Reports of Cases Argued and Determined in the Supreme Court of Judicature, and in the Court for the Trial of Impeachments and the Correction of Errors of the State of New York [1828-1841]

4. Where the alteration in a deed is ma-
terial, the party seeking to enforce it,
is bound to give some explanation as
to the apparent alteration, even if the
deed be of more than 30 years stand-
ing, and is offered in evidence with-
out proof, as an ancient deed. So it
seems, explanation may be required
where the deed is proved without pro-
ducing and examining the subscribing
witnesses; and if it be not given, a
jury will be warranted in finding in
opposition to that part of the deed ap-
pearing to be altered, if the apparent
alteration be of such a character as to
create a strong suspicion that it had
been fraudulently made.
id

5. It seems, however, that where there
is a mere interlineation in a deed with-
out any thing to excite suspicion that
it was not made at the time that the
deed was drawn and executed, the
reasonable presumption is, that it was
made before the deed was executed.
id

of St. Lawrence. Senator VRRPLANCK,
in delivering his opinion for affirm-
ance, concurs in the views of the
Chancellor as set forth in 6 Paige, 327,
et seq. that this case cannot be con-
sidered within the meaning of the act,
but dissents from the opinion of the
chancellor in an important particular:
holding that it is not competent to the
legislature to pass an act declaring a
deed, which previous to the passage
of the act was a good and valid con-
veyance of lands, fraudulent and void
unless recorded previous to the re-
cording of a subsequent deed or con-
veyance obtained by a bona fide pur-
chaser or mortgagee. Varick's ex'rs
v. Briggs.
543

4. The rule that to be valid, a will or
other writing must be certain in itself,
applies only to such particulars, as do
not in their own nature refer to any
thing dehors the instrument in ques-
id

tion.

The publie have not the right, against the will of the owner, to use and occupy his soil adjoining navigable waters, as a public landing and place of deposit of property in its transit to and from vessels navigating such waters, although such user has been continued upwards of twenty years, with the knowledge of the owner.* Post v. Pearsall,

425

*When this question was before the VICE CHANCELLOR of the first circuit, he held that the inchoate right of dower would not be barred by a sale in partition, although the wife was made a party to the suit. The CHANCELLOR however, on appeal, held that such right would be barred, and that the interest of the wife may be protected by the court by an investment of a portion of the proceeds of the sale, equal to the value of her interest in the land. In the court for the correction of errors but two opinions were delivered, and upon this question, the members of the court who delivered the same differ; Judge BRONSON doubts whether the right of the wife would be barred, and questions the authority of the courts to direct investments for her indemnity; whilst on the other hand, Senator VERPLANCK fully concurs in the view of the chan-held that the principle of dedication of

cellor.

DRUNKARDS.

*The supreme court held, when this case was before them, that the doctrine of dedication of highways, streets and other easements in nature of public ways, did not extend to public landings. The judg ment of that court was affirmed in the court for the correction of errors. Opin. ions were delivered by five of the members of the court; four for affirmance and one for reversal of the judgment of the supreme court. The CHANCELLOR and Senators EDWARDS and LIVINGSTON

highways and of streets and public squares in cities and villages did not extend to public landings, and therefore they were in favor of affirming the 1. Long continued inebriety, although judgment below. Senator VERPLANCK, resulting in occasional insanity, does although concurring in the judgment of not require proof of a lucid interval to affirmance, held that the principle of give validity to the acts of the drunk- dedication of highways and streets apard, as is required where general in-plies to every use or easement in land, sanity is proved on a question of de. which can be of any service, convenivisavit vel non. Where the indul- euce or pleasure to the community at gence has produced permanent de- large, and that consequently public rangement of mind, it would be other-landings are the subjects of dedication. wise, it seems. Gardner v. Gardner, He however further held, that user alone, though admissible as evidence in corroboration of other proof of actual dedication by the declarations or acts of the owner of the soil, is not enough in itself to warrant the presumption of a dedication of easements, other than highways, streets and places in nature of public ways. Senator FURMAN agrees with Senator Verplanck as to the extension of the principle of dedication; but goes

526

2. The act of a party addicted to intemperance, in disposing of his property, will not be invalidated on the ground of undue influence exercised over him by the inmates of his family, where the influence arises from kind offices springing from attachment or affec.

farther and holds, that proof of a continued user by the public of the soil of an. other for the term of twenty years, for any beneficial purpose, with the knowledge of the owner, is sufficient to warrant the presumption of a dedication, unless rebutted by evidence on the part of the owner that the use was permitted by mere license revocable of course at the will of the owner, or by other evidence showing the absence of intention on his part to dedicate the land to public use, so as to deprive himself of the power of revocation.

EJECTMENT.

On a motion for a second trial in eject. ment, the opposite party is not entitled to costs for appearing to oppose, where no defence is made to the motion. Ford v. Walsworth, 657

See PLEAS AND PLEADINGS, 2. LANDLORD AND TENANT, 4.

