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porated into the constitution of 1821, and the statute itself continued in force until 1830, when the Revised Statutes were adopted.

The bill of rights enacted by the Revised Statutes (vol. 1, p. 94, § 14), provides, that "in all criminal prosecutions the accused has a right to a speedy and public trial by an impartial jury." This is in the words of the sixth amendment to the constitution of the United States. This does not mean that the jury, being bound implicitly to obey the direction of the court as to the law, shall pass upon such questions of fact as the court shall tell them it is their province to decide. It means that the jury shall pass upon the whole question of the guilt or innocence of the accused, taking the advice of the court as to the law, with not only the power but the right to determine the law and the fact.

Chief Justice Jay, with the concurrence of all the judges of the supreme court of the United States, says: "It may not be amiss here, gentlemen, to remind you of the good old rule, that on questions of fact it is the province of the jury, on questions of law it is the province of the court to decide. But it must be observed that by the same law which recognizes this reasonable rule of distribution of jurisdiction, you have nevertheless a right to take upon yourselves to judge of both, and determine the law as well as the fact in controversy. On this, and on every other occasion, however, we have no doubt you will pay that respect which is due to the opinion of the court; for as on the one hand it is presumed that juries are the best judges of facts, it is on the other hand presumable that the court are the best judges of the law. But still both objects are lawfully within your power and decision." The State of Georgia v. Bradford, 3 Dubois, 1, p. 4.

Justice Baldwin, of the United States supreme court, in the case of The United States v. Porter & Wilson, 1 Bald. 87, said to the jury in his charge: "But you will distinctly understand that you are the judges both of the law and fact in a criminal case, and are not bound by the opinion of the court; you may judge for yourselves; and if you should feel it your duty to differ from me, you must find your verdict accordingly."

The judge further tells the jury, that if they think proper to take the opinion of the court for law, they will be exonerated in conscience, although the law may be laid down wrong by the court. This we can hardly assent to. The jury will, in ordinary cases, look to the court, and very much rely upon it for direction as to the law; yet when the case forces upon the jury the conviction that the court is mistaken as to the law, they should find a verdict accordingly.

Judge Swift says, that in criminal cases the jury "have full power to determine the law as well as the facts." 2 Swift's System, 403.

These American authorities, statutory and judicial, accord not only with the law as it has been understood in this country from the earliest times, with the exception to which we have adverted, but with the common law as it is now settled in England, and as it has existed there for ages, although it has at times encountered serious judicial encroachments.

For many years before 1792, a majority of the judges in England took from the juries the right to determine the law on the trial of criminal prosecution for libel. This course met the strenuous opposition of some of the ablest lawyers and judges, and in nothing did that prince of advocates, Thomas Erskine, more distinguish himself than in his efforts to rescue the law from what he ever insisted was its perversion, and restore to juries

the right to determine the law and the facts in prosecutions of that kind. At length, in 1792, Mr. Fox's libel bill, as it has ever been called, which was brought into parliament some ten years before, was passed. It was a declaratory act, and gave juries the right to determine the law and the fact in trials for libel as in other criminal cases. The bill passed the commons unanimously, and the house of lords by a large majority, although it was opposed by Lord Chancellor Thurlow and Lord Chief Justice Kenyon.

The principle of the bill was ever insisted upon by its friends, upon the ground that, by the common law, the jury had the right to determine the law as well as the fact. (29 Parliamentary History, 726, 1404.) This principle the act established, and it is believed the law has ever since been the same in England. It is certain that Lord Campbell, the present chief justice, claims that the common law was always the same as it now exists under the act, and that the act only restrained judicial encroachments upon the rights of juries. (See Lives of Chancellors.)

There can be no doubt but what originally juries in England passed upon the whole case, determining the law and the facts, both in civil and criminal cases, but the arbitrary exercise of this right in civil cases was gradually restrained by the power which each party had to set aside the verdict and punish the jurors by attaint, and the right to determine the law has practically passed from the jury to the court, by the power of the court to grant new trials in civil cases; but au attaint never lay in a criminal case, although some books have asserted the contrary, nor can the court grant a new trial if the defendant is acquitted. The courts for awhile claimed, and for some extent exercised the right to fine jurors when they rendered a verdict notoriously wrong, but this was always a usurpation, and was adjudged to be illegal, and was wholly abandoned nearly two hundred years ago.

