
    Nathaniel Bogardus and others v. The Rector, Churchwardens and Vestrymen of Trinity Church in the City of New York, William Berrian, and William Johnson.
    
    In ascertaining facts relative to the possession and claim of lands, which occurred more than a century prior to the inquiry, courts receive evidence, which would be inadmissible, if offered to prove events occurring within the period of the memory of living witnesses.
    In such cases, the statements of historians of established merit, (as to facts of a public and general nature;) the recitals in public records, in statutes and legislative journals ; the proceedings in courts of justice, and their averments and results 5 and the depositions of witnesses in suits or legal controversies; are received as evidence of facts to which they relate; but always with great caution, and with due allowance for its imperfection and its capabjlity of misleading.
    On this principle, the parties were allowed to read in evidence, the clerk’s minutes of a trial had eighty-five years previous, affecting the possession of the same land ; depositions or affidavits taken before a judge, ninety-four years previous, also sixty years previous, apparently for use in a judicial proceeding respecting the possession ; recitals, boundaries and designations, touching the same land, contained in statutes and public grants and charters; other proofs of a name or designation, commonly and notoriously applied to the land in question; ancient maps and the descriptions and delineations thereon ; and an authentic history of the province at large.
    In proving an ancient possession and its character, the counterparts of leases executed by tenants to the party claiming to have been in possession, produced from the proper custody ; are admissible in evidence, without any proof of the execution of the corresponding lease executed by the landlord.
    Letters patent of land, are emauations from the sovereign power, the evidences of the pleasure or bounty of the government, and are attested by the governmental authorities, as public acts.
    Being alienations by matter of record, letters patent do not require the signature
    ' of the sovereign or the governor to render them valid. The grant is of record in the government offices ; the letters patent are a transcript of the grant, authenticated by the great seal.
    In grants of lands by the colonial governors, they did not act as mere private attorneys or agents of the sovereign. They were executing the sovereign power, as viceroys or representatives, in the name of the king, and in the same forms as if they had been executed by him.
    In the colonial legislation, statutes enacted by the assembly and approved by the governor and council, were valid and operative immediately ; they continued in force unless they were disapproved by the king ; and upon that happening, they became annulled.
    Bights which were acquired under a colonial statute, after its passage, and before it was disapproved by the sovereign, were not abrogated or impaired by such disapproval,
    Where one enters upon land, under a deed in terms conveying the whole in fee> executed by several persons described as heirs of the party last seised ; the presumption of law is that he entered in severalty, claiming the whole land in fee adversely to all the world ; although it should be made to appear, that there were other heirs, tenants in common with his grantors, who did not execute such deed.
    To found the defence of adverse enjoyment under a claim of title, it is immaterial whether the claim be made under a deed valid in form, or under one wanting in all the essentials of a proper conveyance.
    An actual occupancy by one claiming the title, is a good adverse possession, without any written evidence of title.
    Where land has been held in possession for eighty years under a grant of the whole, claiming the whole title ; the title thus acquired, cannot be shaken or impaired by an admission made by its then owner, that the grantor in such original grant, was only a tenant in common ; nor by proof of the fact that he was such tenant in common.
    A tille, which has become perfect by an adverse possession extending beyond the period of limitation, is not affected by an entry made by one who by descent is the owner of the true title which is thereby barred.
    The latter, if he maintained his entry, would be turned out in an ejectment, on proof of the title by adverse possession.
    Such an entry, differs in no respect from that of a stranger to.the title. If made upon a tenement temporarily vacant, ,the party is an intruder ; if by the consent or yielding up of a tenant, the possession of the landlord is not disturbed.
    An entry into land, is not valid as a claim, unless an action be commenced thereon within one year after it is made, and within twenty years from the time when the right to make such entry accrued or descended. Such has been the rule of law for two hundred years, and it is now a statutory provision.
    Where a corporation, whose income is limited by its charter, receives a grant of land of an annual value below such limit; its title to the same is not affected by the subsequent increase of the income therefrom to a point beyond the chartered limitation.
    If the income exceed the prescribed limit at the time of the grant, it is a question between the corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the corporation.
    Where there are negative averments, in a plea of adverse possession claiming title in severalty, to the effect that the defendant has never paid or accounted for any rents or profits ; and has never held or possessed the land in common, or undivided, &e.; the principal burthen of proof is upon the complainants. The defendants are only bound to raise a presumption from their acts in respect of the property, its use and disposal, that no such facts exist ; which presumption must be rebutted by proof on the other side.
    
      Argued, Dec 26, 27, 29, 30, 31, 1845 ; January 3 ; February 2, 3, 4, 5, 6, 7 and 9, 1846 ; and January 20, 1847 ;
    
      Decided June 23, 1847.
    In support of a plea in equity, the defendants are bound to prove only its substance, and to such an extent as will maintain the bar which it interposes to the suit. Where the defence stated in the plea, was an adversé possession under a claim.of title exclusive of any other right, for a period of one hundred and twenty-five years, before the suit; the legal point of the defence is, that the defendant has maintained such possession long enough to bar a writ of right; and proof of such a possession and claim for sixty years anterior to the revolution,’was held to support the plea. And the like proof for forty-four years next preceding the suit, was held to support the plea, irrespective of the prior possession.
    The bill in this cause was filed by-John Bogardus, on the 11th day of December, 1830. William Berrian was made defendant, as the rector of the church, and William Johnson,,as their comptroller. The defendants, in October, 1831, put in the plea and answer hereinafter set forth. The cause was* brought to a hearing on the sufficiency of the plea, at the October term, 1831, before the chancellor, by whom it was allowed, on the sixth of August, 1833. (Bogardus v. Trinity Church, 4 Paige, 178.) In" the mean time, on the 8lh of March, 1833, the complainant died, and on the 23d of October, 1834, the suit was revived on a bill of revivor, in behalf of his heirs. The decree allowing the plea having been entered as of November 4 h, 1831, the complainants in tne revived suit appealed to the court for the correction of errors, where the decree was affirmed in December, 1835. (15 Wend. 111.) The complainants then took issue upon the plea, by filing a replication. Proofs were taken on both sides, and the cause was finally brought to a hearing in December, 1815,'and February, 1846, before Assistant Vice-Chancellor Sandford. His decision was suspended on the occasion mentioned in the report of the interlocutory application, ante page 369, until after he became vice-chancellor, and it was finally submitted to him in January, 1847. Besides the documentary evidence and proofs taken in the usual mode before the examiner, many witnesses were examined in open court during the progress of the hearing, which occupied thirteen days. The great magnitude of the claim made by the suit, and the historical interest of the case, furnish the reasons for reporting it somewhat at large.
    The bill set forth that the complainant, John Bogardus, of the city of New York, is a descendant of the paternal line from Cornelius Bogardus, one of the sons of Everardus Bogardus and Anneke Jans his wife; and as such, is entitled in equity, to a portion of large sums received by the ecclesiastical corporation in that city, called Trinity Church, on leases and sales of real estate, as trustee for the complainant; and to be secured in respect of further receipts on such leases and grants.
    That his ancestors, before named, were the same persons intended by the names “Dominie Everardus and Anneke Jans, the widow and relict of Dominie Everardus Bogardus,” in a certain deed, executed by Richard Nicolls, governor of the province of New York, dated March 27,1667, and duly recorded in the secretary’s office; by which deed the governor, acting for the Duke of York, pursuant to the article in the Dutch capitulation of August 27, 1664, confirming and securing all existing titles to real estate, acknowledged the right and title of the children of Anneke Jans to have and to hold the lands therein described, in their demesne as of fee as tenants in common, and did grant and confirm such title to her children.
    That Anneke Jans died in 1663, leaving seven children, and two grandchildren by a deceased child, all of whom were named in her will, as follows; Sarah Roeloffe, wife of Hans Kiersted, Catharine Roeloffe, wife of Johannes Van Brugh, Jannettee and Rachel Hartgers, children of Anneke’s deceased daughter Sytie Roeloffe, wife of Peter Hartgers, Jans Roeloffe, and Wilhelm, Cornelius, Jonas and Peter Bogardus. That Anneke Jans devised the real estate before mentioned to those persons as her heirs, she having survived her first husband, Roeloffe Jans, as well as her second husband, E. Bogardus. That such real estate is the same as that described in a transfer or conveyance to Francis Lovelace, dated March 9,1670-71, and recorded in book No. A. of transports, begun in 1665, at page 122, in the clerk’s office of the city and county of New York, executed by certain of the heirs of Anneke therein named, under which instrument Trinity Church has claimed to hold by certain mesne conveyances after stated, all the rights, shares, and titles to the lands by such instrument conveyed, intended, or described,
    That the church made such their claims in writing, in the words following, viz.:
    “ New York, 2d December, 1785. Gentlemen, we take the earliest opportunity of communicating to you the enclosed copy of the record of a transfer to governor Lovelace of Dominie’s Hook, from the heirs of Annetje Bogardus, and to which, though afterwards granted by government to Trinity Church, you now claim to have inherited from them. Time and long uninterrupted possession had, it seems, worn away the memory of this transfer, and the evidence of it would probably still have remained dormant, if Mr. De Hart (who is deeply interested in your claims,) had not accidentally discovered this record, and from a regard to justice, which does him great hohour, made it known.” That the written claim was addressed to certain agents for the heirs of Anneke Bogardus, and was signed by “ Jas. Duane, John Jay, Wm. Duer, John Rutherford, James Farquhar,” as “ a committee of Trinity Church for managing their controversy with the heirs of Anneke Bogardus.”
    That the enclosed copy of the record of transfer to “ Governor Lovelace,” was in the words and figures following, viz.
    “ Anno 1670-71, March the 9th, Hare Johannes VanBrugh, in right of Catrina Roeloss his wife, and attorney of Pieter Hartgers, William Bogardus, for himself and his brothers Jan Roelosson and Jonas Bogardus and Cornelius Van Bursen, in right of Sara Roe-loss his wife, and by assignment of Peter Bogardus, all children and lawful heirs of Annetie Roeloss, late widow of Dome Bogardus, deceased, for a valuable consideration, transported and made over unto the Right Honble Colonel Francis Lovelace, his heirs and assigns, their farm or bouwery, commonly called or known by the name of Domenee’s Bouwery, lying and being on Manhattan’s Island, towards the North River, the quantity of ye land amounting to about sixty-two acres, as in the former ground brief from Governor Stuyvesant, bearing date the 4th day of July, 1651, and the confirmation thereupon from Governor R. Nicolls, bearing date ye 27th of March, 1667, is more particularly set forth—which transport was signed by them and acknowledged before the alderman, Mr. Olof Stevenson,-Cortlandt and Mr. John Laurence.”
    “ A true copy from lib. No. A of transports, begun in 1665, page 122, in the clerk’s office of the city and county of New York, executed by Rob’t Benson, clerk.”
    That such committee was duly authorized by the corporation of Trinity Church, to make such claim, and made it in their behalf ; and thereby the corporation in effect claimed to have and to hold all the rights, titles, and shares, which the grantors therein had in the lands described ; the corporation claiming to have the same by the mesne conveyances of the grant of Queen Anne, or the government of England, referred to in such written claim, to whom as the corporation asserted, such rights and titles were transferred by the deed or transport, and from whom they were granted to the corporation.
    That the corporation, on or about the 23d of November 1705, by their corporate name of “ The Rector and Inhabitans of the city of New York, in communion of the Protestant Church of England, established by law,” accepted and received the letters patent and grant of Queen Anne, bearing that date, executed by Edward, Viscount Cornbury, then captain general and governor of the province of New York, delivered to the corporation and duly recorded in the office of the secretary of state. By which grant, there was conveyed to that corporation, all that parcel of land situated on the Manhattan Island, now city of New York, then known by the name of Duke’s farm, King’s farm, or Queen’s farm, and bounded on the east partly by a street called the Broad Way, partly by the common, and partly by the swamp, and on the west by Hudson’s river.
    The bill further stated that this grant was the one referred to in the above written claim, and in its description are included the lands described in the transport to Gov. Lovelace, and the corporation under and through the latter, claimed all the rights and titles conveyed by the deed of transport.
    That Cornelius, the son and heir of Anneke Jans, was not a party to that instrument, and did not then, nor at any time, ever transfer his right and portion in the real estate therein described, and his right and title were not transferred to Got. Lovelace, and never passed to or were vested in the government of England ; nor was such right included in, or granted, nor did it pass, by the letters patent of Queen Anne; but the same remained in him until his death, at which time he was seised and possessed in fee of one undivided sixth of the premises in the deed of confirmation described, his brother Jans or Jonas, and his half brother, Jans Roelofle having died intestate and without issue. And being so seised as tenant in common with ,the corporation, Cornelius died the 13th of October, 1707, leaving surviving his eldest son Cornelius, who thereupon became seised and possessed of such sixth part as tenant in common with the church corporation ; and on his death November 27, 1759, his sixth part descended to and became vested in his eldest son Cornelius. The latter thereupon became seised in fee, in common with the corporation, and being so seised, taking certain esplees and profits of the premises in his life time, died intestate, November 23, 1794, leaving five children, including the complainant, to whom his sixth part descended equally, and the complainant thus became seised of one thirtieth, as tenant in common with the corporation and his brothers and sisters.
    The bill further stated, that the premises described in Gov. Nicolls confirmation, consisted of two parcels of land, of which the landmarks are in part removed or lost, but the corporation have by ancient surveys, maps, &c., certain knowledge of the limits of those two parcels which are described as containing sixty two acres; or else they have been removed and obliterated by the act of the corporation, who for a long time have had the caré and management of those real estates, receiving the rents and profits, as well for the use of the complainant as for themselves. That one of those parcels, according to its present or modem limits, consists of all that real estate bounded as follows, viz: beginning at the western extremity of the south side of Warren street, thence running by the rear of the lots on the south side of that street, to Broadway, thence running by the west side of Broadway, to the south-west corner of Duane street, thence running by the south side of Duane street, west to low water mark in the North river, and thence by the low water mark south to the place of beginning. As to the other parcel, the boundaries have been removed by the corporation, but the same are known to its officers and agents.
    That in the year 1705, the church corporation entered upon those real estates, under the instrument of transport by those heirs of Anneke Jans, and under the letters patent and grant of Queen Anne, and thereby became seised of the title of those who conveyed by the transport and became tenant in common with Cornelius Bogardus, son of Anneke ; and thereafter held the estates as such tenant in common, with the successive heirs of Cornelius.
    That the church corporation executed to many different persons, numerous leases of parts of those real estates, reserving to the corporation large rents which they have received ever since ; and have sold and conveyed large parcels to divers persons for large sums, paid to the corporation. That the rents and consideration moneys, were received as trustee for the complainant and his ancestors, in respect of their undivided share of the estate.
    That Trinity Church was incorporated May 6th 1697, by a charter granted by Gov. Fletcher ; which was confirmed by an act of the colonial assembly, passed June 27, 1704. The name of the corporation was altered March 10, 1788, by an act of the legislature, and again by an act of 25 January 1814, to its present title. By the charter of 1697, the real estate of the corporation was limited to £5,000, annual value ; but the act of 1704 reduced it to £500, which provision has ever since been in force. The corporation accepted the latter act, especially as it is recited in the Queen’s grant, under which they hold the lands in question.
    That by the royal charter, there was granted to the corporation, a large parcel of real estate situate in or near to a street without the north gate of the then city of New York, commonly called the Broad Way, containing 310 feet in breadth on that street, and extending to Hudson’s river; a part of which land was then enclosed for a cemetery or church yard,' and the residue as now situated between Rector and Thames street and between Lumber street and the North river, is covered with more than one hundred dwelling houses, warehouses, shops and wharves, exceeding now the yearly value of £.5000 and exceeding in 1785 the yearly value of £500.
    That by the letters patent, of Queen Anne, the whole of the King’s farm (including Cornelius Bogardus share) and also the king’s or queen’s garden "so called, were granted to the corporation, the latter lying south of the tract granted in the charter and extending to the Hudson river. Both of these parcels are in like manner covered with costly dwellings, warehouses, shops and wharves, which in 1785 and ever since, exceeded the yearly value of £500. The bill alleged that the property of the church corporation at this time exceeds five millions of dollars, and yields a yearly income of more than three hundred thousand dollars.
    That the corporation have never been able or capable in law of receiving for their own use, more than £500, yearly, and from the time when their income became equal to that sum, they became and were incapable in law of acquiring by ouster or dispossession or disseisin of the complainant, or any of his ancestors, any right, title or interest in his or their share, or portion in the real estates, so granted to the corporation, by Queen Anne, and incapable of receiving and applying to their own use, any of the moneys received by them proceeding from those estates, over and above the shares of the heirs of Anneke Jans, who conveyed to Gov. Lovelace ; but such surplus was received as trustee for the complainant and his ancestors respectively, and he is entitled to one thirtieth part thereof.
    The bill then stated the refusal of the corporation and the other defendants to account, and various pretences are set forth.
    The bill then prays for a discovery of records, documents, resolutions, and all pertaining to the facts charged ; for an account of the rents, profits, sales and receipts and payment of one thirtieth to the complainant; a statement of all the subsisting leases, and of the lands sold and remainingunsold; and for general relief,
    The Plea and Answer of the defendants were put in jointly. The plea was interposed to all the relief prayed by the bill; and to all the discovery, except the seven following matters, viz.: L The supposed entry of the corporation into the lands formerly called the Dominie’s Bowery, under the instrument of transport mentioned in the bill. 2. The alleged seisin, possession or holding of the corporation of those lands or any part of them, under that deed of transport, in common and undivided with the complainant or any of his ancestors. 3. The like as to those lands or any interest or estate therein, under the transport, or under the deed of confirmation stated in the bill, in common and undivided, &c. 4. The alleged receipt of any rents, issues or profits, avails or proceeds, arising out of those lands or any part thereof, in trust, to or for the use of the complainant or any of his ancestors. 5. The alleged seisin by the complainant or any of his ancestors, of any estate, interest, or share, in common and undivided, with the corporation, of or in those parcels of land, or to the taking of certain of the issues and profits thereof by Cornelius, the complainant's father. 6. The written communication stated to have been made by William Duane and others. 7. The certified copy of the record of transport inclosed therein; and 8. As to the alleged authority of Messrs. Duane and others and the intent of the communication.
    As to these eight subjects, the answer accompanying and supporting the plea contained a general and particular traverse of the five first; denying among other things, that the corporation ever entered or claimed under the deed of transport or under the deed of confirmation, or under any of the children or heirs of Anneke Jans; or that the corporation was ever a tenant in common with the complainant or any of his ancestors, or that by itself or its officers or agents, it had ever admitted that it was such tenant in common ; or that the corporation had received the rents, profits, proceeds or avails of the premises or any part thereof, as tenant in common with the complainant or any of his ancestors, or in trust for any or either of them ; or ever paid over or accounted therefor; or had ever admitted that he or they or any of them had any right, title or interest in the premises, or in the rents, profits or proceeds thereof; or that the father of the complainant ever took any esplees or profits of the premises in common with the corporation ; or that the complainant or any of his ancestors, ever entered upon or became seised of any estate, interest or share, in common_and undivided with the corporation As to the communication from the committee, set forth in the bill, the answer stated, that the persons named did make such a comnaunieation in the form of a letter addressed to two agents for the claimants of Dominie’s Hook, under the heirs of Anneke Bogardus; and that that there was inclosed in such letter, a certified copy of the record of transport to Francis Lovelace set forth in the bill.
    That those persons were a committee of the vestry of the corporation, to defend its rights to a part of the king’s farm, against a claim then recently set up on behalf of such heirs. That the committee had no authority from the corporation, except that resulting from such appointment as committee; and the defendants submit whether it authorized them to communicate the transport to such agents.
    That when speaking of Dominie’s Hook as having been granted to Trinity Church by the government, the committee referred to the letters patent of Queen Anne for the king’s farm.
    The defendants denied that the committee, were authorized by the corporation, to claim or set up in any way, that the corporation ever held, had or claimed at any time, any part of the Dominie’s Bowery, or any share or interest therein, under the instrument of transport, or under any of the parties named as grantors therein ; and the defendants denied that by the communication set forth or otherwise, the committeee did so claim or intend to claim.
    The Plea set up as a bar, that her late majesty, Anne, then Queen of England, &e. being in the possession and occupation of all that parcel of land, then known by the name of the Duke’s farm, King’s farm, or Queen’s farm, situate in the city of New York, referred to in the bill, of which the lands called the Dominie’s Bowery are parcels, and being in the receipt of the rents and profits thereof, to her own sole and separate use and benefit, did by those certain letters patent, under the great seal of the then province of New York, bearing date the 23rd day of November, in the year 1705, in the bill referred to, which letters patent, under seal, are in the possession of the defendants, give, grant, ratify and confirm, unto the defendants, The Rector, &c. by their then corporate name of “ The Rector and Inhabitants of the city of New York in communion of the Church of England, as by law established,” and to their successors for ever, among other lands therein described, all that parcel of land then known by the name of the Duke’s farm, King’s farm, or Queen’s farm, together with the hereditaments and appurtenances thereunto belonging or appertaining, excepting and reserving all gold and silver mines ; to be had and holden unto them and their successors for ever ; to be holden of her majesty, her heirs and successors, in free and common socage as of her manor of East Greenwich, in the county of Kent, in her kingdom of England ; yielding and paying therefor yearly, unto her majesty, her heirs and successors, at the city of New York, to her collector and receiver general there for the time being, on the feast of the nativity of our blessed Saviour, the yearly rent of three shillings of current money of New York, in lieu and stead of all other rents, services, dues, duties and demands whatsoever.
    That under and by virtue of those letters patent, and not otherwise, the defendants, by their then corporate name therein mentioned, did on the day of the date of the letters patent, enter in and upon, and become seised in their demesne as of fee, of the premises therein called the Queen’s farm, including the premises in the bill designated by the name of Dominie’s Bowery, claiming by force and virtue of those letters patent, and not otherwise, to be of right sole and exclusive owners of the same and of every part thereof in fee simple, and as1 such owners to be of right entitled so to enter upon and become seised and possessed thereof as before stated ; and further, that the defendants, by themselves under one or other of their corporate names in the bill mentioned, and those claiming under them, from the day of such their entry as before mentioned upon the parcel of land, so called the Queen’s farm, continually down to the present time, have been in the uninterrupted, sole, exclusive and actual seisin and possession of the premises called the Dominie’s Bowery, in the bill mentioned, and every part and parcel thereof, claiming to have and hold the same as sole and exclusive owners thereof in fee simple, and during the whole of that time, have been in £he sole and exclusive receipt and enjoyment of the rents, issues, profits, avails, and proceeds thereof, and every part thereof, to their own sole and separate use and benefit, claiming to be of right entitled so to receive and enjoy the same, and without having paid over or accounted for to the complainant, or any or either of those persons under whom he by his bill, claims to derive title, for any part of such rents, &c.; and without having ever, at any time, or in any manner, held or possessed the last mentioned premises, or any part or parts thereof, or any estate, right, title, or interest therein, or any rents, &c., of or arising out of the same or any part thereof, or any share or interest therein, or any part thereof, in common and undivided with, or as trustee of the complainant, or of any other person or persons, under whom he by his bill claims to derive title, and without having ever acknowledged or admitted that their corporation was bound either in law or equity, to pay over or account for any part of such rents, &c. to the complainant, or any person under whom he so claims to derive title, and without having admitted or acknowledged by themselves, or by their agents or otherwise, that the complainant and those under whom he claims so to derive title, had any estate, share or interest, in common and undivided, or any other estate, share or interest, claim or deman d whatsoever, in or to the last mentioned premises, or any part thereof, or in or to any rents, &c. of or arising out of the same.
    After the plea was adjudged to be valid, the complainants in the revived suit, filed the usual replication, taking issue upon the truth of the plea.
    DEFENDANTS TESTIMONY.
    The defendants, on their part, exhibited at the hearing the following proofs:
    1. Original letters patent in fee, under the great seal of the province of New York, dated 23d November, 1705, from Anne, then Queen of Great Britain, France and Ireland, to the corporation therein styled, “ The Rector and Inhabitants of the City of New York, in communion of the Church of England, as by law established,” reciting their petition to Yiscount Cornbury3 for a grant of all those several parcels of land, formerly called the Duke’s Farm and the King’s Farm, and then known by the name of the Queen’s Farm, with all and singular, the fences, inclosures, improvements, &c., thereunto belonging, as the same were then in the occupation of, and enjoyed by George Ryerse, of the city of New York, yeoman, or by any former tenant, situate on the island of Manhattans, in the city of New York, and bounded on the East, partly by the Broad Way, partly by the common, and partly by the swamp, and on the West, by Hudson’s River ; and also the Queen’s Garden, lying south of the church and cemetery: and then granting, “ of the Queen’s especial grace, certain knowledge and meer motion, all and singular the said farm,” &c., under a yearly rent of three shillings. The patent is recorded in the secretary’s office, in Book of Patents No, 7, page, 338, &c.
    The complainants counsel objected to this evidence, because the letters patent did not appear to have been signed by Lord Cornbury, and only by George Clark, deputy secretary. The defendants also read the following indorsements thereon, of the receipt and payment of the quit rents reserved in the letters patent, as follows:—March 12, 1738, Dec. 21, 1750, and Feby. 20, 1768, to the deputy receiver general, and Sept. 20, 1786, to the treasurer of the state ; in full at each period ; and at the last date, the quit rents were commuted and paid and indorsed in full.
    2. In order to prove a lease, dated 25th March, 1677, from Sir Edmund Andross, governor, &c., to Dirck Seekers, of a certain parcel of land in the city of New York, then called the Duke's Bowery or Farm, for a term of years ; the defendants read in evidence an exemplified copy of the judgment record, (signed March 22, and filed March 23, 1762,) in an action of ejectment, in favor of James Jackson, on the demise of Cornelius Brouwer and others, in: which the church corporation was made defendants, and which was tried at the bar of the supreme court of the province of New York, on the 24th day of October, 1760, by a struck jury, and ón a view ; and a general verdict found for the defendants. The minutes of the trial were also produced, by which it appeared, that the original lease from Governor Andress to Dirck Seeker, for thirty years, was then produced and read in e vidence on the part of the defendants. The ejectment appeared to have been commenced in July, in the 31st year of George 2d, by William Smith, as plaintiff’s attorney. The demise was laid in 1757. The premises were described as being in the possession of Cornelius Vandenburgh, and as being sixty-three acres of arable land, sixty-three acres of pasture land, &c. (in the old form of courts in ejectment.) The complainant’s counsel objected to the record, as being res inter alios, and as failing to identify the land; and to the minutes of the trial, as not being competent evidence of any fact or document.
    3. The certificate of the secretary of state of the state of New York, was then produced and read, showing that the lease to Seeker was not to be found in his office.
    William H. Harison, was then sworn as a witness in open court, and testified that he is the comptroller of Trinity Church, and has the custody of all the papers of that corporation. He has searched among all their papers for this lease, with an anxious desire to find it, but it is not to be found.
    3. Governor Dongan’s charter to the city of New York, granted in 1686, was then produced, and section 16 was read in evidence, referring to the “ Duke’s Farm” as the land without the gate, called the “ King’s Farm.” (Kent’s City Charter, 23, 24.)
    4. An exemplification of letters patent by Governor Fletcher, in the name of the King, to Capt. John Evans, for a certain Swamp and Fresh Pond, called the “Fresh Water,” described as “ adjacent to our farm, commonly called and known by the name of the Duke’s Farm,” was next read in evidence; dated .August 9, 1694, and recorded in Liber 6 of Patents, page 270.
    5. An original lease, dated 19th August, 1697, by Governor Fletcher, under the great seal of the Province, in the name of the King, to the corporation of Trinity Church, by its then name, demising the premises as “ our farm, called and known as the King’s Farm, on the island of Manhattan, and adjacent to the city of New York,” by that general description, without specifying any metes or bounds; for the term of seven years, from the 1st day of August, 1698, at the annual rent of sixty bushels of wheat.
    6. The defendants next read in evidence an act of the colonial assembly, passed May 12lh, 1699, for “ the breaking, vacating, and annulling several extravagant grants of land, made by Colonel Fletcher, the late governor of this province, under his Majesty.” Among such grants recited in the act, is that to John Evans, and the lands granted, are described as “ adjacent to the King’s Farm, formerly called the Duke’s Farm, on the island of Manhattan and Governor Fletcher’s lease to Trinity Church, in August, 1691, is also called “ an extravagant grant of the King’s Farmand by the third section, it is enacted, that it shall not be in the power of any future governor to grant for any longer than his own term in the government, the following lands, viz.:—Nutter’s Island, the King’s Farm, the King’s Garden, or the Swamp and Fresh Water. (1 Van Schaack’s Colonial Laws, 31.) The act declared the king to be reseised and repossessed of the premises of which the grants were so annulled.
    7. The defendants then read in evidence, an original lease, dated May 9th, in the fourteenth year of the reign of William the Third, granted in his name by Lord Cornbury, governor, under the great seal of the province, to the corporation of Trinity Church, by its then name of incorporation, describing it as “ our farm, called and known as the King’s Farm,” without any specific boundaries or location; to continue from May 1st, 1700, during the time Lord Cornbury should continue governor of the province, at the annual rent of sixty bushels of wheat. This lease was objected to, because it was not signed by Lord Corn-bury, and was not in accordance with the act of 1699. It was stated as matter of history, that Lord Cornbury was superseded as governor, in 1708.
    8. The original counterpart of a lease, dated 24th January, 1704, from the corporation of Trinity Church, by its then corporate name, to George Ryerss, or Ryerse, of the same land, called and described as the Queen’s Farm,, for five years, from 1st May, 1704, at the annual rent of £30 currency. Mr. Harison, testified that he found this counterpart among the muniments of Trinity Church. It was objected to, as furnishing no evidence of the execution of a lease to Ryerse.
    9. The counterpart of a lease, dated July 20, 1721, from the corporation of Trinity Church, to Robert Harrison, of the premises described as the King’s Farm, for tea years; reciting that the land was lately demised to Francis Ryerse, and excepting six acres, leased to W. Lake, and the lots, laid out and staked at the south end of the farm, and all timber, trees and bushes, &c. It was proved as before, that the counterpart came from the muniments of the corporation; and it was objected to on the same grounds.
    10. Governor Montgomeries charter to the city of New York, in 1730, was next produced, and section thirty-seven was read, which excepts in the grants then made to the city, “ the lands called the King’s Farm.” (Kent’s City Charter, 86.)
    11. The counterpart of a lease, dated 1st May, 1732, from the corporation of Trinity Church, to Cornelius Cozine, of the same land, therein described as then called and known by the name of the Church Farm, for ten years, at an annual rent of £35. The exceptions are the same as in Harrison’s lease, also 30 feet for a rope walk of Captain Degroche. The same proof and objections as before.
    12. Exemplification of letters patent, granted by Governor Cosby, to Anthony Rutgers, dated 28th September, 1732, for a certain swamp and fresh pond called the Fresh Water, adjacent to the farm formerly called the Duke’s Farm, upon Manhattan, now New York island, containing about seventy acres.
    33. Letters patent by Governor Cosby to the same, dated 31st December, 1733, (being a confirmation of the former,) for same land. Recorded in the secretary’s office, January 2,1733, in Book of Patents begun June 8, 1731, fol. 131. Both of these patents were attested by the great seal, and the deputy secretary’s signature, and were not signed by the governor.
    
