FRAUDULENT CONVEYANCE.

Action in the nature of a creditor's bill to reach certain real estate alleged to have been conveyed with intent to cheat and defraud creditors. The conveyance purports to be for a valuable consideration. The plaintiffs knew of the deed more than six years prior to the commencement of the action, but they did not know it was without consideration until within six years. Held, that the fact that a deed is without consideration, if the grantor is insolvent at the time, is a controlling fact on the question of fraud. Knowledge by the creditor of the existence of this conveyance, and of the indebtedness of the grantor, without knowledge that the conveyance was voluntary and without consideration, could not be deemed knowledge of the facts constituting the fraud. Until he learned the fact last mentioned, he cannot be said to have discovered the facts constituting the fraud. Also, held, that the referee would be justified in finding that the suit was commenced within six years after the discovery of the fraud, and such finding, if not expressly made, may be supplied by intendment in support of the judgment. Erickson et al. v. Quinn. Opinion by Rapallo, J.

HIGHWAY. See Railroad Company. HUSBAND AND WIFE. See Tenant in Common.

INJUNCTION. See Appeal. JURISDICTION. See Patent. MANUFACTURING CORPORATION. See Stockholder.

MORTGAGE. See Assignment.

NAVIGATION. See Negligence.

NEGLIGENCE.

Action for negligence in the management and navigation of defendant's ferry-boat, in running into plaintiff's canal boat, which was one of a tow. It was claimed that the vessel towing the boat was navigating the waters of the bay and harbor of New York without the particular lights required by the act of congress for vessels of that character. She had lights forward and aft, and a red light on the pilot house, and the witnesses stated they were the usual lights for tug-boats, but they did not conform to the acts of congress.

Held, that as the lights usually carried by vessels having boats in tow, or used for towing boats in the harbor of New York, they were notice to the defendant's master and pilot that the vessel carrying and exhibiting them was used as a tug-boat, and was liable to have boats in tow; and the fact that they were not the lights prescribed by law did not excuse the defendant from the exercise of proper care in approaching or passing her. That if the vessel had been without signals of any kind, and had negligently, or even recklessly, undertaken to navigate the harbor in a dense fog, and under circumstances in which she should have come to anchor, still, it was the duty of the master or other person in charge of the ferry-boat, upon discovering her situation and the danger of a collision, to use all the usual and proper means to avert the danger. When the boats came in sight of each other both were bound to accept the situation and do what was necessary and could be done, with safety, to prevent injury

from collision; and if, from that time, the one did all that could have been done, and the other omitted to do any thing, or did not that which prudent and discreet navigators would have done, and which, if done, would have prevented the collision, the latter is legally chargeable with the consequences. If an injured vessel is proved to have been sailing, at the time of the injury, without the proper cautionary signals, the presumption may be, under some circumstances, that the collision resulted from the want of them, and devolve it upon the owner to prove the contrary, but when evidence is given tending to prove that the injury resulted solely from other causes, it becomes a question of fact for the jury. Hoffman et al. v. Union Ferry Co. of Brooklyn. Opinion by Allen, J.

Action in equity upon a bond given by defendants to the plaintiff, conditioned that if upon due examination of the record in Washington, and of the letters patent granted, etc., it shall appear to be a fact that certain letters patent then sold to plaintiff for making paper were good and valid, and secured the exclusive right thereto, etc., then the bond to be void. Averment that they were not good, etc., but utterly valueless, and secured no right to the patentee; prayer, that the contract of purchase be declared void, and the note given therefor, of $3,000, be delivered up to be canceled, etc., and for damages, issue thereon. Held, that a State court has jurisdiction of an action founded upon a contract, although the validity of a patent may be involved therein. Middlebrook v. Broadbent et al. Opinion by Peckham, J.

POOR PERSONS. See Support of Poor.

PROMISSORY NOTE.