Judge Blackstone says the jury "have an unquestionable right of determining upon all the circumstances; and finding a general verdict if they think proper so to hazard a breach of their oaths; and, if their verdict be notoriously wrong, they may be punished, and the verdict set aside by attaint at the suit of the king, but not at the suit of the prisoner." Now Blackstone himself tells us that the practice of punishing jurors by the court for a wrong verdict " was arbitrary, unconstitutional and illegal," and he is mistaken in saying they could be punished by an attaint, for it never lay in a criminal case by the king or the party. All the commentator could mean by the anomalous expression, "hazard a breach of their oaths," was, that if the jury found a general verdict, they took upon themselves the risk of punishment by the court or by attaint, which they never did if they found a special verdict; although, when they found a general verdict, they were as much punishable for a false verdict of fact as of law. The "unquestionable right" was a lawful and moral right to find a general verdict, including the law and the fact; otherwise they would have been punishable for exercising a right that did not belong to them, whether the verdict was true or false. Littleton says, section 368, "if the inquest will take upon themselves the knowledge of the law upon the matter, they may give their verdict generally."

Mr. Hargrave, without making a distinction between civil and criminal cases, says, his opinion is that the immediate and direct right to decide the law is in the judges; in the jury it is only incidental, and, in all

points of law arising on a trial, juries ought to show the most respectful deference to the advice and recommendation of the judges. (Co. Litt. 155, b. n. 5.)

Says Lord Hale: "The judge is to assist the jury, not by points of law, but in points of law. (Hale's Institutes, 200.)

Lord Somers says: "They (the jury) are the judges from whose sentence the indicted are to expect life or death. Upon their integrity and understanding the lives of all who are brought into judgment do ultimately depend. From their verdict there lies no appeal. They resolve both law and fact, and this has always been their custom and practice." (Essay on power and duty of Grand Juries, 7.)

Somers was the great man of his age. At a momentous crisis in England, in a house of commons distinguished for its able men, he became its leader within ten days after he made his first speech. He had the rare combination of almost consummate knowledge and ability, both as a lawyer and a statesman. In days of the greatest triumph of civil liberty, next to our own revolution, his was the master mind in laying the foundations and establishing the bulwarks of constitutional liberty, and he always exerted himself in favor of liberty and the rights of the people. The opinion of such a man, with such experience cotemporary with the revolution of 1688, is worthy of our consideration. Our opinion in regard to the rights of juries was held by Mr. Fox, Mr. Denning, Sergeant Glynn, Thomas Erskine, and all the friends of America in the days of our revolution, with Lord Chancellor Camden at their head.

In Lilburn's Case, tried for treason in 1649 (2 St. Trials, 69), the defendant claimed that the jury were judges of the law and fact; the court denied it, and refused to permit him to read law to the jury. The jury acquitted the prisoner, and declared that they took upon themselves to be judges of the law as well as the fact.

Algernon Sidney's Case (3 St. Trials, 817) is the only criminal trial we have found in the English books, other than prosecution for libels, where the court charged the jury that they were bound to take the law from the court. This was a trial for treason before the infamous Jeffries. Unfortunately the jury obeyed the court, and a judicial murder was perpetrated. The attainder was afterward reversed by parliament, and the law was denied; the jury were greatly blamed, and the judge for his violence then, and other atrocities, was held in lasting execration.

Take from the English books the cases upon libels, all of which have been corrected in that country and ours by statute, or by constitutional provisions, and the opponents of our doctrine are driven to rely for judicial authority in England almost entirely upon Judge Jeffries, whom none of them venture to cite.