      14. The counsel for the defendants again read from the minutes of trial in the action of ejectment, in the suit of Jackson ex dem. Brouwer, against Trinity Church, tried as before mentioned, on the 24th of October, 1760, by which it appeared that there was proved on the part of Trinity Church, on that trial, an indictment, found in April term, 1746, against Jacob Brouwer, and several others, for a forcible entry into the premises in question in that action, which indictment was produced in evidence on that trial.
    15. The defendants next read in evidence, the original writ of restitution issued out of the supreme court, on the foregoing indictment, tested 4th August, 1747, signed by Richard Bradley, attorney general; which writ recited the conviction of the defendants, on the 3d of August, 1746, of having, on the 3d of April, 1746, entered on the premises, being the possession of Adam "Vandenburgh, and the freehold of Trinity Church, and expelled V. and disseised the church, and that the defendants in the indictment had no estate or right in the premises, within three years preceding, or at any prior time. The writ then commanded the sheriff to go to the close of the corporation of Trinity Church, situate in the west ward of the city, described as being the freehold of Trinity Church, in the possession of Adam Vandenburgh, and cause the same to be reseised, and the corporation to and in their full seisin thereof, and Adam Vandenburgh, their tenant, in his full possession thereof, to be put and restored. These documents were objected to, as incompetent and immaterial.
    16. The defendants next produced and read in evidence, nu- • merous counterparts of leases, made and granted by the corporation of Trinity Church, to divers persons severally, of and for divers city lots, being parcels of the land called the Church Farm, the lots being therein severally described by their numbers, as known and distinguished on the map-of the Church Farm; such leases commencing 28th February, 1750. These counterparts, were in a folio book of original counterparts of leases, executed by the tenants of the corporation ; which book Mr. Harison testified, was kept among the muniments of the corporation. All the counterparts so produced, were objected to, as no proof of the leases, and as immaterial. Among these, were fourteen leases, in the year 1750, for various lots and parcels of land, generally situated on the southern part of the Church Farm, below Chambers street; one of which was a lease, dated 28th February, 1750, to Elias Degrushe, of the city of New York, rope maker, for three lots, known as Nos. 415, 416, and 417, on the map of that part of the Church Farm, which lies to the southward of the Stockadoes, at the north-west comer of Warren street and Broadway, for twenty-one years, at the rent of seventeen pounds, the northerly lot, No. 417, described as extending west from Broadway, twelve hundred feet; lot No. 415, in length one hundred and twelve and a-half feet, and lot No. 416, in length one hundred and thirteen feet three inches, each lot being in breadth twenty-five feet, and the three lots being bounded southerly, partly by a street on that map called Warren street, and partly by other lots on the map, not numbered, easterly by the Broad Way, and northerly and westerly by other lots not numbered on the map.
    Also a lease, dated 28th February, 1750, to William Burnham, gardener, for a piece of ground, situate in the outward of the city, at the north-west comer of the Church Farm, containing four acres, being bounded northerly by the land of Sir Peter Warren, easterly by land of Elias and Henry Brevoort, southerly by the church’s land, and westerly by the North or Hudson’s river, for twenty-one years, at the annual rent of eleven pounds.
    Seven leases in the year 1751, for various lots, situate on Murray, Barclay, Church, and Yesey streets, and Broadway, for twenty-one years.
    17. Two ancient affidavits of Jacob Kooning, of the city of New York, carpenter, and Mary Ray ton, of the same place, widow, both sworn on the eighteenth day of May, 1751, before Frederic Philipse, (then one of the justices of the supreme court.) Mr. Harison testified that these papers were found among the muniments of the church. The handwriting of Judge Philipse, was proved at the hearing, by the testimony of Adolphus N, GoxjvernetjR, his great-great-grandson. He stated that Judge P. died in 1752.
    Kooning deposed that he was born in the city of New York, and was eighty-one years of age, and he knew and remembered the tract of land then called the Church’s Farm, or King’s Farm, for seventy years then past; that sixty-five or seventy years previous, one Dirk Sicken, otherwise called Dirck Dey, lived in an old thatched house, which stood near the place where Adam Vandenburgh then lived, and that the fence fronting the highway and commons, from the south bounds of the Church’s or King’s Farm, to the Caleb Hook or Rutger’s Land, always stood much upon the same line or course as it then stood. That after the death of Dirck Sicken, his widow possessed the Church Farm; and after her death, their son, Tunis Dey, possessed the same farm till the time of his death ; and after his death, his widow married Joris Ryerse, which he believes is between fifty-five and sixty years ago. The farm at that time was called the King’s Farm. He often heard and always understood, that Joris Ryerse hired the farm, first from the government, and afterwards from the English Church. That after Joris Ryerse left the farm, his brother, Ryer Ryerse, lived on it, and after him, Francis Ryerse; and after him, one Harrison ; and then, one John Balen ; and after John Balen, Cornelius Coezyne had the farm for some years, and then Adam Vandenburgh, the then present tenant; and that he had often heard, and always understood, that all the aforenamed tenants after Joris Ryerse, held the farm as tenants to the English Church.
    Mary Layton.deposed that she was born in the city of New York, and was eighty-four years of age, and knew and remembered all the several facts stated by Kooning to be true.
    To these affidavits, the complainants objected, that they wTere not parties to them ; the same were ex parte, and no occasion for their being made is shown.
    18. A counterpart of a lease to Adam Vandenburgh, was then read in evidence, dated the fifth of March, 1752, by which the corporation of Trinity Church demised to him, for five years from March 25th, all that part of the Church Farm situate in the west and out wards of the city of New York, which lies to the northward of the Stockadoes, excepting thereout so much as by the corporation might be thought convenient for the building and use of a college, and also the four acres which was leased to Burnham; and also all trees and timber standing and growing thereon ; at the annual rent of thirty pounds. The lessee covenanted to surrender the premises to the lessors at the end of the term, with 1190 panels of good fence thereon, and that the church might, at any time within the term, lease to any persons, any of the ground demised, which was near or adjoining Burn-ham’s garden, or any lots fronting the Broad Way, to the northward of the Stockadoes; the church abating to the lessee, of his rent, ten shillings a year for every acre of ground they should so lease.
    19. Next, eighteen other leases by the church, in the year 1752, for various lots of the Church Farm. Among these leases, was one dated 19th August, 1752, to Arthur Wilkinson, gardener, for a parcel of ground, described as being in the west ward of the city, being part of the, Church’s Farm which lies to the southward of the Stockadoes, containing, in breadth, in front and rear, fifty feet, and in length, on each side, six hundred feet, being bounded easterly by the Broad Way, southerly by the rope-walk of Degrushe, westerly and northerly by other parts of the Church’s Farm, to the southward of and adjoining to the Stockadoes, at the yearly rent of twelve pounds, for twenty-one years from the 25th of March then next ensuing.
    20. Two leases by the church in the year 1753, for lots in the southern part of the Church Farm, each for twenty-one years.
    21. An ancient engraved map of the city, exhibiting New York in 1695. (For a description of this and the following, reference is made to the opinion of the court, under the first point of the third general head.)
    22. Francis Maerschalck’s map of the city of New York, published in 1755. The defendants also produced, as a part of their evidence, a map of the Church Farm, as laid out into blocks and city lots.
    Smith’s History of New York, London edition of 1757, was also produced as evidence.
    
      23. One lease by the church, in the year 1756, for¡twenty-one years, for two lots on Robinson street.
    24. Twenty leases by the church in the year 1757, for sundry lots in the southern part of the Church Farm, generally for twenty-one years each. (Where lots are spoken of, city or building lots of 25 by 100 feet are intended.)
    25. Seventy-nine leases by the church, in the year 1758, for sundry lots in the southern part of the Church Farm, to the southward of the Stockadoes, generally for twenty-one years each.
    26. A lease by the church, to Cornelia Rutgers and Leonard Lispenard, dated 25th March, 1758, of Lot No. 1 of the Church Farm, for twenty-one'years, was read from its recital at large in the next lease to Leonard Lispenard.
    27. An original indenture of lease, and the original counterpart, by and between the corporation of Trinity Church and Leonard Lispenard, dated 30th April, 1764. This recites the lease of 26th March, 1758, before mentioned, of lot number one of the Church Farm, containing seventy-seven acres, three roods, and thirty-two perches, (excepting three acres and twenty-three perches adjoining to the Broad Way and the Palisades,) for twenty-one years, at the yearly rent of twenty-five pounds. It also recites the death of Cornelia Rutgers, and an agreement between L. Lispenard and the church, that in consideration of his transferring and making over to them so much of the lot No. one, in one entire spot to be pitched on by the church, as would make two hundred lots of twenty five by one hundred feet, they would demise to Lispenard eight acres of the lot No. one, for eighty three years, from the expiration of the first lease, at an annual rent of £66 for the first forty five years, and £93 6s. 8d. for the remaining thirty eight years ; and that in pursuance of this agreement, the church had made their election, and had caused the same to be laid out.in lots by Francis Marschalck, one of the city surveyors, as by the draft of the plan annexed appeared; in consideration whereof, the church demised to Lispepenard, a lot containing eight acres of land, (part of that demised by the former lease,) for eighty three years, from the 25th of March, 1779, at the rents aboye specified. Such lot beginning at a stake near the southwest end of the dam or caussway, running across Mr. Rutger’s meadow, and which now makes part of the new road running through the Church Farm, leading to Greenwich ; thence south, (bounding it by courses and distances. Sée Gerring’s testimony, next page.) By the same instrument, Lispenard surrendered to the church, 1st.- A piece of land being part of the lot No. oncj beginning on the northwest side of Church street, in front of lot No. 456, and runs thence through that lot, according to a pricked line description of the course of the Stockadoes, (and which ran through the block between Warren and Chambers streets,) to the northwest corner of lot No. 489, being a point on the south line of Chambers street, one hundred feet west from Chapel street. 2d. Another piece of land; being the other part of the lot No. one, as laid out and divided into streets and lots on the map referred to, from lot No. 572 to lot No. 760, containing in the whole, exclusive of the streets, as much ground as would make two hundred lots, each twenty five feet in breadth and one hundred feet in length ; the two pieces taken together being bounded southerly by the line where the Stockadoes lately stood, westerly by high water mark in Hudson river; northerly, partly by the Church farm and partly by Rutger’s meadow, and easterly by Church street.
    28. An original indenture of lease and counterpart, by Trinity Church to Leonard Lispenard, dated 5th May, 1768, which recites the lease of 25th March, 1758, also the lease and surrender of 30th April, 1764, and then recites a further agreement by which Lispenard was to surrender another piece of the church land, lying to the southward of his house, to accommodate John Keating with a place for his paper mill. And also all the land held under the first recited lease, lying west of the new road to Greenwich; the church agreeing on their part to demise to Lispenard, another piece of land adjoining his eight acre lot, for twenty-two years beyond the term of his then present lease of No. one, and to permit him to remove the improvements, except fences, erected by him on the eight acre lot. That in pursuance of this agreement, the church by this last instrument demised to Lispenard, a lot of 9 acres and 35 rods on the east side of the new Greenwich road, adjoining the eight acre lot, bounded on the south by a line running from Rutger’s meadow, to a point on the Greenwich road distant 2 chains and 44 links southwardly from the south line of the eight acre lot; for the term of 22 years from 25th March, 1779, at the annual rent of a peppercorn. And in pursuance of the same agreement, Lispenard thereby surrenders to the church, a lot described as lying on the west side of the new Greenwich road, between it and Rutger’s meadow, containing 11 acres 1 rood and 9 perches. And also all the land lying on the west side of the same road which he had a right to, or was then possessed of, under the first recited lease.
    The lot of nine acres and 35 rods, for which the extended term was granted, also the surrendered lot of 11 acres 1 rood and 9 perches ; and also the eight acre lot, are laid down on a map annexed to this lease. On this map, the surrendered lot of 11 acres 1 rood and 9 perches is represented to be on the east side of the Greenwich road, and to extend eastwardly to Rutgers meadow.
    29. Deposition of William B. Gerring, in this cause, taken Juné 6th, 1842, who proved that these original leases, were in the custody of and came from among the muniments of the descendants of Leonard Lispenard ; each being under the seal of the church. That the counterparts thereof on parchment, then produced by defendants, purporting to be executed by Leonard Lispenard, were counterparts of the same original leases having been compared by deponent, and that the name, Leonard Lispenard, subscribed thereto, is his proper handwriting, with which deponent is well acquainted. That the land called the eight acre lease, according to the present plan of the city of New York, is bounded on the west by Greenwich street, between Watts street and a point in the block between Laight and Vestry streets, and on the east by a line commencing near to Laight street, between Hudson and Varick streets and terminating in Watts street, which land was always held by the Lispenard family, and their assignees; and so far as it remains unsold and unassigned to others, is now held by Robert Stewart, (who derived from theLispenard’s,) under the indenture of 1764, and that the rent thereof has been regularly paid by the claimants under the lease, to the church, the defendants in this cause.
    Mr. Harison proved the seals to the original leases to Lispenard, to be the corporate seal of Trinity Church. Each appeared to be signed by two church wardens. The complainants objected to these leases, as not being sufficiently proved ; no authority for their execution being shown, and it can only be shown by a vote of the corporation in their minutes.
    30. The defendants next read in evidence the counterparts of twenty-seven leases by the church, in the year 1759, for a large number of lots, in Warren and other streets, generally for 21 years each. Among these, is a lease dated 1st February, 1759, to John Marshall, for a piece of land described as in the west ward, commonly known by the name of the Old Bowling Oreen in the Church Farm, as it was then in a hedge fence, being 130 feet in breadth by 223 in length, except a part leased to Elias Degrushe, and forming part of his rope-walk. Also another piece of ground, part of the Church Farm, lying north and east of the Old Bowling Green, between the rope-walk and ihe palisadoes, being in length from the northwest corner of the Bowling Green to the eastern most block house on the Church Farm, containing about four-fifths of an acre of land. The lease was for 21 years from 25th March then next, at the annual rent of £20.
    31. Seventeen leases by the church, in the year 1760, for a large number of lots in Warren, Murray, and other streets, generally for 21 years each.
    32. Twenty three leases by the church, in the year 1761, for a large number of lots on Broadway, between Reade and Duane and between Reade and Chambers streets, and in Chambers, Reade and other streets, on the Church Farm, generally for 21 years each. Among these is a lease to Samuel Sackett, dated the 28th of February, 1761, for two lots described as Nos. 529 and 530, on the,south-west corner of Broadway and Reade streets for 21 years, from the 26th of March then next, at a yearly rent of six pounds. (It appeared these lots 529 and 530, were leased 12th June, 1782, to Christopher Smith, for 14 years. Also a lease to Jacob Demarre, dated 28th February, 1761, for two lots, Nos. 421 and 422, on the south comer of Broadway and Chambers streets, for 21 years. Also a lease to David Morris, of same date and for same term, of two lots, Nos. 525 and 526, on the north-westerly comer of Broadway and Chambers streets. (It afterwards appeared that lot 525, the comer lot, was leased to D. Morris, 19th November, 1789, for 21 years; and lot 526 was leased to Philip Jacobs, 1st April, 1794, for 17 years.)
    33. Eleven leases by the church in the year 1762, for sundry lots of land, in Reade, Chambers and other streets, generally for 21 years each.,. Among these .is a lease .by the cjiurch to Abraham Cole, dated 28th February, 1762, for 21 years, for a lot described as distinguished on a map of that part of the Church Farm, which lies to the southward of Rutger’s farm, by lot 560, bounded southerly in front by Read.e street, westerly by lot 561, northerly by Rutger’s farm aforesaid, easterly by the rear of lots 557, 558 and 559, containing in breadth 25 feet, and in length from Reade street to the farm of Anthony Rutgers; another lease, of the same date to Andrew Sommers, for 21 years, for two.lots on the north side of Reade street, described as known on the map as Nos. 564 and 565, and bounded by Rutger’s farm, as described in the last mentioned lease. Another lease of the same date, for 21 years, to Martin Farrell, for lot 563 on the map, lying partly on tire south and partly on the north side of the Stockadoes, bounded southerly in front by Reade street, easterly by lot 562, northerly by Rtitger’s farm and westerly by lot 564. Another lease of the same date to Tunis Quackenbos, for 21 years, for a lot described as known on a map of that part of the Church Farm, which lies partly to the southward and partly to the northward of the Stockadoes, by lot No. 426, bounded northerly by Chambers street, easterly by lot 425, southerly by the Stockadoes and westwardly by lot 427, containing in breadth 25 feet and in length from Chambers street to the Stockadoes, as they then stood. Another lease of same date to John Con vis, for lot 561 on the same map on the north side of Reade street, and otherwise bounded northerly by Rutger’s farm, &c., as in the above lease to Abraham Cole.
    
