Albany, December, 1840.-The People v. White. the statute. I had supposed that the circumstances of such a case as is mentioned by the judge, would be evidence of a formed and deliberate design to kill the particular individual who was assaulted and beaten. If one shoot a gun at ano her, it is evidence of such design. So if he strike with a weapon which would "plainly, and in the ordinary course of events, put the life of the person in jeopardy." The second subdivision of the statute, I think, embraces an entirely different class of cases: as where one shoots into a crowd, or throws a deadly missile into a throng, [584] or thrusts about in a crowd with an instrument which he has good reason to believe will produce death to some one he cares not who. Where there is an unlawful beating with an unusual instrument, and the intention to kill is not evident from the circumstances, I suppose the case comes within the 10th or 12th section of the statute, 2 R. S. 661, in relation to manslaughter, and would constitute that crime. But whether the count was good or bad, it having been entirely withdrawn from the consideration of the jury, it cannot now, in my opinion, be pressed before the court for the pur pose of upholding the conviction. The prisoner was convicted upon the first count under an erroneous charge from the court in relation to the law of the case; and there being great doubt whether, upon the facts he should not have been convicted of manslaughter instead of murder, I cannot consent that this count should be raised up to sustain his conviction. In relation to the other branch of the judge's charge, in the naked and unqualified manner in which it comes to us, I am of opinion it was calculated to prejudice the prisoner and take from him the advantage of such reasonable doubts as existed in his case. It was certainly in the unqualified manner in which it is spread out upon the bill of exceptions, equivalent to telling the jury that the want of evidence of good character on the part of the prisoner was evidence of positively bad character, and gave the prosecution the advantage of that bad character, which they could not be permitted to show by positive testimony. On a view of the whole case I think the judgment below should be reversed; and the prisoner remanded for a new trial. On the question being put, Shall this judgment be reversed? All the members of the court, (22 being present,) with the exception of one Senator, voted in the affirmative. Whereupon the judgment of the supreme court was reversed, and a new trial ordered. [$585] Albany, December, 1840.-Smith v. Adams. *SMITH, appellant, and ADAMS, respondent. Where a bill in chancery is dismissed for want of jurisdiction, an order prohibiting the complainant from again litigating the subject matter of the bill will not be made on the ground that it had been passed upon by the chancellor and decided against the complainant.* APPEAL from chancery. The appellant filed a bill in chancery to obtain an injunction against the diversion of a water course by the respondent. The cause was heard on pleadings and proofs by the VICE CHANCELLOR of the second circuit, who decreed an injunction. On an appeal to the CHANCELLOR, the decree of the vice chancellor was reversed, and the complainant't bill dismissed with costs. But the chancellor added a clause precluding the complainant from again litigating the question whether, previous to the filing of the bill, the defendant had actually diverted the water. See the case, the opinion of the chancellor and the substance of the decree in 6 Paige, 435 et seq. The complainant appealed to this court. The cause was argued here by S. Stevens, for the appellant. M. T. Reynolds, for the respondent. After advisement, an opinion was delivered by Mr. Justice BRONSON, concurring with the chancellor, that the bill was properly dismissed, but concluding as follows: "Considering this a most unreasonable litigation on the part of the complainant, and not finding upon the points submitted by his counsel, another question, which was, however, mentioned on the argument, I was at first inclined to the opinion that the decree should be affirmed throughout. But on turning my attention more particularly to the form of the decree, [586] I think it requires some modification. Although the right of the complainant to sue at law is saved, he is precluded from again litigating the question whether there has been any diversion of the water which had been accustomed to flow through his aqueduct. Now, while I agree with the chancellor and the vice chancellor, that the weight of evidence is with the defendant upon that point, and although I would be very willing to conclude the complainant from the further agitation of the question, if I could see the way clear for doing so, I have been unable to discover any principle upon which we can safely arrive at that result. When the bill is dismissed for want of jurisdiction, we, in effect, say to the party, "we will not listen to your complaint-it belongs to another forum-go to the proper court and litigate the matter there." There is an apparent incongruity in ismissing the bill for want of jurisdiction, and at the same time making a *Decided 24th December, 1840. Albany, December, 1840.