ALBANY, JACKSON V. GILCHRIST. [*118] the land should be viewed as the acts of one having title, and, therefore, liberally construed, and not as the acts of one setting January, 1818. up a possession in opposition to the title, which are to be construed strictly. It is not denied that a regular and complete paper title has been deduced to the defendant, and those under whom he claims, from Peter Fauconier, the grantee in the deed from Ann Bridges and her husband. Nor is it pretended that there has ever been any actual possession in hostility to this title; and it is a settled rule of law, that where there is no adverse holding, the possession is deemed to be in him who has title. This doctrine has been extended by this Court farther, perhaps, than the English rule would admit. In Jackson v. Sillick, (3 Johns. Rep. 262.) it is held, that where a feme covert is the owner of wild and uncultivated land, she is considered, in law, as in fact possessed, so as to enable her husband to become a tenant by the courtesy. The observations made by the Court in that case apply, with peculiar force, to the present. It is said there was no pedis possessio, or possession in fact, of the premises, in the popular sense of the words, by the *husband or his wife, during the coverture; for the lands remained, as new lands, wild and uncultivated, though the title clearly existed in the wife. The question is, Was she not considered as seised in fact, so as to enable her husband to become a tenant by the courtesy? To deny this would be extinguishing the title of tenant by courtesy to all wild and uncultivated land. It has long been a settled point, that the owner of such land is to be deemed in possession so as to maintain trespass. The possession of such property follows the title, and so continues, until an adverse possession is clearly made out. This is the uniform doctrine of this Court. Adopting this rule of construction, the act of 1771 would be fully satisfied without any acts of ownership exercised over the land; but the case before us does not rest even here; for, as early as in the year 1768, a part of this tract, under the title derived from Ann Bridges, was sold to Lewis Groat, and actual possession taken of the same, which has continued down, ever since, under title derived from him. Groat, by his deed, became responsible, and covenanted to pay the quit rent on the whole patent; and, for many years thereafter, he actually did pay the same. In the same year, about 800 acres more of this tract were sold to H. De Groff, and actual possession taken, and improvements made, and it has been ever since helt under the same title. But the partition which was commenced in the year 1769, and pending, at the very time the act of 1771 was passed, was a still more direct act of ownership exercised over the whole tract. This partition was made under the act of 1762, (Van Schaack's ed. 403.) according to the provisions of which various acts of public notoriety and ownership were made indispensably necessary. Among others, a survey of the whole tract to be divided was made. All this was done without any one appearing to set up or represent the claim of Ann Bridges, ALBANY, upon which the lessors of the plaintiff now place their right to January, 1818. recover, although public notice of such proceedings was given in two newspapers, for twelve weeks, directed to all persons interested in the tract. HOGHTALING V. OSBORN. [* 119 ] Without entering more particularly into the evidence of actual possession, we feel perfectly persuaded, that enough *has been shown to bring the present case within the spirit, true intent, and meaning, of the act of 1771; and that the defendant is entitled to all the benefit and protection which it affords. Judgment must, accordingly, be rendered for the defendant. Judgment for the defendant. Where a jury has been impanelled be HOGHTALING against OSBORN. IN error on certiorari to a justice's Court. The defendant in error brought an action in the Court below fore Sunday against the plaintiff in error, and a verdict was found for the their verdict defendant in error. It appeared, however, that the verdict was may be received received, and the judgment rendered on Sunday. commences, on Sunday; but in a trial in a justice's Court, the justice can Per Curiam. It was proper to receive the verdict, presuming. not enter judg- that the jury were impanelled before Sunday commenced; but ment on the ver- it was illegal to enter the judgment on Sunday, and for that cause it must be reversed. diet on that day (aj 96 Judgment reversed. (a) Story v. Elliott, 8 Cow. Rep. 27. Butler v. Kelsey, infra, 177. LORING against HALLING. IN error on certiorari to a justice's Court. ALBANY, January, 1813. LORING V. HALLING The word month, when The defendant in error brought an action in the Court below used in a statagainst the plaintiff in error, and declared on a note or memo- ute, is. if nothing appear to randum given for 24 dollars, on the sale of certain mortgaged the virary, to premises, pursuant to a notice under the statute. By this *.201 note, the defendant below promised to pay that sum when be under ood a the deed was given, provided the proceedings and sale had been calendar month. lunar, ai not a regular, pursuant to the statute, and the only question made (a) The public cases of sales upon the trial was, as to the sufficiency of the notice, which notice require was dated on the 17th of February, 1817, and inserted in a pub- to be given in lic newspaper the next day, and the sale was on the 7th of August. ander powers The justice considered the notice sufficient, and, accordingly, in mortgages. gave judgment for the plaintiff below, the defendant in error. s. 6. 1 N. R. L. 374.) is sufied for six surcient, if publish cessive lugar months previous to the time 'Per Curiam. A month in law is a lunar month, or 28 days, unless otherwise expressed; (2 Bl. Com. 141.) and this, as a general rule, is recognized by this Court in Leffingwell v. Pierpont; (1 Johns. Cas. 100.) although it is there decided, that it does of sale. (b) not apply to bills of exchange and promissory notes; but that, in the computation of time, in relation to those instruments, a month is construed to mean a calendar month. In Lacon v. Hooper, (6 Term Rep. 226.) it is laid down as a general rule, that when the word month is used in a statute, without the addition of calendar, or any other words to show that the legislature intended calendar months, it is understood to mean a lunar month. Lord Kenyon there expressed a wish, that when the rule was first established, it had been decided that months should be understood to mean calendar, and not lunar months; but observed, that the contrary had been so long and so frequently determined, that it ought not again to be brought in question. By an act, (1 N. R. L. 374.) (c) the notice is required to be inserted and continued, at least once a week, for six successive months previous to the sale, in one of the newspapers, &c. There are no words here to take it out of the general rule, that month means lunar month; and this seems to have been the construction given to this statute, in Jackson v. Clark, (7 Johns. Rep. 217.) The sale in that case was decided to be irregular, but no intimation was given that the time was too short; and the notice there was, like the present, computed by lunar months: it was dated on the 17th of February, and the sale was on the 12th of August. From these considerations it is very clear that (a) Contra, 2 Dall. 302. 