      34. The defendants again referred to the exemplified copy of the record of judgment in the supreme court, in the action of ejectment, at the suit of Jackson ex dem. Brouwer against Trinity Church before mentioned. It appeared that William Smith was the attorney for the plaintiff, and James Duane for the defendants. The premises described in the declaration, were one dwelling house, one barn, one orchard, one garden and sixty-three acres of land, situate at the west'ward of the city of New York, and then or late in the tenure or occupation of Cornelius Vandenburgh or his assigns.
    35. Next they produced and read an exemplified copy of a judgment record, filed the 7th January, 1752, in the supreme court of New York, in an action of ejectment commenced in 1749, by James Jackson ex dem. Cornelius Brouwer and others, against Trinity Church, in which after-being at issue two years, judgment was entered for defendants as in case of a non-suit-. "The tenant described as in possession, was Adam Vandenburgh, and the land-was described in the declaration, as - a farm of sixtythfee acres. "William Smith was plaintiff’s-attorney in the suit.
    36. Four leases by the church, in the year 1763, for sundry lots of land on Warren, Reade, and on the corner of Warren and Chapel streets. Among these, is a lease dated 28th February, 1763, to Jean duecurie, for three lots on the north side of Reade street, described as known on a map of that part of the church farm to the southward of Rutger’s farm, by lots 566, 567 and 568, bounded easterly by lot 565, northerly by Rutger’s farm, and westerly by lot 569, extending from Reade street to Rutger’s farm, for twenty-one years, at the annual rent of £3 15s.
    37. Three leases by the church, in the year 1764, for sundry lots of land on "Broadway and Reade streets. Among these, is a lease dated 28th February, 1764, to Philip Spies, for a- lot of land, described as situate in the west ward, and known- on the map by the number 559, and bounded easterly -in - front by Broadway, northerly by Rutger’s farm, westerly by lot 560, and southerly by lot 558 ; for eighteen years from the 25th of March then next, at the yearly rent of £3.
    
      38. A lease by the church to John Jones, dated February 28, 1765, for txvo lots on Broadway, corner of Warren street, for sixty-three years.
    39. A lease by the church to John and Oliver Mildeberger, dated February 28th, 1766, for three lots on the south side of Reade street, for sixty-three years; and the like to Martin Farrell, for one lot on same street.
    40. A lease by the church, dated February 28th, 1766, to John Whipple, for eight lots on Greenwich street, between two streets not named, (but which are now known as Duane and Harrison streets,) for ninety-nine years. -
    41. A lease by the church to George Harrison, dated 30th October, 1765, for twenty-four lots of land, between Greenwich street and the river, and between two streets not named, (which were afterwards called Harrison and Jay streets,) for the term of ninety-nine years.
    42. A lease by the church to Gdbert Forbes, dated 28th February, 1767, for two lots in Greenwich street, (lying between two streets now known as North Moore and Beach streets,) for ninety-nine years.
    43. Lieut. Ratzen’s “ Plan of the City of New York,” made from a survey in 1767, was here introduced in evidence. (It is referred to in the opinion of the court, in connection with the other maps.)
    44. A large number of counterparts of leases by Trinity Church to different persons, were then read in evidence, commencing in the year 1768, and continuing in successive years to the 14th of April, in the year 1831. The number of these leases was six hundred and twenty, and they were granted to divers persons severally, for divers lots, being parcels of the land called the Church farm ; generally for terms of twenty-one years each ; the lands demised were nearly all situated on divers streets on the Church farm, north of and including Warren street, and extending north to and including Christopher street. The number of such leases in the respective years, was as follows, viz:
    
      Leases in 1768, Two. “ 1769, Four. “ 1771, Five. “ 1772, Two. “ 1773, Three. “ 1774, One. f< 1779, Four. 61 1780, Three. “ 1781, Seven. “ 1782, Ten. “ 1783, Six. ££ 1784, Two. “ 1785, Two. “ 1786, Five. “ 1787, Eight. “ 1788, Seven. “ 1789, Two. “ 1790, Eight. “ 1792, Nineteen. lc 1793, Twenty-two. £f 1794, Twenty-two. ££ 1795, Eight. “ 1796, Five. “ 1797, One. “ 1798, Two. “ 1800, Two. “ 1801, Eight. “ 1802, Five. “ 1803, Fourteen. Leases in 1804, Twenty-two. “ 1805, Fifteen. “ 1806, Three. “ 1807, One. “ 1808, One. “ 1809, Seventeen. “ 1810, Twelve. “ 1811, Sixteen. “ 1812, Eight. “ 1813, Seventeen. 1814, Eighteen. 1815, Fourteen. 1816, Twenty. 1817, Seven. 1818, Fourteen. 1819, Seven. 1820, Four. 1821, Nine. 1822, Eight. 1823, Twenty. ,1824, Forty-six. 1825, Forty-five. 1826, Twenty-seven. 1827, Twenty. 1828, Twelve. 1829, Four. 1830, Seventeen. 1831, Sixteen.
    Among these leases, are a lease to John Keating, for sixty-three years, dated 5th May, 1768, for a parcel of land of more than two and one half acres, being thirty-four lots, lying between Provost, Franklin, and Moore (North Moore) streets, and extending from Greenwich street, eastwardly to Rutger’s land.
    Also, a lease to Samuel Francis, for sixty-three years, dated 25th March, 1769, of a part of the church farm, therein described as bounded on Greenwich Road, Chambers street, Chapel street and Warren street.
    
      Also, a counterpart of a lease to Aaron Burr, dated May 1, 1797, for. sixty-nine years, of a part of the church farm, containing twenty-six acres, three roods, and thirty-six perches of land, lying between Spring and Hamersley streets, and bounded by Greenwich street on the west, and a line four hundred and fifty feet eastwardly from Hudson street on the east; (excepting the block between Vandam, Charlton, Greenwich and Hudson streets.)
    Also, a counterpart of a conveyance in fee, dated July 1, 1789, to Abraham Wilson, of the land described in the above mentioned lease to Samuel Francis, reserving an annual rent in fee of £30; the lease to Francis being then surrendered.
    45. The defendants next produced and read in evidence, (the complainants counsel objecting to the evidence,) from the files of the supreme court, the minutes of trial, pleadings, and prior proceedings, in an action of ejectment, in favor of James Jackson, ex dem. Richard M. Malcom and others, against Martin Bromeling; which was tried before Mr. Justice Tompkins on the 22d of April, 1807, and a verdict found for the defendants. The premises claimed were situated in the Fifth Ward of the city of New York. Also,' the rule for judgment entered on filing the nisi prius roll, minutes and postea.
    46. The defendants also read in evidence, the record of several conveyances in fee, made and granted by Trinity Church, to divers persons severally, of and for divers lots, being parcels of the land called the “ Church Farm!' The books containing such records, were brought into court and produced by the register of the city and county of New York, pursuant to an order of the court. The number of conveyances so read, was three hundred and eighty-five ; commencing in the year 1784, and ending in the year 1830, and they appeared to have been recorded at the request of the grantees therein. The lots conveyed, were situated on various streets, in all parts of the Church Farm, between Fulton street on the south, and Christopher street on the north, Broadway on the east, and the Hudson river on the west.
    Among these are the following: One to John Mills, in the year 1788, for four lots, Nos. 582, 583, 584 and 585, on Reade street. One to William Alexander, in the year 1788, for lot 530, on the south-west corner of Great George’s street, or Broadway, and Reade streets; one to James Rykerj in the year 178^ for two lots, Nos. 667 and 668, on Reade street, north-west corner of Chapel street; one to Edward Livingston, in the year 1796, for four hundred and seventy-five feet on the west side of Greenwich street, near Spring street, to Hudson river; one in the year 1802, to St. Mark’s church, for thirty lots on Warrens Reade, Harrison, North Moore and Franklin streets ; one to Wm. and F. C. Havemyer, in the year 1809, for two lots on Yandam street, bounded easterly by land leased to Aaron Burr; one to the city corporation, in the year 1813, being a cession of sundry streets between Christopher, Washington, Hudson and North Moore streets ; one to Henry Cary, in the year 1821, for two lots, 552 and 535, on Chambers and Reade streets.
    The defendants also produced and read in evidence, a deed from Trinity Church by its then corporate name, to Kings, now Columbia College, by the name of “The Governors of the College of the Province of New York, in the city of New York, in America,” dated the 15th day of May, in the 28th year of George the Second, (Anno Dom. 1755,) and conveying in fee simple all the land lying between Barclay and Murray streets, from Church street to the North river, and the use of the street called Robinson street, ninety feet wide from Broadway to Church street; the consideration expressed, being for the promotion of learning, and the nominal sum of ten shillings.
    47. The depositions of the following witnesses, taken in this cause, on the part of defendants, were then read, viz: Morgan Lewis, James Ryker, James Bleecker, Peter Lorillard, Peter Embury, Lewis C. Hamersiey, Adolphus Loss, Ezra Weeks, James Barrow, William Johnson, Samuel Gilford, Benjamin M. Brown and William H. Harison. The following is a synopsis of their testimony:
    Morgan Lewis testified, November 29th, 1842, that he was in the 89th year of his age, was born in the city of New York, and resided there before and at the commencement of the Revolutionary war, and after its termination. For several years after the peace of 1783, he pursued the profession of the law, and that he and Aaron Burr were, in 1784, applied to as counsel, by a committee of Trinity Church, for advice concerning certain attempts then made and making by individuals of the Bogardus family, to get into possession of a part of the land in the occupation of the church, and of which the church claimed to be the owners. That they united in advising, that all fences, and other marks of possession, erected on the church land, by Bogardus and his associates, should be removed, by force if necessary ; which advice was pursued by the vestry, so that the possession of the-church was maintained against all such attempts.
    That his father, Francis Lewis, was for several years after the peace of 1783, a vestryman of Trinity Church, and he also belonged to the same church, some few years after the peace. That he was concerned with others, in the purchase of a large piece of land belonging to the Rutger’s estate, on which he afterwards erected the house on Leonard street in which he resides. This purchase adjoined the church land, and the line between the two estates was afterwards straightened by agreement, in accommodation to the lines of the new streets. Under the circumstances above stated, he became acquainted generally, with the land called the Church Farm. That it was commonly understood and reputed to commence at or near St. Paul’s Church, and to extend northerly along Broadway to near the Hospital, and thence along the Rutger’s estate and the estates of Bayard and Herring, passing through the meadow land there, and to be bounded on the west by Hudson river; he cannot specify the northern boundary, but it was always reputed and understood to include, Lispenard’s place, Brannan’s Garden, Mortier’s place, afterwards Col. Burr's* and now said to be possessed by John Jacob Astor, and Williamson’s nursery; which several estates he always understood were leased by the church for long terms prior to the Revolution. That the land called the Church Farm, has from his earliest recollection, been in the exclusive possession and enjoyment of the church and of purchasers under them. He has never known or heard of any interruption of such possession, nor of any attempt to interrupt it, except by occasional acts of intrusion or violence by the Bogardus heirs, soon áfter the peace of 1783. That he never at any time understood or heard, that any of the Bogardus heirs claimed or pretended to be tenants in common with the church, of any part of the church estate, or to be entitled in common with it to any part of the rents, profits or proceeds thereof; but on the contrary, he distinctly understood, that the design and object of the heirs in entering on the estate, was to establish an actual possession in parts thereof, under title wholly adverse to that of the church.
    The deponent proved two original papers signed by him and Aaron Burr, in their handwriting, containing the advice above referred to by him.
    On his cross-examination, Gov. Lewis testified, that he had heard of the King’s Farm, but not of the Duke’s Farm, nor of the Queen’s Farm, nor of the Dutch West India Company Farm, and knew nothing of the boundaries of either.
    James Rykek. testified, (January 6, 1842) that he was in the eightieth year of his age, and resides in the city of New-York.That he removed to the city soon after the peace of 1783, and a short time afterwards married a daughter of John Zimmerman, who then held three lots of land on Warren street, and two lots on the corner of Reade and Chapel streets, in the now fifth ward of the city. That Zimmerman built a house on one of the lots on Warren street, and lived in it when deponent married ; all those lots were held under leases from the corporation of Trinity Church ; the lease for those on Warren street was given prior to the revolutionary war, and the lease of the other two lots was given in February, 1783. That soon after the peace of 1783, Zitiimermanlet out the two lots on the corner of Reade and Chapel streets^ to one Davenport, who after holding possession for a short time, refused to pay the re,nt, on the ground that John Bogardus claimed to be owner of the lots, and had notified him not to pay the rent to Mr. Zimmerman. Davenport, soon after this refusal, moved away, and one of Bogardus’s sons took the possession from him. A representation of those proceedings was made to the vestry of Trinity Church, and they turned out Bogardus and restored the possession to Zimmerman, who then, (about the year 1786,) put deponent into possession of the same lots, and his possession was not afterwards disturbed. He lived on the lots as a tenant of the church, about two or three years, and then purchased thefee and received a conveyance from the church, under which he has ever since held both lots, except the parts taken for widening streets. During all this time he has been well acquainted with that part of the city, which was universally considered and understood to belong to Trinity Church. He does not know the bounds of the church estate, but all the land between Broadway and the North river and between Partition street to and beyond Duane street, as also the land occupied by Mr. Lispenard, and that called Barnnan’s garden, and the land called Burr’s lease, and that called Williamson’s nuisery, and so up to Christopher street, has always, within the time of his knowledge of the city, been reported and considered to be church property. It was called the Church farm. At the conclusion of the war of the revolution, there were but few houses on Chambers, Reade or Duane streets. Warren street was more built up, and at the lower corner of that street on the north side, was the place called Vauxhall, on which there was after-wards a pottery. On and after the peace of 1783, the church leased out and sold a great many lots on the above mentioned streets, and on other parts of their property and have ever since continued to lease and sell the same. Since deponent’s first knowledge of the city, all the land on the above mentioned streets lying between Broadway and the river, and also lying north of Duane street, along the river, including Greenwich street, and Hudson and Yarick streets, and the cross streets between them and the river, has been held, so far as he has always heard and understood, under the corporation of Trinity Church. He does not know of any land within the limits of the Church farm, and more especially of that part which consists-of the land on Warren, Chambers, Reade and Duane streets, (with which he has been well acquainted for the last fifty-five years,) that has been or is possessed under any title save that of Trinity Church, except some short temporary possession taken by John Bogardus or some of that family about the year 1784 or 1785, by putting up a fence on a piece of vacant ground just-north of Duane street, on the Greenwich road, which was immediately or soon after taken down and burnt by the church party. Deponent saw the fence after it was put up, and the remains of the burnt rails. The church kept possession of this property, which they have since leased out or sold. He has also some recollection of the church having taken down a fence, which had been put up further to the north, and next to Lispenard’s land, which was occupied by one Higby. That one Captain Lewis was collector of church rents after the peace, and he was succeeded by old Mr. Barrow; he paid rent to the first, but does not recollect whether he paid any to Mr. Barrow or not. The lease now pro 1 need, is the counterpart of the lease from the church to Mr. Zimmerman, and the conveyance now produced is the conveyance of the church to him, above referred to. (The deed was recorded in liber 121 of Conveyances, page 414 ; and the lease was dated 28th July, 1783, for lots No. 687 and 668 of the Church farm.)
    
      On cross-examination, Mr. Ryker testified, on being shown a map printed in 1767, he says when he came to New York in 1783, he does not recollect of any more enclosures or buildings on the land lying north of Warren street as far as the map extends and east of the North river towards and including the meadows thereon represented, than what he saw here, (pointing to the map) except a few on Duane street and on Reade street, and a few on Chambers street. Warren Street was pretty well built up, and all the streets south of it. The yellow-wooden house on the south corner of Chambers street and Broadway, was occupied when he first came to New York by one Anderson. Deponent’s father-in-law put up the houses on 667 and 668, occupied by him. He remembers Mrs. Anderson held two lots in Chambers street which she refused to give up, and the church, gave her some trifle of money and she went off; and Mrs. Broad, who lived in the fort near the foot of Harrison street, who refused to give up and remained there till the church bought her out, as he understood. The church gave her some trifle out of charity ; so he understood at the time. This was soon after deponent got possession.
    James Bleecker, testified(in May and June, 1842,) that he was in the seventy-eighth year of his age, and has always (except during the revolutionary war,) resided in the city of New York. His father, Anthony L. Bleecker, resided during the war, in New Jersey, and returned to the city of New York in the year 1783, when he re-commenced business as auctioneer, and continued at that business separately, and in partnership with deponent many years. And deponent, with various partners, has carried on the same business, from the time he commenced, until now. Deponent was a clerk in the service of his father in New York, until he became a partner, as above stated. Soon after the peace, and as early as 1784, the vestry of Trinity Church resumed the management of the church estate, and made sales and leases thereof in lots or parcels. This business was conducted principally by a committee of the vestry, called the committee of leases; but other sales were made by public auction under the directions of the vestry. These public sales were commenced in the year 1784, and were continued from time to time until the year 1825, and were all made by deponent’s father, or by some or one of the firms of which deponent was a member. The witness produced a list or inventory of the lots so sold at auction, showing the numbers and situations of the lots, the dates of the sales, and the names of the purchasers, which list was made out by deponent, several years ago, from the original books of account of his father, and of deponent’s several firms, then in his possession. That he was a member of the vestry of Trinity Church, from 1814 until the present year, and thereby and by means of his agency in those sales, became and for a long course of years had been acquainted with its real estate. That the property of the corporation called the Church farm, as he always understood, and as has been generally understood and reputed, extended on the west side from the street called Partition street along the Norh river to the street now called Christopher street, and on the east from Partition street along that part of Broadway formerly called Great George street, to a point between Reade street and a street formerly called Barley, now Duane street; the eastern boundary line then left Broadway, and crossing Duane street at some distance to the west of Broadway, ran along the estates of Rutgers, Bayard, and Herring, to Christopher street, embracing the estates severally called Lispenards, Brannan’s lease, and Mortier’s, afterwards Burr’s, now Astor’s lease; also Williamson’s nursery, and a piece of land on the opposite side of the Greenwich road, bounded on Christopher street and the North river, formerly possessed by the late General Morton; which estates were granted by the church prior to the Revolution, on long leases. Of these estates, that leased to Mortier, now called Astor’s lease, and also a part of the land occupied by Lispenard, called the. Eight Acre lease, are still held by or under such leases, but all the others have reverted to Trinity Church, by the expiration or surrender of the terms, and for several years past have from time to time been laid out in city lots, and sold or leased in common with other parts of the Church farm. That ever since deponent’s return to the city of New York, in the year 1783, Trinity Church has, according to his best knowledge and belief, been in the sole and uninterrupted possession of the land above described, called the Church farm, (except the part sold by them;) and in the sole and exclusive receipt and enjoyment of the rents and profits thereof, as sole owners of the land. That such rents and profits, and also all the proceeds of all the sales of lots within the Church farm, were from time to time appropriated by it, to its own use and benefit, or otherwise disposed of at the pleasure of the vestry, and that neither whilst he was a member of the vestry, or at any other time, has he ever heard it alleged or pretended, or in any manner admitted that any part of the church property was held by the church in common with the Bogardus family or any of them, or that any of that family, or any other person or persons whomsoever, had or claimed to have any estate or interest in that property, or any part thereof, or in the rents, profits, proceeds or avails thereof, in common with the church. But he recollects to have heard, soon after the peace of 1783, that a claim to a part of the Church Farm had been set up by some of the Bogardus family, in opposition to the title of the church, and many years afterwards he also heard of a law suit commenced under that claim by Gen. Malcom or his heirs, to recover possession of some lots situated within the Church Farm, and held by a tenant of the church ; which suit was decided in favor of the church. With these exceptions, deponent has never heard the title of the church to any part of the Church Farm or property, disputed or called in question, until at or about the commencement of this suit.
    