In this country, of the two cases decided by a bench of judges against our doctrine, one is already, and the other is or is about to be annulled by the people, and we have the opinion of Judges Addison, Story and Barculo in their charges to juries. Upon these we are flippantly told that the learning upon the subject has been exhausted, and the law is now settled that juries are bound to take the law from the court in criminal cases. We repeat that it is extraordinary that Croswell's Case, which, in the discussions of the counsel and the court, displays four-fold more learning and ability than all the other cases upon the subject in this country, should be wholly overlooked in this pre

tended settlement of the law. The very able opinion of Justice, afterward Chancellor Kent, in that case, commanded the assent of nearly all parties at that day, and its principles were the foundation of the law relating to libels, which was unanimously passed by the senate and assembly the next year.

The propriety of the rule that the jury should judge of the law, as well as the fact in criminal cases, is obvious.

1. All criminal laws are, or should be, plain and simple, so that they may be understood by all who are held responsible for their violation; and no one shall be convicted where twelve impartial men cannot be satisfied that the act complained of is a violation of the law.

2. In all criminal prosecutions the State is a party upon one side, and the defendant upon the other, and the State selects or appoints the judge for the trial, while the defendant has no voice in his selection.

3. It is as important that the law, as it is that the facts, should be passed upon by perfectly disinterested intelligence, by minds strictly impartial and destitute of all bias. In the nature of the case this cannot be as readily attained through a court as through a jury. We can boast of as impartial judges and juries as any people. And in most ordinary cases we have them as a matter of course. Yet it is easy to see that many cases may occur where the court, with the best intentions, may be influenced by prejudice, or political or party bias, against which the defendant can make no provision, while the law provides every conceivable means to secure impartiality in the jury.*

GENERAL TERM ABSTRACT.

NEW YORK COMMON PLEAS, 1873.

REFERENCE.

Right of redemption of real estate sold upon execution: creditor's bill: construction of statute. -The material questions arising in defendant's claim to title of real estate sold, upon execution, to him, and upon the same title, were passed upon by the superior court at general term, in May, 1871, case of Bowen v. this same defendant, and in the supreme court at special term in the case of Ellsworth v. Maldoon. In the general reasoning of the courts, in these cases and in their results, the learned judge concurred and, in his opinion, added these further considerations. The material facts appear in the opinion of the court.

Held, that notwithstanding the assignment made by the judgment-debtor to the receiver, he still had the

*The above article was written some three months ago in reference to the action of the New York legislature. Since then, 1 Parker's Criminal Reports has been published, which records two cases before the late Chancellor Walworth, then circuit judge, in 1825. The People v. Thayers, 596, and The People v. Vidito, 603, in which the law is laid down, that the jury are judges of the law as well as the facts. These cases go to show how entirely settled the law was thirty years ago upon this subject.

The same volume reports a recent case, The People v. Fennigan, 147, at general term, before Justices Harris, Parker and Watson, in which the court decided that the court were the exclusive judges of the law; also, in the case of Safford v. The People, 474, before Hand, Cady and Allen, justices, the court intimates the same opinion. It is evident that the court in these cases have followed Judge Barculo, and Chief Justice Shaw and Judge Story, without giving the question a thorough consideration. The act restoring to juries in Massachusetts the right to determine the law, as well as the fact, in criminal cases, has now become a law in that State. And we cannot doubt that the people of New York will call for a similar law, if its judiciary shall sustain the new doctrine.

