10 Wend. 654 | N.Y. Sup. Ct. | 1833
By the Court,
The only questions which arose upon the trial were, first, whether a joint trespass had been established against all the defendants, and secondly, whether the exemplification of the patent for the Woodhull
Upon the first point the evidence was abundantly sufficient to justify the judge in submitting it as a question of fact to the jury. His charge was unexceptionable. He instructed the jury that to entitle the plaintiff to a verdict against all the defendants as joint trespassers, it must appear that they acted in concert in committing the trespass complained of; that if some aided and assisted the others in the trespass, all were equally guilty ; or if some employed the others to commit the trespass, or assented to the trespass committed by the others, having an interest therein, they were all jointly guilty; and in commenting upon the evidence to the jury, he again observed that they must be convinced from the evidence that all the defendants were acting in concert in the trespass in question, or they could not all be found guilty; but it would not be material, if they had unequal interests in the avails of the trespass, for that those who confederated to do an unlawful act are deemed guilty of the whole, although their share in the profits may be small. But if any of the defendants were not guilty at all, or if any of them, though guilty, were acting separately and for themselves alone, without any concert with the others, they ought to be acquitted, and those only found guilty who were acting jointly. This is a correct exposition of the law, and embraces substantially all the points upon which the judge was requested to charge specifically. The jury, under this charge, having found all the defendants jointly guilty, it is not a case for this court to interfere with their verdict. All the defendants were seen upon the lot, engaged in cutting or carrying away timber, at different times. Whether they were jointly concerned or not was a matter of inference from all the circumstances of the case. They used one common road, made expressly for the purpose of getting timber from the lot; they also had a common shed or temporary house, to which all their logs were drawn for the purpose of being loaded on their sleighs, and where their shingles were made, and where they occasionally slept, &c. It is fairly to be presumed that this road and house at least • were made by the joint labor or at the common expense of alb
2. The exemplification of the patent to Matcbin, from whom the plaintiff-derived his title, was objected to, 1. Because the original did not purport to have been sealed with wax, or other adhesive substance; 2. Because it was not signed by the governor, or any one of the commissioners of the land office, ■Sic.: 3. Because it was granted upon the condition that there should be a settler on every 600 acres, which condition did not appear to have been complied with. A copy of the letters patent is not given in the case, nor a fac simile of the manner of its execution. The case states, that the plaintiff then introduced an instrument purporting to be an exemplification of letters patent from the state of New-York to Thomas Match-in, dated the 13th day of June, 1788, signed Rob’t Harper, deputy secretary, and certified by him to be a true copy of letters patent, as -of record in that office, with the seal of office -thereunto affixed, impressed on the paper. The objection made to the introduction of this instrument, as stated in the case, was, that there was no wax or adhesive substance for a seal, and that it was not signed by the governor, nor any one of the commissioners of the land office. The exemplification would not shew in what manner the original was sealed, whether by an impression upon wax or wafer upon the patent itself, or by a large wax seal appended and fastened to the patent. I presume the real objection was, that upon the patent as recorded, and the exemplification thereof, there was no L. 8. to indicate that the original had been sealed. It appears from an examination made at the secretary’s office of the records of letters patent issued in 1787, 8, to the number of more than 100, that none of them have upon them L. 8., or any other character representing the place of the seal, and that several of them have not the name of the governor, nor any other name to them, except that of the secretary or deputy secretary; and it also appears that those records have always been deemed and regarded as the records of patents duly issued, and are exemplified as such, when called for, in the same manner as those to which the name of the governor is
No one but the state can take advantage of an omission on the part of the patentee, to comply with the condition of the grant. I am of opinion, therefore, that the exemplification of ■ the patent was properly received in evidence, and that the motion for a new trial should be denied.
