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tion of ejectment brought by the heirs of B. against C., who had been in possession since 1772, it was held that a grant from the original patentees to B. was to be presumed; that entry, by him, into part with a claim to the whole, was to be considered as an entry into the whole ; and that the entry
of C. was in subordination to the title of B. Patents and grants are in a variety of cases to be presumed even within the
time of legal memory for the sake of quieting an ancient possession. Per
Kent, J. The American revolation worked no forfeiture of previously vested rights in
lands. Where a British subject died seised of lands in this state, in 1752, leaving daughters in England, who married British subjects, and neither, they, nor their wives, were American citizens; it was held that the husbands of the heiresses might be joined in a demise with their wives, iu order to maintain an action of ejectment ; and that even if the marriages were subsequent to the American revolution, such marriages with aliens would not impair the rights of the wives, nor prevent the full employment of the property, according to the laws of the marriage state ; especially afier the provision contained in the ninth article of the treaty of amity and
commerce with Great Britain, of the ninth November, 1794. The court will not intend a disability. It lays with the party interested to
show it. Per Kent, J. Though in case of a purchase, the law will recognize the title of an alien in
lands, until office found; yet in case of a descent, the law takes no notice of an alien heir, on whom, therefore, the inheritance is not cast. But where the title of land in this state was acquired by a British subject, prior to the American revolution, it seems, that the right of such British subject to transmit the same, by descent, to an heir, in esse, at the time of the revolution, continued unaltered and unimpaired; the case of a revolution or division an empire, being an exception to the general rule of law on this subject. The objeclion of alienism is not to be favored.
Jackson ex dem. Gansevoort v. Lunn, 109, 539.
II. Buying and Selling precluded. 2. A note for the purchase of Susquehanna lands, under the Connecticut
title, received by the plaintiff with notice of the consideration held illegal, in the hands of such plaintiff according to the case of Dole ads. Woodworth, decided in the court of errors in March, 1800.
Whitaker v. Cone, 478. See vol. 1, p. 58, 60, n (b.)
In trespass, probable as well as actual damages may be recovered, hut if at
tended with an ouster, there must be regress or re-entry, otherwise damages for the first entry ovly can be recovered.
Verdict set aside, but the court said if the plaintiff would accept nominal damages only, they would give him judgment.
Case v. Shepherd, 476. See vol. 2, p. 27. See LANDLORD AND TENANT.
TROVER CONVERSION-EVIDENCE OF.
In trover. Goods in the hands of a master of a ship are liable to be detained
for freight; but if he refuse to deliver them on a ground wholly different, without deinanding the freight, it is evidence of a conversion.
Judah v. Kemp, 535. See vol. 2, p. 411.
1. That the purchase of an agent for the plaintiff, and a deed to him creates
a resulting trust for the plaintiff, not within the statute of frauds, and that the possession of the defendant is not to be deemed adverse to the purchaser without an actual disseisin or ouster.
Jackson, ex dem. Kanes v. Sternbergh, 440. See vol. 1, p. 153. 2. Io an action of debt on a bond, against the surety for two guardians, ap
pointed by the court of chancery, that they should faithfully execute the trusts respectively reposed in them, according to the terms of the order in chancery appointing them, and render a true and faithful account thereof
when required. Where one of the guardians died, it was held, that the trusts survived, and
that the surety was responsible for the acts of the surviving guardian ; the
bond being co-extensive with the trusts. A guardian appointed by the court of chancery has a vested interest in the
estate of his ward ; he may bring actions relative thereto, and make avowry in his own name, and may also make leases during the minority of the infant; he has in all respects the dominion, pro tempore, of the infant's estate.
Per Radcliff, J. and Kent, J. The trust of such a guardian likened to that of an administrator. Per Rad.
cliff, J. and Kent, J. The People v. Byron, 53. Seo 531, 574. Cases and authorities, 60, n. (a.)
The trustees sold all the right of the company in lands, to part of which the
title failed; held, that they are not liable to refund the consideration money ;
caveat emptor. Murray v. The Trustees of the Ringwood Iron Co. 507. See vol. 2, p. 278.
USE AND OCCUPATION.
An action for use and occupation is founded on the privity of contract, and The venue being laid in New York, is not of course to be changed on account of the supposed influence of the plaintiffs. Corporation of New York v. Dawson, 516. See vol. 2,
is not local.
I. What is—Effect of Nature of the Defence—New
trial when verdict against Law. II. Feigned Issue to try question of.