      On cross-examination, Mr. Bleecker testified, that Partition street was so called, because it was the division line between the church and some others not remembered. The committee of leases did not keep a record of leases as he understood or knew of. The original accounts from which the list of sales was drawn, contained the prices for which the lots were sold respectively. The books of the firms referred to, are now stowed away in a house, No. 36 Hudson street, with other like books. He cannot say how he came to know the boundaries he mentioris, whether by plan, map, or verbal representation of others. He never heard of any persons being in possession of any part of the land described by him as the Church Farm, who were not tenants of the church or purchasers under them.
    The schedule, or list of auction sales, referred to in the examination of Mr. Bleecker, shows sales as follows:
    In the year 1784, 21 lots. In the year 1804, 31 lots. ÍÍ 1787, 56 U u 1805, 47 (C tc 1788, 53 ¡Í u 1806, 20 U XX 1789, 2 6Í u 1807, 29 « u 1795, 53 ÍÍ XX 1809, 16 u ÍÍ 1797, 35 (( Xi 1810, 8 u ÍÍ 1798, 2 (Í a 1811, 18 cc « 1800, 3 « tc 1812, 3 cc K 1801, 14 (C (C 1813, 29 it ÍÍ 1802, 9 ÍÍ u 1814, 2 <i tí 1803, 20 u si 1815, 4 <(
    
      In the year 1816, 1 lot. “ , 1818, 9 “ In the year 1823, 5 lots. “ 1825, 1 “
    Total 491 lots, lots sold at auction by Trinity Church, from 1784 to 1825, inclusive.
    Peter Lorillard, testified, (January 4, 1842,) that he was in the seventy-seventh year of his age, and has always, except three years of his early childhood, resided in the city of New York. That prior to the Revolutionary war, he resided with his father in Chatham street, near Chambers street, and continued to reside there until about ten years ago. That his grandfather, as far back as he can recollect, which is more than seventy years, lived in a house on Broadway, between Barclay and Robinson streets. His uncle lived in Park Place. One Wolfe and Marselis then occupied lots on Broadway between Barclay and Robinson streets. That during and at the close of the war, one Sutton kept a shop on the north corner of Robinson street and Broadway. That one Bvamman had a ball alley and lived in the same block. That one De la Montagnie lived on Broadway, next to the corner of Murray street, where he had several lots and kept a public garden. That at the peace of 1783, one Spice lived on Broadway, between Reade and Duane streets; and besides these, he recollects several other possessions on Reade street. All which several possessions, as he understood at the several times thereof, were held under Trinity Church, and were part of the church estate. That he knew most if not all the occupants, at the periods above stated, of houses and lots on that part of Broadway, but has no recollection that either of them, before, or during, or after the close of the war, was occupied by any of the name of Bogardus. That in 1783, there were very few houses on Warren, Chambers, Reade, or Duane streets. One Francis kept the place called Vauxhall, at the corner of Greenwich road and Warren street. That since the Revolutionary war he has been more particularly acquainted with that part of the city, and he has always understood and believes the lands lying on Warren, Chambers, and Reade streets and part of Duane street, were church property, and that the church ever since that period have been in the exclusive possession of the same, except the lots they sold or conveyed to others. That from the time of his first knowledge of the estate of the church, it has, as he has always understood and believes, been in the uninterrupted posr session of the corporation of Trinity Church, and of their tenants and purchasers under them; except that some years prior to the war, he understood that a suit had been commenced against the church by persons claiming under the Bogardus title, which was decided in favor of the church ; and about two years after the peace of 1783, he understood one Bogardus had gone by night, with a party of men, and had entered and taken possession of some land of the church, of which he was immediately dispossessed. This land was at the time pointed out to deponent as lying between Chambers and Reade streets, and between Church and Chapel street; and he heard that Bogardus afterwards commenced a suit against the church and was cast. He knows of no possession of any land, or any part of the church estate, which has ever been held or possessed by any person or persons claiming title thereto in opposition to the title of Trinity Church, except the temporary possession above referred to.
    
      On cross-examination, Mr. Lorillard testified, that he has • heard his father and grandfather and uncle say they held under the church. The house on Broadway, on the south corner of Chambers street, was a yellowish two story wooden house; one Marselis lived there before the peace; he died about the time of the peace. He remembers a report, about 1785 or 1786, that Mr. Bogardus had gone with about twenty men and took possession of some ground, and the church went the next day, or close by, and knocked down the fences which Bogardus had put up. People were surprised that Bogardus had taken posssession, as he had a law suit about it before the Revolution, and got beat. The ground he took was all bare at the time. There were no fences thereon; it was all vacant land north of Chambers street, below Chapel street, except a few houses here and there. There was Dean’s distillery on the west side of Greenwich street and Murray street; there was Yauxhall on the corner of Warren and Greenwich streets ; Curtenius’s furnace, on the west side above Reade street: there was Lispenard’s brewery. on the east side of Greenwich road, south of Canal street. On the borders of the meadow, east of the brewery, was Lispenard’s house. There were no enclosures on Hudson street. In 1786, Christopher street was a lane, and had fences on each side of it; it terminated in Sandy Hill road east, and Greenwich road west.
    Peter Embury, testified, (January 5th, 1842,) that he was in the seventy-sixth year of his age; has resided in the city of New York his whole life, except five years, from 1829. That prior to the revolutionary war, and as long back as he can recollect, the property about and above St. Paul’s Church, on the west side of Broadway, and between that and the river, was considered to be the property of the corporation of Trinity Church, and was called and known as church property. He cannot specify the limits of the church property, but always understood that it extended along the river as far north as the state prison, and along Broadway/ as far as Duane street, or near id. He recollects that after the war, when Trinity Church was rebuilt, the vestry sold several lots on Broadway and other streets. Among these, was a lot on the comer of Broadway and Chambers street, which was afterwards purchased by Anthony Steenback, and also two or three lots on Jxeade and Duane streets, between Church and Chapel streets, and many others also purchased lots in that part of the city, at the same time, and before and afterwards. All the land between St. Paul’s Church and Duane street, west of Broadway, was universally understood to be church property, and as far as he knows and believes, is held by Trinity Church, or by lessees er purchasers-under Trinity Church. He knows of no other title to any part of such land. His lot, a little north of Duare street, is held under that title, and so are other lots above Duane street. He knows of no possession in any part of the church estate which is, or ever, within his recollection has been, held or possessed -under any other title. He has heard tfcat the Bogardus family claimed part of the church property, snd that soon after the Revolutionary war, some or one of that name took possession of part, of that property, near the Greenwich road, and near to the 
      Lispenard meadows, by erecting a fence and house on it, which the church immediately caused to be pulled down. He heard of no further dispute until more than fifty .years ago, when a trial was had under the Bogardus title, and a verdict given in favor of the church. From that time he heard of no claim, until about seven years ago.
    Lewis C. Hamersley testified, (December 17,1841,) that he was seventy-four years old, and has always resided in the city of New York, except five years and eight months during the Revolution, when he resided in New Jersey. His whole family belonged to the congregation of Trinity Church, and his father served as a vestryman of that church, from 1784, to about 1810, and died in 1819, being then nearly ninety-four years of age. Witness’s grandmother was one of the heirs of Bogardus, who claimed a large part of the property owned by Trinity Church. He has been frequently present at conversations between his father and Mr. Bogardus, who managed the claim on behalf of the heir*. Bogardus frequently applied to his father for money to carry on the claim. Moneys were advanced to him, but not to any large amount. Others also claiming to be heirs of Bogardus, talked with his father on the subject of the claim. Mr. Bogardus seemed to be the only acting person. From the time of the evacuation by the British, deponent had a general knowledge of the church property, and after the time of his father’s election to the vestry, a more particular knowledge of it. A committee of the vestry, called the committee of leases, of which his father was chairman, met at his house. It had the management of the church property under the direction of the vestry. The general hounds and limits'of the Church Farm were these, as he always understood. On Broadway it began on Partition) (now Fulton street,) it run up Broadway, he did not know how far, but Reade street was part of it. He did not know much about the bounds hom there, but it included Hudson and Greenwich streets up to Christopher street, and also Williamson’s nursery, and a public house above it, and went down to the river, and then followed the course of the river down to Partition street. The church has been in possession of the property he has described, from the time he first became acquainted with it, except what they have sold or given away, except at one time there was a house called a possession house, which he had never seen ; it was some where in Warren or Chambers street, about half-way between Broadway and the river. Some where about the year 1785, the sheriff of the city, with his deputy, some of the vestry and others, went to dispossess the Bogardus’s of that house. The people in the house fired on them, and wounded one of the party. The sheriff pushed forward, took possession of the premises, and delivered it to the church, and it afterwards remained in the possession of the church. The possession house was an old house that the Bogardus family hired, or some how got the possession of. The vestry of Trinity Church received the rents of the Church Farm, and the proceeds of what they sold, since he became acquainted with it. He never understood that the church ever accounted to any one of the Bogardus heirs, for any part of the rents or proceeds ; if they had, his father would have claimed his portion, as one of the heirs. In the conversation he has spoken of, between his father and the heirs, he never heard them allege or pretend that the church had accounted, or were to account, Co the heirs for any part of the rents or proceeds of the Church Farm, or that the heirs were in possession of any part of the Church Farm, save the possession house, at the time they were in possession of it. His father told Bogardus that a paper had been found, which convinced him that the Bogardus’s had no right to the property. His father said a gentleman, by the name of He Hart, in General Hamilton’s office, had found the paper, and the vestry had given him a piece of plate, as a compliment for finding it. As to that part of the Church Farm, which lies on Warren, Chambers, Reade, and Duane streets, he remembers the vestry of the church widening Warren and Chambers streets a long while ago, more than forty years ago. He has seen the committee of leases leasing property on Warren, Chambers and Reade streets. The lots on these streets, were in the possession of tenants of Trinity Church, or persons to whom the church had sold or conveyed. He has never heard of any of the heirs of Bogardus being in possession of any of the lots on these streets, claiming title adverse to Trinity Church, except the possession house. Deponent does not now belong to the congregation of Trinity Church.
    The plaintiff declined reading the cross-examination of this witness.
    Being re-examined, he says :—The land about the possession house, which he mentioned to have been claimed by the Bogardus heirs, was notoriously within the limits of the Church Farm, at the time when they were turned out by the sheriff, as before stated. From the conversation between the heirs of Bogardus and his father, before referred to, he understood the church to be in possession of the land-claimed by the heirs, and to claim title to such land, as owners. He does not know of any act, or proceeding, or declaration, on the part of any of the officers of Trinity Church, going to show or acknowledge, that the church held any part of the property called the Church Farm, as tenants in common, with the heirs of Bogardus, or any of them, or in any manner for their benefit. He has never heard any of the Bogardus heirs or claimants allege or pretend, that they were tenants in common with the church, of any part of the Church Farm, but within a few years he has heard some of their descendants say that there had been such a thing.
    Adolphus Loss, testified, (January 21, 1842,) that he is in the 72d year of his age, and has resided in the city since 1797, except two years. Is the brother of Charles Loss, who was a city surveyor. When witness first came to New York, he entered in the employ of Charles, and assisted him in the performance of his duties as a city surveyor. In 1806, he was appointed a city surveyor, and has ever since acted as such. That, in 1799, Charles Loss was employed by the corporation of Trinity Church, to survey, lay out, and make a map of the lands called the Church Farm, and he completed the survey and made a map thereof, which map, (except as hereinafter mentioned.) is the same map now produced and shown to deponent, entitled, “a map of lands belonging to the corporation of Trinity Church', commonly called the Church Farm, and of the lands adjacent:; New York, April, 1799 ;” the whole of which title, including the name of Charles Loss, is in his proper handwriting. That; of the other words and figures in the map, many are also in the handwriting of Charles Loss, and many others in the hand^ writing of this deponent. That he assisted Charles Loss in sur^ veying the whole of those lands, and in the delineation on the map of the bounds thereof, and of the courses and lines of the streets running through the same, and of the lines of the lots into which the lands were then divided, the whole of which work was done with great care and accuracy. That, in running the easterly boundary line of those lands, through the meadow or swamp along the line of Bayard’s West Farm, there was some difficulty as to the precise location of that line, but it was finally established as represented on the map ; old Mr. Barrow; then collector of the church rents, directing and assisting therein. That such easterly boundary, except through the swamp, was indicated by fences, and that in running out and marking the line, there was no dispute or difficulty whatever. That, at the time of making such survey and map, the whole of the laud bounded on the south by the north side of Partition, now Fulton street, from Broadway to the North river, on the east, by Broadway from Partition street, to the line represented on the map between Reade street and Barley, now Duane street, on the north, by the last-mentioned line from Broadway to Duane street, and then along Duane street to the North river, and on the west by the river; and also, the land between Duane street and Christopher street, bounded eastwardly from Duane street up to North Moore street, by Hudson street, and between North Moore street and Christopher street by the estates of Bayard, Herring, and others; northwardly, on Christopher street, and westwardly, on the North river; was then, and is yet generally understood, reported, and considered, to compose the estate of the corporation of Trinity Church, commonly called the Church Farm. That parts of those estates, were then tinder lease, and were severally occupied by Mr. Lispenard, Mr. Brannan, Colonel Burr, one Williamson, who had a nursery and garden, and by General Morton. That the leased lands . are distinguished on the map as follows :—Those occupied by Lispenard, Brannan, Burr, by the names of those individuals, and a representation of their mansion houses; those occupied by Williamson, by the word “Nursery,” and the representation of trees ; and that those occupied by General Morton, were on or near Christopher street, and comprehended the land between the river and the old line of Greenwich road ; along which line was a thorn hedge, as represented on the map. These lands were not then divided into lots, nor were any of the church lands north of Burr’s lease, nor those bounded on Clark and Dominick streets, which streets deponent, at a late period, surveyed, at Mr. Barrow’s request, and laid down on the same map. That, for nine years after his first coming to New York, he was employed as assistant of Charles Loss, and subsequently, as one of the city surveyors, was frequently employed to run out and survey lots for the corporation of Trinity Church, and by means thereof, and of his other employments as a city surveyor, he has had a particular knowledge of the north-western section of the city of New York, including all the lands called the Church Farm; and that neither on the survey above mentioned, or on any other occasion, or at any time since, except within the last few years, has he ever heard of any possession of any part of the estate called the Church Farm, other than such as was held by the corporation of Trinity Church, or tenants or purchasers under that corporation.
    
      On cross-examination, Mr. Loss testified, that in making up his new maps, he did use an old map which was shown to him by Mr. Barrow. This Avas Bernard Ratzen’s map, done in 1767, so far as it goes, but the original extends farther. The tract of land covered by witness’s map, was not laid out in streets and blocks and lots, as represented on such map, except to Duane street. There were no streets laid out upon the land ; there were no houses or fences, except Harrison’s, near the river, as shoAvn on Ratzen’s map; a tavern near General Morton’s place; also, General Morton’s house, Burr’s, Brannan’s, Lispenard’s, and the brewery, and these were enclosed ; but besides these, the tract lay open and vacant, and unimproved, as far as. he recollects. There may have been two or three others, but he does not recollect them. There was a fence between Bayard’s and the Church Farm, on the east side.
    
      Ezra Weeks, testified, May 10, 1842, that he was in the seventy-first year of his age, and resided in the city of New York from 1793 until 1834, and was a master builder during the greater part of that time. From 1796 he always lived in that part of the city in which the land of Trinity Church, called the Church Farm, was, and is situate, and from his active business he had a general acquaintance with the real estate in that quarter. In 1797 he purchased of the church, three lots of land on Greenwich street, between Harrison and Provost streets. About 1800, he purchased five other lots from the church, three on Harrison and two on Provost streets, all which lots have ever since been held by him and those deriving title under him, without dispute and interruption, to his knowledge. That the church, from the time of his first residence in the city, down.to the time of his removal to the country, were universally reputed to be the owners of the lands called the Church Farm, which, as he always understood and was generally reputed, extended along the North river, from St. Paul’s Church to Christopher street, embracing all the lands on Broadway between St. Paul’s Church and a point near the Hospital ground; he cannot describe accurately the east line of the Church Farm after it left Broadway, but understood that it ran through the meadow, and in part along the west line of Bayard’s west farm, of which deponent, in 1802, purchased two blocks, adjoining on the west to the east line of the church land. The Church Farm was generally reputed and understood to comprehend several large parcels of land, which were leased for long terms by Trinity Church, prior to the war of the Revolution, and which were severally known as Lispenard’s lease, Brannan’s Garden, Richmond Hill, and Williamson’s Nursery. On Christopher street, there was a tavern kept called the Indian Queen, and on the opposite side of the Greenwich road, a considerable piece of land, which was for some years possessed by Gen. Morton ; these two last properties were bounded on, or were near to, Christopher street, and were also reputed and understood to be held by lease under the church. All the land about St. Johns Church and St. John’s Park on Hudson street, and the cross streets between it and the river, and on Reade, Chambers, Warren, Church and Chapel streets, and on and to the west of that part of Greenwich street lying north of Partition street, was also reputed and understood to be part of the Church Farm, and he has never since he first became acquainted with this estate, known or heard of any possession in that part of the city, otherwise than under the church title. That public and private sales of lots throughout that part of the city, were continually made by the officers or agents of the church, "from 1797 to his removal from the city, and the rents of unsold lots were, during all that time, collected for the church by Thomas Barrow, or after his death by his son, James Barrow, who were severally called collectors of church rents. In 1822, he was elected a vestryman of Trinity Church, and continued such until 1834,- that whilst such vestryman, he took an active part in the management of the estate and concerns of Trinity Church, and never at any time heard of any pretence or claim by or on the part of the complainants, or any of the Bogardus family, that they, or any of them, or the ancestors of any of them, were at any time tenants in common with Trinity Church of any part of the church lands, or had any right, share or interest in or to the rents or proceeds of those lands, or any of them; but, on the contrary, he has always understood, and such he believes has been the universal understanding and belief, that the whole of the lands, and the entire rents and proceeds thereof, belonged to, and were claimed and received by the church to its own exclusive use and benefit. And he states from his own knowledge, that whilst he was a member of the vestry, the whole of the same were appropriated and applied to the use of Trinity Church, without the least idea of any such tenancy in common, or of any such right, interest or claim, on the part of the Bogardus family, or of any of them.
    • James Barrow, testified, October, 31, 1845, that he is in the seventy first year of his age, and has always resided in the city ■of New York, except some few years after the twenty-first year .of his age. His father, Thomas Barrow, also always resided in the city, and was, in 1794, appointed agent and collector for Trinity Church, and continued such until his decease in 1825, .when deponent was appointed to the same office, and has continued ever since such agent and collector. That he and his father, as such agents and collectors, were in the habit of receiving all the moneys payable to the church, from the lessees, tenants, or grantees; and he assisted his father as such collector and agent from 1813 until he was appointed such collector. That by means thereof, he became acquainted with the management of the church estate, and of the receipt and application of the rents and proceeds thereof, and during the whole of that period the church- made numerous sales and leases of lots of land on their estate called the Church Farm. The leasing was conducted formerly by the committee of leases, and now by the standing committee; the sales were principally at public auction, and sometimes at private sale. That ever since he began to assist his father, the church has, according to his best knowledge, and as he believes, been in the sole and exclusive receipt and enjoyment of the rents, issues and profits, of the land called the Church Farm, claiming to have and hold the same as sole and exclusive owners thereof. That in all the indentures of lease thereof, granted by the church, the rents reserved therein were received and enjoyed by the church as sole owners of the land, and the same and the proceeds of sales thereof were appropriated by the church, from time to time, to its sole and separate use and benefit, or disposed of at the pleasure of the vestry. That neither whilst he was such agent and collector, or whilst he assisted his father, has he ever paid or accounted to the complainants in this suit, or any of the Bogardus family, any part of such rents or proceeds, or to any other person claiming any estate or interest therein, except the church; nor has his father ever so paid over or accounted, as he knows or believes. Nor has he ever heard it alleged or pretended, or in any way acknowledged, that any part of such rents, or proceeds, was received or held by the church in common and undivided with, or as trustee of the complainants, or of the Bogardus family, or any of them; or that any other person or persons except the church, had or claimed to have any estate or interest in such rents, or proceeds of sales, in common 'with the church, or that the church was bound to pay over or account for any part of the same to any person whomsoever, or that they had any share ' or interest in common or undivided; or any other share, interest, claim or demand whatsoever, in the same or any part thereof. And he has never heard the sole and exclusive right of the church to the receipt of the same to its own use and. benefit, disputed or called in question, until the commencement of this suit.
    