ERROR.

1. Error will not lie for a misjoinder of counts, in a declaration, e. g. adding a count in assumpsit to one in covenant, after issue has been taken upon each count and a general verdict found for the plaintiff; the defendant, if desirous to take advantage of the mistake of his adversary, should have demurred. Lovett v. Pell, 369

See ACTIONS IN GENERAL, 3.

2. A special assignment of errors that the issues joined were not tried, is bad, as impeaching the record; a plea of in nullo est erratum to such assignment, operates as a demurrer, and not as a confession of the fact assigned 1. Although as a general rule a verdict

as error.

3. Causes of action may be joined in a declaration which are of the same nature, admit of the same plea, and in which the same judgment can be rendered; and sometimes they may be joined though not admitting of the same plea; for instance, debt on bond may be joined with debt on judg. ment. Per Chancellor Walworth, id

4. Bail as a condition of staying execution is not necessary in suing out a writ of error to review a judgment of this court in a case arising on mandamus. In such case and in all others not

EVIDENCE.

and judgment in one cause, cannot be given in evidence in another cause, unless it be between the same parties and for the same matter, still in an action by A. against B., for money had and received, it is competent for the plaintiff to give in evidence a verdict and judgment in a suit by B. against A. and C., to rebut proof that the money claimed was appropriated to the demand of B. against A. and C., and to show by parol proof that in the action against A. and C.,the whole demand of B. was claimed, and no credit given for the money now sought to be recovered. Walsh v. Ostrander,

178

TICE, 3, 5, 6.

5. Whether a defendant who omits to See LANDLORD AND TENANT, 3. PRAC-
file such bill of discovery, during the
pendency of the suit at law, can sub-
sequently file a bill in chancery for
relief, quere.

id EXECUTORS AND ADMINISTRA-
TORS.

6. Judicial proceedings may be given in
evidence as circumstances from which 1.
to infer a given consequence, without
that concurrence as to identity of
parties and of subject matter which
works a technical bar. Van Rensselaer
v. Akin,
549

Where notice to creditors to ex-
hibit their claims has not been pub-
lished by an executor or administra-
tor, a plaintiff who recovers judgment
against an executor or administrator
in a suit at law is entitled to costs as
in other cases without showing that
the demand was unreasonably resist-
ed or neglected, or that the defendant
refused to refer the matter in contro-
versy; nor is it necessary in such case
to produce the certificate of the circuit
judge before whom the cause was
tried, or other evidence in other cases
to enable the court to determine whe-
ther the costs shall be awarded against
the property of the defendant or of
the deceased. It is enough in such
case to show that the notice to exhibit
claims had not been published. Har.
vey v. Skillman's executor,
571

The costs to which a plaintiff is thus
entitled are awarded de bonis testa-
toris.
id

An executor or administrator is not
entitled to the protection of § 41, un-
less he has complied with the require-
ments of the statute, in giving notice
&c., nor can he be charged with
costs personally unless he has given
such notice and is subsequently in
fault.
id.

4. Costs were refused against administrators who had suffered a judgment by default, notwithstanding that the creditor had presented his claim within the prescribed period, made affidavit of the existence of the debt, and offered to refer, where it appeared that the administrators admitted their liability, but requested a suit to be brought against a co-maker of the note, the claim in question, for whom they alleged the intestate had become bound solely as surety, offering to pay any deficiency there might be af. ter the prosecution of such suit. Doan v. Hine's adm'rs, 639

face of the order, that the third commissioner was duly notified to attend the meeting of the board, and apprised of the purpose for which he was required to attend. Fitch v. Commissioners of Highways of Kirkland, 132

2. Although an order be void, it may be treated as voidable merely, and a cerid tiorari brought to quash it.

A certificate of a jury finding an encroachment upon a highway, must, in the language of the statute, state the particulars of such encroachment: alleging the encroachment to exist according to the last survey of a person named in the certificate, without annexing the survey, or referring to it as on file in a public office, is not a compliance with the act. id

Whether such a certificate can properly be returned by the commissioners on certiorari to them, or whether the writ should not have issued to the town clerk, and the certificate been returned by him, quere.

See EASEMENTS.

HUSBAND AND WIFE.

1. A feme covert may contract a debt in regard to her separate estate, and may even become the debtor of her husband, for money borrowed of him to improve such estate; and payment of the debt thus contracted will be enforced in equity as a lien upon the estate, unless by the terms of the donation the feme be prohibited from charging the estate. Gardner v. Gardner, 526.

2. A debt thus contracted by the wife, may be discharged by a donatio causa mortis, as by the declaration of the husband that the money was hers, and by destroying the bond, the evidence of the debt. id

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Reports of Cases Argued and Determined in the Supreme Court of ..., Volume 22