Action on a note given to R., plaintiffs' intestate, for $1,000, payable in six months. At the same time he entered into an agreement, from which it appears that the plaintiffs' intestate advanced to the defendant $2,000, to be invested as his share of the capital in a firm of which defendant was a partner. R. was to receive and retain defendant's share of the profits until the $2,000 was paid, and after that one-half the proceeds of the business. The note was stated to be given to secure R. against one-half the loss said capital might sustain. Held, that no recovery could be had against the defendant to an amount greater than one-half of the loss shown to have been sustained in the business. That two cotemporaneous writings, between the same parties upon the same subject-matter, may be read and construed as one paper. If one of the writings is negotiable paper, in an action between the parties to it or their representative, the same rule applies. Rogers et al. v. Smith. Opinion by Folger, J.

See Statute of Limitations.

RAILROAD COMPANY.

Action for causing the death of plaintiff's testator, by collision with defendant's cars at a highway crossing. It appeared that the testator approached the crossing upon a road crossing the track at an angle of forty-five degrees, with a slight wind blowing from him toward the approaching cars; that the train approached from the east, running through a cut; that these and some other circumstances prevented the hearing of the noise

made by the train, and rendered it highly probable that the testator, if attentive and listening for the sound, could not have heard it while riding in his wagon, which he was driving upon a slow trot or walk, until he got upon or so near the track as to prevent him from extricating himself from the danger. Against this there was nothing in conflict except the fact that the noise made by a train while running at the rate of speed of the one in question, can usually be heard at considerable distance. The court nonsuited plaintiff. Exceptions heard at first instance at general term, where new trial was granted. Held, that the law required of the testator the exercise of such a degree of care as prudent persons, knowing the danger, wou'd take to shield themselves from njury therefrom. This requires a vigilant use of the eyes in looking, and of the ears in listening, upon approaching a highway crossing, to ascertain whether there is a train approaching, and that if by the vigilant use of these faculties, while approaching the crossing, the vicinity of such a train may be discovered by the traveler in time to avoid a collision therewith, the omission so to exercise them, and thus avoid an injury, is such negligence as will bar a recovery therefor. It does not require him to stop for the purpose of listening. If, with a team, it does not require that he should get out of the vehicle in which he is riding, leave his team, and go to the track for the purpose of looking, or to rise up in his vehicle and go upon the track in a standing position to enable him to obtain a better view of the track; that these questions should have been submitted to the jury, Davis v. N. Y. C. & H. R. R. R. Co. Opinion by Grover, J.

The remedy for the refusal of a referee to insert in a case matter relating to points or claims alleged to have been actually made upon the trial before him, is by motion to the court below, before the argument of the appeal from the judgment, to compel the referee, in settling the case, to insert such matter, and to send the case back to him for further findings, if it should be made to appear that they were necessary to a proper review of the judgment. A decision made by a referee in the settlement of a case cannot be appealed from. The introduction in the judgment roll of papers showing that the referee had, on the settlement of the case, improperly refused to allow parts of the proposed case, would raise no question which could be considered on appeal from the judgment. A party cannot require a referee to find facts and conclusions of law against him in such form as he may frame, and to allow exceptions to such adverse findings and conclusions. Lefler v. Field. Opinion by Rapallo, J.

SALE. See Vendor and Vendee.

STATUTE OF LIMITATIONS.

Action on a promissory note: payable on demand with interest: defense: statute of limitations. Held, that a promissory note payable on demand, whether with or without interest, is due forthwith, and may be sued without demand, and an action thereon against the maker is barred by the statute of limitations unless brought within six years after its date. Wheeler v.

Warner. Opinion by Peckham, J.

See Fraudulent Conveyance.

STOCKHOLDER.

1. Action by judgment creditor of the Empire Moulding and Planing Company to recover amount of judgment of defendant, as a stockholder of said company, upon the ground that the stock was not paid in, and that no certificate of payment, as required by law, was filed. The whole stock of the company was issued to defendant in payment for certain machinery and personal property sold by him to the company. Held, that the capital stock of corporations, organized under the provisions of the act of 1848 (chap. 40) for the organization of manufacturing corporations, and section 2 of the act of 1853 (chap. 333), amending the same, may be paid in money or in mines, manufactories and other property necessary for their business, or part in money and part in property; and, when fully paid in, either way, and the certificate filed, the stockholders are released from personal liability. But the transaction may be impeached for fraud; and if a creditor of the corporation can, by competent evidence, show that the purchase of the property and the issue of the stock was fraudulent and an evasion of the law, he may recover in an action against such original stockholder and party to the fraud as if no payment had been made or certificate filed. Boynton v. Hatch. Opinion by Allen, J., Church, Ch. J., and Rapallo, J., concurring.