      In cross-examination, Mr. Barrow testified, that he had never heard of any appropriations made by the vestry except entered on their minutes, which he sees whenever he wishes. Being asked as to the boundaries and extent of the Church Farm, he described it generally, as extending from Fulton street to Christopher street, as mentioned in the deposition of Mr. Loss, and he has seen the map known as Loss’s map of the Church Farm, made in 1799 ; he has seen no other ; he has not seen any map wherein the name of Qveen’s Farm is given to it. He then produced Loss’s map, which is owned by Trinity Church, and the examiner marked it as an exhibit on the part of defendants. As agent and collector, his duties are performed in the vestry office, where he has opportunity of seeing the minutes of the vestry, in which all appropriations are entered; he makes out the rent roll and is in possession of it, and the proceeds of a collection roll, are accounted for monthly to the comptroller. He has had access to the vestry hooks and the comptroller’s general account of their receipts and expenditures. As to the ownership of the lands which the complainants claim, his knowledge is derived from the maps and the general possession by the church, and from the rent rolls he has, and from his knowledge of the boundaries as laid down in the maps, since his agency, from the year 1813. From that time, he has been more familiar with it. The rent roll marked, includes all the property in the boundaries of the map he has referred to, which rent roll is made out by himself from the map of the property. The Loss map comprises all the Chuich Farm that he has ever seen or known, and considered to be such. He has heard the present comptroller and Mr. Ogden, the attorney of the vestry, say that the lands claimed by the. complainant are within the boundaries of that map of Church Farm. It is not his official duty to know to whom money is paid by the vestrymen or corporation. He dot's not think that the vestry could make payments to any person or persons without his knowledge, from the manner of their making appropriations, and entries thereof on their minutes; and also from the comptroller’s books, through whom all payments, expenditures and appropriations are made by the vestry and entered in his books, which are audited annually. He speaks, of course, since 1813.
    William Johnson testified, November 3, 1845, that he now resides in the city of New York, and has lived in the city more than 50 years, and is upwards of 70 years of age. He became a vestryman of Trinity Church in this city in 1821, and has been a vestryman ever since. He became comptroller thereof in 182", and resigned it in 1842. He succeeded Richard Harison when he resigned in 1827. Mr. H. died about two years after his resignation. His duty as comptroller, was to receive all the moneys arising from the sales in fee of lots, and rents, issues and profits on leases; to make all payments and expenditures as authorized by the vestry, countersigning the deeds. The comptroller received all the moneys of the corporation and made all expenditures. He was acquainted during the time he was comptroller, with all the leases and sales of lots made by the church, and the rents and proceeds of sales, and the application thereof, and of all payments and expenditures made by the church. Whilst a vestryman, he was also acquainted with all the transactions of the vestry, but not with that accuracy as when he was comptroller. (The witness then testified in the same manner as Mr. Barrow, as to the exclusive possession, and receipt of rents and proceeds of the Church Farm, by Trinity Church to its own use, and negating any tenancy in common, or claim of tha' kind.)
    
      On cross-examination, Mr. Johnson testified, that he has always understood the church claimed title to the land in dispute, in this cause, under a grant from Queen Anne. He does not recollect of any ancient surveys in the possession of the church as part of its records or evidences of title, showing what was the northern limit of the Queen’s farm. He does not recollect of any copy of the Dutch patent to Anneke Jans' or Bogardus, being in possession of the corporation.
    Samuel Gilford, Jr., testified, January 4, 1842, that he resided in the city of New York, and is in the 68th year of his age, and has resided in the city ever since his birth, except during the revolutionary war. He returned to the city in September, 1783. He has been acquainted with the estate of* Trinity Church, for more than fifty years last past. (The witness then described it.) He cannot state the eastern bounds of the Church Farm, but has always understood that it embraced the property held by Lispenard, the property called B'rannan’s Garden, that occupied by Colonel Burr called Richmond Hill, the land occupied by Williamson, called Williamson’s Nursery, and the land occupied by General Morton, which bounded on Christopher street. He became conversant with this property, when a boy, the more from being in the habit of going frequently through this part of the city, to visit the family of old Mr. Clarke, who lived at Greenwich, and owned the estate called Chelsea. He was also in the habit of visiting the boys of Mr. Lispenard’s family, and when at college from 1789 to 1793, the collegians were in the habit of frequenting this part of the city to bathe, and for recreation, both at Brannan’s Gárden, and at the place afterwards held by General Morton, where cherries were to be procured. This part of the city was generally reputed to belong to, and to be exclusively held and possessed by the corporation of Trinity Church, and by tenants of or purchasers under that corporation. The land on Warren, Chambers and Reade streets, and that part of Duane street, lying a short distance from Broadway, and also the land on Broadway, from Partition street to the neighborhood of Duane street, was universally considered to be part of the Church Farm, and so far as he has ever known or heard, and as he believes, has always since the peace of 1783, been in the peaceable and uninterrupted possession of Trinity Church, and of tenants and purchasers under the church, excepting only that he recollects a great many years ago to have heard that a fence had been put up by people claiming against the church, and was pulled down by persons employed by the church. With this exception, he has not known or heard that the church title was disputed until a few years past. He has never known or heard of any lot on either of the streets last mentioned, or on any other part of the Church Farm, being held or possessed under any other title or claim save that of Trinity Church.
    
      On cross-examination, Mr. Gilford testified, that the land northward from Chambers street to Christopher street, and from the North river to Chapel street, and in that direction towards Christopher street, in 1786,1787,1788 and 1789, was generally vacant, except places enclosed, viz. Yauxhall, Curtenius’s furnace, Lispenard’s brewery and dwelling house and gardens, Brannan’s garden, Richmond Hill house, Williamson’s nursery, which he considered was the northern boundary of the Church Farm ; (Williamson told him he had a lease from the church ;) General Morton’s place, west side of Greenwich road, and Harrison’s brewery. These are all the enclosures he recollects. He does not know that any persons paid rent for the vacant grounds.
    Benjamin M. Buown testified, September 19, 1843, that he was in the 51st year of his age, and has a I way's "resided in the city of New York, except for the last five years. His father, William Brown, was for 37 years prior to his resignation in 1819, sexton of St. Paul’s Church, and deponent from his early boyhood was in the constant habit of passing through and over the land called the Church Farm. That in 1830 he was elected a vestryman of the corporation of Trinity Church, and continued such until his removal from the city in 1839, and during all that time took an active part in the management of the property and affairs of the corporation; and was for eight years a member of the standing committee, to whom such management was more particularly confided. (This witness testified like the others, as to the extent of the Church Farm, and its exclusive possession and enjoyment in severalty by Trinity Church.) At the period of his earliest recollection, there were but few houses in Chambers, Reade, or Barley (now Duane) streets, or in the lower part of Warren street, where it intersects the Greenwich road, now Greenwich street. North of Warren street was a hill, over which this road passed. After rising the hill, the first building on the west side was Harrison’s brewery, close to the North river, and in or about the block between Jay and Harrison streets. On the east side of the road, nearly opposite the brewery, was Speth’s oil mill, in or near Harrison street. The next improvement was Lispenard’s place of several acres of land, lying along the Greenwich road. His mansion house was east of and at some distance from the road, and near to what is now called Desbrosses street. North of Lispenard’s, was a tavern, a place of public resort, called Bran nan’s Garden, which was also on the east side of the Greenwich road, and adjoined what is now called Spring street. North of and adjoining to Spring street, and also on the east side of the road, was Richmond Hill, containing several acres of land, on which Col. Burr resided. The mansion house thereon is now called the Richmond Hill Theatre, between Charlton and Yandam streets, and stood near where it now stands, on a hill since levelled. North of Richmond Hill, on the same side of the road, was an extensive garden and nursery of trees, occupied by one Williamson, called Williamson’s Nursery, through which now pass the streets called Le Roy, Morton and Barrow streets. Next to this nursery, on the same side of the road, there was a piece of land adjoining Christopher street, on which was a tavern called the Indian King, and opposite to it and to the nursery, was a piece of land lying on the west side of the Greenwich road, along which there was a long hedge of white thorn, and which was possessed by General Morton, and extended from Christopher to Le Roy street; all which parcels of land, at the time of his first knowledge of them, were, and ever since have been generally reported and considered to be parcels of the land called the Church Farm, and to be held under leases from the corporation of Trinity Church. The land occupied by Lispenard being always designated as Lispenard’s lease ; that occupied by Brannan, as Mareschalk or Branuan’s lease ; that occupied by Col. Burr, as Mortier’s or Burr’s lease; and that occupied by Williamson, as Williamson’s Nursery or Garden. .
    
      William H. Harison testified, (before the examiner, Nov. 7, 1845,) that he resided in the city of New York, and had so resided from his birth, and always on the western side of the city; is now 50 years of age. He is a member of the vestry of Trinity Church, and is the comptroller thereof. He was elected a vestryman in 1833, and has continued such ever since; and in 1842, he was appointed, and has ever since been comptroller. The office of comptroller was first established in 1815. His father, Richard Harison, now deceased, was first comptroller, and served twelve years. During the greater part of the time his father was comptroller, they kept their offices together, and he gave him such assistance as he required. The comptroller has the general charge of the fiscal and temporal affairs of the corporation, under the direction of /the vestry. The rents and all other moneys are received in his office, and no moneys disbursed or paid, (except small office expenses,) but upon his check. The comptroller negotiates all sales and lettings, under the advice of a committee of the vestry. The deponent has been acquainted for some time back with all leases and sales of its real property, and the rents and proceeds of sales, and the application and payments thereof. He was more particularly acquainted with them from 1834 to 1840, whilst a member of the standing committee. Since he became comptroller, he of course knows every item. Whilst his father was comptroller, he had a general knowledge thereof. He frequently had the accounts to copy, and saw the check book at all times. He has known the property bounded by Warren street, the North river, Christopher street, West Broadway, Duane street, thence to Broadway, and along that street to Warren street, from his childhood, and hardly any changes were ever made therein, without being noticed by him immediately. Knows of sales of lots therein by the church at an early date, say 1810 or 1811. Since 1815, he knew of sales constantly. It was called the church property, and the occupants reputed to-be tenants. In 1824 to 1826, he knew of a great deal of property being let, and the particulars of the leases. Since he became comptroller, he knows every transaction. There have been several sales in fee, and many lots leased, or leases renewed. No person ever joined with the church in the deeds or leases of their property to his knowledge; but they were executed exclusively by the corporation of Trinity Church. His father was for a great number of years clerk of the corporation, prior to his being comptroller, and all conveyances were drawn under his direction, and he frequently saw the conveyances and leases so drawn by him. The rents, issues, profits, and proceeds of sales of all the property in the possession of the church, within the bounds before described, as far as he knows and believes, have been received and enjoyed by the corporation of Trinity Church and their assigns, and are yet so received and enjoyed. He is positive during the time of his connection with the corporation, and as respects the portions of the property remaining unsold and not granted away. To. the best of his knowledge, they were received to the sole, separate use and benefit of the corporation of Trinity Church. He never knew or heard but that the church claimed to be owners in fee, and of right to receive, and did receive, as sole owner of the lots of land described, to their own use and benefit, the rents, issues, avails, profits, and proceeds. His knowledge extends back to the time before testified to. He never heard or knew any thing to the contrary, or of any accounting or payment of any part of such rents, issues, profits, avails and proceeds of sales, to any person or persons, claiming the same as of right, under title adverse to the corporation, or as tenants in common with it, or claiming any other estate therein ; and never heard of any demand upon that corporation for such accounting and payment by any person, except the demand in this suit. He does not know and has never heard, that the corporation ever held or possessed their lands, or any part thereof, or any estate or interest therein, or any rents, issues, profits, avails, or proceeds of the same, or any part thereof, or any share or interest therein, or any part thereof, in common or undivided with, or as trustee of any person whomsoever.
    
      On cross-examination, Mr. Harison testified, that he believes the minutes of the vestry are regular and complete from 1705 to the present date. He does not know of any deficiency of evidence to maintain the title of the church to the lands above described ; on the contrary, he believes the quantity of evidence is overwhelming. He could tell the rent of any lot thereof. The church has the lease or counterpart. It is probable there may be some old account books of the treasurers, but he never referred to them. He believes the taxes were invariably paid by the tenants. If the taxes were paid by the church of such of the lands as were not let at those dates, he could only ascertain the fact and the amount, from those accounts in the old books, although he is not sure that, as the law was then, church property was always taxed. The seal of the corporation, has as long as he has known, and always as he believes, been exclusively ill the keeping of the clerk, who is a corporate officer; and is never used but under authority from the vestry, general or special. Their deeds of conveyance, and all other acts and leases, are always sealed with their corporate seal.
    48. The defendants then read in evidence, an exemplification from the office of the secretary of state, of the commission from Queen Anne to Lord Cornbury, as governor of the province, dated the fifth day of December, in the first year of her reign. Amongst the powers conferred upon him, he was authorized to make grants, and conveyances of land in the province, which on being passed in the secretary’s office, and sealed with the great seal of the province and entered on record, were to be valid and effectual to vest the title in the grantees.
    COMPLAINANTS TESTIMONY.
    Elizabeth Bogardus, testified, February 5th 1842, that she is 74 years of age, and is the widow of John Bogardus, the original complainant, to whom she was married in 1783.
    In the spring of 1784, she and her husband came to the city of New York on a visit to his father, Cornelius B., who then lived in a frame house on the south or lower corner of Chambers street and Broadway, with his wife, one daughter, his son Henry, and the wife and child of the latter, and a son of C. B.’s wife. Cornelius B. spoke of the house and the land he lived on, as being part of the land inherited by him, and the other heirs of Anneke Jans, commonly called at that time by him and others, the Dominie’s Bowery and the Dominie’s Hook, which extended northwardly from Chambers street; she does not remember how far. He always spoke of the Dominie’s Bowery and the Dominie’s Hook as being the lands he claimed. He lived in that house for three years after the peace.
    About a year after the close of their visit, the deponent and her husband returned to New York, and lived in a house at the south or lower corner of Broadway and Reade street, with her husband’s brother H. B., all of whom were put in possession by Cornelius B., as his tenants. Mrs. Alexander came to live there with Henry. Henry moved away in about six months after deponent went there to live. We occupied a separate part of the house while there. Deponent and her husband lived there about four or five weeks, and then removed to a vacant house and lot at the north corner of Reade and Chapel streets, were put in the same by Cornelius B., as his tenants, and lived there more than a year. The house is still standing and is occupied as a blacksmith’s shop, being on the now corner of Hudson street and West Broadway. When they left this house, Cornelius B., put them as his tenants into a house in Chambers street on the north side, about three lots west of Broadway, where Thomas Eagles had lived several years, and then lived. He held as tenant under the Malcolm’s as she understood, who claimed to be heirs of Anneke Jans. He gave up the possession to one McCullum, who as deponent understood, gave up his possession to the Malcolm’s. Deponent and her husband next moved into a house in Warren street, as tenants of one Carpenter, and lived there one year, and then they lived in a house between Chambers and Reade streets, about three years, and after that in a house near where Masonic Hall now is. Cornelius Bogardus left the city of New York about the time she and her husband moved from the Reade street house, now a blacksmith’s shop.
    Cornelius B., sold clay from a clay-pit, situate betwixt Reade and what is now called Thomas street, and near Hudson street. His claim to it was notorious, and it was always talked that it belonged to him, and no one disputed it. He made them pay a shilling a load for it, and sued some who did not pay, and collected from them.
    Dominie’s Hook and Dominie’s Bowery were spoken of as two distinct pieces of land; she cannot say which was the sixty-two acre piece. She was shown by her father-in-law, a part of the lands called by those names, which he and others claimed as heirs of Anneke Jans, all the land along the river northerly of Warren street, where Greenwich and Hudson streets, how run, including Lispenard’s place, and all others west of what is now West Broadway. That this land lay open and vacant, and but little of it besides Lispenard’s was fenced in; and she heard from Cornelius B., and others, that he had ploughed and raised a quantity of wheat, on a field, part of that laird, before the revolution, and just as he was going to reap it, some persons broke into the field and destroyed it.
    Several persons were put into possession of parcels of that land by Cornelius B., viz: William Harris, Abraham Delamater, John Dufiie, John Smith, John Johnson, Michael Sanford, and Amos La Farge. Cornelius B., was absent from the city all the war. At the peace, he came tolive with La Farge, as a boarder. All these persons paid rent to Cornelius B., while deponent was there on a visit, and was living in the houses in Reade street; and the receipt of rents from them was spoken of by him in her presence. The houses so let by him, were small wooden houses of no great value.
    Cornelius B., put his brother Lewis into possession as his tenant, of a house and lot, near and perhaps on what is now Hudson or St. John’s square. It was a slightly built house, called a possession house, and surrounded by a fence, inclosing as much land as is now in that square, or more. Cornelius B., claimed this as his, and took possession of it as part of the tract called Dominie’s Hook and Dominie’s Bowery. Lewis Bogardus kept possession of it as such tenant, for six or seven months, and as deponent believes, until about the time Cornelius B. left the city, which was in 1786 or 1787, as she believes. Deponent used very often to visit Lewis B. in that house, then called the possession house, and he never was disturbed in the possession of the house or lot, but occupied both quietly and peaceably, without interruption from any person, but his wife was afterwards turned out. Cornelius B. said his taking possession of that piece of land, was the same as taking possession of the whole land which the heirs claimed as heirs of Anneke Jans.
    That a Mrs. Broad enter-si upon and took possession oí a piece of ground, near North Moore street, called the Fort, claiming to own it as one of those heirs. There was a sort of breastwork and trench, and a house within it. She drove away people who came to take earth from the banks of the fort, by throwing boiling water on them. She kept possession un ii turbed, from the tim-i the British left till 1787 or 1788, claiming as such heir. She claimed all the land outside of the fort and along the river above and below. There were several instances of open controversy between the church and her father-in-law, after the peace. He set up a fence near Provost street, inclosing may he 100 feet quare, to take possession of the whole tract and show his claim of title ; and af er it had stood several days, some persons tore it down and burnt the fence boards. The church party after this built a fence on the vacant land, and this was burnt by the Bogardus party. This was in the day time, many were engaged in the conflict that ensued, great violence was used and the church party finally drove the other off, the recorder of the city being> there as it was said, to assist the church party. In one of these quarrels, some of Cornelius B.’s men were taken up by the city government and he became bail for them, but they were never punished.
    Lewis Bogardus’s wife was with force put out of the house he held, in his absence, with her children and furniture, by men who said they did it under authority of Trinity Church. He went and found another place. Deponent has no interest in this suit.
    
      Cross-examined, the witness testified, the Dominie’s Bowery and Dominie’s Hook composed one parcel of land as she has always understood, and lay between Broadway and the North river, bounded on the south by the north line of Warren street, north by the south side of Duane street as far as Chapel street, then went up Chapel nearly to Beach street, then took a turn and came back to Chapel, then went up to a little above Laight street, then to Greenwich street, and up that street to a stone bridge where Canal street now is, and then ran to the river. The Bowery or Hook did not include Lispenard’s farm. All her information about this is derived from her father-in-law and his family.
    She does not know how he got possession of the two houses and lots on Broadway, in which he and his sons lived after the peace, nor whether he paid rent for them. Knows nothing of any demand or distress for rent. Does not know who went into the house, corner of Broadway-and Chambers when Cornelius B. left it. Mrs. Alexander remained in possession of the house comer of Reade street when deponent left it. Cornelius B. was never in possession of either, after he removed from the city. The lot occupied by Eagles on Chambers street, she thinks was the fifth lot from Broadway. Does not know how or under whom he first occupied it; heard his children say he had promised when he left it, to give it up to the Malcolm’s. One of his sons told her that Eagles was angry because McOullum had given it up to Malcolm.
    The house in Warren street deponent lived in a part of as stated, was rented by her husband from one Carpenter;-does not know how Carpenter held it. All she knows as to Harris, Delamater, Duffie, Smith, Johnson, Sdnford and La Farge, being put in possession of their respective lots, by Cornelius B., is that she understood from her father-in-law, and others of the family that this was the case and that those persons paid him the rent.
    The house she and her husband lived in at the corner of Chapel and Reade street, was on the north side of Reade and the west side of Chapel street; there were two lots with the house, and the premises were vacant when they moved in. She does not know Avho possessed it before, nor who came in when they left it. Cornelius B. did not take possession, she does not know why ; and cannot say how he got possession of any of the lots she has spoken of. Hs never resumed possession of any of the properly, or received any rents, after he left the city, to her knowledge. It was understood in the family and generally reported that he had given up or sold out to the church. Does not know who possessed the parcel near Hudson Square, before Lewis Bogardus went on to it; understood from the family that Cornelius B. put him into possession, and that the church turned him out. Cornelius did not again go into possession of it. She does not know how Mrs. Broad got into possession of the fort; has heard she claimed as an heir of Anneke Jans a part of the Dominie’s Bowery and Hook, but deponent knows nothing further about her claim ; nor about her length of possession, or the church buying her out, except from hearsay and report.
    She has not known or heard of any possession by Cornelius B. or any of his family, of any part of the Church Farm, since he removed from New York in 1786.
    Re-examined, she says she heard the church gave her father-in-law £650, for giving up his right. This she heard from his sons and it Was the general talk in the family. He was poor and soon spent all that money.
    (Note.—The complainants depositions were taken subject to all objections to the questions and evidence, which might be proposed at the hearing.)
    Margaret Driemer, testified, November 18th, 1841, she was 83 years of age in June 1841. When she was seventeen, she removed to New York with her father. A year after, she married Dr. Abram Teller, and moved to the upper end of Warrea street, close by the Presbyterian meeting'house near the Park, two doors from Broadway on the North side ; lived there a year; then two years and a half in Slaughter-house street; then a year by the Battery gate; then a year in Chatham Row, in lawyer Jones’s house by the iron-handle pump. Were there when the American troops came into New York and the English evacuated the city. She and her husband then moved into a house he hired of lawyer De Hart, as agent of widow Brewinton, on the corner of Broadway, the west side, opposite the negro burying ground. The street run down to the river, but did not cross Broadway. In front of it were the red barracks behind the old jail. Cornelius Bogardus lived on the opposite corner from deponent, in a pretty old wooden house. Deponent lived there 2Jto 3 years, and Cornelius B. lived there when she moved away. He claimed to own the house and lot he lived in. Deponent does not know under what title. She heard him and one Sackett talk about it. He said at that time, he would sell gravel from the hill at the foot of that street, and that he had sold gravel from there. Rails were brought down the river, and a fence built around a large tract, inclosing the gravel hill and the possession house. The fence was soon after torn down and the rails burnt on the ground. After this Bogardus said the possession house belonged to him and the other heirs, and was built to keep their possession. The people that burnt the fence were in uniform, or were disguised and had sticks, but no arms. It was done about ten in the evening, about two years after the evacuation of the city.
    Lawyer Sackett published a book about the title of the heirs to the property in possession of Trinity Church, and the heirs came down from the country, said they would go to law about it, and then the heirs put up this fence.
    Cross-Examined.—My husband Dr. Teller, was one of the Bogardus heirs. The house hired of De Hart, she understood belonged to widow Brewinton ; but she does not know how Mrs. B. got it. It was a part of what was called the Church Farm. Deponent’s husband paid the rent of the house to De Hart, before the dispute took place. The reason it was not paid afterwards was, that the heirs told Dr. Teller not to pay it, because the properly belonged to the Bogardus’s heirs. Our goods were dis-trained for rent and replevied. The rent was never paid nor called for after that to my knowledge. De Hart came and wanted the house given up to Mrs. B. which was refused, but Dr. Teller said he was going into the country and she might then have possession. He moved out and delivered up the key. The house Cornelius B. lived in, was a part of the Church Farm, which as deponent always understood, extended up Broadway, crossed over to Lispenard’s brewery, and then up the North river to Bayard’s. After the fence was burned, the church and the Bogardus heirs went to law, and were in law when deponent removed from the city.
    
