demise for 14 years was an under-lease, and not an assignment. NEW-YORK. (Harg. Co. Litt. 308. a. Strange, 405.)

In the case of Roe, ex dem. Gregson, v. Harrison, (2 Term Rep. 425.) the lessee covenanted that neither he nor his administrators would "set, let, or assign over" the demised premises, or any part thereof, without permission, &c., and authorized the lessor to re-enter for any breach of covenant. *The administrator of the lessee made an under-lease of the premises, for less than the original term, without license; and the Court sustained an ejectment for the forfeiture, on the ground that by the literal and necessary construction of the covenant, the lessee was restrained, not only from assigning, but also from sub-letting; the words "set" and "let" being synonymous with the word demise.

In the case now before us, the covenant is, that the lessee for lives would not "sell and dispose of, or assign his estate in, the demised premises;" and he executed a lease of part of the premises for the term of 20 years.

Applying the principles of the adjudged cases, it is clear, that Drom did not, in this case, violate his covenant, by giving the lease for 20 years. Nothing short of an assignment of his whole estate in the land could work a forfeiture. Drom conveyed only a lesser estate for term of years, out of his larger estate for life; which was plainly a mere sub-letting, and not a "selling and disposing of, or assigning his estate in, the premises." The words "sell and dispose of" as clearly refer to the "estate," as the word "assign." It is a covenant by Drom not to "sell and dispose of" his estate, nor to "assign" his estate; and he has done neither, by giving the lease for a term of years.

In regard to the sale under the judgment and fieri facias, it is well settled that such a sale does not work a forfeiture; unless it appear that the proceedings were voluntary and collusive on the part of the tenant, with a view to defraud his landlord of his rights. (Doe, ex dem. Mitchinson, v. Carter, 8 Term Rep. 57. Jackson v. Corliss, 7 Johns. Rep. 531.) There is no evidence of any such fraud in this case.

The transfer of Miller's bid at the sheriff's sale, and the arrangement between the defendant and the administrators of Drom, was perfectly reconcilable with good faith, and worked no prejudice to the rights of the landlord.

The plaintiff is, therefore, entitled to recover no more than the 18 acres, 2 roods, and 24 perches, to which his title was admitted at the trial; that part of the defendant's possession not being covered by the lease to Drom.

Judgment, for the plaintiff, accordingly.

May, 1818.

JACKSON

V.

SILVERNAIL

[* 280 ]

END OF MAY TERM.

CASES

ARGUED AND DETERMINED

IN THE

Supreme Court of Judicature

OF THE

STATE OF NEW-YORK,

IN AUGUST TERM, 1818, IN THE FORTY-THIRD YEAR OF OTR

INDEPENDENCE.

Where a person has, at the request of an overseer of the

necessaries, he

KING against BUTLER.

IN ERROR to the Court of Common Pleas of the county of Tompkins.

The plaintiff in error brought an action of assumpsit in the poor, and on his Court below, against the defendant, in error, for boarding, lodgpromise that he would see him ing, nursing, and attending, one Washburn, at the special inpaid, boarded a pauper, and fur- stance and request of the defendant. At the trial of the cause wished him with in the September term, 1817, of the Court below, the following facts were given in evidence on the part of the plaintiff:-In No may maintain an action of as- vember, 1814, Washburn was taken sick at the house of the sumpsit against the overseer, al- plaintiff, who immediately made application to the defendant, though no order then one of the overseers of the poor of the town of Ulysses, to Inade for the visit Washburn, and the defendant, having seen him, requested relief of the pau- and directed the plaintiff to provide all things necessary until

had ever been

per. (a)

[* 282]

his recovery, and said that he would see him paid. The plaintiff, accordingly, furnished Washburn with board and necessaries during the space of eight weeks, and afterwards made out a bill against the town of Ulysses, and presented it to the board of supervisors of the county of Tompkins; but they refused to audit his account, as an order for the relief of Washburn had never been obtained. Upon this evidence the counsel for the defendant moved for a nonsuit, which was granted by the Court below, and the plaintiff tendered a bill of exceptions to their opinion.

