ALBANY, Auguft 1803. Jackson V. Sternbergh. lay on the hills or not. It was proved by three witnesses that the defendant had sworn, before a magistrate, on a certain occasion, that he had been in possession of the premises eight or nine years, that he held the west end of the lot under Henry Lawyer, and the east end he claimed in his own right, amounting to about fifteen or nineteen acres, and also that the defendant said it had once been Le Roy's lot. Thomas Machin, a surveyor, swore, that in June 1801, he surveyed lot 156, at the request of one of the lessors, and that, according to his survey, the premises were included in that lot. On the part of the defendant it was contended, that the premises in question lay on the hills, and were not included in the boundaries above mentioned, to prove which several witnesses were examined. Nicholas Sternbergh swore he was seventy-nine years old, and was brought up near the premises; that forty or fifty years ago Jonas Le Roy, under whom the lessors of the plaintiff derived their title, shewed him the bounds of the land above described; that he the witness was well acquainted with the premises in dispute, and knew they do not lay within those bounds, and Jonas Le Roy had told the witness, that his (Le Roy's) deed did not cover the premises; that he was easterly to the hills only. Peter Mann, a surveyor, deposed that he had run out lot 156, and the premises were not included in it. Nicholas Sternbergh and David Sternbergh deposed, that they were acquainted with the premises in question, and that they are situated upon what are commonly called the: Hills, and are not included in the bounds of Jonas Le Roy's deed. One witness swore that the defendant had from time to time, for forty or fifty years past, cut wood for fire and fences on the premises; and another witness testified that the defendant had cleared and cultivated the premises for about twenty years last past. On this evidence the jury found for the plaintiff. Tiffany for the defendant. The application is for a new trial. The verdict being contrary to law, evidence, and the sense of the court. From the case it does not ap pear that the plaintiff, or those under whom he claims, have ever been in possesion of the lands demanded. This must in all cases be shewn. Run. Eject. 23. 4. It is indispensably neecssary also that he manifest to the court a right of entry. Ibid. 42. and the reasons are clear, because, as the action is possessory, and you must enter to possess, you must establish a possession, and a right of entry to obtain that possession, from whence you are ejected. Therefore, in 1 Burr. 126, the court decided against the remedy, though the plaintiff had a right. Because, the right to enter, on which this action is founded, was gone: so here, the defendant having been in possession more than 20 years, the right of entry is lost, and whatever may be the title of lessors of the plaintiff, a recovery cannot be had. The weight of evidence is also in favor of the defendant. Gibhard contra. The reasons for granting a new trial must be collected from the whole of the evidence, and the nature of the case, 1 Burr. 44. Where the evidence preponderates against the verdict, the court will grant a new trial; when it does not, they will refuse. The point agitated at the trial was, whether the premises are within the boundaries of lot 156, or not. By part of the testimony, it appears, they were; and, in cases of a contrariety of evidence, the court will never take away the right of the jury, and try fact and law also. The right of entry must have been made out, or the plaintiff could not have had a verdict. The declaration of the defendant himself, as proved at the trial, is an answer to the argument respecting possession, and right of entry. He said, he held the land as tenant to the Le Roys; this was only 14 years since: as his possession was the possession of the Le Roys, it shews they were possessed within 20 years, the action, therefore, well brought. The 50 years cutting wood, does not destroy this conclusion, for it only proves a 50 years continuing to trespass. The right of the lessors is established by the acknowledgment of the defendant himself, within 20 years, and not to be prejudiced by any inference. There is nothing, therefore, to induce the court to set aside the verdict. Tiffany in reply. The application is to the discretion of • Taylor, ex dem. Atkyns v. Horde & al. ALBANY, August 1803. Jackfon V. Sternbergh. ALBANY, Jackfon, 1. Sternbergh. the court. If there is a doubt of the propriety of the ver dict, the court will not suffer the possession of the defendant to be changed. The injury might be more than a subsequent recovery by the now defendant could compensate. As to the confessions of the lessors' title, if their right of entry was gone, it could not be revived by the acknow ledgment of the defendant. Per. curiam. Delivered by Thompson, Justice. This was an action of ejectment, tried at the Schoharie circuit, in June, 1802. The plaintiff deduced a title, to a certain piece or tract of land, lying in Schuyler's patent, and which was known and distinguished by Lot No. 156; and bounded as follows; "All the one full, and equal seventh part, of all the undivided lands between Schoharie river and the hills, from Fox's Creek to a place where two rivulets or runs of water come in one, and fall or run in Schoharie river, by north of Garlickt Town." The only enquiry on the trial was, whether the premises in question were comprised within the boundaries above mentioned. The jury found a verdict for the plaintiff, and applica tion is now made for a new trial. The description of the