      John Rugar, testified, November 19th, 1841, that he was ninety years of age. That he and his wife went to the city of New York to live, in 1785, lived a year in Murray-street, and next lived a year at the corner of Warren and Chapel streets. Then moved into a house in Warren street, called Vauxhall, near the river, on the east side of the road leading up to Greenwich, and lived there three years. The second year, he thinks, after he went to New York, he saw a fence building, east of the old furnace, along the east side of Greenwich road, running up from Vauxhall and off in an easterly direction. The fence was cut down and burned the evening of the day it was put up. Deponent did not know any of the men concerned in or directing, either the building or destroying the fence. He knew a Mr. Bogardus in those times, but did not know where he lived.
    Cross-examined, the witness testified, he understood the land about Vauxhall belonged to Trinity Church. Does not know the extent of the land of which this was said. Vauxhall was1 a large inclosure ; was not then used as a garden, but was afterwards. There was a pottery on it then. Deponent hired one room there, of a man who hired the whole of Vauxhall, and let out the rooms. The ground inclosed by the fence he saw built, was vacant ground, beyond which and towards Lispenard’s, there were several houses. Lispenard’s brewery was on the road near the river ; his house was off to the east, on the same side of the road with the brewery. All the land beyond Iáspenard’s, was inclosed with fences up to the place where the old state prison was. The fence that was cut down and burnt, was never put up again, as deponent knows and believes.
    Mart Bogardus, testified, November 19, 1841, that she is seventy-three years old, and is the widow of James C. Bogardus. She moved with him into the city of New York, in April, 1786. They first lived in a house at the corner of Broadway and Chambers street. The house was her father-in-law’s, Cornelius C. Bogardus, who, with his family, and the family of his son Henry, lived in the house. In the winter following, Cornelius B. moved into the country. Henry and James and their families, remained in the house till the following May. They lived there quietly and peaceably, and no one called for rent that she knew of. She never heard Cornelius B. say the house belonged to him. or that the church or any one else "claimed- it against him. He lived in it, and she thought it was his. She never saw the gravel hill at the foot of Chambers street, but has heard him say he had sold gravel from it. A person at the sand or clay hill, sold the gravel, and kept an account of it, and gave accounts of it to her father-in-law. Never saw him pay any money to the latter. Deponent heard of the possession house, and of Lewis Bjgardus being put in possession of it, on a hill near Lispenard’s. She has heard of a fence being burned down near the possession house; this was the year before she went to the city. Lewis B. was not in the possession house long. When deponent and her husband left the corner of Chambers street, they lived six months in a house in Warren street, near Broadway, and then a year and a half in Broadway, a few doors below Chambers street. They then removed to the country. She never heard of the claim of the heirs of Anneke Jans to the property of the church while she lived in New York, nor until of late years. Her father in-law was always called the heir of Anneke Jans. She never heard his right to the house he lived in, or to sell the gravel, disputed.
    Cross-examined.—The gravel hill was an open common. Isaac Bush, the brother-in-law of Cornelius B., was the man who sold the gravel. He lived with Cornelius B., and acted for him. She does not know who claimed the land in and about Warren street, while she lived in the city, nor that it was possessed by tenants of Trinity Church, or claimed by the church. The possession lot, was inclosed by a high fence; was a large lot, and used for a pasture, as she heard. She cannot say who went into the house, corner of Chambers street, when they left it. No rent was demanded of any of the Bogardus’s while they lived there. Lewis B. left the possession house, before deponent removed from the corner of Chambers street. She does not know who occupied it after Lewis B. left it. She has heard of a large piece of land called the Church Farm, whilst or since she lived in New York. She knows nothing of its bounds or extent; and does not know that any part of it was claimed by the heirs of Anneke Jans; but Cornelius C. Bogardus claimed the Dominie’s Hook as such heir, against the church, and also other land towards the battery.
    George W. Chapman, testified, August 9th, 1842, that he is eighty-one years of age. He came to this city in 1790, and resided in Greenwich street. He knew an old woman who lived in an old redoubt, and she lived there until she was dug away, when she made a compromise. This was not earlier than 1793, or later than 1795. Old Mr. Thomas Barrow was there, and represented the church. The old woman defended herself with hot water, against those who came to dig her out. Deponent advised her to hold on her possession until she could get something for it, because he thought it was in the way of opening Greenwich street.
    The land bounded south by Chambers street, west by the river, north by what is now Canal street, and east by what is now West Broadway, was nearly the whole of it enclosed. Does not recollect any of it that was uninclosed, except the part west of Greenwich street, which was open.
    Cross-examined.—The witness testified, that the redoubt was nearly at the foot of Chambers or of Reade streets, in the neighborhood of that, and he believes about one-half of it was on what is now Greenwich street. It was not large: was sixty yards inside, perhaps eighty. His impression is, that the object of digging away the redoubt, was to open Greenwich street. He then thought the dispute was between Mrs. Broad and the city corporation ; he understood afterwards, it was her and Trinity Church. He.knows nothing of any compromise between them, except by common report. He never heard either from her; or how she claimed, or that she claimed under the same right as the Bogarduses. The dispute between her and Trinity Church, as he heard afterwards, was about the claims of the Bogardus family for property held by the church. (The three last answers, were on the complainant’s examination.) There was a brewery on the west side of Greenwich street, called Rhinelander’s, he thinks; this was above Duane, and perhaps above Jay or Harrison streets. On the east side of Greenwich road, was Spader's oil mill. Does not recollect any other building above that, at that time, till they came to Lispenard’s. There was a fence which ran from Lispenard’s to the east part of the redoubt, and then turned east and ran up Barley street to Broadway. Deponent does not know whether Spader’s mill was considered church property. He considered it, and all the property east of the fence, to be Lispenard’s.
    The complainants next read in evidence from the recital thereof, a patent or ground briefe, from Petrus Stuyvesant, governor of the New Netherlands, to Anneke Jans, widow and relict of Dominie Everardtis Bogardus, dated July 4th, 1654, for a parcel of about 62 acres on the Island Manhattans, as in Gov. Nicoll’s confirmation.
    'Phey next read in evidence a certified copy from the secretary’s office, of the deed of confirmation, of Gov. Nicoll’s, dated-March 27, 1667, described in the bill of complaint. The recital and description in this deed, is as follows;
    “ Whereas there is a certain parcel of land lying on this island. Manhattans, towards the North river, which in the year 1636 was the land and bowery of Anna Bogardus, to whom and her husband Roelefe Jansen, it was first granted by the then Dutch governor, Walter Van Tweller, at which time the said Roelefe Jansen, first began to manure the said land and to build thereupon ; the limits whereof did then begin from the ffence of the house by the strand side, so running northeast to the ffence of old Jans land. It’s in length two hundred and ten rod ; then going along the ffence of the said old Jans land southeast, it reacheth to a certain swamp, and is in breadth one hundred rod, and striking along the swamp southwest, it’s in length one hundred and sixty rod, and from the swamp to the strand going west it’s in breadth fifty rod. The land lying on the south side of the house to the ffence of the land belonging to the company, and so to the east side, begins at the ffence and goes south to the posts and rayles of the company’s land, without any hindrance of the path; it’s in breath sixty rod. In length on the south side along the posts and rayles, one hundred and sixty rod. On-. the east side to the entrance of the Chalk Hooke, in breadth thirty rod ; and along the said Chalkie Hook on the north side to the ffence of tne land before mentioned, going west is in length one hundred rod ; amouniing in all to about sixty two acres.” The deed then referred to Gov. Stuyvesant’s grant last mentioned, and then ratified, confirmed and granted the premises, unto the children and heirs of Anneke Bogardus deceased, in fee, rendering and paying a quit rent.
    The complainants next read in evidence a copy from the office of the secretary of state, of a grant from Gov. Nicolls to the childien and heirs of Anneke Bogardus, confirming a grant of the same therein recited, from Gov. Stuyvesant to her, dated Nov. 26, 1652. This deed was dated March 27, 1667, and the premises are recited and described as follows, viz : “ Whereas there is a ceitain parcell of land lying on the north side of Maspats Kills, upon a neck of land commonly called or kntiwn by the name of the Domine’s Hoeck, begining at Peiter Andrison’s ffence so to run two hundred and five and twenty rod, on both sides, having in breadth on the south side one hundred and seventy five rod, and on the north the like quantity, being surrounded by the Kill, and on the west side by the river, amounting in all to about one hundred and thirty acres and three hundred seventy-five rod, ffor which said parcell of land Anneke Jans, the widow and relict of Domini Everardus Bogardus had heretofore a patent or ground briefe, from the late Dutch Gov. Petrus Stuyvesant, hearing date the 26th day of November 1652.”
    The complainants next read in evidence, the letter from the committee of the vestry of Trinity Church, dated December 2, 1785, a copy of which appears, ante page 637 ; and the copy of a deed of transport inclosed in that letter, which is set forth at large at the same page.
    The complainants then read in evidence, from an edition of the Colonial Laws, (1 Bradford 36,) the colonial act of May 12,
    . 1699, annulling various 11 extravagant grants,” made by the then late governor Fletcher, among which was the lease of the King’s Farm to Trinity Church ; and enacting that thereafter it should not be in the power of any governor to grant or demise for any longer than for his own time in the government, (among other-lands enumerated,) the King’s Farm and the King’s Garden as being the demesnes of his majesty’s Fort of New York, and for the benefit and accomodation of his majesty’s governors for the time being; and every grant for a longer time should be null and void. (1 Van Schaack’s Col. Laws 31.)
    Also the journal of the assembly of 1699, showing a communication from t- e Karl of Beilamont, then governor o( the province, requesting the passage of such an act.
    They next produced a copy of Gov. Dongan’s charter to the city of New York, granted in 1686, (Kent’s City Charter, 24,) in the L6th section of which, the King’s Farm is saved and reserved to his majesty, from the grants made to the city.
    Also the charter of Gov. Montgomerie to the city of New York, in 1732, (Kent’s City Charter 83, and notes p. 174;) in the '37th section of which, “ the land called the King’s Farm,” is excepted from the grant.
    Also the colonial act of October 14, 1732, confirming Gov. Montgomerie’s charier to the city. (Van Schaack’s Laws, 169.)
    Also the colonial act of November 4, 1733, (VanSchaack, 177,) which, by a note in the margin of Mr. Van Schaack’s ediiion appears to have been confirmed by the king, Nov. 7, 1734. This repealed the limitation in the act of It,99, so far as it respected the swamp and fresh pond called the Fresh Water. In the preamble it recited the act of 1699, so far as it relaied to the swamp “adjacent to the King's Farm, formerly called the Duke's Farm."
    
    The complainants next, referred as a part of their case, to the Charter of Liberties so called, passed May 6, 1691, which was disaffirmed and repealed by the king, May 11, 1697. (3 Rev. Stat-., Appendix 1, 4 ; 1st Ed.) This provided for colonial laws having full force, until disallowed by the king.
    The complainants next read in evidence, the assembly journal of 1785, under date of February 8th, showing the report made by a committee appointed to examine the laws and records of the state, concerning the right and title to the lands in the city of New York, formerly called and known by the name of the King's Farm and Garden. The committee reported a state 
      
      of facts, which is entered on the journal, concluding with an opinion that the King’s Farm and Garden, were, before the revolution, of right vested in the king of Great Britain, and now belong to, and are of right vested in the people of this state. The report was concurred in by the house ; and a resolution adopted for the appointment of a committee to consider and report of the mode of establishing the right of the people to those lands. The state of facts, contained a reference to Gov. Fletcher’s lease in 1697; the whole of the act of 1699 annulling Gov. F.’s grants ; the repeal of that act in 1702 ; Lord Cornbury’s grant to Trinity Church of the Farm and Garden in 1705; the proceedings in Queen Anne’s Council, June 15, 1708, and her instructions hereafter set forth ; the exception of the King’s Farm and Garden in Gov. Montgomerie’s charter to the city ; and the repeal in 1733, of the vacating act, as it respected the swamp.
    March 31, 1785, the committee brought in a bill entitled (*‘ An Act appointing agents to prosecute the claim of the people of this state to the lands therein mentioned,” which on the ninth of April, 1785, was ordered to be engrossed ; April 11, the bill was read a third time, and recommitted to a committee of the whole ; April 14, it was again under consideration and was amended. As it there appears, it related to lands in the state generally, and directed that no such suit be brought unless the agents should be of opinion that the people had a legal right to the lands. The agents named, were the Attorney General, Ephiaim Paine and Broekholst Livingston.
    The complainants “read in evidence from the senate journal of 1785, as follows : April 14, a message from the Assembly was received, with the bill for concurrence, appointing agents, &c. (as before expressed,) which was read, and ordered to a second reading. April 16, read a second time and committed to a committee of the whole. April 23, the committee made some progress on the bill, and had leave to sit again.
    (No further proceeding appeared to have been taken on this bill in the senate.)
    The complainants, (subsequently, by consent,) produced and read as a part of their evidence: 1st. A certified copy of the
    proceedings in the colonial council, held at fort Anne, in the city of New York, February 13,1708, (meaning 1709,) in which were entered at large, the order of the Queen in Privy Council, made June 15, 1708. The order recites that the governor, council and assembly, have the power to make laws, which are to be transmitted to her majesty for her royal approbation or disallowance, and thereupon, it confirms, enacts and ratifies the act of 1699, vacating the extravagant grants, &c., and disapproves and disallows the act of 1702, repealing the act of 1699; and the act of 1702, is thereby repealed and declared null and void.
    In the same colonial council minutes, are entered at large, the Queen’s additional instructions to the then governor, (referring to the foregoing confirmation and repeal,) and saying that thereby several large tracts of land are resumed to the Queen, and are in her disposal to re-grant; and instructing him that he may re-grant to the patentees, on certain terms, which terms are to apply to all future grants.
    2. The following letter or instructions from the Queen to Governor Hunter: viz.
    “Anne R.
    Trusty and well beloved, we greet you well.
    Whereas, our trusty and well beloved, the Rector, Church Wnrdens, and vestrymen of Trinity Church in our city of New York, have by their humble address, represented unto us, that our right trusty and our right well beloved cousin and councillor Edward, Earl of Clarendon \
      
       our late governor of our province of New York, did grant a lease of our farm to them for seven years, under the rent of sixty bushels of wheat yearly payable unto us, (the like having been before granted by Colonel Benjamin Fletcher, Governor under our late royal brother, King William, with the like reservation,) but as these rents were esteemed a perquisite of the several governors, for the time being, the said Colonel Fletcher, who was a great benefactor and promoter of the first settling of that Church, did remit the rent during his time for that pious use, as also did the Earl of Clarendon so much as accrued under the lease granted in his time.
    And that the said Earl, for promoting the interest of the said Church, and settling a lasting foundation for its support, did by virtue of the authority derived from us. under our great seal of England, grant the same farm under the seal of our province of New York, to the Rect >r and inhabitants of the city of New York, in communion of the Church of England, as by law established, and their successors for ever, under the yearly rent of three shillings.
    But that the corporation of the said Church, are now prosecuted in our court of chancery there, in our name, for the several rents reserved on the leases before granted, and by the several governors before remitted, and that our letters patent for the said farm, are rendered disputable, and therefore humbly imploring that we will be graciously pleased to give such directions for stopping the said prosecution as we shall think fit.
    We, taking the premises into our royal consideration, have thought fit to signify our will and pleasure unto you, and ac cordinglyour will and pleasure is, that immediately upon receipt hereof, you do stop the prosecution now carrying on, in our court of chancery there against the said corporation, and do not suffer any further proceedings to be had in that suit, until we shall signify our further pleasure to you, and for so doing, this shall be your warrant, and so we bid you farewell.
    Given at our Court of St. James, the 14th day of April, 1714, in the thirteenth year of our reign.
    By her Majesty’s Command,
    Bolingbroke.
    To our trusty and well beloved Robert Hunter, Esq. our Captain-General and Governor-in-Chief of our province of New York in America, and in his absence, to the Commander-in-Chief, or to the President of the Council of our said province for the time being.”
    The complainants also produced and read the Case prepared by the plaintiff, and settled by Tompkins, J., in the suit of Jackson ex dem. Malcom and others v. Bromeling, tried in the supreme court in 1807, as before mentioned. It appeared that the plaintiff relied on a possession taken by W. Malcom soon after the peace of 1783, of the premises, then vacant, with a ruinous house thereon, and maintained by him for a considerable period by.one George Higday, as his tenant. The defendant relied on a possession of the premises by Trinity Church for sixty years prior to Malcom’s possession, with a documentary title. To sustain this, the same leading documentary evidence was produced as on this hearing, and aged witnesses proved Yandenburgh’s possession of the Church Farm, under the church. The plaintiff produced evidence of some possessions by the Bogardus family on portions of the land. The verdict was for the defendant
    defendant’s further testimony.
    The defendants again referred to the two ancient depositions of Jacob Kooning and Mary Layton, inserted ante, page 652.
    50. They next produced and read in evidence, an original record of judgment of conviction in the supreme court, on a trial June 27 th, 1786, in a forcible entry and detainer, prosecuted by John Keating, qui tam, <j-c., against Cornelius C. Bogardus, tried before Richard Morris, then chief justice, for a messuage and lot of ground in the west wa,rd of the city of New York. Morgan Lewis was attorney for plaintiffs. The record was docketed 14th September, 1786, and contained an award of restitution to Keating. The suit was brought by certiorari into the supreme court, in January, 1786.
    51. Also an original record of judgment in the supreme court, in trespass on lands, in the west ward of the city of New York, in favor of John Keating against Cornelius C. Bogardus; docketed 25th September, 1786, on a confession after issue joined, for six cents damages and £36 14s. 6d. costs. Suit commenced prior to October term, 1785.
    52. Also an original record of judgment in trespass on lands in the west ward of the city of New York, in favor of John Keating against William Malcom; docketed 25th September, 1786. Suit tried before the chief justice, 27th June, 1786, and a verdict for plaintiff for £90 damages, besides costs. The suit was commenced prior to October term, 1785. Morgan Lewis was plaintiff’s attorney in both of the suits.
    The defendants next proved the signature of Richard Morris, then chief justice of the supreme court, to three affidavits, and that they came from among the title papers of Trinity Church; and they were read as follows :
    53. The deposition of Joseph Forbes, of the city of New York, sworn 26th October, 1785, stated that he had a regular power of attorney from the corporation of Trinity Church to maintain and defend their possession of a tract of land, situate in the west ward, adjoining on the north side of the ruins of the old Stockadoes between Hudson river and Rutger’s meadow, containing about sixty acres, more or less, and to pull down, abate and destroy all fences and other obstructions or nuisances erected or done thereon by any unauthorized person. That by virtue of such power, he early in the morning of the 15th of October, instant, went in a peaceable manner, with sundry persons, named, and with several of the inhabitants of the city, for the purpose of removing a certain fence aud encroachments, which he was informed had been lately erected, extending from a small redoubt near the mins of the old Stockadoes, along the westerly side of Greenwich street; and another fence running from the corner of a house in possession of George Higday, to the ground occupied by Leonard Lispenard, Jr. Esq., and including part of the land granted by lease from the same corporation to John Keating; that he and his company proceeded in a quiet manner to take down and destroy the first mentioned fence, which they effected without molestation or interruption from any person. That he soon after proceeded with his said company to the second of the fences before mentioned, and began in like manner to take down, and destroy it. But soon after they began so to do, he and his company were suddenly fired upon, from a musket loaded with small shot, by a person who then was concealed, but whom thpy afterwards discovered to be the same George Higday, the same person who was lately indicted and found guilty of an assault upon the recorder of said city, when in the execution of his office. That he and his company were suddenly so fired upon whilst they were in the peaceable prosecution of their business, and without any warning whatsoever, or any request to desist from the same. That he and four others named, were then wounded with small shot from the musket, although the wounds did not prove very considerable. That thereupon he and his company were about to enter the house of Higday, in order to secure him and prevent his doing further mischief, he having taken refuge in the same; that when he and his company were so about to enter the house, Higday, or some other person from within, cried out for mercy j whereupon he and his company immediately drew off from the house. That upon the retiring of him and his company, Higday again presented his musket at them, from one of the upper windows of the house, and he verily believes would again have fired if he had not been deterred and frightened from his purpose. That he and his company then proceeded to take down and destroy the whole of the last mentioned fence, without offering violence to any person. And he further saith, that to his own knowledge the laud inclosed by the last mentioned fence, was in the peaceable possession of the same corporation or their assigns, before the commencement of the late war, and inclosed by a post and rail fence. And also that George Higday obtained possession of the house in which he now lives, in a tortious manner, and holds the sanie by violence, as he hath been informed and verily believes.
    54. The deposition of Thomas Goldsmith, George Cole, Joseph Scott and Samuel Rogers, of the city of New York, taken on the 26th day of October, 1785, stated that they, with divers other persons, went as assistants to Joseph Forbes, as stated in his affidavit to take down and destroy two certain fences that had been unlawfully erected, (one of them lately,) upon the land of the corporation of Trinity Church, lying on the north side of the ruins of the old Stockadoes, and in the west ward of the city of New York. Their statement corresponded with that of Forbes, They also stated that Rogers was struck with three of the shot from the musket, two of them in his face, and one very near his right eye ; that Cole was struck with thirty-six of the shot ip different párts of his body, and several others of the company were then wounded.
    55. William G. Forbes deposition, taken on the 1st of November, 1785, stated that some time in or about the month of April last, George Higday or Higly, applied to deponent, for his leave to take possession of a house standing on the land now in dispute between the corporation of Trinity Church and Cornelius C. Bogardus and others, with the lot of ground thereunto adjoining ; that the house was held with the lot of ground under that corporation, by Gilbert Forbes, his brother, who upon his quitting New York some time in the year 1783, had left them in the care of this deponent’s mother, by whom they were let out to an under tenant. That when Higday applied to him, deponent had a power of attorney from his brother, and was in treaty with John Rutherford, Esquire, one of the church wardens of the church, for a lease from the corporation, he not having in his possession any lease for the premises, that deponent agreed with Higday that he might enter into possession of the house and ground at a certain rent, which he did accordingly ; that some time after, Higday again applied to this deponent to purchase the house, and promised to take a regular lease irom the church for the same and the lot of ground adjoining to it. Higday has since informed deponent, that he was induced by the threats of Cornelius C. Bogardus to fake a lease from him, or some of those who are joined with him in their claim of that land, and to consider himself as their tenant, and not as the tenant of the corporation. Higday has never paid the consideration which he had agreed to give to deponent for the house.
    The defendants then produced and read in evidence, the Assembly Journal of the year 1784, under the date of February 2nd ; by which it appeared that the house was in committee of the whole on the bill entitled, “ an act for making such alterations in the charter of the corporation of Trinity Church, as to render it more conformable to the constitution of the state.” February 18th, the petition of Abraham Walton and others, relative to the charter of the corporation of the Trinity Church, was presented, read and referred to the committee of the whole, when on the bill. February ¿1st, two petitions on the same subject, likewise referred ; one by John Charlton, Thomas Moore and five others, styling themselves vestrymen, the other by Leonard Lispenard, Jr., Thomas Witter, and others, presenting sundry names as having been chosen to be inserted as wardens and vestrymen in the bill. February 23d, the engrossed bill was read a third time and passed. Under date April 9th, 1784, the bill as amended was returned from the senate, and the amendments concurred in and the bill ordered to be returned to the senate. On the 10th of April, having been sent back by the senate, the assembly transmitted it to the council of revision.
    The defendants next produced and read in evidence, the Senate Journal, for the year 1784, showing that the bill from the assembly, relative to the charter of Trinity Church, was received February 23, 1784, and read the first time. February 24th, the bill was read a second time, and committed to a committee of the whole. March 2, the Senate were in committee of the whole on the bill. The same fact appears in the Journal of March 3d, March 25th, and April 5th, under which date appear all the proceedings had on it in committee of the whole. A motion to strike out the preamble, as now contained in the act, was lost by a large vote ; a motion to strike out of the first enacting clause, the words “ charter and,” was lost by a still larger vote. The bill as reported from the committee of the whole, was then read a third time and passed, April 10th. The bill was returned from the assembly with a message of concurrence, and was sent back by the senate to the assembly. On the 19th of April, the council of revision sent a message to the senate, (and the like to the assembly,) that they did not disapprove the bill.
    The defendants also read from the same Senate Journal, under date of March 5th, 1784, showing the presentation of four several memorials, signed by twenty-five, eighty-two, one hundred and three, and one hundred and twenty-six persons, respectively ; praying, (in case the bill then pending before the senate, relative to the charter of the corporation of Trinity Church, becomes a law of this state,) that one of the Episcopal churches may be allotted to them, for the purpose of divine worship, together with a proportionable part of the temporalities of the church, for the support of their minister ; which memorials were read, and ordered to be taken into consideration with the bill therein mentioned. On the 10th of March, two like petitions were presented and referred, one signed by forty-four, and the other by forty-one persons.
    The defendants next read from the Assembly Journal of 1784, in November, the presentation of the petition of Nicholas De Riemer and others, claiming to be the descendants of Anneke Jans and her heirs, and to be entitled to the Dominie’s farm or Bowery.
    November 24th, a committee reported on the petition, that the question was one to be determined in the courts of justice,, which report was adopted. November 22d, 1784, a resolution-was adopted by the House, raising a committee to examine the laws and records, and report on the subject of the crown lands, the King’s Farm and Garden, and all other, lands conceived to belong to the state.
    The complainants then read the Assembly Journal of 1785,. showing that on the 17th of February, the committee on the; subject of establishing the right of the people to the Kings Farm and Garden, reported in favor of a bill authorizing and requiring the attorney general to proceed without delay, to recover those lands and establish the people’s claim. The House concurred in the report, and ordered the committee to bring in such bill.
    The defendants then read from the same Journal, under date of February 25th, showing a petition of John Rutherfurd, by order and in behalf of Trinity Church, was presented, read and referred to a committee. March 14, that committee reported upon the memorial and remonstrance of Trinity Church, requesting that they might show cause why the report of the committee of the 8th of February should not appear on the Journal of the House; that it would be improper to expunge a report agreed to and entered on the journals, and the request cannot be granted consistently with the rules of the House; which report was concurred in by a large majority.
    The defendants next read from the Assembly Journal of 1787, under date of April 16th, a concurrent resolution adopted, directing the attorney general to inquire into and report the nature of the claim of the corporation of the city of New York to Fort George, and the lands adjoining thereto ; and directing the Commissioners of the Land Office, to cause the lands which should thereupon appear to be the property of the state, to be surveyed and laid out into lots for sale. Also, from the Senate Journal of 1787, showing the concurrence of the Senate on the 18th of April, 1787.
    The testimony here closed.
    
