannot sue in libel.
    II. The question of malice, which arose on the testimony, both as to technical malice in fact and actual ill will, necessarily went to the jury.
    III. In malicious prosecution, on a communication absolutely privileged from the action of libel; and a, fortiori in libel, on a communication but conditionally privileged, proof of the want of probable cause is sufficient to sustain the action ; for the jury may imply malice from the want of probable cause, though want of probable cause will not be implied from malice. (Murray v. Long, 1 Wend. 142; Johnson v. Sutton, 1 Term It. 544, per Lords Mansfield & Loughborough; 2 Stark on Ev. 495, and cases cited; 2 Wheat. Selwyn, 1080-1083, note 1, and 1889, and case cited ; 2 Saund. PI. 194, 200.) The express malice spoken of in some of the cases as necessary to be shown, is malice proved or implied from facts other than the mere publication, and which the jury may infer from the want of probable cause or other circumstances, as contradistinguished from the malice in law, which is implied from the mere publication. (White v. Nichols, 3 How. tí. S. 291; 1 Stark on Sland. 189, and Prelim. Disc. 75, 76, note j.)
    IV. The proof of the want of probable cause and of malice, was sufficient, not only to go to the jury, but to sustain their verdict. 1. Probable cause is a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves, to warrant a cautious man in the belief that the person accused is •guilty of the offence with which he is charged. (Manns v. iW mours, 3 Wash. O. C. B, 37; For shay v. Ferguson, 2 Den. 619.) 2, Belief, however strong, if the person is innocent, and lias given no just occasion for suspicion by his own misconduct, is not sufficient. (Merriam v. Mitchell, 1 Shep. 439; see also JTelbnm v, Stearns, 4 Dana 120.) 2. Proof of the want of probable cause being negative, very slight evidence is sufficient to throw the onus upon the defendant. (Cotton v. James, 1 B. & Add. 133.) 4, Proof that the charge was without foundation, is primA facie sufficient to show the want of probable canse, and from that, malice may be inferred. (Burley v. Bethune, 5 Taunt. 583.)
   By the Court.

Oakley, Ch. J.

The defendant moves for a new trial, on several grounds.

1. The first which we will notice, is that the jury have given excessive damages. Although the court has the power to grant new trials on this ground, it is one that is sparingly used, and we see no reason for its exercise in this case. The amount of the verdict does not shock the sense of the court as to its propriety, and we cannot disturb it.

2. It was contended that the verdict was clearly against the weight of evidence. ¥e have considered this objection, and without going into detail, it suffices to say, that we think the verdict is not assailable on this ground.

3. We next come to the points of law ruled at the trial. It was there contended, and the point, was embodied in the motion for a nonsuit, that the memorial complained of as being a libel, was a privileged communication, upon which no action would lie, without express proof of malice and want of probable cause, to be given affirmatively by the plaintiff, and that no such proof had been made.

We are of opinion, that sufficient proof of the want of probable cause had then been given. At all events it was enough to go to the jury for their consideration.

As to the other branch of the proposition, that the memorial was a privileged communication, the judge took the view of it contended for by the plaintiff, and charged the jury accordingly, when he submitted the cause to them. We deem that to be the true rule of law applicable to the case. The postmaster general was a high executive officer of the government, charged with important public interests ; and it was the right of the defendant and of every citizen, to make a representation to him and to the subordinate officers under him, in relation to the business of his department, and the bids for contracts and other dealings connected with such business.

On the argument of the motion for a new trial, the defendant’s counsel assumed much broader ground, and claimed that the memorial in question was an absolutely privileged communication, for the publication of which, the defendant under no circumstances could be liable in an action for a libel. Although this point was not taken at the trial, and does not strictly arise in reviewing the decisions there made, we are inclined to put it in the way of being rectified, if the point be tenable. We have therefore examined the matter and considered it fully, and we are clearly of the opinion, that the memorial was not an unqualified or absolutely privileged communication.