(a) Vide Palmer v. Vandenbergh, 3 Wendell's Rep. 193. Fox v. Drake, 8 Cow. Rep. 191. Menklær v. Rochfeller, 6 Cow. Rep. 276. Gourley v Allen, 5 Cow. Rep. 614 Flower v. Allen, Ibid. 654. Olney v. Wicker, 18 Johns. Rep. 122.

The case was submitted to the Court without argument.

to

Per Curiam. The question in this case arises on a bill of exceptions, tendered to the Court of Common Pleas of the county of Tompkins. The action was brought against the defendant, who was one of the overseers of the poor of the town of Ulysses, in that county, for the support and maintenance of a pauper. The proof in the Court below showed a most explicit and positive request, by the defendant to the plaintiff, to maintain the pauper, and an express and absolute promise to pay him for the same. But this was not deemed by the Court below sufficient, because no order had been given by a justice to the overseer, to provide for the pauper. In this the Court erred. Application was made, in behalf of the pauper, the overseer for relief; and the relief was furnished at the request of the overseer. It was no part of the plaintiff's duty to see that the overseer had the order of a justice, as pointed out by the act. If the pauper was entitled to assistance, it was the duty of the overseer of the poor, on application being made to him, to inquire into the matter, and furnish the relief. He was under a legal, as well as a moral obligation, so to do; and this was a sufficient consideration for his promise to pay for the same. The act does not require that the person furnishing the relief should have an order from a justice for the purpose. This is a duty imposed upon the overseer, and is his authority for ordering the relief; but if he neglects to procure such order, it is his own fault, or negligence, and is not chargeable upon the plaintiff. (1 N. R. L. 287, 8.) The judgment of the Court below must, therefore, be reversed.

Judgment reversed.

ALBANY, August, 1818.

CLAVERACK

V.

HUDSON.

*Overseers of the Poor of the Town of CLAVERACK against The Overseers of the Poor of the City of HUDSON.

IN ERROR, on certiorari to the Court of General Sessions of the Peace of Columbia county.

[*283]

A., the owner of an infirm slave, executed a bill of sale of the slave to B.,

a person who was unable to maintain her, at the same time paying him 40 dollars to take her off his hands. B. then sold the slave, and, after several sales, she finally came into the hands of C., who lived out of the state. The sales were all fair and bona fide. A. resided in Claverack; and after the sale to C., the slave was left in the town of Claverack, and wandered into the city of Hudson; from whence she was removed by an order of two justices to the town of Claverack. Held, that the sale from A. to B. might be deemed collusive and void within the 14th section of the act concerning slaves and servants, (2 N. R. L. 206.) at the election of the justices, who might consider either A. as the master of the slave, or C., although he lived out of the state, there being no evidence that he had exported, or attempted to export, the slave; and, therefore, the order was proper on both grounds; on the first, because Claverack was the place of settle ment of A.; and on the other, because, if C. was the master, as he had no place of settlement within the state, and the slave had wandered from town to town, the justices were authorized by the 33d section of the act for the relief and settlement of the poor, (1 N. R. L. 292.) to remove the slave to the place from whence she last came.

ALBANY,

CLAVERACK

V.

HUDSON.

Two justices of the peace for the city of Hudson made an August, 1818. order for the removal of Sarah, a negro woman slave, from the city of Hudson to the town of Claverack, from which order the overseers of the poor of Claverack appealed to the Court of Sessions of Columbia county, which affirmed the order. It appeared from the return of the Court below, that the slave in question formerly belonged to Peter Van Rensselaer, of Claverack, in Columbia county, who, on or about the 20th December, 1814, executed a bill of sale of the slave to Asel Woodworth, of the town of Claverack, a very poor man, and wholly unable to maintain her, and at the same time paid him forty dollars to take her off his hands, the slave being infirm, subject to fits, and incapable of performing labor. At the time of executing the bill of sale, Van Rensselaer disclosed to Woodworth her true situation, and all her infirmities were fully set forth in the bill of sale. Soon after, Woodworth sold the slave to David C. M'Kinstry for ten dollars, and endorsed a transfer of all his right upon the bill of sale. M'Kinstry, a few days after, sold her to Isaac Hatch, in payment of a debt due from him to Hatch, who soon after sold her to Theodore Curtis, who sold her to a man by the name of Jacobs, who lived out of this state. Hatch and Curtis were freeholders in Hillsdale, in Columbia county; and they, as well as Van Rensselaer and M'Kinstry, were of sufficient ability to maintain the slave. The return also stated, that the slave was brought from Hillsdale, and left in the street in the town of Claverack, from whence she *wandered into the city of Hudson. The Court below decided that the sale from Van Rensselaer to Woodworth was void, and affirmed the order of removal.