2. When all or a portion of the capital stock is paid in, in property, the certificate required by section two of the act of 1853 must state the value of the property. The price agreed to be paid by the company is only prima facie evidence of its value, and an agreement to pay more than its value is no protection to the holder of stock issued in payment of property at such excessive price, from the liability by the act of 1848. The value of the property is competent evidence, under an allegation, that the capital stock has not been paid in. It is not necessary to prove fraud. Ib. Opinion by Grover, J., Peckham and Folger, JJ., concurring.

SUPPORT OF POOR.

Action to recover an amount directed to be paid by defendant, by an order of the court of sessions of Cortland county, providing for the support of the aged father of defendant. The order was made in proceedings under 1 R. S. chapter 20, title 1, and directed the father to be supported by his two sons, one to pay $1.91 per week, and the other to pay $1.09 per week. Held, that in proceedings for the support of indigent persons, the court of sessions is authorized by section four of the act, in case one of two persons is unable to contribute equally his entire proportion of such support, but is able to contribute something, to require such person to contribute according to his

ability, and to require the other to pay the residue. Also, held, that, as the order recited that the two are of sufficient ability, and directed what each one was to pay, this was, in effect, a determination that one was unable to pay his entire proportion, but was able to pay the sum fixed by the court. This was authorized by the statute and the order was valid. Stone, Sup't of the Poor, v. Burgess. Opinion by Grover, J.

TAX DEED.

Action of ejectment. - Plaintiffs proved a prima facie title to the premises, and rested. Defendant then introduced a deed from the comptroller of this State, dated in 1828, given upon a sale by the State in 1824, for the non-payment of taxes, and regular conveyances there

under to him in the year 1846, and possession thereunder by him from 1846 up to 1858, the time of the commencement of this suit. Plaintiffs then proved, by the files of the Ulster Plebeian, a public newspaper published in the county of Ulster, that the only notice of the expiration of the time for redeeming land sold for taxes in 1826, published in that paper, was one published for six weeks successively, commencing first on the 24th of October, 1827. The tax sale in 1826 closed on the 27th day of April, 1826. The files of the paper produced extended from July, 1825, to July, 1830, inclusive. The court directed a verdict for plaintiffs.

Held, that the provisions of the act of 1823 (§ 43, ch. 242. Laws of 1823), requiring the comptroller to publish notices, stating when the time for the redemption of lands sold for taxes will expire, is peremptory. That the publication of such notices for the time specified, to wit, six weeks successively, once in each week, is required to be completed six months prior to the expiration of the two years allowed for redemption. This provision was intended to protect the land owner, and, unless complied with, no title passed by the comptroller's deed. The comptroller's deed, although conclusive as to the regularity of the sale, is not conclusive as to such publication after the sale. Also, held, that mere lapse of time before bringing an action, where possession under the comptroller's deed has not been for a sufficient length of time to bar an action under the statute of limitations, is not conclusive evidence of a full compliance with the requirements of the act. Westbrook et al. v. Willey. Opinion by Peckham, J.

TENANT IN COMMON.

Action for the partition of certain real estate, of which the parties, who are husband and wife, are seized as tenants in common. Two deeds, made in 1864, were introduced in evidence on the trial before the referee, which were not stamped. Held, that it is not in the constitutional power of congress to prescribe for the States a rule for the transfer of property within them. The deed was not invalid, although not stamped. A wife owning real estate, as a tenant in common with her husband, can maintain an action against him for the partition thereof. Moore v. Moore. Per Curiam. TRAVELER. See Railroad Company.

VENDOR AND VENdee.