-Smith v. Adams. decree which concludes the party as to any portion of the merits of the controversy when he resorts to the proper forum for redress. The decree does not show on what particular ground the chancellor proceeded; but as my opinion rests on the ground that the bill should be dismissed for want of jurisdiction, I think the decree of the chancellor should be so modified as not to prejudice the complainant's right to sue at law, for the redress of the injury of which he complains. The members of the court unanimously concurring in the conclusion of Mr. Justice BRONSON, the decree of the chancellor was modified accordingly. *HUMBERT and others, appellants, and THE RECTOR, CHURCH- [ *587 ] WARDENS and VESTRYMEN of TRINITY CHURCH in the city of New-York, respondents. The statute of limitations may be interposed as a bar to relief in equity on a bill filed for the settlement of boundaries between adjoining tracts of land alleged to be confused, and praying a discovery, and also for an account as between tenants in common, the same as it may be insisted on at law in an action of ejectment or of account; on the principle that where the jurisdiction of the courts is concurrent, time is as absolute a bar in one court as in the other. Where from the face of the bill, it appears that the statute of limitations has attached, and that the complainant has failed to bring himself within any of its exceptions, the defendant may demur, and is not bound to plead the statute. Even in cases of exclusive equitable cognizance, the statute of limitations is generally permitted to prevail in equity as well as at law, on the principle of analogy; but there are exceptions (besides those enumerated in the statute,) such as frauds, trusts, &c. in which the court exercises its discretion in permitting the defence. A naked possession of land, unaccompanied by a claim of right, never constitutes a bar, but enures to the benefit of the true owner. So if a man have title as tenant in common, and be in possession, he is presumed to hold for himself and his co-tenants; but such presumption may be rebutted by proof of acts or declarations, indicating an intention to exclude his co-tenants, such as a disavowal of his holding as a tenant in common; and if he in fact keeps out his co-tenants, such acts and declarations constitute an ouster, and his possession from that time becomes adverse within the meaning of the statute. Neither fraud in obtaining or continuing the possession or knowledge on the part of the tenant that his claim is unfounded, wrongful and fraudulent, will excuse the negligence of the owner, in not bringing his action within the prescribed period; nor will his ignorance of the injury, until the statute has attached, excuse him, though such injury was fraudulently concealed by the contrivance of the wrong-doer. A possession to be adverse, must be inconsistent with the title of the complainant who is out of possession; it must be accompanied with a claim of title, exclusive of the rights of all others; and must be definite, notorious, and continued for the period of 20 years. Vhere there is an actual occupation of premises, an oral claim is sufficient to sustain the defence of adverse possession; it is only where a constructive adverse possession is relied upon, that the claim must be founded on color of title by deed or other documental semblance of right.* *Decided 24th December, 1840. [588] Albany, December, 1840.-Humbert v. Trinity Church. *APPEAL from chancery. The appellants, in June, 1834, filed their bill before the vice chancellor of the first circuit, to settle the boundaries of certain lands in the city of New-York, owned respectively by the appellants and the respondents, alleged to adjoin each other; and also to take an account between them of certain other lands alleged to be held by the parties as tenants in common. The appellants state in their bill that Anneke Jans Bogardus, their ancestor, being seized of two tracts of land in the city of New-York, one called the Dominie's Hook, containing about 130 acres of land, and the other the Dominic's Bowery, containing about 62 acres, on or about 29th January, 1662, made her last will and testament, whereby she devised to her children and grandchildren all her real estate, and died in the lat ter part of the same year; that the appellants are the lineal descendants of Anneke Jans Bogardus, and heirs at law in the line of descent from William Bogardus and Sarah Roeloff or Roeloffson, two of the children and devisees of Anneke Jans Bogardus, and that there are a large number of persons besides themselves standing in the relation of descendants of Anneke Jans Bogardus, who are entitled