In order to clothe it with the privilege accorded to publications of this class, it must appear to have been made in good faith, believing the statements which it contains to be true, or having probable cause to believe them to he true. The action upon it is thus assimilated to an action for malicious prosecution, where the want of probable cause is to be proved by the plaintiff. He is to make out, that ground of Ids action by proper evidence. It often happens that slender proof on his part is enough to throw the burthen of proof on the defendant. Such was the case in this suit. The plaintiff, when he, iv-md, had given evidence, tending to show the absence of probable cause on. the part of the defendant to make the charge contained in the memorial, and sufficient, if not rebutted, to warrant a jury in finding that such cause did not, exist.

We were referred to a great variety of adjudications, as well as to tlie opinions of judges, and the treatises on this subject.

We are not much inclined, after considering the authorities, to extend the doctrine of absolutely privileged communications. We shall conform to the settled rule, as far as the law has carried if; but we shall go no further.

In England, as well as here, this doctrine of absolute privilege, is confined to two classes of cases. First, To proceedings in courts of justice. Secondly, In England, to parliamentary proceedings; and by analogy to our legislative proceedings. The latter class originated in England, in the fact that parliament was considered the high court of justice in the kingdom. The privilege was applied to legislative bodies in this country, without the existence of the reason which induced it there.

The doctrine has not been extended here, beyond legal proceedings ; and applications, memorials, and similar matters presented to the legislature or growing out of legislative proceedings. And in all these cases, the privilege is confined to matters pertinent to the legal or legislative proceeding, to which the comm uni cati on r el ates.

The other class of privileged communications, for which there is no absolute privilege, is very extensive. Thus, an application to the appointing power, in respect to a candidate for a public office, is an illustration. It is privileged, in a certain way. In order to make the writer or publisher liable, it must appear that he acted maliciously and without probable cause. If there were no probable cause for the communication, the law implies that it was made with malice. If, however, it appear that there was probable cause, the communication is privileged; no matter how much actual malice dictated it.

To apply these principles to tins case. The defendant had a perfect right to submit this memorial to the postmaster general; and it is of no consequence what were his motives, if he had probable cause for the statements which it contained.

The question was submitted to the jury whether he had such cause ; they have found against him, and we perceive no good reason for disturbing their conclusion.

4. An exception was taken at the trial, that the judge had no right to submit to the jury, the question whether the memorial was shown by the defendant to any person other than the postmaster general, and those official characters connected with the general post-office, on the ground that there was no evidence to sustain that allegation.

As to this exception, there was evidence given, tending to show that the defendant did exhibit his memorial to a person not in the post-office department. It is true, the testimony of the witness examined to this point, was somewhat vague ; but it was proper for the consideration of the jury, and it is not so indefinite that we could interfere with their verdict, if we believed it to have been given on this grounds alone.

It should be observed, that no exception was taken to the charge at the trial; and we think, according to correct practice, the defendant is not at liberty to take his objection for the first time upon a motion for a new trial.

It is said that the practice of the late supreme court authorized a party on a case, to raise any point which the case disclosed, whether it were taken at the trial or not. That may have been so, but it never was the practice in this court. At an early period, we adopted the course of combining a case and bill of exceptions. The history of the trial was presented in the form of a case, because the evidence would then be before us for review in respect of the verdict; while the leave reserved, expressly or tacitly, to turn it into a bill of exceptions, saved the parties all ulterior remedies. We never intended by that practice, to allow an exception to the charge of the judge to be made for the first time at the argument.

It is said by the defendant, that something was omitted by the judge in his charge, which ought to have been given to the jury. If this were so, (which we cannot, perceive,) the defendant should have brought the matter to the judge’s notice at the trial, and then taken his objection, if the jury were not instructed accordingly.

The main point of law involved in the case and presented at the trial, was ruled in the defendant’s favor; and the jury having found against him on the facts of the case, we cannot interfere with their verdict.

Motion for new trial denied.