right of redemption of his real estate previously sold upon execution on the judgment against him, under which defendant claims title. The action in which the receiver was appointed was not one in rem, relating to real estate or within the common-law powers of the court of chancery, in which it was pending, having reference to fraudulent trusts or conveyances of real estate or one affecting the title of the land. It was a proceeding in the nature of a creditor's bill as authorized by the provisions of the Revised Statutes (2 R. S. 174), to collect a judgment recovered for $199.12, and prior to the sale upon the execution, under which the defendant claims title, the receiver had been fully paid the amount due on that judgment, and the only claim by him was for some unpaid costs of a warrant of commitment. The receiver, however, executed a reconveyance to the judgment-debtor subsequent to the sale on execution of the lands, under which defendant claims title. Such an action by creditor's bill (2 R. S. 174, § 39) is confined to such satisfaction as may be obtained "out of any personal property," etc., belonging to the judgment-debtor, and did not bring the real estate of the debtor within the jurisdiction of the court of chancery, and could, at most, affect it only by a sequestration of rents due or to become due. It did not authorize the court to sequestrate the title to the land and vest it in its receiver. It could not supersede❘ the necessity for a sale under execution of the debtor's interest in the land nor deprive him of the right of redemption afforded by statute. 3 How. 185; 6 Barb. 599-603, unreversed in this respect in 6 N. Y. 252-255; 9 N. Y. 148, cited. The act of 1845 (ch. 112) does not profess to extend the general jurisdiction of the court upon proceedings instituted as a mere creditor's bill, that in no way involved its powers in matters of alleged trust or fraud, nor authorized it to seize upon or sequester the debtor's title to real estate. The statute (2 R. S. 370, § 46) authorized the redemption of real estate sold under execution: First. By the judgmentdebtor; or Second. (If dead) By his heir or devisee; or Third. By his grantee "who shall have procured an absolute title by deed," etc. The title vested in the receiver was not such an "absolute title" by deed or otherwise as divested the judgment-debtor of right of redemption. The purchaser acquired a mere lien (Vaughn v. Ely, 4 Barb. 157; Hodge v. Gallop, 3 Denio. 536, cited), and on payment of the amount necessary to make the redemption the sale and the certificate thereof became void. The right of redemption is remedial and is to receive a liberal construction in favor of those whose estates would otherwise be divested. Dutton v. Hepburn, 10 Pet. 1; Chapin v. Cartamis, 15 Ill. 427; Masterton v. Reasley, 3 Ohio, 310. The right of redemption and its exercise having been duly proved the defendant failed to establish any claim of title, and the judgment against him should be affirmed. Livingston v. Arnoux. Opinion by Robinson, J. STATUTES, CONSTRUCTION OF. See Penal Acts; Contracts; Redemption of Lands.

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their manufacture. The referee has found, on conflicting proofs, that these words "were not used by the plaintiffs to designate the ownership or origin, or particular manufacture of this preparation, but solely to indicate to physicians and the community of druggists the name of the three principal ingredients of which it is composed, to wit, iron, mixed or combined with phosphorus and Calisaya bark." On appeal from judgment in favor of defendant, entered on referees' report: Held, that the finding fully warrants the judgment, and nothing appears in the evidence to warrant its reversal. To maintain a claim to a trademark, it must be shown to consist of a "sign, device," or words indicating plaintiffs' ownership of the goods sold or manufactured by them, and distinguish their particular origin with them from those manufactured or sold by others. The terms, devices, or symbols so claimed must not be used as descriptive of the article as to kind, quality, composition, utility, designed use, class of customers, or place of its origin. Amoskeag Manufacturing Co. v. Spear, 2 Sandf. 599, 612; Corwin v. Daly, 7 Bosw. 222; Candee v. Deere, 5 Am. Rep. 125; Witherspoon v. Currie, 23 L. T. N. S. 443; Fetridge v. Wells, 4 Abb. Pr. 144; Batty v. Hill, 8 L. T. N. S. 791; Wolfe v. Goulard, 18 How. Pr. 64; Williams v. Johnson, 2 Bosw. 1, cited. The testimony clearly showed that this name was adopted as intending to indicate, by well-understood scientific terms, the article and its chemical compounds. There is no legal basis for affording the plaintiffs a monopoly of these terms of the English language, such as they seek by their complaint. Judgment affirmed. Caswell v. Davis. Opinion by Robinson, J.; Larremore, J., concurring.

