to A., some of the articles to B. and some to C. Verdict guilty. Motion for a new trial. Per Cur. Nott, J. The inference conveyed to the prisoner's mind by this indictment, is, that the property belonged jointly to A., B. and C.; whereas, upon the evidence, it appeared to be their separate property, and the defendants could not know they were charged with distinct offences until it came out in evidence. Motion granted. The owner ship of the be stated, 3. COMMONWEALTH V. MORSE, July T. 1817, 14 Mass. Rep. 217; The indictment charged the defendant with stealing the goods goods must of one Leonard, who, it appeared, was the servant of a deputy laying them sheriff. The judge charged the jury that it was sufficient evias the prop dence of special property in Leonard. erty of a ser vant is bad. Per Cur. Parker, C. J. The allegation of property in the indictment is material. It appears by the books on criminal law, that, in all indictmen ts for larceny, the articles alleged to be stolen must be averred to be "of the goods and chattels" of the right owner, if known or of the goods and chattels cujusdam ignoti, which form of indictment contains an implied averment that the owner is not known. The same principle was decided in Norton v. The People, 8 Cowen's New-York Rep. 137, where the above cases were recognized. And the notes or 4. STEWART V. THE COMMONWEALTH, May, 1818, 4 S. & R. 194. The indictment charged that the said "Stewart, with force and bank bills arms,took sundry promissory notes, for the payment of money' of stolen must the value of eighty dollars of the goods and chattels of the said be properly described. Abraham Miller, did steal, take and carry away." Verdict guilty, and a motion in arrest of judgment. Per Cur. Duncan, J. The judgment must be reversed, because it does not appear by the indictment that any felony was committed. The notes should have been more particularly de scribed, and it should have been set forth that the money was unpaid on them. VII. OF THE EVIDENCE. 1. THE STATE V. BENNET, Jan. T. 1815, Const. Rep. Tread. Ed. p. 692; STATE V. SPURGIN, 1 M'Cord's S. C. Rep. 252; STATE V. SLACK, 1 Bailey's Rep. 330. are not con the witnes Per Cur. Nott, J. The question is, whether the jury may The jury find a prisoner guilty of pettit larceny, where the property stol- fined to the en is proved to be of greater value than twelve pence. How-value set by ever absurd it may appear, that a jury who are sworn to deter-ses. mine a case according to the evidence, should be authorised to find goods stolen of less value than twelve pence, when all the witnesses swear they are of much greater value. It is what Judge Blackstone calls a pious perjury, which they have been indulged in until it has become the law of the land. 2. STATE V. WESTON, June T. 1833, 9 Conn. Rep. 527; S. P., Possession of stolen goods is pri Per Cur. Peters, J. It is a well settled rule that the possession of stolen goods is prima facie evidence that the possessor is the thief, and throws on him the necessity of accounting for ma facie evi his possession. 3. dence of lar ceny. THE PEOPLE V. BURKE, January T. 1834, 11 Wend. Rep. 129. Burke was convicted of a grand larceny in having stolen mon- The rule on ey in the county of Monroe; and upon the evidence it appeared possession the money was stolen in York, Upper Canada. by the thief of articles abroad. It was objected that the court had not jurisdiction of the of- stolen fence, as the prisoner was a citizen of the province of Upper Canada, and the offence was committed there. Verdict guilty, and suspension of sentence to take the advice of the supreme court. Savage, C. J., held the conviction proper. That the case was embraced by our statute; 2 R. S. p. 698, §4. That the common law recognized the principle, that possession of stolen property in contemplation of law remains in the owner, and the thief is guilty of theft in every place where he carries the stolen goods. There are various decisions on this point, but the prevailing practice is, where the felony is committed out of the state, to consider the prisoner a fugitive from justice, and to decline jurisdiction of the case; People v. Gardner, 2 Johns. Rep. 477: and see 2 Mass. Rep. 14; Commonwealth v. Andrew and also, : 1 Mass. Rep. 116, in accordance to the above opinion. The contrary was held in Simmons' case, 5 Binney's Rep. 617. Lease.* I. DEFINITION OF, p. 400. II. WHO MAY BE LESSOR OR LESSEE, p. 403. III. FORM AND NATURE OF A PRESENT DEMISE, p. 403. IV. ASSINGNMENT OF LEASES, p. 404. V. TERMINATION OF, 407. VI. CONSTRUCTION OF, p. 407. Whether the instru ment be a lease must pend upon the inten tion of the parties. I. DEFINITION OF. 1. THORNTON V. PAYNE, Nov. T. 1809, 5 Johns. N. Y. Rep. 74; HALLETT V. WYLIE, 3 ib. 44; MICKIE V. Ex'RS OF WOOD, 5 Rand. Va. Rep. 571. This was an action of covenant. The declaration stated, that by certain articles of agreement, mainly de dated the 7th January, 1806, between the plaintiff and defendant, the defendant bargained, covenanted and agreed with the plaintiff, that he would let and hire to him a certain farm, &c. for the term of six years, from the 1st of April, 1807, and ending the 1st of April, 1813, on condition, and in consideration that the plaintiff should pay the defendant $250, on the first day of April in each and every year, during the said term. Per Cur. Spencer, J. The case rests on this; whether the article is a lease in presenti, or an agreement for a lease. Without recurring to cases in the English reports, all the principles A lease for years is a contract between the lessor and lessee. The lessor contracts that the lessee shall enjoy the land for a period of years, and the lessee agrees to render to the lessor a rent in money or other valuable things