Action for certain wines and casks alleged to have been sold by plaintiff to defendant. The contract for the sale was by parol. The wines were delivered at a railroad depot by the vendor, in conformity with the terms of the contract of sale to be forwarded. They were received at plaintiff's place of business. Held, that no act of the vendor alone, in performance of a contract of sale void by the statute of frauds, can give validity to such a contract. Where no part of the price is paid by the vendee, there must be not only a delivery of the goods by the vendor, but a receipt and acceptance of them by the vendee to pass the title or make the vendee liable for the price; and this acceptance must be voluntary and unconditional. Even the receipt of the goods, without an acceptance, is not sufficient. Some act or conduct on the part of the vendee, or his authorized agent, manifesting an intention to accept the goods as a performance of the contract, and to appropriate them, is required to supply the place of a written contract. Also, held, that the evidence of a bona fide attempt, immediately on the receipt and examination of the wine by the vendee, to send a mes

sage to the vendor declining to accept the wine, is proper as part of the res gesta, and material as explaining and qualifying his conduct in receiving the wine into his store and allowing it to remain there, and competent to rebut any presumption of an acceptance arising from their retention by him, although such message never reached the vendor. Caulkins et al. v. Hellman. Opinion by Rapallo, J.

GENERAL TERM ABSTRACT.

THIRD DEPARTMENT.

MARCH, MAY AND JUNE TERMS, 1872.

AGENCY. See Ratification and Railroads, 5.

BONA FIDE PURCHASER.

Plaintiff, as the owner of certain lands taken by the capitol commissioners, under chapter 830, Laws 1868, received from them a certificate of indebtedness for $10,000; this he intrusted to defendant Miller, to be cashed, with the understanding that if Miller failed in that within three weeks, he was to return the certificate and execute the following assignment: "$10,000, for value received, I hereby transfer, assign and set over to Isaac Miller the within described amount, say ten thousand dollars." At the time Miller made false representations to plaintiff, as to his property and responsibility; more than three weeks afterward Miller transferred said certificate by a similar assignment to the defendant's bank, and received the money The therefor, which he appropriated to his own use. bank had no knowledge of the agreement. At the trial plaintiff's complaint was dismissed as against the bank. Held, by the general term, that the assignment was sufficient to clothe Miller with the apparent title to the certificate, and that the case was therefore controlled by McNeil v. Tenth National Bank, 46 N. Y. 325. Judgment affirmed, with costs. Moore v. Miller and Metropolitan National Bank. Opinion by Potter, J., Miller, P. J., and Parker, J., concurring.

COMPENSATION. See Railroads, 1.

CONSTITUTIONAL LAW.

Taking private property for public use.- The A. & W. S. R. R. Co. acquired title in fee by grant to certain lands in the village of Greenbush. The B. & A. R. R. Co. succeeded to the rights of the A. & W. S. R. R. Co., and used the land referred to for its tracks. Subsequently, the legislature, by chapter 383, Laws 1854, authorized the authorities of the village of Greenbush to lay out certain streets therein, one of which crossed the lands referred to, and the act made no provision for compensation. In 1870 the authorities of the village of Greenbush proceeded to lay out one of the streets authorized by the act, across the lands mentioned, without giving the B. & A. Co. any compensation. Thereupon, this action was brought to enjoin the laying out of such street. The action was tried by the court, who gave judgment for the defendants. Held, by the general term, that although a railroad company may acquire title in fee to lands by grant (Nichall v. New York & Erie Railroad, 12 N. Y. 121, 127), it can do so only for the purposes of its incorporation; that their power to hold lands was acquired solely by legislative grant, and the legislature in the grant reserved the right to alter, modify or repeal their

charters; that by chapter 140, Laws 1850, sections 18, 50, all lands acquired by any railroad company for the purposes of its incorporation shall be deemed to be acquired for public use; that, therefore, the legislature may take the lands of railroad companies for the public use without violating the obligation of contracts, or the constitutional provision that private property shall not be taken without just compensation. Albany Northern Railroad Co. v. Brownell, 24 N. Y. 345; Matter of Kerr, 42 Barb. 119-121; Sixth Avenue Railroad Co. v. Kerr, 45 id. 138. Judgment affirmed, with costs. Boston and Albany Railroad Co. v. The President, etc., of the village of Greenbush. Opinion by Potter, J., Miller, P. J., and Parker, J., concurring.

CONTEMPT.