2. Dissenting opinion. The learned chief judge, in dissent, reviews exhaustively the testimony before the referee, and says that it did not warrant the judgment and it should be reversed. He says the word was distinctive, being new in its application, and, as a compound word or name, it denoted what it was in fact, a new product or preparation compounded for the first time in a new way. It was new- - it was distinctive in its character, and denoted the origin of the article to which it was affixed. That is, it denoted what plaintiff meant it should, a peculiar preparation which was first made and sold by them. It comes in all respects within names of like character, protected as trademarks. The learned judge cites Delaware Canal Co. v. Clark, 13 Wall. 322; Burnett v. Phalon, 3 Keyes, 594; 9 Bosw. 195; The Congress, etc., Co. v. The High Rock Co., 45 N. Y. 291; Bradley v. Norton, 33 Conn. 157; The Dixon, etc., Co. v. Sugenheim, 2 Brewster, 21; Lockwood v. Bostwick, 2 Daly, 555; Dale v. Smithson, 12 Abb. Pr. 237; Meserole v. Tyneburg, 36 How. Pr. 14 ;. Pidding v. Hone, 8 Sim. 477. Ib. Opinion by Daly, C. J., dissentiente.

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BROKERS.

Construction of contracts: property received in “fiduciary capacity:" arrest. - Appeal from an order denying a motion to vacate an order of arrest. This action was brought to recover damages for the alleged conversion of certain United States bonds, received by the defendant in a fiduciary capacity, and as the agent of plaintiff. The complaint alleges an unauthorized and fraudulent disposal of the bonds, and refusal to deliver them to the plaintiff after the demand and notice, required in a certain receipt. This recites the receipt of the bonds and says: "These bonds we hold subject to the order of A. L. P. (the plaintiff), at ten days notice, agreeing to collect the coupons for his account free of charge, and to allow him two per cent per annum interest on the par value of said bonds, said interest to commence and count June 1, 1866. The order of arrest was based on the verified complaint and an affidavit of a third party to the effect above stated.

Held, that the cases on which the appellant relies (as Dry Dock Bank v. American Life Insurance Co., 3 N. Y. 355; and Dubois v. Thompson, 25 How. Pr. 418) are inapplicable to this case, as they were a mere borrowing of stock which was not to be returned in specie. The receipt in this case made it the duty of the defendant to return the same bonds received by him, on ten days' notice. Even if he had a right to use the bonds for his own purposes, that right was subordinate to the obligation which he assumed to return the same bonds, to collect the coupons on them and repay the proceeds to the plaintiff. He was bound to protect the bonds and to return them on demand. His refusal to do so was a conversion for which the defendant is liable. Order affirmed. Palmer v.. Hussey. Opinion by Ingraham, P. J.

CASES REVIEWED. See Former Adjudication; Usury. CODE OF PROCEDURE. See Landlord and Tenant. CONFLICT OF LAWS. See Usury. CONSTITUTIONAL LAW. See Landlord and Tenant.

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CONTRACTS.

1. Description of premises: interpretation of contracts: when map will control description: specific performance: auction sales. Appeal from a judgment in favor of plaintiff. This action is to compel a specific performance of a sale of certain lots, in the city of New York, purchased by the plaintiff at auction. The point in dispute is substantially whether the conveyance thereof should describe them as bounded on a street. A map prepared by defendant was produced at, and came into possession of plaintiff, before the bidding at the auction. By this map all of the three disputed lots were bounded on the boulevard, and lot No. 63 appears to be at its south-easterly intersection with 135th street, and Nos. 70 and 71 are respectively at its north-easterly and southeasterly intersections with 134th street. The justice below also found that the auctioneer, before putting up these three lots, described them to the persons present, including the plaintiff, as corner lots. 135th street, on the map, appears to cross the boulevard as does 134th street, except that a dotted line runs across that street on the east line of the boulevard. The judgment directs that lot No. 63 be described as bounded northwardly by the strip of land laid out and designated on the map as 135th street; and so as to the other lots.

Held, that if by defendant's map, and by the statements of his auctioneer, the purchasers were justified in

believing that the lots in question were corner lots, he must carry out the sale in the manner in which they were justified in understanding it. The familiar principle, that the words of a contract must be taken most strongly against him who uses them, should hold this defendant strictly to all which the purchasers might properly understand from the map or the auctioneer's language. There can be no doubt that the lots, as sold, were respectively bounded on their side by a strip of land designated as a street. Judgment affirmed. Phillips v. Higgins. Opinion by Learned, J.