      W. E. Dunscomb, B. F. Butler and D. B. Ogden, for the defendants,
    maintained the following propositions in support of the truth of the plea.
    I. The plea of the defendants having been allowed by the court, and replied to by the complainants, nothing but the matters averred therein are in issue between the parties, or to be considered on the present hearing; and if they be established by the proofs, the bill must be dismissed. (Beames' Pleas in Eq. 325 ; Milford’s Pl. 241; Story’s Eq. Pl. § 697; Chancellor’s Opinion, in 4 Paige, 195 ; Fish v. Miller, 5 ibid. 29.)
    II. Every averment in the plea, is established by the proofs produced on the part of the defendants: from which proofs the five following propositions clearly appear. (As to the nature and effect of the proof required, many of the averments being negative, the counsel cited, 1 Greenl. Ev. § 74, 78, 79; Hollister v. Burt, 1 Hill, 150 ; Williams v. East India Co., 3 East, 192; Calder v. Rutherford, 3 Br. & Bing. 302.)
    
      Subd. 1st. That Queen Anne was in the possession and oc cupation of the tract known as the Duke’s Farm, King’s Farm, and Queen’s Farm, and in the receipt of the rents and profits thereof to her own sole and separate use and benefit, at the date of her grant to the church. (As to the letters patent not being signed by Lord Cornbury, 2 Bl. Comm. 305, 344, 346; Shep. Touch. 56. Unnecessary to show an entry under a good title, to support an adverse possession. 9 John. 114; 13 ibid. 118 ; 18 ibid. 40 and 355 ; 1 Cowen, 285 ; 5 ibid. 484 ; 8 ibid. 589, 596,603,4,607,609,613, 617; 12 Wend. 602; 24 ibid. 602, 4 ; 5 Peters, 466 ; 16 ibid. 455. As to the competency of the minutes of the trial in 1760, and similar evidence, 1 Co. Litt. 169, a; 4 Cowen, 483 ; 1 Greenl. Ev. § 527, 527 a; 22 Wend. 549. As to recitals in public acts, Co. Litt. 19 b ; 1 Greenl. Ev. § 491; 4 Maule & Sel. 532 ; The King v. Franklin, 17 Howell’s State Trials, 637. As to counterpart of leases, 7 East, 363. As to grounds for presuming a conveyance from all the Bogardus heirs, to the governor or the crown ; &c., &c.; 1 Greenl. Ev. § 45 to 47; 12 Tes. 239; 2 Hawk’s, (N. C.) 233; 1 Caines, 89 ; 3 John. Cas. 109 ; 7 John. R. 5, 11, 12; 10 ibid. 377; 4 John. Ch. R. 296; 5 ibid. 545; 3 Wend. 152; 6 ibid. 228, 233 ; 4 Paige, 202.)
    
      Subd. 2d. That the church, on the day of the date of the queen’s grant, under and by virtue thereof, entered upon and became seised of the lands described therein, claiming by force and virtue thereof, to be the sole and exclusive owners of such lands ; and that such entry and claim were made by the church under that grant, exclusively of any other right. (An entry into the whole, claiming the whole; 4 Paige, 201. The possession evidencing seisin ; Co. Litt. 11 b, 15 a ; Adams on Eject. 252, 253 ; 2 Hill, 341.)
    
      Subd. 3d. That the church, by themselves and those claiming under them, from their first entry in 1705 to the date of their plea, in October, 1831, have been in the uninterrupted, sole, exclusive and actual seisin and possession of those lands and every part thereof; and in the sole and exclusive receipt and enjoyment of the rents and profits thereof, claiming to have and hold such lands, and to be entitled to receive and enjoy such rents and profits as sole and exclusive owners thereof. (Presumption of continuance of an existing state of things, 3 Stark. Ev. 1252 ; 1 Greenl. Ev. § 41. Recital in lease, evidence against parties, Jackson v. Carver, 4 Peters, 1.)
    
      Subd. 4th. That the church have not paid over or accounted for, to the complainant in the original bill, or to either of those under whom he claims, any part of such rents and profits ; and have never .acknowledged or admitted, that they were bound either in law or equity so to do.
    
      iSubd. 5th. That the church have never held or possessed those lands, or any part thereof, or any rents or profits arising out of them, in common or undivided with, or as trustee of the complainant or his ancestors; and have never by themselves, or their agents, admitted or acknowledged that the complainant or his ancestors, had any estate, share, or interest, in or to such lands or any part thereof, or in or to the rents or profits thereof.
    III. The testimony of Elizabeth Bogardus, and of the other witnesses examined on the part of the complainants, so far as the same tends to prove any actual possession, or occupation, or receipt of rents and profits, under claim of title by Cornelius Bogardus, the great-grandson of Anneke Bogardus, or by any person under him, of any part of the tract formerly known as the Dominie’s Bowery ; is incompetent and inadmissible as evidence on the present hearing; and so much of the depositions of those witnesses as is herein specified, should be suppressed.
    
      iSubd. 1st. Such testimony is not within the issues made upon the plea; the gist of which issues, in regard to possession, when taken in connection with the case made by the bill, is that the possession and holding of the church, were always for themselves in severalty, and for their sole and exclusive benefit, and not as tenants in common with the complainant and his ancestors, nor in trust for them.
    
      iSubd. 2d. Such testimony contradicts repeated admissions in the bill; which, while it claims that the church entered and held as tenants in common, and as such received the rents and profits in trust for the complainants and his ancestors; concedes throughout, that the church have held, since their first entry, the actual and manual possession of the whole tract, and have exercised varibus acts of ownership in and over the same (Construction of pleadings, 2 Atk. 632 ; Beame’s Pleas, preface, Story’s Eq. Pl. 205 to 214 ; 9 Wend. 548, 562 ; 13 Ves. 232.)
    
      iSubd. 3d. Such testimony is" also incompatible with the very ground of the bill; inasmuch as it tends to show a possession and claim on the part of Cornelius Bogardus, in severalty, and not in common. (Testimony not within the issue, to be suppressed. Story’s Eq. Pl. 28, 33, 34 ; 11 Ves. 240 ; 6 John. R. 542.)
    IT. The testimony of the complainants witnesses, in respect to the possession of Mrs. Broad, is incompetent and inadmissible, for the reasons stated in the preceding point; and also because it appears from the complainants own showing that she was not an heir of Cornelius Bogardus, under whom they claim, and that her possession, whatsoever it was, had no connection with the subject matter of this suit.
    T. The testimony referred to in the foregoing points, even if admissible ; does not disprove the plea in any particular essential or material to its truth, or to its validity as a bar to the present suit.
    
      Subd. 1st. It appears from the defendants proofs, that at the peace of 1783, the church were in the actual and peacable possession of the whole tract granted to them by Orneen Anne, holding adversely to all the world, and by a valid and perfect title ; and that all right of the Bogardus heirs, if any they ever had, in or to any share or interest in the tract, was completely barred. (4 Paige, 200 ; 24 Wend. 587.)
    
      Subd. 2d. The entries of Cornelius Bogardus and of those claiming under him, made in 1783 and afterwards, were therefore mere trespasses and intrusions without right or color of right, and did not affect either the title or the possession of the church; especially as it appears,
    1. That several of the entries were effected by means of fraudulent attornments of the tenants of the church.
    2. That others were made by force, or were followed by a forcible detainer contrary to the statute in that behalf; and that none of the possessions so taken and held by force, were continued for so long a time as to prevent the application of such statute. (2 Rev. St. 293, § 8, 10, enacting the existing law on that subject. Also, § 13 ; 1 R. Laws, 96 ; 11 John. 504; 13 ibid. 552, 3; 6 Wend. 751.)
    3. That such possessions, all and every of them, were voluntarily abandoned by Cornelius Bogardus as long ago as 1786, and that ever since that time, the actual and peaceable possession of the whole tract under claim of title to the whole in severalty, has been constantly and without interruption in the church and those holding under them.
    3. After the time which has elapsed since the abandonment of such possessions, it will be presumed in reference to such of them, if any, as are not now fully explained by defendants proofs, that like others of the same period, they were fraudulently or tortiously acquired ; and even without the aid of such presumption, they were wholly ineffectual to interrupt the legal possession of the church, as the true and only owners of the land. (Smith v. Lorillard, 10 John. 338; Jackson v. Walker, 7 Cowen, 637; Whitney v. Wright, 15 Wend. 171. Also, 2 John. 22; 4 ibid. 202.)
    YI. The plea would have "been a complete and perfect bar, had it merely alleged the exclusive and uninterrupted possession of the premises and receipt of the rents and profits thereof, under a claim of title adverse to the complainants since 1786 ; and as such a possession and receipt of profits have been clearly established, the substance of the issue upon the present plea is proved, and the defendants are entitled to the benefit thereof, even though it should be considered by the court that the continuity and exclusiveness of such possession were interrupted between the years 1783 and 1786.
    
      Subd. 1st. A plea to a bill in equity is a special answer; and the failure of a defendant to prove all the matters averred in it, leaves the case precisely as if such matters had been brought forward by an ordinary answer, except that the court, if it think fit so to do, may order the defendant to make the discovery sought by the bill, and from which he was protected by means of his plea. (Mitf. Pl. 368; Beames Pleas. 325.)
    
      Subd. 2nd. Before the court will in any case make such order, it must appear that the complainant is entitled to some relief. In deciding that question, the matters averred in the plea and sustained by the proofs must be considered and weighed, and if they make out a valid defence to all the relief sought by the bill, the defendant must have the benefit of such defence, notwithstanding his failure to prove some other matters alleged in the plea, but not essential to his defence. (Beames, 338; 2. Ves. Jr. 668, 669.)
    
      
      Subd. 3d. In the present case, the matters averred in the plea, and which without and beyond contradiction, have been established by the proofs, and.constitute a full and perfect defence to all the relief sought by the bill; and constitute also the very defence set up in the plea; that is to say, an adverse possession on the part of the church, under claim of title of the whole tract in severalty, for a period sufficiently long to bar the complainants and all others. (Litt. § 484; Co. Litt. 281 b, 282a) 1 Phill. Ev. 200, § 5 1 Stark. Ev. 387, § 83 ibid. 1528, 1533,1537; 1 Taunt. 147.)
    
      Subd. 4th. In the face of the facts averred by the plea and unquestionably established by the proofs, and of the full defence to the prayer for relief resulting from such facts, the discovery called for by the bill cannnot be ordered by the court.
    1. Because such discovery is only sought by the bill as ancillary to the relief, and
    2. Because if made, it could not vary or impair the defence, nor help the complainants.
    VII. The complainants bill should be dismissed with costs.
    
      G. R. J. Bowdoin, J. T. Brady, and Geo. Sullivan, for the complainants.
    Mr. Sullivan insisted on the following propositions :
    I. The Queen was not in the sole possession of the Queen’s farm, at the date of her grant to Trinity Church, in 1705. She held it as ténant in common with our ancestor, Cornelius Bogardus. The deed of transport to Gov. Lovelace, conveyed the rights of the other heirs, named in it, but did not convey his ; and the king cannot disseise a subject. (Bacon’s Abr. Prerogative, 630.) So the Duke of York entered as tenant in common, and the character of the possession was not changed. The grant of Gov. Nicolls, shows the heirs of Anneke Jans were in possession, and the presumption is, that her son, Cornelius, continued in possession.
    II. At and before 1705, the time of prescription was sixty years ; so that there could have been no disseisin of the Queen’s co-tenant ni common at that date. This is fatal to the case on the plea, because that rests on the fact, that the queen was then in the sole and exclusive possession and use of the farm. The patent of 1705, only conveyed such estate as she had, viz., five undivided sixth parts of the farm.
    III. The defendants next ground of defence, that Queen Anne, by the letters patent in November, 1705, gave, granted, and confirmed the farm to the then corporation of Trinity Church, is not established by the proofs. The letters produced, are under the seal of the province, not under her seal, though the grant purports to be hers ; they have, therefore, no validity or vitality.
    If considered as executed by the governor, under a power from her, signing is necessary-to such an execution. (17 Ves. 459.) The provincial seal was in the governor’s charge by his commission, and he should have affixed it and signed the patent.
    The queen had no power over this land, except through the colonial assembly. (Charter of Liberties, 1691 ; Act of 1699, annulling the extravagant grants ; Smith’s History of N. Y. 117, 155, 156 ; 11 East, 488.) The repealing act of 1702, was of no force till the royal assent was given to it, instead of which it was disapproved. The constitutions of this state, in 1777 and 1822, do not save this grant; they only covered grants made “ under the authority,” &c. of the crown. Lord Com bury, the most corrupt and execrable governor we ever had here, so understood the law, and withheld his signature, so as not to commit himself. The title thus sought to be given to the church was illegal, and no presumption can be indulged in favor of such a title. The reservation in Montgomerie’s charter, confirmed by the assembly and then by the king, shows the patent was void. There was no act of the assembly permitting the grant, as was necessary. One was passed in 1733, to enable the governor to grant the swamp.
    IY. The church corporation did not enter upon the Queen’s farm, under the letters patent. Their entry was under the lease given them in 1702. Having a good right under the lease in 1705, and none under the patent, their possession in point of law continued under the lease. There is no entry in their minutes, nor any act of theirs, showing an acceptance of the patent, or an intention to act under it. There could be no merger without some corporate act.
    Y. Next, as to the possession of the Queen’s farm by the church. The church, in 1705, was in as a tenant for years, and tenant in common. A tenant in common has a right to be in possession; the question is, whether it be a sole possession, like one claiming the whole. By the charter of the church, limited by the colonial act of 1704, it could not hold property to over £500 a year; and this was so until the revolution. It could take no rents or profits beyond that, and' to that extent was a mere trustee for charitable purposes. A corporation cannot deforce a natural person, and where there is no receipt of rent, there can be no ouster by one tenant in common against another, without an actual deforcement. So every time Cornelius Bogardus walked over the farm, it was an entry, and he was in possession. The possession of each was the possession of both. Cornelius B., in 1783, took possession of a vacant part of it, kept it two years, and claimed it as his ; of course, according to his right.
    It is said he had then been ousted, by lapse of time. Their plea does not so pretend. As tenant for years, the church could not disseise a freehold ; and could not claim a fee either against the crown or any one else. (1 Bac. Abr. 430 ; Cro. Car. 592.) Their not accounting, shows no ouster; for no rents were received till after 1750, nor enough till at or just before the revolution, to come to £500 a year, after paying expenses in respect of the land.
    Since the revolution, as it would have been a breach of trust for the church to apply more than £500 yearly, of the rents of this property, which cannot be presumed; they must have received the surplus for the people, and for us as tenants in common. Their legal incapacity to appropriate more than £500, makes their case different from that of an individual.
    YI. The state of things since the revolution. The limitation in the act of 1704, was not repealed by the act of 1784, nor can such repeal be inferred from the act of 1788.
    The accumulated fund, arising from the surplus over £500, is in their hands, therefore, in trust for us, to this day. The ■court should grant relief, on the ground of public policy, and in that view, lapse of time is of no consequence.
    One claiming by adverse possession, must show he has claimed in fee, and that too against all the world.
    As the defendants could not so claim against the Crown or the People, (to whom they were tenants for years;) they cannot so claim against any one. (4 Kent’s Comm.) Their claim of title in the ejectment, in 1760, was put forward in behalf of their landlord, the king. That made to the legislature in 1785, cannot avail, because it was made with a fraudulent concealment as to the state of their affairs, and the true character of their tenure.
    All the leases produced, are referable to their position as tenants under the crown, as well as to a claim in fee. There was no prescription against the crown till 1783, certainly; nor till 1788, (2 Greenl. Laws, 93,) against the people; so the sixty years prescription has not yet expired ; and the church is still in as tenant.
    VII. The defendant’s plea is not one of the statute of limitations. It was held good as being a plea of title, and as such it is not proved at al 1
    But treating it as a plea of lapse of time, where do they begin their adverse possession ? The plea says, at the date of the patent ; but there is no proof of any commencement of it.
    As to the counterparts of leases, there is no proof of any authority from the church' to any one to give a single lease. The leases ought, therefore, to be left out; and there is no evidence of any claim under the patent till the trial in 1760. That would not be a bar till 1820. But this was not the adverse possession set up by the plea.
    They did not sell a foot of the land till 1784, which is the next thing that looks at all like a claim in fee. This, and what took place afterwards, does not support their plea of an adverse possession beginning in 1705.
    Till. The letter of the committee of the vestry of Trinity Church, in 1785, was an express claim of the title, under a conveyance which made them tenants in common with our successive ancestors, and is conclusive upon the church. There is no proof that the committee overstepped their authority.
    
      IX. The allegation in the plea, that the church had received all the rents and profits, and that their possession had been uninterrupted, is not proved, and is not true.
    Cornelius Bogardus had quiet and peaceable possession of portions of the farm, including the house he lived in, for two years at least. He paid no rent, and no proceedings were taken to turn him out. This entry was as effectual, as if he had been there ten years. He was in possession of the clay and gravel pit, and received the issues from the sale of the soil. He was not a disseisor, did not claim the entire possession, but merely his right, such as it was. He made leases and received rents.
    This evidence is decisive against the truth of the plea. It breaks the continuity of the possession, which it was material for them to aver and prove; shows it was not exclusive and was interrupted, broken and gone, before 1786.
    X. The whole plea must be proven. If any point is not proved, the decree must be against the defendants. (Dows v. McMichael, 6 Paige, 139.) The court is not to judge as to the materiality of any of it.
    In fact, every part of it is material; the title set up, as well as the lapse of time. They might have relied on the latter, but did not, and must stand on the whoie plea as it is.
    