Certiorari: one of the justices of the supreme court to review the discharge of the respondent upon habeas corpus. It appeared from the sheriff's return to the writ, that the respondent, as an executor, had been ordered by the surrogate of Rensselaer county to pay the sum of $5,876.58 to certain persons; that that sum had been demanded of the respondent, and on his refusal to pay, he had been brought before the surrogate by attachment, and admitted his refusal and neglect to pay said sum; the surrogate thereupon made an order reciting these facts, and adjudging that respondent had been guilty of misconduct, which prejudiced the parties to whom the money had been ordered to be paid to the amount of the said sum, and proceeded as follows: "Which said sum is hereby imposed upon him, the said Watson, as a fine for his aforesaid misconduct and contempt," and it was further ordered that respondent be committed to the common jail till he shall pay the fine; and that a warrant issue to the sheriff. A warrant issued accordingly, and respondent was imprisoned until discharged under writ of habeas corpus. Held, by the general term, that the discharge was right. In cases of contempt committed by the nonpayment of money in disobedience of a rule, the R. S. require that the warrant set forth the charge. 2 R. S. 567, § 40, subd. 3. Power is conferred upon surrogates' courts, to enforce all lawful orders by attachment which shall be in form similar to that used by the court of chancery in analogous cases. 2 R. S. 222, § 6. Surrogates' courts, not being of record, possess no common-law powers to this end. And the remedy given being a statute remedy, they can pursue no other, the statute recognize two classes of contempt, with different punishments, Criminal contempts. 2 R. S. 278, § 10. 2. Proceedings as for contempts in civil cases. 2 R. S. 534, 535. In the second class section 1 enumerates the character of the contempts. They are cases where the misconduct defeats, impairs or preju- | dices the rights or remedies of a party, and they include orders for the non-payment of money in cases where by law execution cannot be awarded for the collection of such sum; section 3 again excepts cases of disobedience to a rule or order requiring the payment of money; section 4 provides for the case which has been excluded and excepted from the previous sections, as follows: "When any rule or order of court shall have been made for the payment of costs, or any other sum of money, and proof by affidavit shall have been made of the personal demand of such sum of money, and of a refusal to pay it, the court may issue a precept to commit the person so disobeying to prison until such sum, and the costs and expenses of the proceedings, be paid." This section prescribes the remedy, and excludes all

other remedies, and, by the ordinary rule of construction, the surrogate cannot therefore inflict a fine and commit upon the fine. He can employ no remedy but the precept mentioned in the fourth section. That precept is the ordinary execution against the body, in the nature of a ca. sa., which was used in the court of chancery. People v. Spaulding, 10 Paige, 287; Van Wesel v. Van Wesel, 3 id. 43, 44. The meaning of 2 R. S. 222, which gives the surrogate power to enforce all lawful orders, is, therefore, that he shall have this power in the prescribed way; and that excludes every other way. This construction is supported by People v. Cowles, 4 Keyes, 46, and Brush v. Lee, 6 Abb. Pr. N. S. 56. Seaman v. Duryea, 11 N. Y. 325, is not applicable. It does not appear whether the imprisonment was upon a fine, or upon a ca. sa., under section 4, and the decision went upon the ground that the precept recited the proceedings over which the surrogate had jurisdiction, this was prima facie sufficient. Nor is the argument sound that the surrogate could not imprison without first filing written interrogatories, and giving respondent opportunity to answer them. That practice is demanded only where punishment can be inflicted by fine. People v. Cowles, 4 Keyes, 46. Order affirmed. Matter of Abram E. Watson. Opinion by Potter, J., Miller, P. J., and Balcom, J., concurring.

DAMAGES. See Seduction and Railroads, 1.

EQUITY JURISDICTION.

