also a smaller piece to his wife for life, all for a gross sum. If the contract was in fact made with both of the plaintiffs, as the piece agreed to be conveyed to the wife was a building spot, contiguous to the other; probably she will not be willing to take a conveyance of that unless the other shall also be conveyed to her husband; and perhaps she may be entitled to join him as co-plaintiff under the code, in a suit for both pieces. If the complaint is true, there may be such part-performance as prima facie entitles the parties to a deed. Admitting all this to be so, are the plaintiffs entitled to an injunction on this motion?

The first objection is, that Canton is over ninety miles from the residence of the defendant's attorney, though less than one hundred miles. The code, (§ 374) requires the service to be five days "if the person to be served reside within fifty miles of the place where the hearing is to be had; and, for every additional fifty miles, one day shall be added to the time of notice." "There is not an additional fifty miles," although nearly so, and a part of a day cannot be added to the time. The language of the code is not clear, but I think five days must answer for any distance under one hundred miles. If forty-nine be the highest whole number within fifty days, fifty added thereto will make ninety-nine. But I can not think this the true construction. "Within" means, here, "not exceeding," "not beyond," which are some of the definitions given by Webster: and the spirit of the act is, that fifty miles require five days, and one hundred miles six days, and so on. If I am right, then five days' notice in this case was sufficient.

The next question is on the merits of the motion. The complaint does not demand an injunction. The demand of relief is very brief and is as follows: "Wherefore, the said plaintiffs demand judgment that said James M'Crea shall fulfil his said agreement, and give them a deed of the above described premises, and that their costs be awarded to them on this complaint." Section 192, of the code, directs that when it shall appear by the complaint, that the plaintiff is entitled to the relief demanded, such relief, or any part thereof, consists in restraining the commission or continuance of some act of the defendant, the commission or continuance of which, during the litigation, would produce great or irreparable injury to the plaintiff; or where, during the litigation, it shall appear that the defendant is doing, or threatens, or is about to do, some act in violation of the plaintiff's rights, respecting the subject of the action, and tending to render the judgment ineffectual. A temporary injunction may be granted to restrain such act." The 193d section enacts that "the injunc tion may be granted at the time of commencing the action, or at any time

afterwards, before judgment upon its appearing satisfactorily to the judge by the affidavit of the plaintiff, or of any other person, that sufficient grounds exist therefor. A copy of the affidavit must be served with the injunction." The power to grant the injunction, so far as that power depends upon the code, is found in the section 192. By that it may be exercised, as I understand it, though the provisions are rather obscure, in two classes of cases: 1st, where an injunction is prayed for in the complaint and the act sought to be restrained, will, during the litigation, produce great or irreparable injury; 2d, where during the litigation it shall appear that some act is being done or threatened, or about to be done, violating plaintiff's rights, and tending to render the judgment ineffectual. The first class of cases evidently requires that the cause or necessity of the injunction should exist when the action is commenced, and in that case an injunction must be the relief "demanded," or a part of that relief. This means the relief demanded in the complaint, not that asked for on the action. In this case the act of the defendant in getting possession by ejectment could not do "irreparable injury" to the plaintiffs, but if they have paid or tendered all the purchase-money, and built on the premises and possessed it for six years, and are entitled to a deed, it might do "great" injury to put them out of possession, and that is sufficient cause if there were no other objection. But the omission of the proper demand for relief, renders the first branch of the § 192 inapplicable.

Nor does the last branch of the same section aid the plaintiffs. The act to be prevented must "tend to render the judgment," which the plaintiff is seeking to obtain, " ineffectual," which is not this case. In addition to this, I am not certain but the necessity for an injunction should arise during litigation. The language is "where during litigation it shall appear that the defendant is doing, or threatens, or is about to do" the act. This is analogous to the former practice. As a general rule, an injunction could only be issued on filing an injunction bill, that is, a bill asking for an injunction in the prayer for relief and for process. But where the court, having full cognizance of the matter, has by its own decree taken it into its own hands, it will interfere by its injunction to prevent injury to the property, either by the parties litigant or others, although there is no injunction prayed by the bill. (Daniels' Ch. Pr. 1834; Matter of Hemiup, 2 Paige, 319; 3 Sim. 273; 1 Barb. Ch. P. 619; 1 Hoff. Ch. Pr. 77; Clark v. Judson, 2 Barb. S. C. R. 90, and cases there cited.) It is safer, in a matter so important as the granting of an injunction, to follow the beaten path of long experience, where it can be done without violating the provisions of the statute.

VOL. IV.

5

The 193d section, I do not think, dispenses with the requirements of § 192. It probably was intended the motion might be made upon affidavit, but the necessary facts, the "sufficient grounds" to bring the case within § 192, should be set forth. Whether § 193 prescribes the only manner of making the motion, or leaves the former practice in force, it is not necessary here to decide. It may be added that, in a case of this kind, I think security should be required under § 195. Had the complaint been filed in the cause after a verdict in the first suit, another statute would have applied. The motion must be denied.

SUPREME COURT.

In the matter of ROBERT PATTERSON, an habitual drunkard. As to acts done by a lunatic or drunkard before the issuing of a commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, and not conclusive evidence of incapacity. But all gifts and contracts made by him after the actual finding of the inquisition, and until he is permitted to resume the control of his property, are utterly void.

While, therefore, the commission remains unrevoked, the lunatic or habitual drunkard cannot make a valid will without permission of the court. The existence of the commission will be held conclusive against the validity of the will.

