Oct. 1818. NEW-YORK, against justice and the constitution. Still less reason is there for admitting the principle, that the common council of IIudson could, by any act, devest the plaintiff of the fee of the old road, without his consent. KELLOGG V. WILDER. We are, therefore, of opinion, that the plaintiff is entitled to judgment. Judgment for the plaintiff. (a) (a) Vide Peck v. Smith, (Day's Connec. Rep. 103-147. November, 1814,) in which the subject is fully discussed and considered by the judges of the Supreme Court of Errors of Connecticut. W. conveyed to the plaintiff a piece of land, with the usual covenants of seisin and warranty, "saving and excepting the road or highway, laid out, used and improved, running from the old highway to the bridge over the premises." It was held, that the right of soil in the highway was vested in the plaintiff, subject to the right of passage in the public, and that he could maintain trespass quare clausum fregit against the defendant for erecting a shop on a part of the highway not used for travelling before the conveyance to the plaintiff. A justice of the peace has no right, during the parties to KELLOGG AND REED against WIlder. IN ERROR, on certiorari to a justice's Court. The defendant in error brought an action of trespass, in the a trial before Court below, against the plaintiffs in error, for taking his cow. him, to permit The facts proved at the trial are altogether unimportant; it is treat the jury sufficient to state, that the plaintiff below showed a bare possesliquor. (b) sion, without any property in the cow; and that the defendant, [*456] Kellogg, proved a property in himself, *the other defendant acting as his assistant in driving away the cow. with spirituous After the evidence on the trial in the Court below had closed, each of the parties, by permission of the justice, treated the jury with a bottle of whisky, in order, as the return states, "to enable them to listen to the remarks of counsel." A verdict and judgment were rendered for the plaintiff below. Per Curiam. Independent of the gross misconduct of the justice, in permitting such an improper use of spirituous liquor at the trial, for which the consent of parties affords no excuse, the verdict was decidedly wrong upon the evidence. Judgment reversed. (b) The circulation of spirituous liquors among a jury, while sitting as such, even with consent of parties, is cause for reversing the judgment. Rose v. Smith and Davis, 4 Cow. Rep. 17. Ante, 87. Vide Dennison v. Collins, 1 Id. 111. 356 BURK against Campbell. IN ERROR to the Court of Common Pleas of the county of Franklin. NEW YORK, BURK V. CAMPBELL. An action on the case will he against a sheriff for not returning the party may proceed by alelection. () an execution, or tachment, at lus In an action on the case This was an action of trespass on the case, brought in the Court below, by the plaintiff in error, against the defendant in error, who was sheriff of the county of Franklin, for not executing or returning a writ of fieri facias. The declaration stated, that in the term of October, 1815, of the Court below, the plaintiff obtained a judgment against one Whipple, for 55 dollars and 25 cents; that on the tenth of December, in the against a sheriff for not levying same year, he issued a fi. fa. to the defendant, returnable on the and returning a 28th of January then next, which was delivered to the defend- writ of pore fuant to be executed; and although there were goods and chattels, the sheriff had cias, a plea that and lands and tenements, on which the defendant might have never been ruled levied, yet he did not levy, nor did he ever return the writ. writ is bad, for The defendant pleaded that before the commencement of this the sheriff is suit, he was not required by any rule of the said Court of Com- bound to retur mon Pleas, to return the writ, before the judges and *assistant justices thereof, according to the course and practice of the said Court. To this plea there was a general demurrer: the defendant joined in demurrer, and the Court below gave judgment for the defendant. The cause was submitted without argument. THOMPSON, Ch. J., delivered the opinion of the Court. This case comes before the Court on a writ of error to the Common Pleas of Franklin county. It was a special action on the case, against the defendant, as sheriff, for neglecting to levy and collect the amount of a certain fieri facias, issued out of the said Court of Common Pleas, in favor of the plaintiff, against Nathaniel Whipple, according to the directions and exigency of the writ. The only plea interposed by the defendant was, that he had not been required, by any rule of Court, to return the said writ, according to the course and practice of the Court. To this plea there was a general demurrer, upon which the Court gave judgment for the defendant. The judgment was erroneous. There can be no doubt that an action will lie against a sheriff, for neglect of duty, in