Bill of peace: action quia timet: action under 2 R. S. 312, title 2. - Action for the construction of a will and for judgment, that plaintiff was seized in fee of certain real estate of which he was in possession. By the will the premises were devised to the defendant, Julia. Then followed a clause by which, if valid, remainders were created in favor of the other defendants, one the defendant Julia had conveyed to plaintiff, and he was in possession under her deed. The other defendants answered, claiming that they were entitled to an estate in remainder upon Julia's death. At the trial the complaint was dismissed upon the pleadings. 1. Held, by the general term, that a motion at the trial, to dismiss for defects in the pleadings, differs from a demurrer only in a discretionary power of amendment in the court, which is not reviewable. Hammond v. Tilotson, 18 Barb. 332; Onderdonk v. Mott, 34 id. 106. 2. Held also, that plaintiff must show a legal right to maintain his action, and this involves the necessity of showing whether it is an action at law or in equity. The two remedies are still distinct. A plaintiff cannot obtain legal relief in an action of purely equitable cognizance, nor equitable relief in an action of purely legal cognizance. If plaintiff's form of action is equitable, he must maintain it upon equitable grounds or fail, though he prove a good cause of action at law. Mann v. Fairchild, 2 Keyes, 111, 112; Heywood v. City of Buffalo, 14 N. Y. 540; Onderdonk v. Mott, 34 Barb. 113. 3. Held also, that the heir at law, a devisee of a testator who claims a mere legal estate in real property when there is no trust, cannot maintain an action for the construction of a will. Such questions belong exclusively to courts of law. Bowes v. Smith, 10 Paige, 193. 4. Held also, that the complaint cannot be sustained as a bill quia timet. Story s Eq. Jur., §§ 852-873, 958. Held also, that the complaint cannot be sustained as a bill in the nature of a bill quia timet. 5. Held also, that the complaint cannot be sustained, under 2 R. S. 312, as a proceeding to compel the determination of

claims to real property, because it does not state that defendants "unjustly claim title to such premises." It could have been sustained as against the infant defendants. $3. And, were it sufficient as to the others, an adjudication upon the legal rights of one or more of several tenants in common separately would have been neither wise, discreet nor just, and would have opened a door for renewed litigation. Judgment affirmed, with costs. Bailey v. Southwick et al. Opinion by Potter J., Miller, P. J., and Parker, J., concurring.

EVIDENCE.

1. Presumption of release: estoppel.-Action for rent upon an indenture executed August 22, 1805, by S. Van Rensselaer to one Young, conveying the premises described therein, to have and to hold to the grantee, his heirs and assigns forever. "The said grantee, his heirs and assigns, yielding and paying therefor unto the said Van Rensselaer, his heirs and assigns," a rent certain, with a covenant on the part of the grantee, his heirs, executors, administrators and assigns, to pay said rent forever. This indenture came to the plaintiff by assignment from Van Rensselaer. The defendant obtained title to the premises described in said indenture by two deeds; one dated October 19, 1842, from one Cole, conveying an estate in remainder, subject to a life estate in one Merchant, referring to the said indenture, and expressed to be subject to the rents due and to become due to S. Van Rensselaer, his heirs, assigns and representatives; one second deed was from Merchant, conveying his life estate, dated 1850, and containing like provisions in regard to the indenture and rents as the former deed. It did not appear that any rent had ever been paid upon the indenture, or did it appear affirmatively that none had been paid between 1811 and 1844, and that none had ever been paid or demanded of defendant, and that no release of the rent had been given since 1839. This was the second trial. Upon the first plaintiff had judgment, which was reversed by the general term (Lyon v. Chase, 51 Barb. 14, argued with this case) upon the present trial, which was before a referee, plaintiff had judgment again, and defendant appealed. Held, by the general term, upon the authority of Freeman v. Auld, 44 N. Y. 50, that by receiving his title subject to the payment of the rents upon the indenture, defendant was estopped from denying that they were liens, or that the covenants were in force; but, if not, that the deeds amounted to explicit admissions in writing by the grantors of the subsistence of the covenants, which is sufficient to rebut the presumption of release or extinguishment. Cheever v. Perley, 11 Allen, 587, 1 Cow. & Hill's Notes, $17 (ed. 1839), and the defendant acquired no better title than his grantors had; that by the ordinary rule the payment of the rents was chargeable upon the life estate. The lapse of time, therefore, should date from Merchant's deed and would be twelve years; but if it dated from Cole's deed, there is less than twenty years, which is not sufficient, without additional circumstances, to raise the presumption of release or extinguishment. Judgment affirmed, with costs. Lyon v. Odell. Opinion by Porter, J., Miller, P. J., and Parker, J., concurring in the result.