An application to the court for an order to remove this technical objection is addressed to the discretion of the court, and may be made ex parte, or on notice to the committee and next of kin, as the court shall direct.

Albany General Term, March, 1849.-Before Justices HARRIS, WATSON, and PARKER. This was an appeal from an order of Mr. Justice Watson denying a motion to set aside an ex parte order allowed by him at chambers, suspending an inquisition of habitual drunkenness, &c., against Robert Patterson, so far as to permit him to make a will.

On the 17th of December, 1847, Patterson was found to be incapable of managing his affairs in consequence of habitual drunkenness, and a committee was appointed on the 6th January following. The order permitting him to make a will was made on the 26th April, 1848, on a personal examination of Patterson, and on several affidavits showing his entire abstinence from the use of liquors since the execution of the commission, and his competency in other respects to make a will, and was made without notice to the committee or next of kin. Patterson died on the 8th of February, 1849, pending an application to have his property restored to him, and leaving a will wherein he devised all his real estate, consisting of a farm of about 200 acres of land, to his executors in trust to pay the legacies therein mentioned. The probate of the will was opposed by

four of the heirs-at-law, in whose behalf the motion was made to vacate the order permitting Patterson to make a will.

J. H. REYNOLDS, for the motion, insisted that the order was irregular and improperly allowed; that the committee and heirs-at-law were entitled to notice and cited 2 Barb. Ch. R. 208.

G. VAN SANTVOORD, in person, for the executors contended that the property of Patterson was vested by the statute in the Court of Chancery and not in the committee; that the application was to the discretion of the court, and the order was obtained merely to remove a technical objection; that the heirs-at-law had no interest in the estate in Patterson's life time and were not adverse parties, and therefore not entitled to notice of the order; that an inquisition of lunacy did not per se create an incapacity to make a valid will, and that this court should not set aside an order merely to make a party to interpose a technical objection. He cited Stewart's Exrs. v. Lispenard, 26 Wend. 255; Stone v. Damon, 12 Mass. R. 488; 2 John. Ch. R. 247; 1 Hill, 97; 2 R. S. 3d ed. 114, 118. By the Court. PARKER, Justice. The first question to be determined is whether Patterson could make a valid will, during the existence of the commission, without permission of the court.

In White v. Palmer, 4 Mass. R. 147, it was intimated by Parsons, chief justice, that a letter of guardianship of a person adjudged to be non compos so long as it remained unrevoked was conclusive evidence of his insanity; but upon that point, the court declined to give any opinion, and the cause was decided on the ground that the letter of guardianship was prima facie evidence that the ward was not of sound mind. In the late case of Stone v. Damon, 12 Mass. R. 488, the same court held, that if a lunatic under guardianship be restored to his reason, he may make a will although the letters of guardianship be unrepealed. In such case, the burthen of proving a restoration to reason, was cast on the person claiming under the will. The rule seems therefore to be settled in Massachusetts, that the letter of guardianship is only prima facie evidence of insanity, as to acts done after the date of the decree appointing the guardian.

But I think a different rule has been established in this state. In L'Amoureux v. Crosby, 2 Paige, 422, the chancellor held that as to acts done by the lunatic or drunkard, before the issuing of the commission, and which are overreached by the retrospective finding of the jury, the inquisition is only presumptive, and not conclusive evidence of incapacity; but that all gifts of the goods and chattels of the idiot, lunatic or drunkard, and all bonds and other contracts, made by him after the actual finding of the inquisition declaring his incompetency, and until he is permitted

to assume the control of his property by the permission of the court are utterly void. (See, also, Beverly's case, 4 Coke's R. 126; b. 127, a.)

In the matter of Burr, a lunatic, 2 Barb. Ch. Rep. 208, this doctrine was applied, and the court made an order permitting Burr to make a will, and providing for his protection against the exercise of any undue influence.

I do not think, therefore, that Patterson could, in this case, have made a valid last will and testament, while the commission remained unrevoked, without the order of the court permitting him to do so. The existence of the commission presented a technical objection which it was necessary to remove.

It is objected in this case, that the order of Mr. Justice WATSON, made on the 26th of April, 1848, by which the commission was so far modified as to permit Patterson to make a will, was irregular and void, because it was made ex parte. On whom should notice have been served? The committee had no interest in the matter: and the children who now apply to the court were not then the heirs of Patterson. Nemo est hares inventis. I think they had not a right to notice, but that it was entirely a matter of discretion in the justice, whether to require notice to be given; and if given, to say to whom it should be directed; and that the order made would be equally obligatory, whether made with or without notice. In many cases it may be proper to consult the family and friends of the drunkard, as well as the committee. It happens that the justice satisfied himself of the competency of Patterson, by personal examination, and by conversation with him, and satisfactory evidence was produced of his entire abstinence from the use of intoxicating liquors, since the execution of the commission.

The real and personal property of a person found incapable managing his affairs, in consequence of habitual drunkenness, is in the care and custody of the Supreme Court, and not of the committee, who is a mere bailiff acting under the authority and direction of the court, and an application for an order to allow him to make a will, is addressed to the discretion of the court, and we think such an order may, if the court think proper, be made without notice to the committee or the next of kin. The order appealed from must therefore be affirmed.

THE PEOPLE VS. VAN PELT.

An indictment found on a penal statute, should state the precise words of that part of the statute defining the offence. It is settled law, that equivalent words are insufficient. (See authorities cited in this case.)