at stated periods during the term. Rent is not essential to the contract, because from favor or for valuable consideration given to the lessor at the time of making the lease, a lease beneficial in its nature to the lessee may be made without reserving any rent; 12 Petersdorff's Abr. 93. It has been said, that goods and chattels may be demised for years; the term seems rather to be improperly applied to such contracts. But since in the leases of farms and houses, it has been found convenient to include the live stock and farming implements upon the land, and the furniture and other chattels of the house in the contract, they have acquired, to a certain degree, a demisable quality; but the interest which passes to the lessee is entirely different from that which is transferred by a lease of land, houses, or other hereditaments. Vide further as to leases til. Landlord and Tenant ante, p. 371. applicable to this case, have been settled in this court. It is a cardinal point, determining whether contracts between parties, in relation to letting, are leases, or agreements for leases only, to seek for the intention of the parties from the whole instrument. The case of Hallet v. Wiley, 3 Johns. Rep. 44, was one of great hardship on the defendant, who was prosecuted for the rent of a house in New York, accruing after its destruction by fire, without any blame imputable to him; and the court reluctantly gave judgment for the plaintiff, adjudging the instrument between the parties to be a lease, though it purported on the face of it, to be only a memorandum for a lease; by which the plaintiff agreed to let or lease the house, for the term of four years, on a specified rent. In making that decision, the court was governed by the fact, that there was nothing in it to show that the parties contemplated any further assurance; and it was there held, that the words implied a present demise; the period for which it was to be held, and the rent being definitely and accurately stated. The only circumstance differing this case from that is, that there the lessee went into possession under the instrument. But that alone cannot give a different effect in the articles now under consideration. I will barely observe, that in every case decided in the English courts, where argeements have been adjudged not to operate by passing an interest, but to rest in contract, there has been either an express agreement for a further lease, or construing the agreement to be a lease in presenti would work a forfeiture, or the terms have not been fully settled, and something further was to be done. In the present case, the words imply an immediate demise; there is no stipulation for a further lease; the term, the rent, and the manner of occupying the farm, are all explicitly stated. We are, therefore, of opinion, that the plaintiff acquired by the articles, all the rights of a lessee, from the first of April, 1807. 2. on shares is not a de BRADISH V. SCHENK, May T. 1811, 8 Johns. N. Y. Rep. 151. Per Cur. Letting land upon shares, if for a single crop, is Letting up no lease of the land, and the owner alone must bring trespass for breaking his close. See Jackson v. Brownell, 1 Johns. Rep. mise of the 267, where it was held, if the letting be for one year, it makes him a tenant. 3. HOSKINS V. RHODES, Dec. T. 1829, 1 Gill & Johns. Md. Rep. p. 266. land. Unless it is to be paid Per Cur. Martin, J. The agreement is explicit, that one as rent. A covenant third of the crop should be paid as rent, and the reservation of rent eo nomine, necessarily constitutes a lease. Rhodes was the tenant of Miss Gwin, by express contract, and it is immaterial whether the rent was to be paid in money, or to depend on the amount of the profits of the land. 4. MICKIE V. EXECUTOR OF WOOD, Aug. T. 1827, 5 Rand. Va. Va. Rep. 470; MAVERICK V. GIBBS, 3 M'Cord's S. Ca. Covenant on a contract, under seal, made by Wood and Mickto pay 1004. ie, by which Mickie covenanted to give Wood £100 each year, long as the as long as the said Wood lived, for which he the said Mickie for his land was to have her the said Woods, land and negroes, &c. a year as lessor lived and negroes the non-payment of the £100. amounts to a lease. The liabili ty of an as signee aris es from his possession. Breach, On the trial the court instructed the jury, that this was a contract to pay a sum in gross, and not a rent; that, therefore, the rule did not apply which refuses interest or rent in arrear. Per Cur. Carr, J. There can be no question, I think, that this is substantially a lease and not a sale. Such was clearly the intention of the parties; and no set form of words is necessary to constitute a lease. It is equally well settled, that the sum stipulated to be paid, is to be taken as rent issuing out of the land, though there were slaves and other personal property included in the lease. 5. THE FARMERS' BANK V. THE MUTUAL INS. SOC. ET AL. Dec. Per Cur. Tucker, J. An assignee is only liable in respect to his possession; he bears the burden while he enjoys the benefit and no longer. In particular, the assignee cannot be liable for rent in arrear before his title accrued. Rents due and in arrear, are considered as debts severed from the realty, sub modo. Moreover it is inconsistent with any principle of the law, that one man should bind any other than his heir or his executor; and they are only bound in respect to assets passing to them. He cannot bind his assignee; but the assignee by the acceptance of the estate, binds himself to fulfil the obligation of the contract, devolving upon him during his occupation, by law he is bound by nothing more. 6. And a lease ROBERTS V. JENNEL, Spring T. 1826, 3 Monroe's Ky. Rep. 247. Per Cur. Boyle, C. J. On a verbal lease for more than one may be val |