Corey v. The People.

them out. Corey and Wright must be deemed to have taken possession of the house peaceably, though they were obliged to break open the door to enter it; and having obtained possession of the house peaceably, and having the right to the possession of the same, they were justified in using all neces-sary force to defend their possession. (See 4 Denio, 448; 17 Wend. 257; 15 Barb. 590; 24 id. 16.)

It can not be said that the house was Brown's castle or the castle of his wife, for they did not live in it or use it at the time as a dwelling. They used it only as a store house, in which they kept grain, salt, flour, pork barrels, old trumpery, &c. It was not on premises where they lived, and was no more sacred than a barn. And as Corey obtained possession of it without violence or a breach of the peace, and owned it and had the right to the possession of it, he was justified in attempting to retain the possession of the same; and as Wright had rented the house as tenant of Corey and acted under him in entering it, he possessed the same right to use force in keeping the possession of it that Corey had.

For these reasons we are of opinion the court of sessions committed errors in charging the jury and by refusing to charge some of the propositions they were requested to charge; and that the judgment of that court should be reversed, and a new trial granted therein.

So decided.

[BROOME GENERAL TERM, November 21, 1865. Parker, Mason and Balcom Justices.]

SEAMAN US. CIVILL.

C. leased certain premises to S. for the term of five years, subject to the fol. lowing provision: "In case the said C. shall sell the said premises at any time after the first two years, he shall pay to the said S. fifty dollars, and allow him to gather the crops then sown or planted upon said premises, and S. to give it up to said C." Held that it might fairly be inferred from this provision of the contract that it was the intention of the parties that the $50 should be paid only in the event of a sale of the premises to a third party; and that the sum named was not recoverable upon a sale to S. himself.

THIS is an appeal from a judgment of the county court of

Albany county, affirming the judgment of a justice's court. The defendant leased to the plaintiff certain premises situated in Castleton for the term of five years, subject to the following provision: "In case the said Civill shall sell the said premises at any time after the first two years, he shall pay to said Seaman fifty dollars, and allow him to gather the crops then sown or planted upon said premises, and Seaman to give it up to said Civill." The lease bears date January 23, 1860. On the 16th day of May, 1863, Civill sold and conveyed the premises to Seaman, who continued in the possession thereof. The action was brought by Seaman to recover the fifty dollars, and judgment having been rendered against him in the justice's court, he appealed therefrom to the county court of Albany county, where the judgment was affirmed.

John H. Reynolds, for the appellant.

Ira Shafer, for the respondent.

By the Court, INGALLS, J. In construing the instrument in question, the intention of the parties is to be ascertained, if possible, and, when ascertained, carried into effect so far as the rules of law will permit.

I think it may be fairly inferred from the provision of the contract, that it was the intention of the parties that the $50

Seaman v. Civill.

should be paid only in the event of a sale of the premises to a third party.

By the above provision of the lease, Seaman, in case of sale, was to have not only the $50, but also the right to gather the crops, which latter privilege is inconsistent with the idea of a sale of the premises to himself, which would embrace that right. But it was further provided that Seaman should surrender up the premises to Civill in case of sale, which is only consistent with the idea of a sale to a third party. No such surrender could have been contemplated if Seaman became the purchaser, as it would be in effect surrendering the premises to himself, when the lease only provides for a surrender to Civill.

It is quite obvious that the payment of the fifty dollars, and the right to remove the crops, was intended as a compensation to Seaman in case he was deprived of the possession of the premises before the expiration of his term, by a sale to a third party. Such is a fair and reasonable construction of the contract. Seaman has voluntarily purchased the premises and continued in the undisturbed possession of the same. If it had been the understanding of the parties that the $50 was to be paid in case of a sale to Seaman, it is but reasonable to infer that such sum would have been deducted from the purchase price of the premises, or some other provision then made for the payment thereof.