I. What is-Effect of Nature of the Defence-New trial
when verdict against Law. 1. An usurious contract, in pursuance of the act of the legislature, considered
immoral and corrupt. A loan of money on usury although covered by other names in the form of
an accommodation note indorsed, &c., is equally against the statute. Not considered as an unconscientious defence, and new trial granted.
Jones v. Hake, 481. See vol. 2, p. 60. 2. Usury may exist in a security for a pre-existing debt. An executory contract for the sale of land in Massachusetts ; the land lying
here, and one of the parties residing here, and the title retained as a security, and the parties having an express view to the interest of this state, will not be usurious, although more than Massachusetts interest was reserved, but not exceeding New York interest.
Van Schaick v. Edwards, 519. See vol. 2, p. 355. 3. Usury consists in extorting or taking a rate of interest for inoney, beyond
what is allowed by law. It is not necessary that money should be actually advanced, in orde to constitute the offence of usury, but any pretence of contrivance whatever, to gain more than legal interest, where it is the intent of the parties to contract for a loan, will make that contract usurious.
Per Thompson, J. Proof of usury generally depends on circumstances, and where those circum
stances are so strong as to produce absolute conviction in the mind, they are certainly entitled to as much weight as positive and direct testimony.
Per Thompson, J. When a contract is usurious in its inception, no subsequent transactions will
cure it; but if the original contract is not usurious, nothing done afterwards
can make it so. Per Thompson, J. If a promissory note is given for a usurious contract, it is absolutely void, dence, notwithstanding the opinion of the court, found a verdict for the plaintiff, and the court set aside the verdict, as against law, and granted a third trial. Wilkie v. Rosevelt, 206, 166, 532, 548.
even in the hands of an innocent person, who has taken it in the fair and
regular course of trade, without knowledge of the usury. In an action on a promissory note, the desence was usury, and the judge, at
the trial, charged the judge that the note was usurious, and that they ought to find for the defendant ; but the jury found a verdict for the plaintiff; and the court afterwards set aside the verdict, and granted a new trial. On the second trial, the jury, on substantially the same evi.
II. Feigned Issue to try question of. 4. After a judgment is assigned to an innocent third party, the court will not
award an issue at the instance of a defendant, to try the fact of usury al
leged by him to impeach it. After notice of an assignment, satisfaction was acknowledged and enter
ed of record; ordered, that the same be vacated, and the parties be left in statu quo as to the claims of the assignee. The court will thus take notice
of the rights of an assiggee. Wardel v. Eden, 500. See vol. 2, p. 258. 5. A feigned issue awarded to try the fact of usury, a judgment having been
entered by confession on a warrant of attorney, accompanying the bond, &c. Gilbert v. Edens, 501. See vol. 2, p. 280.
In error from the common pleas of Albany. A variance between the sum reported by referees and the judginent entered thereon, is fatal. Reversed.
Stafford v. Van Zandt, 484. See vol. 2, p. 66.
1. The venue in debt on a judgment in a county court, changed to the
county where it was given. Barnes v. Kenyon, 514. See vol. 2, p. 381.
2. An action for use and occupation is founded on the privity of contract, and
and is not local. The venue being laid in New York, is nut of course to be changed on account of the supposed influence of the plaintiffs.
Corporation of New York v. Dawson, 516. See vol. 2, p. 335.
HII. When charged.
3. In assumpsit where the count is general, the venue will not be changed
on a general affidavit, the special matter or cause of action must be shown,
&c. and where it arose, &c. Wheaton v. Slosson, 470. See vol. 2, p. 111.
See Supra, Corporation of New York v. Dawson.
4. Motion to change the venue founded on an affidavit that the action was
brought on a special agreement, and otherwise in the usual form, granted notwithstanding an affidavit by plaintiff that the cause of action arose in a third county where the venue was not laid, and the objection that the narr. contained money counts only. The special agreement may still be given
in evidence, if it was rescinded, &c. Weaver v. Bentley, 447. See vol. 1, p. 240.
See AFFIDAVIT. PRACTICE.
1. A special verdict offered, being wholly incompetent, was properly refused. The court may dismiss a jury in a case of misdemeanor, where it appears after a full experiment that they cannot agree.
The People v. Olcott, 512. See vol. 2, p. 301.
II. What cured by.
2. After verdict, a mistake in dates in the narr. is not essential.
Allaire v. Ouland, 478. See vol. 2, p. 503.
See WRIT OF RIGHT.
I. Construction of-Legacy-Interest— Witness.