to shares and portions of the real estate devised by her, but that they are unable to give a complete list or schedule of her living descendants, and that the bill is filed in behalf of themselves and such others of her legal descendants as shall come in and contribute to the expenses of the suit. They then allege, that in November, 1705, the defendants obtained a grant from Edward Lord Cornbury, then governor of the province of New-York, of a tract of land in the city of New-York, called successively the Duke's farm, the King's farm and the Queen's farm, and of a certain other tract called the Queen's garden; the first being described as bounded on the east partly by Broadway, partly by the common and partly by the swamp, and on the west by Hudson's river; and the second tract being described as situate on the south side of the churchyard of Trinity Church, and as fronting to Broadway on the east, and extending to low water mark upon Hudson's river on the west. They allege that the corporation of Trinity Church, [ *589 ] *at the time of applying for the above grant, were fully aware and knew that the property contained in the grant did not em brace any part of the Dominie's Hook and Dominie's Bowery, but that in their petition for the grant they purposely and fraudulently left the northern boundary of the premises to be covered by the grant undescribed and unfixed, to the end and with the intent to avail themselves of that circumstance afterwards for extending their occupancy, under color of such grant, to other lands not properly included therein, but of which in the circumstances of the times they might be able to obtain some kind of possession, and thus if pos sible to make title by occupancy and lapse of time against the owners of the lands so to be wrongfully occupied as aforesaid. They charge that any pos Albany, December, 1840.-Humbert v. Trinity Church. session which the corporation may at any period have taken or held of the Hook and Bowery (except so far as legalized by a certain conveyance ob tained by them from one Cornelius Boyardus, as afterwards more particu larly set out) was taken and held under color or pretence of Governor Cornbury's grant, but with full knowledge that the same was not thereby authorized. They allege that at the time of Governor Cornbury's grant, the tracts called the Hook and Bowery were in the actual seizin and possession of the Bogardus family or some of them, under claim of full legal title and ownership to every part thereof, and that from that period to about the year 1785, various members of the family were in the actual use and enjoyment of dif ferent parts of the property under claim of title to the whole in behalf of themselves and their co-heirs. They then allege, that prior to the revolutionary war, Trinity Church commenced making encroachments upon the Hook and Bowery, by taking possession of portions thereof in pursuance of their original design, and resorted to various means for that purpose, (particularly alluded to in the opinion of Mr. Justice Cowen, delivered in this can se.) That this system of aggression was continued until 1785, when the corporation induced one Cornelius Bogardus, (who before and since the revolutionary war was in possession of part of the Bowery, claiming title to it and the Hook, for himself and his co-heirs,) to sell his birth-right in the family estates for £700, and he accordingly conveyed to the cor- [ *590 ] poration all his individual share in the two tracts called the Dominie's Hook and the Dominie's Bowery; that on receiving such conveyance, the corporation were let into the general and unrestrained possession of large portions of the Bogardus lands, and thereby became seized and possessed of the lands as tenants in common with all such rightful heirs and owners thereof, who had not parted with their undivided interests in the same; and in this manner and relation continued to occupy the lands from 1785 until the filing of the bill in 1834. (For a further detail of the matters set forth_in the bill, the opinion of Mr. Justice Cowen is again referred to.) To this bill the respondents demurred: 1. Because the parcels of land, portions of the Hook and Bowery alleged to be in their possession are not set forth; 2. That the complainants do not set forth the share of the lands to which they claim to be entitled to; 3. That the complainants show no title in equity to call upon the defendants touching the matters set forth in the bill; that it is not pretended that the complainants or their ancestors have been in possession at any time since 1785; 4. That it is not shewn that any action at law has been brought by the complainants, or that any impediment exists to such action; 5. That the bill is defective for want of necessary parties, apparent from the bill itself; and 6. That the bill does not present a case entitling the complainants to discovery or relief. The cause was brought to a hearing before the Iion. WILLIAM T. McCOUN, |