2. Presumption of release: presumption of identity: ancient deed: proof of possession - Action for rent upon an indenture similar to that in the preceding case, purporting to have been executed by S. Van Rensselaer to one Abner Bull March 11, 1794. In 1817 one

Edward Carr conveyed to one Peleg Carr the premises owned by the defendant, subject to a rent certain to Van Rensselaer. These premises were then, and for a long time had been, known as the " Abner Bull farm," but there was no other evidence of its identity with the premises described in the indenture, except that both were in the same township. The descriptions did not correspond, nor did the deed at all refer to the indenture. In 1839 Peleg Carr, by a conveyance upon the back of the former deed, granted to defendant all his right, title, interest, etc., in "the within premises." It did not appear that any rent had ever been paid upon the indenture, nor that it had not been paid prior to 1839; but it did appear affirmatively that no rent had ever been paid by defendant, or demanded of him, and that ao release or discharge of the rent had been given since 1839. Van Rensselaer's interest in the indenture had come to the defendant by assignment. The execution of the indenture was not proved. This case has been twice tried. On the first trial plaintiff had judgment, which was reversed by the general term. See Lyon v. Chase, 51 Barb. 14, argued with this. At the present trial, before a referee, plaintiff had judgment, and defendant appealed. Held, by the general term, that the deed of 1817 showed the rent was then a subsisting obligation, as in the preceding case, but that the deed of 1839 did not have that effect, since it only conveyed Carr's interest, and he might have obtained a release between those dates, as far as appeared from the deed; that there are two presumptions of extinguishment known to the law. In the case of an obligation which can be extinguished by an act in pais as payment, there is an absolute presumption of satisfaction, a presumption of law, after twenty years, which can be rebutted only by some act of unequivocal recognition like part payment, or a written admission. There is also another presumption, in the nature of evidence, which can be drawn by a jury from all the circumstances of a case in less than twenty years. Cheever v. Perley, 11 Allen, 587; 1 Greenl. Ev., § 39; Botts v. Ballman, 1 Yeates, 584; Cottle v. Payne, 3 Day, 289; Winstanly v. Savage, 2 McCord's Ch. 435; Coldhawk v. Duane, 2 Wash. C. C. 323; Blake v. Cuash, 3 McCord, 340, 343; Henderson v. Hamilton, 1 Hall, 314; Jackson v. Pratt, 10 Johns. 381; Bander v. Snyder, 5 Barb. 63.

But where the obligation can only be extinguished by deed the rule is different. In that case there is no presumption of law, but there is the same presumption in the nature of evidence. Woodsall, 487; Runn. 276; 1 Phil. Ev. 160, ed. 1839; Eldridge v. Knott, Cowp. 214; Hull v. Horner, id. 102; 2 Burr, 1071; Palmer v. Wetterball, 1 Ch. Cas. 184; Collet v. Jaques, id. 120; Boteler v. Massey, Rep. Temp., Finch, 241; Livingston v. Livingston, 49 C. R. 287; Jackson v. Davis, 5 Cow. 130; Failing v. Schenck, 3 Hill, 345, 346; Cole v. Patterson, 25 W. R. 456, 458; Bailey v. Jackson, 16 Johns. 211; Tyler v. Heidorn, 46 Barb. 462, 463. Such instruments as this indenture are deeds of assignment, leaving no estate, reversion or possibility of reverter, in the grantor, and do not create a rent service. De Peyster v. McMichael, 6 N. Y. 507; Van Rensselaer v. Hays, 19 id. 68; Van Rensselaer v. Dennison, 35 id. 399. But they do create a rent charge, which is properly styled "rent." Cases above, also, Van Rensselaer v. Ball, 19 N. Y. 107; Van Rensselaer v. Snyder, 13 id. 299; Van Rensselaer v. Read, 26 id. 564; Hunt v. Comstock, 15 W. R. 655; De Peyster v. McMichael, 6 N. Y. 507; Tyler v. Heidorn, 46 Barb. 450; that the grantor's interest is