4 läl. 143. 3 Serg. & Ravle, 184. (b) Vide Parsons v. Chamberlin, 4 Wendell's Rep. 512. Snyder v. Warren, 2 Cowen, 518. R. S. 545. (c) 1 ALBANY, January, 1818. BORDEN V. FITCH. [* 124] the pendency of these proceedings; and the act of the legisla ture of Vermont relative to divorces, required only a publication in the newspapers, of the citation, in the case of non-resident defendants. In October, 1814, the defendant applied to the plaintiff, widow, residing at New-Windsor, in the county of Orange, to receive his two sons into her family, as boarders. To this the plaintiff, after deliberation, consented, and the defendant then requested permission for himself to remain in the family a short time, until he could ascertain whether his children would be contented with their situation. This request was also acceded to, and the defendant, on coming to reside in the family, affected a deportment of the utmost mildness, benevolence, and piety. He frequently dwelt, in conversation, with peculiar tenderness, on his deceased friends, and in connection with them often spoke of his wife, using such ambiguous phrases, as "the departure of his wife,"-" that his wife had departed;" so that, *from the manner of his expressions and the occasions on which they were introduced, he fully impressed all who heard him with the idea that his wife was dead. Soon after he was admitted into the plaintiff's family, he paid his addresses to her daughter, Rebecca, who was then of the age of twenty-five years, and materially assisted in the support of the family, by her needle-work. The consent of the daughter, and her mother, the plaintiff, who were acting under the full belief that the defendant was unmarried, was obtained, and the marriage took place about the 28th of November, 1814. On the very next day, the defendant threw aside his assumed character, and commenced towards his new wife a conduct of extreme harshness and severity, though not amounting to personal violence, often raising gross and unfounded charges against her reputation and virtue, which were made the pretext for frequent threats and abuse, and finally, by his incessant persecution, her health and all her faculties were impaired. About a week after the marriage, it was discovered that the first wife of the defendant was still living; and although this circumstance was an additional source of disquiet, yet there was at first no suspicion as to the legal validity of the subsequent marriage. In the latter end of January, or the beginning of February, 1815, the defendant was required by the plaintiff to leave the house, and he removed, with the plaintiff's daughter, to lodgings which he had taken about three miles distant, where they continued a week, when application having been made to counsel, to take measures for the relief of the plaintiff's daughter, the defendant was arrested and imprisoned, on a charge of bigamy, by which means she was released, and returned to the plaintiff's family. The defendant was stated to be a man of considerable property, and evidence was produced of the good character of the plaintiff's daughter, and of loss of service. At the trial, Rebecca Borden was produced as a witness, on the part of the plaintiff, and was objected to, on the ground OF THE STATE OF NEW-YORK. *125 ALBANY, BORDEN that the witness was the defendant's wife; in support of which objection the decree of divorce of the Supreme Court of Ver- January, 1818. mont was given in evidence, and hence arose *the question as to the validity of that divorce: the judge decided that it was void; and the witness being admitted, the defendant's counsel excepted to the opinion of the judge. The judge charged the jury that the divorce granted in Vermont was of no validity, as regarded the plaintiff's right of action, and that the acquiescence of the plaintiff in the cohabitation of the defendant with her daughter, under the circumstances of the case, did not impair her right of action. The defendant's counsel excepted to this charge, and the jury found a verdict for the plaintiff for 5,000 dollars, being the amount of the damages laid in the declaration. There was a motion in arrest of judgment; and also to set aside the verdict. Bristed, for the defendant. 1. As to the motion in arrest of judgment. Several and distinct rights of action are blended in the declaration. A plaintiff cannot join, in the same action, a demand in his own right, and a demand in the right of another. (Hancock v. Haywood, 3 Term Rep. 433. 1 Chitty's Plead. 200.) Here the plaintiff, in the third count, joins her own claim for the loss of the service of her daughter, with the claim of her daughter to be supported by her husband, the defendant. An action for a tort must be brought in the name of the person whose legal right is invaded. (Dawes v. Peck, 8 Term Rep. 330. Chitty's Plead. 45, 46. ì Lev. 247. 1 Sid. 375.) No action is sustainable against the defendant; the second marriage being valid. If the action is maintainable at all, it should have been brought by the daughter, not the mother. The daughter has an action, on the case, for the injury arising from the fraud practised upon her. (1 Skinner, 119. 1 Bac. Ab. Action on the Case. (K.) Damages cannot be twice recovered for the same injury; and a recovery by the mother will be no bar to the daughter's action. The verdict, though general, cannot be amended. (Hopkins v. Beedle, 1 Caines's Rep. 347. 3 Term Rep. 433. Brown v. Dixon, 1 Term Rep. 276. Union Turnpike Company v. Jenkis, 1 Caines's Rep. 381. 391, 392. 394. Stafford v. Green, 1 Johns. Rep. 505.) The whole proof substantially *applied to the third count. (Vaughan v. Havens, 8 Johns. Rep. 110.) 2. The evidence offered as to the cohabitation of the defendant with a former wife ought not to have been received. The first marriage, in Connecticut, according to the laws of that state, ought to have been proved. In an action for seduction of this kind, the same proof of the first marriage is required as in an action for crim. con., or on an indictment for bigamy. Though, 101 FITCH. [* 126] |