not returning an execution delivered to him. The declaration in the Court below set forth, with all necessary certainty, the judgment and execution; the delivery of the same to the sheriff, before the return day; and that the defendant in the execution had sufficient goods and chattels, lands and tenements, within the county, whereof the money, required by the execution to be raised, might have been levied and collected, but which the de (a) Vide The People v. Spraker, 18 Johns. Rep. 390. to return the a writ without [* 457 ] being ruled, and he cannot avail himself of his own neglect of duty to defeat the plaintiff's action. (b) 457 Oct. 1818. STOW TIFFT. NEW-YORK, fendant neglected and refused to do. It is no answer for the sheriff to allege that he had not been ruled to return the execution. This he was bound to do, without being ruled. The plaintiff had his election to proceed either way; and the sheriff cannot avail himself of his own neglect of duty to defeat the plaintiff's action. This is a principle fully recognized by this Court in Hinman v. Breese, (13 Johns. Rep. 529.) Our statute concerning sheriff's recognizes such an action against the officer. It declares, that if any sheriff, or other officer, shall not make due return to any writ delivered to him to be executed, he shall not only be liable to attachment, or amercement, but, also, to an action on the case, for damages, at the suit of the party aggrieved. (1 N. R. L. 423.) The judgment of the Court below must be reversed. [* 458] Judgment reversed. Where the seisin of the stantaneous, or not entitled to dower. POLLY STOW, Widow of TIMOTHY Srow, against TIFFT. que THIS was an action of dower, brought to recover dower in husband is in- two lots in Douglas patent, in the town of Bolton, in the counseisie dower, passes from him ty of Warren. The tenant pleaded ne unques eo instanti that and ne unques accouple in loyal matrimonie. The cause was he acquired it, tried before Mr. J. Yates, at the Warren circuit, in June, 1817. his widow is The marriage of the demandant, and the death of her husband, in December, 1804, were proved. Timothy Stow, the husis conveyed to band of the demandant, purchased the premises in question durthe husband ing the coverture, and paid part of the consideration money; ture, who, at the and, to secure the payment of the residue, executed, at the time sume time, exe- of receiving the conveyance, a mortgage of the same premises to to the the grantor: after his death, the land was sold under a power contained in the mortgage, and was purchased by a person from whom the tenant derived his title. So, where land during cover cutes a mort gage grantor, to se cure the consideration money, the seisin of the land is but for A verdict was found for the demandant, subject to the opinion an instant in the of the Court, on a case containing the above facts. grantee, and is immediately re vested in the Weston, for the plaintiff, contended, that the demandant was grantor, and, entitled to her dower, notwithstanding the mortgage by her husConsequently, the widow of band, and the sale under it. The act (sess. 10. ch. 4. s. 1. N. the grantee can not claim her dower in the premises. Where two instruments relating to the same subject are executed at the same time, they are to be taken in connection, as forming parts of the same agreement; as where a conveyance of land, and a deed to secure the purchase money, are executed at the same time; the effect of which transaction is, that if the price of the land shall not be paid at the stipulated time, the grantor shall be reseised of the land, free of the mort gage; and whether such an agreement be contained in one and the same instrument, as it well may be, or in distinct instruments, can make no difference as to the effect. (a) (a) Vide Jackson v. M'Kenny, 3 Wendell's Rep. 233. Le Page v. M'Crea, 1 Ibid. 164. Jackson v Oct. 1818. STOW V. TIFFT. • R. L. 56.) (a) says, that the widow shall have assigned to her, NEW-YORK, for her dower, the third part of the lands of her husband which were his at any time during the coverture. If the land abides in the husband for the interval of but a single moment, the wife will be entitled to her dower. (2 Bl. Comm. 132.) The husband, in this case, purchased the land, and paid part of the consideration money, and received an absolute conveyance in fee; and to secure the remainder of the purchase money, he mortgaged the same land, on the same day, to the grantor. There was a moment of time in which the land was in him, though he immediately after conveyed it to the mortgagee. It was a seisin, though for an instant, beneficially for his own use. (2 Bac. Abr. 371. Guillim's ed. Dower C. 2. in notes. Preston on Estates, tit. Dower.) The defendant cannot object to the seisin of the husband, the mortgagor, as he claims title under him. (Taylor's case, cited in Sir Wm. Jones, 317. 