2. Evidence of intention. - Evidence of what the defendant intended to sell is clearly inadmissible. The rights of the parties depend on what took place at the sale, not on the intentions of the defendant, which were not communicated to the plaintiff. Ib.

3. Description of premises: interpretation of contracts: covenants. This appeal is from a judgment in favor of the plaintiff and appellant, but which failed to award the entire relief demanded in the complaint. The action sought an injunction to restrain defendants from erecting any building upon or occupying, otherwise than for a court yard, a strip of land at and near the southeasterly corner of 22d street and Broadway, in the city of New York. It is founded upon an agreement in writing, executed May 12, 1849, between Kearney and Macomb, the then owners of the land affected by said agreement. The title of the parties to this action is derived from Macomb. The agreement recites, that the parties are severally owners of "divers lots of lands;" one of them of lots on the northerly side, and the other of them of lots on the southerly side "of 22d street, between the 4th avenue and Broadway." And whereas divers dwelling-houses have been erected on each side of said street which have been set back seven feet and six inches from the line of the street; and the parties hereto, deeming it for their mutual advantage that the lots fronting said street, when built upon between the said 4th avenue and Broadway, should be occupied exclusively for dwelling-houses, and that the fronts of all such dwelling-houses should be placed back seven feet and six inches from the line of the street, so as to range with those already built, and that no nuisance should be permitted on said lots between the 4th avenue and Broadway aforesaid." It is then agreed "that so much of their respective lots as is contained between the line of the street and a line seven feet and six inches therefrom shall forever remain and be enjoyed as a court-yard in front of any houses to be erected on said lots." The agreement also contains covenants against nuisances on the lots and provisions that the agreement shall run with the land. Held, that the recitals make it clear that the parties contemplated the erection of dwelling-houses only on the premises, and had in view the fronting of all of them on 22d street. This is apparent from the provision as to nuisances. The boundary on Broadway and 4th avenue is made subsidiary to the purpose of the parties, which was to create a court yard space on either side of the street from 4th avenue to Broadway, and to restrict the lots against nuisances. At the time the agreement was made the corner property was altogether unoccupied, and there was but little business use for it. The fact that the land on Broadway has become valuable for business purposes is no reason for modifying the agreement. It was not made for the benefit of the corner lot, but for all the lots described. The description used by the parties clearly embraces the lots on the Broadway corner, and the judgment should

be modified by extending the injunction to them. Clark v. The New York Life Insurance & Trust Co. et al. Opinion by Fancher, J.

Also, see Brokers.

CONVEYANCES. See Sheriffs.
COVENANTS. See Contracts.

DESCRIPTION. See Contracts. DISPOSSESSION. See Summary Proceedings. ESTOPPEL. See Former Adjudications.

EVIDENCE.

1. Conflict of testimony: questions for the jury.— Appeal from judgment in favor of plaintiff. This action is brought by the plaintiff to recover a stock of goods which she claims to have owned as her separate estate, and which were taken by the defendant on an attachment against her husband and another. The appellant objects, that the verdict was against the weight of evidence, and that the damages were excessive.

Held, that there were circumstances of suspicion about the case, and so much conflicting evidence, that if the verdict had been for the defendant, it could not have been interfered with. But the case upon the evidence resolved itself into a question of credibility, and the finding of the jury must be sustained. Judgment affirmed. Jacobs v. O'Brien, sheriff. Opinion by Davis, J.

2. Separate property of married woman: semble.-The common law regarding the business relations of husband and wife is unchanged, save by the statutes; and under the statutes as against creditors the property with which the wife trades must come elsewhere than from her husband. Ib.

