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Upon the whole, we are satisfied that the first coft of the NEW-YORK, reffel, and the expences of fuch repairs and outfits as are May 1803. properly chargeable against the underwriters on her, are fully equal to the fums covered by the two policies, and that therefore a new trial ought not to be granted.

N. B. By a statement which was read as forming a part of the opinion of the court, the value of the Helen was thus eftimated.

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P. Kemble

V.

W. Bowne.

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NEW-YORK,
May 1803.

P. Kemble

V.

W. Bowne.

Under the act

of the 8th Jan.

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The two per cent, which by contract of the parties are to be deducted in case of lofs, we regard as part of the confideration for the insurance, or as so much additional premium in the event of a difafter. To add it therefore to the valuation would be a violation of this agreement. The paffages referred to in Wefket only fhew how an infurance ought to be made to be completely covered, not that two per cent. of the value fhall not be retained where it is fo ftipulated. He admits this was formerly the practice in England, but policies there do not now contain this claufe: on the whole, we think two per cent. must be deducted from the preceding valuation and intereft calculated on the balance, to wit, on the fum of dollars 6758:32.

Mistake of dollars 88:88 in the item marked true fum dollars 6669:44.

*

makes the

James Jackfon ex dem. Nathaniel Potter and others against Solomon Hubbard.

EJECTMENT to recover Lot No. 49, Tully, in the county

1794 for regif- of Onondago. The facts were as follow:

tering deeds of

military lands,

the clerk's of

Ifaac Hubble the patentee, on 30th of September 1783, &c. a prior deed duly conveyed the premises to Jofeph Brown and John M'Aunot depofited in ly, who, on the 22d February 1786, duly conveyed the fame to Hugh Walsh. The first deed was never depofited in the Clerk's office, but was on the 8th of June 1791, recorded in the Secretary's office, and on the 29th of April 1797, in the Clerk's office at Onondago. The laft deed was also recorded in the Secretary's office on the 8th of June 1791, and on the

fice is void against a fubfequent purchase for a bona fide

confideration

whofe deed is depofited.

Budeno, on

May 1803.

J. Jack fon

V.

S. Hubbard.

7th September 1794, depofited in the clerk's office according NEW-YORK, to law. Hugh Walsh, in due form conveyed the premises to Charles P. Rogers, and Charles P. Rogers to Nathaniel Potter, which last mentioned two deeds were recorded in the clerk's office of Onondago. Ifaac Hubble, on the first of October 1788, duly executed a power of attorney to Jonathan Danforth and Ezekiel Tiffany, empowering them, jointly and feverally, to convey the faid premises to Elisha Crane and Mofes Budeno. Tiffany, on the 14th of August 1795 conveyed the faid premises to Crane and Budeno, and the deed was recorded in the clerk's office of Onondago. the fame day last mentioned, conveyed one undivided moiety of the premises to Sebastian Vischer, which conveyance was recorded in like manner. Crane, on the first of October in the year laft mentioned, conveyed his moiety of the premises to George Allen. Vischer, on the 4th of June 1796, also conveyed his moiety to the faid George Allen, who, on the 25th of June in the fame year laft mentioned, conveyed the whole premises in question to the defendant and one David Ruffell, which four last mentioned conveyances were recorded in the clerk's office aforefaid. The defendant has been in poffeffion of the premises ever fince his purchase and still continues in the poffeffion thereof. Upon the preceding cafe the following question is fubmitted for the opinion of the Supreme Court-to wit, whether the plaintiff is entitled to recover, seeing that the deed from the patentee to Brown and M'Auly, under which he claims, has not been depofited in the clerk's office according to law?

Per curiam. Both parties are fair purchasers of a military lot of land. The deed under which the leffor of the plaintiff claims is prior in date, and was on record in the fecretary's office previous to the paffing of the act requiring all fuch deeds by a certain day to be depofited with the clerk of the county of Albany, and declaring fuch as should not be depofited void as to fubfequent purchasers, for valuable confideration, who fhould fo depofit their deeds. The defendant's deed was fo depofited. The deed from the first purchaser to the leffor of the plaintiff, together with the power of attorney under which it was executed, was alfo duly depofited agreeable to the act; and the question which the parties have made is, whether fuch recording in the fecretary's office is to

May 1803.

V.

S. Hubbard.

NEW-YORK, be confidered as notice, and thus fatisfying the principal object of the act. We think it does not. It was not the deJ. Jackfon fign of the legislature to direct a mere registry of fuch deeds. for the purpose of enabling the purchasers to examine a fair deduction of title. But the object of the act declared to be, is, the prevention of frauds by facilitating the means of difcovering forgeries. Now the examination of a mere record could not conduce to this end. Nothing fhort of an infpection of the original would in many cafes answer the purpose; particularly where the forgery confifted in antedating the deed, and this species of forgery, we may infer from the act, which particularly alludes to it, was probably the most frequent.