This is a consideration of some significance bearing upon the question as to the intention of the parties in regard to the payment of the $50, and indicates either that the plaintiff did not deem himself entitled to the money, or intended to waive the payment thereof. The plaintiff has failed to establish a case entitling him to recover, and the judgment of the county court must be affirmed, with costs.

[ALBANY GENERAL TERM, December 4, 1865. Hogeboom, Peckham, Miller and Ingalls, Justices.]

CRAWFORD and others vs. COLLINS and others.

The parties to a copartnership may give it any name they please, and all contracts, obligations or notes made with, or given to such firm, may be prosecuted in the individual names of its members.

The act of April 24, 1862, "to provide for the collection of demands against ships and vessels," applies to canal boats.

By the third section of that act, which requires the specification of lien to be filed in the office of the clerk of "the county in which the debt shall have been contracted," the legislature meant the port where the contract was performed, or completed and became a debt; not the locality where the bargain was made. Accordingly, where a contract for towing a boat from Troy to New York was made in Troy, the sum to be paid not becoming due until the delivery of the boat at New York; Held that the agreement did not become a debt until performance, which took place in New York; and hence the debt might be said, within the spirit and intent of the statute, to have been contracted in the latter city, and that the specification was therefore properly filed in the New York clerk's office.

A general agent of a towing company has authority to sign and verify the speci-
fication mentioned in the act, in behalf of his principals, it being an act in the
business of his agency; and such signing and verification is the act of his
principals.

A Justice of the Supreme Court has authority to issue a warrant under the act
of 1862, for the seizure of a boat, equally with the officers authorized by law
to perform the duties of a Justice of such court at chambers.
Objecting to a surety in a bond for insufficiency, even though the objection is
sustained, and another surety added, will not release the former, so long as his
name is on the bond when it is finally accepted.

THIS

IS was an action tried at the circuit, before the court and jury, wherein a verdict was rendered for the plaintiffs subject to the opinion of the court at general term. The parties now move, the plaintiffs for judgment and the defendants for a dismissal of the complaint. The action was upon a bond given by the defendants to the "Union Towing Company," on a proceeding under chap. 482 of the Laws of 1852, page 956, entitled "An act to provide for the collection of debts against ships and vessels." The plaintiffs compose a firm, or co-partnership, known as the "Union Towing Company," and keep offices at New York and Oswego, whose business is towing boats on the canal by horse power, and on the Hudson river by steam. The defendant, Collins, owned the canal boat

45 269

127a 211

Crawford v. Collins.

Sidney L. Cross, and the plaintiffs, at his request, towed said canal boat from Troy to New York for the sum of $60, arriving in New York on the 19th day of November, 1863. Said towing has never been paid for. On the third day of December, 1863, the plaintiffs filed in the clerk's office of the city of New York, specifications of lien on said boat. The said canal boat remained in New York until the 29th day of November, when it went to Rondout and returned in ten days. It then remained at New York twenty days. It then went to Elizabethport, loaded, and came back and went to Elizabethport and back again, and then remained in New York all winter. It left New York again about the first of May, 1864, and has not since returned to that city. On the 19th of October, 1864, the plaintiffs, by their agent, applied to a Justice of the Supreme Court, who issued a warrant under said act, and the boat, then at Schenectady, was seized by the sheriff under said warrant,

The petitioner set forth the name of the co-partnership, who composed it, and the proceedings were had in the name of the "Union Towing Company." After the seizure of said boat, the bond on which this action is brought was executed and delivered and the boat released. This bond was executed by all the defendants. It was to the Union Towing Company, its successors or assigns, specified the claim for which the boat had been seized, and was conditioned to pay, or cause to be paid, unto said Union Towing Company, the amount of all claims which should be established to be due to them, and to have been a subsisting lien upon said canal boat, in pursuance of the provisions of chap. 482, Laws of 1862. The jury rendered a verdict for the plaintiffs for $101.06.

J. L. Hill, for plaintiffs.

Mitchell & Beattie, for defendants.

By the Court, JAMES, J. This action was properly brought in the individual names of the plaintiffs; they were the