3. Burden of proof: notes, bills, etc.: conflict of testimony. This action is brought to recover upon certain promissory notes. The notes in suit, with others, were indorsed, without consideration, by the defendant, for the purpose of their being used to effect a settlement with the creditors of the maker of the note, and, if such settlement failed, they were to be destroyed. The settlement did not take place, and these notes went into the possession of the plaintiff. On appeal from judgment in favor of defendant:

Held, that to enable the plaintiff herein to recover upon the notes, the burden is on him to show that he took them before their maturity and paid value for them. Upon these questions the testimony was contradictory, and the referee having found on such conflict of evidence for the defendant, the judgment cannot be disturbed on appeal. Michelbacker v. Staab. Opinion by Ingraham, P. J.

4. Admission of evidence.- The question whether defendant had not indorsed other notes for the maker of the ones in suit was immaterial and properly excluded. Ib. Also, see Wills; Sheriffs; Reference; Former Adjudication.

FIDUCIARY CAPACITY. See Brokers.
FORECLOSURE. See Landlord and Tenant.

FORMER ADJUDICATION.

Estoppel by former adjudication: landlord and tenant: surrender: evidence: case reviewed.- This action was brought to recover the rent of a house and lot in the city of New York, with the furniture, falling due on the 1st day of February, 1867. The action is against the surety on the lease. A previous action had been brought for the rent due in August and November, 1866, and a recovery had therefor. The question as to the condition of the house, and the surrender of the

lease on November 30, 1866, were set up in the first action, and the finding was in favor of the plaintiff. The judgment was affirmed on appeal to this court. (Learned v. Ryder, 5 Alb. L. J. 232.) The answer in this action avers an abandonment by the tenant before the quarter's rent became due, on the 30th November, 1866, because the buildings had become untenantable, and that the tenant then surrendered the premises, and the plaintiff took possession of the same. Upon the trial the record of the former action was put in evidence, under defendant's objection. The court below refused to allow evidence to prove that the premises had become untenantable from injuries from the elements, and of the abandonment and surrender averred by the answer. The reason assigned for this ruling was, that these questions had all been gone into upon the former trial, and a verdict rendered for the plaintiff. The court directed the jury to find a verdict for the plaintiff. On appeal from the judgment entered thereon:

Held, this ruling was erroneous. There was no decision in the former action that the surrender was not a bar to rent which would accrue subsequent to such surrender. That decision was merely that a surrender on November 30 was no defense to a claim for rent due on the 1st day of November preceding. It decided nothing as to the effect of that surrender on the subsequent liability of the defendant. Judgment reversed and new trial ordered. Learned v. Ryder, Opinion by Ingraham, P. J.

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1. Redemption by dispossessed tenant: summary pro ceedings: foreclosure of mortgage on lease. -- The relators seek, on certiorari, to reverse the decision of Justice Fowler, in certain dispossession proceedings taken before him. The important question is as to the position which the relators hold to the defendant Stuyvesant. The facts of the case appear sufficiently in the holding of the general term.

Held: In 1867 Stuyvesant leased, for ten years, to Browning and Moore, certain premises in New York, for the rent of $6,000 per annum. In 1868 B. and M. executed to Stuyvesant a mortgage on the leased property, and other property, for $20,000. In April, 1869, Stuyvesant went into possession under a dispossession warrant. By the statute (4 Stat. at Large, 66, act 1842, ch. 240), as the unexpired term exceeded five years, the lessee had a right to redeem within one year. B. and M. had, therefore, a right to redeem their lease, by paying the rent in arrear, and costs. Thereupon Stuyvesant, the mortgagee, proceeded to foreclose the mortgage, in an action in which the relators were parties. On the foreclosure sale the relators purchased, and accepted the deed executed under the judgment, October, 1869. Under that deed they went into possession. That deed in form conveys the premises, with the leases, unexpired, of B. and M., "to have and to hold for the unexpired term of said leases." The judgment under which the deed was executed provided that out of the avails of the sale there should be first deducted the rents due by B. and M., on the lease, before the payment to the plaintiff of the amount due on his mortgage. By this, Stuyvesant in effect provided that the statutory right of redemption should be exercised, so that any purchaser at the foreclosure sale should obtain the benefit of the lease to B. and M., free from

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