Where a conveyance might have been claimed, and poffeffion has

We are of opinion that judgment be for the defendants.

L. and H. Vandyck against Van Beuren &
Vofburg,

THIS was an action of trefpafs quare claufum fregit, for entering and cutting wood in five feveral lots in De Bruyn's patent in the county of Columbia. The plea was, not guilty, with notice that the defendants were tenants in common of right to claim,a the loci in quibus, and were feized in fee of a ninth part thereof. The caufe had been firft tried before his honour the Chief

gone with the

deed will, after

fifty years, be prefumed. A

fole poffeffion under claim of right for forty years by one tenant in com

mon amounts

to an oufter.

Juftice, at a Circuit Court in Columbia County, on the 25th
June 1800. The facts were briefly these :

The word" de- " fire" in a will raises a truft,

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Stephanus Van Alen, by his will of the 17th May 1740, devifed inter alia as follows: "Item. I give and bequeath unto my fons Cornelius, Jacobus, and Ephraim, all my land or fhare that I have in the patent called the Bruyn's patent, "lying within the bounds of Kinderhook patent, with all the "privileges, hereditaments, and appurtenances thereunto fire are fpecifi- " belonging, or in any wife appertaining, unto them my faid "fons Cornelius, &c. and to their heirs and affigns forever, "each one equal third part thereof, the whole into three

where the objects of that de

ed.

equal parts to be divided, with a provifo and restriction "that they my faid fons Cornelius, &c. do pay, or cause to "be paid therefor unto my daughters Hyletje, Elbertje, Jan"nettje, Chriftina, my grand daughter Maria, and their

* She was the daughter of the teftator's eldest fon Lawrence.

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May 1803.

"respective heirs and affigns, each the just and full fum of NEW-YORK, L.12:10:0 current money, within the time and space of fix years next after my wife's decease or remarriage, in fix even "diftinct payments every year, to each the just and equal fixth ❝ part of the said twelve pounds ten fhillings aforefaid.

"I defire* my three fons Cornelius, Jacobus, and Ephraim, "that in cafe any of my daughters above mentioned should "be inclined to purchase of them the land in the Bruyn's

patent (here above bequeathed to them) for a living for "herfelf and family, that then they let fuch of my daughters "have it at the fame price they had it for."

Jacobus and Ephraim died without iffue: Cornelius had a fon Stephen, who had a fon Cornelius, each of which fons was the eldest in fucceffion. In 1752, a divifion of the lands in Bruyn's patent was laid out by one Bleeker, and from that time to the time of the bringing of the action, poffeffion was proved by the plaintiffs in themselves and thofe under whom they claimed from Hyletje, the firft poffeffor, who intermarried with Arent Van Dyck. The plaintiffs, in fupport of their action, offered proof of an application from Hyletje to Cornelius Van Alen for the purchase of the lands in question, and also a release and quit claim from Stephanus Van Dyck, fon and heir of Hyletje and Arent, to the plaintiffs then ́in poffeffion.

His honour refused to receive either the one or the other. The defendants claimed right under a conveyance by leafe and release from Maria, who had married one Herkemer; but had conftantly refided out of the limits of the United

Where the property and the perfon, or object of the bounty, are defignated, a fpecific form of words is not neceffary to create a truft. Therefore "will and defire-defire and requeft-defire-it is my dying request"-raise a truft. Vernon v. Vernon, Amb. 4. Nowlan v. Nelligan, 1 Bro. C. R. 489. Pierfon v. Garnet, 2 Bro. C. R. 38. 226. So" hoping," Richardfon v. Chapman, 5 Bro. P. R. 400. So "not doubting," Maffey v. Sherman, Amb. 520. Wynne v. Hawkins, 1 Bro. C. R. 179. So" recommend," where the teftator may command, Malim v. Keighly, 2 Vef. J. 333. So if the perfons intended be fo defcribed that the law can afcertain them, tho' not specifically named, as "relations-kindred." Becaufe the ftatute of diftributions enumerates thofe held in law to be beneficially related. Hardinge v. Glyn, 1 Atk. 468. and the cafes there. Palmer v. Scribb, 8 Vin. Abr. 289. So" defcendants," for they mean heirs. Crofley v. Clare, Amb. 397. So "defcendants living near a place." Ibid. But "all defcendants" is too general. So is continuing the bequeft in the family." Harland v. Trigg, 1 Bro. C. R. 142. So when the requeft is "of what fhall be left" after a devife. Pufhman v. Tilliter, 3 Vef. J. 7. It would be injuftice to the reader not to refer him to Mr. Finch's note to Eales v. England, Pre. Ch. 200, 1. Buggins v. Yates, 9 Mod, 122. and Cunliffe v. Cunliffe, fo far as they are contra the above decifions are not law.

L. & H. Vandyck

V.

Van Beuren &
Volburg.

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