premises to which the plaintiff deduced a title, is vague and uncertain; they are described as lying "between Schoharie river and the hills, from Fox's Creek, to a place where two rivulets or runs of water come in one, and fall or run in Schoharie river, by north of Garlic Town." This uncertainty may account, in some measure, for the different results in the surveys made by the opposite parties, and for the contradiction which appears in the testimony. The plaintiff's eastern boundary appears to be the bills, and the enquiry was, where is the dividing line between the flats and the hills? The testimony on the part of the plaintiff, except that of Adam B. Vroman, is principally as to general reputation, that this was called Le Roy's lot. Mr. Vroman, however, swears, that the defendant shewed him the corners of lot 756, and the boundaries, and he, the witness, said, they included the premises in question. On the part of the defendant, Nicholas Sternbergh swore, that the plaintiff's ancestor, under whom they claimed, as much as 40 or 50 years since, pointed out to him, his boundaries, and that they did not include the premises; that he was born and brought up in that neighbourhood, and had always been well acquainted with the premises, that Jonas Le Roy, the ancestor of the plaintiff, expressly declared to him when he was pointing out his boundaries that his deed did not cover that land, which is now in dispute. It appeared also from the testimony of two other witnesses that the lands in dispute, lay on what always has been called the hills, and that the defendant has occasionly, cut timber on the premises, for forty or fifty years past. The testimony is certainly very contradictory, but none of the witnesses appear to have been impeached. Their testimony however may make a very different impression when put on paper, from what it would, to hear them examined. Judging only from the case the weight of evidence is with the defendant. And although this of itself is not a sufficient ground for granting a new trial in all cases, yet from the whole that appears, there is well founded reason to believe justice has not been done. And that another examination of the cause ought to be made, before the possession is changed, we are therefore of opinion, that a new trial ought to be granted on payment of costs. Peter Renaudet against Ephraim Crocken. THIS was an action of trespass quare clausum fregit tried at the May circuit for the county of Saratoga in the year 1803, before his honor Mr. Justice Kent. The only questions raised for the determination of the court were: ALBANY, Jackfon V. Sternbergh. committed in a town, which If a trespass be before action brought is subdivided, the trespass may be laid as in the original town ship. A surunder an appointment by an atrorney. may testify veyor acting 1st. Whether if a trespass be committed in a part of a town, which, by a division made before the commencement of the action, is annexed to another township, the plaintiff can declare as for a trespass committed in the township where the locus in quo was originally situated? 2d. Whether, a surveyor, acting under the authority of a person appointed by virtue of a power of substitution in a letter of attorney, ought to be admitted to testify to the facts of such survey, without shewing the letter of attorney received ney, though it was acknowledged to exist? Z without pro cing the power An agent who has promised to refund mo on account of his principal in ALBANY, Renaudet V. Crocken. case a verdict pass against him in any particular suit, is a good witness in that very cause. In a qui tam action under the ftatute of ufury brought, 3d. Whether an agent, having received several sums o money on account of trespasses alleged to have been committed on the lands of his principal, and which he promised to refund if he did not recover in the present action, was a competent witness. The fourth was merely as to the weight of testimony. 1. The trespass having been committed in 1797, at a place then within the town of Saratoga, the plaintiffs had a right to allege it was done, in that town according to the truth of the case without regard to its subsequent division. The judge therefore properly over-ruled this objection. 2d. It was not necessary to produce the plaintiff's letter of attorney to Beriah Palmer. The object of Baldwin's testimony was to shew that Jacobs lived on a lot of the plaintiff's, and acknowledged his right; that it was then regarded as the plaintiff's, taken care of as his, and possessed under him, whether this had been done under a power or not, was immaterial. The ownership and possession of, or under him were the important facts to be established. 3. Beriah Palmer was a competent witness, notwithstanding the agreement he may have made to refund the monies he had received from other trespassers, in case the plaintiff's failed in this suit. Such monies must have been received for the plaintiff, and he only, and not the witness would be affected by such refunding. 4. If the jury believed the plaintiff's witnesses, and we are to presume they did, the verdict is not against evidence and ought not to be disturbed. Thomas Pettingal, qui tam, against James THIS was an action of debt, under the statute of usury, brought in the common pleas for the county of Oneida, to recover the excess of interest paid over and above the legal rate allowed. The facts were that one Joseph Loomis, after lapfe of a borrowed a sum of money from the defendant, and by way of security assigned to him a lease as a pledge, accompanied by a promissory note (intended to operate as a bill of sale,) year, to reco ver the excefs |