2 Bac. Abr. 371. note.) Cowen, contra. This very question was raised in the case of Hitchcock v. Harrington; (6 Johns. Rep. 290.) but the Court did not think it necessary to discuss or decide it. Dower is a legal claim or title, and can exist only where there is a legal seisin or estate. The seisin of the husband, in this case, being instantaneous, no right of dower vested in the wife. Coke says, a wife shall not be endowed of a seisin for an instant. (Co. Litt. 31. b.) As if a tenant for life makes a feoffment in fee and dies, the wife shall not be endowed. (Ib. note 3.) So, in Amcotts v. Catherick, (Cro. James, 615.) where a husband, seised jointly with his wife in special tail, makes a feoffment after her death, to himself for life, remainder to his son in tail, but before livery to these uses, marries a second wife, and after livery dies, the second wife was held not to be entitled to dower; for the husband gained no new estate, it being eo instanti drawn out of him. The same principle is recognized in Lord Cromwell's case; (2 Co. 77.) there B. covenanted to suffer a recovery and levy a fine to the use of A., and a fine was levied to R. Perkins, and his heirs, who granted and rendered a rent, &c. to B. in tail, with remainder in fee, &c., and granted and rendered to A., in fee, with proclamations, &c.: it was held that the seisin of Perkins being but for an instant, and only to the purpose to make the render, his wife should not be endowed, nor the land subject to his recognizances or statutes. The same point was adjudged in Dixon v. Harrison. (Vaughan, 41.) Blackstone, also, lays down the same doctrine. The seisin of the husband, for a transitory instant only, when the same act which gives him the estate, conveys it, also, out of him again; as where, by a fine, land is granted to a man, and he immediately renders it Dack by the same fine, such a seisin will not entitle the wife to (a) 1 R. S. 740. [* 460 ] Oct. 1818. NEW-YORK, him; so if a feoffment be made to one and his heirs, to the use of another and his heirs, the wife of the trustee shall not be endowed, for he was the mere instrument, and had but an instantaneous seisin. (1 Co. 77.) STOW V. TIFFT. [* 463] [* 464 ] The case of Nash v. Preston (Cro. Car. 190.) would seem, at first view, to be opposed to the proposition, that a deed to the purchaser, and a mortgage given back by him to the grantor, at the same time, would not entitle the wife of the purchaser to her dower; yet it is observable, that the principle is admitted, that an instantaneous seisin of the husband *does not entitle the wife to dower. Croke admits, that if a husband take a fine sur cognisance de droit come ceo, and render arrear, although it was once the husband's, yet his wife shall not have dower, for it is in him and out of him, quasi uno flatu, and by one and the same act. That case does not state that the redemise was made at the same time with the bargain and sale; and I presume it was not. That case, therefore, does not bear on the general principle. I am authorized to say, by the decision of this Court in Jackson v. Dunsbagh, (1 Johns. Cas. 95.) that where two instruments are executed at the same time, between the same parties, relative to the same subject matter, they are to be taken in connection, as forming together the several parts of one agreement. I entirely agree in the opinion expressed by Ch. J. Parsons, in the case of Holbrook v. Finney, (4 Mass. Rep. 569.) that where a deed is given by the vendor of an estate, who takes back a mortgage to secure the purchase money, at the same time that he executes the deed, that there the deed and the mortgage are to be considered as parts of the same contract, as taking effect at the same instant, and as constituting but one act; in the same manner as a deed of defeasance forms, with the principal deed, to which it refers, but one contract, although it be by a distinct and separate instrument. The substance of a conveyance, where land is mortgaged at the same time the deed is given, is this:-The bargainor sells the land to the bargainee on condition that he pays the price at the stipulated time, and if he does not, that the bargainor shall be reseised of it, free of the mortgage; and whether this contract is contained in one and the same instrument, as it well may be, or in distinct instruments executed at the same instant, can make no possible difference. It is true that Courts of equity have interposed to relieve the mortgagor against the accident of his non-payment of the price, at the stipulated period. It is also true, that Courts of law have considered the interest of the mortgagor as liable to be sold on execution.. This, however, does not interfere with the question, as to how the contract between the original parties is to be viewed, as between themselves, when the equity of redemption is gone and forfeited. The opinion which the Court has formed receives decisive *support from the declaratory act of the 28th sess. ch. 99. It recites that whereas doubts have arisen whether mortgages given |