[ * 284 ]

James Strong, for the plaintiff in error. He cited acts sess. 36. ch. 78. s. 7. s. 33. 1 N. R. L. 279. 292. sess. 36. ch. 83. s. 14. 2 N. R. L. 201. Concklin v. Havens, 12 Johns. Rep. 314. Jackson v. Walsh, 14 Johns. Rep. 415.

Parker, contra.

PLATT, J. By the 14th section of the "act concerning slaves and servants," (2 N. R. L. 206.) (a) it is enacted, "that if any person shall, by fraud or collusion, sell, or pretend to sell, or dispose of, any aged or infirm slave, to any person who is unable to maintain such slave, such sale or disposition shall be void," &c.

By the 24th section of the same act, it is provided, " that if any person shall export, or attempt to export, any slave, to any place without this state, such person shall forfeit 250 dollars, and the slave shall be free."

And by the 33d section of the "act for the relief and settle

(a) Vide 1 R. S. 658.

ment of the poor," (1 N. R. L. 292.) it is enacted, "that it shall be lawful to remove any slave who shall have left his master, or shall have wandered from town to town, to the place of settlement of his master, &c., if such place of settlement can be found in this state; and, if none such can be found, then to the place from whence such slave shall have last come," &c.

I incline to the opinion that the facts present a case within the purview of the 14th section of the act; and that the sale from Van Rensselaer to Woodworth, as it regards the town, must be deemed collusive and void. If so, the justices who made the order of removal had a right to elect, to consider either Van Rensselaer, or Jacobs, as the master of this slave; for, as applicable to such a case, the term "void" must be construed to mean "voidable," at the election of the justices who make the order. The purchasers under Van Rensselaer, who have successively speculated upon this slave, shall not be permitted, for their own private benefit, to *allege the illegality of the first transfer. They each, in succession, had a complete title, as against Van Rensselaer, and having had the benefit of their contracts, they must assume the correspondent risks.

If Van Rensselaer may not be regarded as the present master of the slave, on the ground that his transfer was collusive and void, then I think Jacobs is to be considered as the owner. For although the return states, that at the time of his purchase, Jacobs "lived out of this state," yet there is no evidence that he has "exported, or attempted to export, her out of the state." The forfeiture and the penalty accrue, not merely for buying a slave here, by a person living out of the state, but for carrying, or attempting to carry, such slave out of the state. The purchaser, in such case, acquires a qualified right; that is, he may either remove to this state, and keep the slave, or he may sell her to an inhabitant of this state.

Allowing, then, that the sale by Van Rensselaer was not collusive, and that Jacobs is to be regarded as the true owner, then, I think, the order of removal may be sustained; for the return states, that "the said Sarah wandered from the town of Claverack, into the city of Hudson;" which presents a case expressly provided for in the 33d section, which has been cited; to wit, that where a slave has wandered from town to town, and whose master's place of settlement cannot be found in this state, it shall be lawful to move such slave to the place from whence such slave shall have last come, &c.

On either ground, therefore, I am of opinion, that the order of the Sessions was correct, and ought to be affirmed.

SPENCER, J., and YATES, J., were of the same opinion.

THOMPSON, Ch. J., and VAN NESS, J., dissented.

ALBANY,

August, 1818.

CLAVERACK

V.

HUDSON.

*285]

VOL. XV.

29

Order of Sessions affirmed.

225