      Mr. Ogden,
    in reply, referred to 1 Stark. Ev. 436; Buller’s N. P. 298; 1 Sch. & Lef. 429; 3 Bro. Ch. C. 639 ; 2 Jac. & W. 139, 140 ; and 2 Smith’s History of N. Y. 232, 239.
    
      
       For a table of contents of tjiis voluminous case, see note at the end of the case.
    
    
      
      
         This witness was a Justice of the Supreme Court of the state of New York, from 1792 till 1801, including two years in which he was Chief Justice, and in 1804, he was elected Governor of the state.
    
    
      
       Lord Cornbnry succeeded to the title of Earl of Clarendon in 1711. He was a cousin of Queen Anne, whose mother was a daughter of the first Earl of Clarendon.
    
   OPINION OF THE COURT.

The Vice-Chancellor.

The complainants, by their bill, claim that they as heirs of John Bogardus, are the owners in fee of an equal undivided thirtieth, of the northern and principal portion of the property in the city of New York, long known as the “ Church Farm.” This part, said to contain sixty-two acres, extended from a line about one hundred feet south of what is now Warren street, northwardly to what is now known as Christopher street, and from the Hudson river, on the west, to what is now Broadway, at its south line, and along the line of Broadway, nearly to Duane street; and from thence its eastern boundary ran northwestwardly, gradually approaching the river at its northern extremity.

The bill proceeds on the ground that the corporation of Trinity Church, from 1705 to the present time, have been in the possession of this portion of the farm, as tenants in common with the complainants and their ancestors, from whom they derive their title; and that the corporation is bound to account to them for their proper share of the rents and issues received from the farm, and from sales of such portions as have been sold, and to refrain from any further leases or sales affecting the complainants title. .

The defence interposed to this claim is, that in 1705, Queen Anne granted the whole Church Farm to the corporation of Trinity Church in fee-simple; that the church then entered into possession, and has ever since been in the sole possession, exclusive of any other right, claiming it absolutely as its own property. In other words, the defendants plead an adverse possession of the lands claimed, for one hundred and twenty-five years before this suit was commenced, under a deed, conveying the lands to them in fee-simple.

The highest judicial tribunal in the state, affirming the elaborate judgment of the chancellor, has decided that the defence thus interposed is valid,.and a perfect bar to the complainants suit. (See the report of this case, on the argument of the plea before Chancellor Walworth, in 4 Paige’s Rep. 178; and in the Court for the Correction of Errors, in 15 Wendell’s Rep. 111.)

The law as to the force and effect of the plea, is thus established in the outset; and the great question before me, is presented in the simple proposition, Is the plea true inpoint of fact ? In determining the question, I am confined to the truth of the matters stated in the plea. Those alone are in issue between the parties ; and the statements in the bill, and in the answer accompanying the plea, are unimportant, except so far as they may tend to disprove or establish those contained in the plea. Before proceeding to those allegations, 1 will speak of certain facts which are admitted to be true by the form of the pleadings, and which the complainants insist have an important bearing upon the defence. Thus, it is admitted that the “ Dominie’s Bowery,” constituting the part of the Church Farm before described, was, on the 27th of March, 1667, granted and confirmed in fee, by Governor Nicolls, to the children and heirs of Anneke Jans, the widow of Dominie Everardus Bogardus, which confirmation recited a grant of the same land by the Dutch Governor, Van Twiller, to Anneke Jans and her husband, Roelofe Jansen, in 1636, and a patent or ground brief to Anneke Jans, from Governor Stuyvesant, in 1654. It is in like manner admitted, that Anna or Anneke Jans Bogardus had eight children, who were either living at her death or had died leaving issue ; and that, by the subsequent deaths of two of her children without issue, Cornelius Bogardus, one of her sons, became seised of one-sixth of the Dominie's Bowery; that his right descended, on his death in 1707, to his eldest son, Cornelius ; from the latter to his eldest son, Cornelius, in 1759 ; and from the latter, on his death, in 1794, to his five children, of whom John Bogardus, the complainants father, was one.

It is also admitted, that on the 9th of March, 1670-71, some of the heirs of Anneke Jans, executed a conveyance in fee of the Dominie’s Bowery, described as containing about sixty-two acres, to Colonel Francis Lovelace, who was then the governor of the province of New York. This transfer purports to have been made by William Bogardus, for himself and his brothers, Jan and Jonas, and by two of the sons-in-law of Anneke Jans, one in the right of his wife, and as attorney of another son-in-law, whose wife was deceased, and the other in right of his wife and by assignment of one of the sons, Peter Bogardus. It does not appear to have been executed by or for Cornelius Bogardus, the son of Anneke Jans; but it describes the whole farm or bowery, and speaks of it as the farm or bowery of the grantors.

This deed or transport appears to have been recorded, but at what time is not shown, otherwise than that it is found in a Book of Transports begun in the year 1665.

Several other matters charged in the bill, which are to be taken as true on this hearing, will be more conveniently mentioned in connection with the various points upon which they are supposed to have an influence.

The plea, formally stated, contains the three following heads or propositions, viz:

First. That Queen Anne, being in the possession and occupation of the tract known by the name of the Duke’s Farm, King’s Farm, or Queen’s Farm, referred to in the bill, and of which the Dominie’s Bowery is parcel, and being in the receipt of the rents and profits thereof to her own sole and separate use and benefit; did by letters patent, under the great seal of the province, dated November 23d, 1705, give, grant, ratify, and confirm to the corporation of Trinity Church, in fee simple, the farm before mentioned, reserving a yearly rent of three shillings, New York currency, in lieu of all other services, dues, and demands.

Second. That the corporation of Trinity Church, on the day of the date of the letters patent, entered upon and became seised in their demesne as of fee, of and in the farm, including the Dominie’s Bowery, claiming, by force of the letters patent, and not otherwise, to be of right sole and exclusive owners of the same and of every part thereof in fee simple.

Third. That by themselves and those claiming under them they have, from the day of such entry, continually, down to the present time, been in the uninterrupted, sole, exclusive, and actual seisin and possession of the premises called the Dominie’s Bowery, and of every part thereof, claiming the same as sole and exclusive owners in fee; and have been in the sole and exclusive receipt and enjoyment of the rents, issues and profits, to their own sole and separate use and benefit, without having paid over or accounted for any part of the same, to the complainants, or to any person under whom they claim, and without at any time having held or possessed any part of the premises, or any rents or profits therefrom, or any estate or interest therein, in common and undivided with, or as trustee of the complainants, or of any person under whom they claim to derive title, and without ever having admitted or acknowledged, that the complainants, or any person under whom they claim, were entitled to any payment or account, or had any estate, share or interest, in common or undivided, in the premises in controversy.

These three fundamental propositions will be treated separately, and in their order.

*' FIRST. The sole possession of Queen Anne, and her grant to the defendants corporation on the 23d day of November, 1705.

It is to be observed, that the plea does not assert that the queen was the owner of the farm granted, or that she had any estate or title whatever. The averment relates exclusively to her possession and its character.

These are facts of which written evidence can scarcely be expected. Such testimony rarely exists in any case. And after the lapse of more than one hundred and forty years, not only is the testimony of living witnesses to such facts utterly impossible, but even oral tradition respecting them, has almost invariably faded away in the dim shadows of the past.

In their search for truth, the courts are required, in instances like the one under consideration, to receive evidence which would be inadmissible if offered respecting events occurring within the memory of living witnesses. Thus, the statements of historians of established merit, the recitals in public records, in statutes and legislative journals, the proceedings in courts of justice, and their averments and results, and the depositions of witnesses in suits or in legal controversies, are from necessity, received as evidence of facts to which they relate, but always with great caution, and with due allowance for its imperfections and its capability of misleading ; and restricted, as to historical evidence, to facts of a public and general nature. (See on this subject, Bullen v. Michel, 4 Dow’s Parl. Cases, 297, 323, 324.)

There is the more reason for relying upon such evidence, because, on a question of the possession of land and of the character of the claim, the acts of the claimant are competent to prove the occupation; and when he is shown to be in possession1, his declarations as to the manner of his holding are always admissible, either against him to establish a tenancy, or in his favor to lay the foundation of an adverse possession. For a rule of evidence so familiar in actions affecting the title to lands, it is unnecessary to refer to authorities.

I. To proceed to the possession of the farm, at the date of the letters patent to Trinity Church.

The bill is silent as to the possession of the Dominie’s Bowery, as well as the whole Duke’s Farm, prior to 1705. It contains no allegation that Governor Lovelace, the Duke of York as proprietor of the province, or any other person, ever entered under the deed of transport to Governor Lovelace; except its charge as to the entry of the corporation of Trinity Church, which will be noted in another place. If any legal presumption as to the possession is to be deduced from the title having once been in Anneke Jans, and from the cautious statement in the bill as to the execution and effect of the deed of transport executed by a portion of her children, it is simply this, that on her death her children succeeded to the possession in point of law, and on the execution of the transport, Governor Lovelace succeeded to that possession, at least to the extent of the interests of those whose title it assumed to grant. And as it assumed to convey the whole farm, the presumption would necessarily be that he took possession of the whole, claiming it under the deed, unless he knew, (and of this there is neither proof nor probability,) that there was one heir of Anneke Jans who was not named in the instrument.

In Jackson, ex dem. Preston v. Smith, (13 Johns. 406,) where one purchased a lot of land, and received a deed for the whole lot, in which the grantor was described as heir of the patentee, and entered into possession under the deed, and it afterwards appeared that the grantor was only one of nine heirs of the patentee, and owned only one ninth of the lot as tenant in common with his co-heirs; it was decided that the purchaser must be deemed to have entered under his deed as sole owner in fee of the whole lot, and that his possession was adverse to the rightful owners, and was not a possession in common with them.

A resort to legal inferences upon the admitted facts in the bill, therefore, places Governor Lovelace in possession of this property, claiming the' whole title in fee under a deed, as early as 1671. The subsequent transmission of his right aiid possession to the Duke of York as proprietor, was so perfectly natural and obvious, that the counsel on both sides concurred in assuming it as unquestionable. Governor Lovelace’s administration termináted on the surrender of New York to the Dutch, in August) 1673, and his name has never appeared in connection with the farm, from that day to the present. His title and possession, (if he acquired either,) were doubtless taken in his official capacity, and vested in the Duke of York. They continued in the latter, as duke, and then as King James II., till the English revolution, by which he was dethroned and exiled, and then with other crown and proprietary lands, were transmitted to William and Mary, and on the death of William III., to Orneen Anne.

Thus, setting out with the title of Anneke Jans, and the transport to Governor Lovelace, we have the legal presumption, that the Dominie’s Bowery was possessed from 1671 to 1705 by the Duke of York, and the sovereigns of England continuously, under a claim of title to the whole of it by deed, exclusive of any other right; and that at the date of the letters patent, Orneen Anne was in possession and occupation, and receiving the rents to her own sole use and benefit.

Next, dismissing entirely all inferences in favor of the queen’s exclusive possession, arising from the transport and historical proofs before mentioned, how does this question stand upon the evidence at large 1

It is proved that Governor Andross, who arrived in the province in October, 1674, leased, or assumed to lease, the Duke’s Farm, to Dirck Seekers, or Seckners, for twenty years. This is shown by the original minutes of a trial in the supreme court of the colony, in October, 1760, in a suit in ejectment, relating to the Church Farm, brought against the corporation of Trinity Church, by Cornelius Brower and others. The record of the judgment in that suit is also produced. The minutes of the trial, show that the respective parties read in evidence on that occasion, very much the same documentary testimony as the parties in this suit presented eighty-five years afterwards. Among the documents then read in evidence by the church, was an original lease from Governor Ándross to Seekers, as before mentioned, which, in the minutes, is stated to bear date March 25,1667, or 1677. The third figure is so illegible that it is read with difficulty, but it looks more like six than seven. It was manifestly intended to be entered as 1.677, for Col. Nicolls was governor in 1667, and Governor Andross was commissioned in June, 1674. The original lease is shown to be lost, and secondary evidence is therefore admissible.

In connection with the minutes of the trial, the defendants produce two affidavits, one of Jacob Kooning, the other of Mary Layton, both appearing to have been sworn on the 18th day of May, 1751, before Frederic Philipse, who was then a judge of the supreme court, and whose signatures were proved by one of his lineal descendants. The purpose for vjhich these affidavits were taken is not proved. From their form and contents, it may be inferred that they were provided in reference to a forcible entry and detainer, or some similar proceeding, which became unnecessary or was dropped. Kooning, in his affidavit, deposed that he was eighty-one years of age, and had known the Church Farm, or King’s Farm, about seventy years ; that sixty-five or seventy years before the time of his deposing, Dirck Sicken, otherwise called Dirck Dey, lived in an old thatched house ora that farm, and after his death his widow possessed the farm, and then their son Tunis. He further deposed that one Joris Ryerse married the widow of Tunis, and possessed the farm, first under the government, and afterward from the English Church. Mary Layton deposed that she was eighty-four years of age, and knew the facts stated by Kooning to be true.

The question being, not as to the estate or title, but solely as to possession and the accompanying claim, the minutes of the trial and the two affidavits, appear to be good evidence to show that Governor Andross, in 1677, assumed to control the farm as the property of the government, and to demise it as such for twenty years. (4 Dow’s Cases in Parl., 323, 324, before cited.) And in a matter of so much public concern and notoriety, as the demesnes of the proprietor and of the crown, which formed the subject, within a few years thereafter, of constant and hitter controversy and frequent legislation in the colonial assembly, these documents are competent to prove, at this remote period, what was the general reputation and understanding as to the possession and the claim of and in the Duke’s Farm, as well as the assertion of the claim itself. It is strongly fortified and corroborated by the historical evidence hereafter noticed.

In 1686, in the charter granted by Governor Dongan to the city of New York, the farm in question is reserved to the crown, and is described as the “ land without the gate, called the King's Farm" the Duke of York having succeeded to the throne on the 6th day of February, 1685.

This was a direct and solemn assertion of the enjoyment of the possession and the claim of the title by the government, which was unchallenged at the time, and of so public and notorious a character, that it leaves no room for doubt as to their then being well known and indisputable facts.

On the 6th of August, 1694, Governor Fletcher in the name of the king, granted the Swamp, or Fresh-water Pond, to John Evans ; and in the letters patent the lands granted are described, both in the recital and in the grant, among other bounds, as being “ adjacent to our farm commonly called and known by the name of the Duke’s Farm"

This is another solemn public act of the government, under the great seal of the province, asserting a claim to the whole title and the possession, and also asserting that the farm was known as the Duke’s Farm ; thus connecting the claim with the duke's ownership before 1685, and showing that his title had, in 1685, been so long continued and so notorious, as to have attached his name to the property.

Next we have a lease executed by Governor Fletcher, in the name of the crown, to Trinity Clmrch, for the identical farm in question, designating it as “ our farm called and known as the King's Farm,” and the location and extent of the property, were apparently so well known, that there is no description of it by metes or bounds, or otherwise than as the King’s Farm, on the Island of Manhattan, and adjacent to the city of New York. The lease is dated August 19th, 1697, was for seven years from August 1st, 1698, and reserved an annual rent of sixty bushels of wheat.

Next is the act of the colonial assembly, passed ¡May 12th, 1699, “for the breaking, vacating, and annulling several extravagant grants of land made by Colonel Fletcher, the late governor of this province under his majesty.” Among such grants recited in the act, is that to John Evans, and the lands granted are described as “ adjacent to the King's Farm, for-? merly called the Du/ce’s Farm, on the Island Manhattansand Governor Fletcher’s lease to Trinity Church, in August, 1697, is also called “ an extravagant grant of the King's Farm." (1 Yan Schaack’s Colonial Laws, 31,)

This statute exhibits in the strongest light, the assumed ownership and possession of the farm in question by the Duke of York, and then by the kings of England, and the entire publicity and notoriety of such title and possession. The legislature of the colony, sitting within half a mile of the King’s Farm, could not be mistaken as to these facts, when they were making a law which was to annul the late governor’s demise of the farm, and to regulate its future tenure.

In this connection, it may be mentioned, that in 1732, the same Swamp or fresh water, which in 1694, was granted to Captain Evans, was conveyed by Governor Cosby to Anthony Rutgers, by letters patent, under the great seal of the province ; and the grant confirmed by like letters patent, December 31st, 1733. In both of these instruments, the lands are granted as “ adjacent to the farm formerly called the King’s Farm.” The act of 1699, was so far repealed by the colonial assembly, on the 1st November, 1733, as to permit this grant to Rutgers.

On the 9th of May, 1702, Lord Cornbury, then governor of the province, executed another lease of the King’s Farm to Trinity Church, conformably to the act of 1699, to continue from May 1st, 1700, so long as he should remain governor, describing it simply as the King's Farm, without any specific boundaries or location.

It was objected to this document, that it was not signed by Lord Cornbury, and that King William, in whose name it runs, tras dead prior to its execution. As to the first objection, the lease is attested by the great seal of the province. The want of the governor’s signature, will be discussed in another place. As to the other, it was a maxim of the common law that the king never dies ; and it was that part of the king which literally never dies, the sovereign authority exercised by the viceroy or governor, whose functions continued, although the person clothed with the office of king had died, and another had succeeded, which granted the lease under consideration. If it were ever questionable, the crown never did question it, and it could not be collaterally impeached. A further and conclusive answer to both objections is, that the testimony is offered not to prove title, but to establish the existence of a claim of title and a possession accordingly; so that, whether voidable or even void, the lease is equally competent to show the public affirmation by the executive of the province, of the king’s possession, and his exclusive right to the farm.

Next is the counterpart of a lease of the farm from Trinity Church to George Ryrse, or Ryerse, sealed by the latter only, dated January 24, 1704, for five years from May 1st, 1704, at an annual rent of £30 currency, describing the premises as “ all her said majesty's farm, Sec.

It was objected by the complainants counsel to this lease, and to several hundred other ancient counterparts of leases executed in the same manner, that the lease executed by the corporation should be produced, and that the counterparts were only secon- • dary evidence. Without entering into the learning of the law on this question in general, it suffices to say, that, for the purpose for which all these counterparts were introduced, they were primary and competent evidence. The idea of requiring a lessor or his heirs, in order to prove a tenancy, to produce a lease which one hundred and forty years ago, he delivered to a tenant who was to hold for only five years, when his interest in its preservation would cease, and whose descendants to the fourth generation are probably in their graves, and those of the fifth scattered throughout the globe, is too preposterous for argument. The object of the testimony, is to prove a holding under the lessor. The fact that Ryerse was in possession of the King’s Farm, about the date of the lease, is unquestionable; and his parol declarations would be competent to prove the manner of his holding. Is not his declaration in writing, under seal, infinitely better and stronger evidence 1

Thus, the counterpart executed by Ryerse, in 1704, when produced by the corporation, (which is the proper custody,) is evidence that the latter assumed to exercise owership over the land, and reserved the rent to be paid to the corporation exclusively. It is a sealed admission by Ryerse, concluding him as to their right; and produced by the corporation, concludes them as to the existence of the demise. And collaterally, it establishes their claim of title; and their enforcing it upon the possession of the land. The counterpart which Ryerse received, executed by the corporation, and not by him, if produced by the corporation, would prove nothing whatever, until they had shown, what at this day is impossible, that it had been delivered to Ryerse when it was sealed. (And see Lord Rancliffe v. Parkins, 6 Dow’s Cases in Parl. 202, per Lord Eldon.)

The letters patent to the church in 1705, speak of the farm thereby granted, as having been formerly called the Duke's Farm and the King's Farm, and as being then known as the Queen's Farm, and describe it as being in the occupation of George Ryerse, yeoman; thereby further corroborating, if it were necessary, the evidence of the possession and claim of the crown at that period.

The affidavits of Kooning and Layton, state the possession of the farm by Joris Ryerse, and his claiming, first under the government, and then under the church; evidently the same person as George Ryerse. And the identity is proved by the signature to the counterpart being Gooris or Jooris Ryers, while in the body of the instrument he is called George.

In determining the question of possession, and the assertion of title at this remote age, the historical fact that the farm in question was publicly and notoriously known as the Duke's Farm prior to 1685, as the King's Farm for the next sixteen or seventeen years, and then as the Queen's Farm until its conveyance to Trinity Church, is justly entitled to the highest consideration. That it was cultivated and occupied, is not questioned ; nor, in view of its being called a farm in 1677, and its close proximity to the north bounds of the then infant but growing city, can it be a matter of doubt. And such a steady, uniform designation of the farm, could not have been so publicly made for more than thirty years, unless it had been in the control and occupation of the officers of the government, claiming it for their sovereign. In Jackson v. Miller, 6 Wendell’s R. 228, the chancellor, delivering the unanimous opinion of the court for the correction of errors, held that the circumstance of a particular lot in a large tract held in common, and then subdivided into lots, being always called and known, for thirty or forty years, by the name of one of the joint owners, furnished a just inference that there had been a partition of the tract, and that such lot had fallen to the share of the person whose name it bore, there being no evidence of any claim to hold in common for fifty years before the trial.

Again, in Governor Montgomerie’s great charter to the city of New York, in 1730, Governor Dongan’s charter is recited in hcec verba / and in the thirty-seventh section, repeating various grants to the city, the exception is again made, as it was in 1686, of “ the lands called the King's Farm." This charter Was confirmed by an act of the colonial assembly, passed October 14th, 1732.

In this case there does not appear to be a particle of proof, or a circumstance on which to found an inference, that the complainants ancestor, the first Cornelius Bogardus, was ever in possession of the Dominie’s Bowery, or ever asserted a right to it; or that his right or claim was ever recognized by any person, in possession or claiming the possession, from 1671 to the date of the grant to Trinity Church.

So far, therefore, it is conclusively established that when the farm was granted to Trinity Church, the Queen was in the possession and occupation of the Duke’s or Queen’s Farm, including the Dominie’s Bowery, to her own sole and separate use and benefit. And it is clearly proved, also, that the crown of England claimed to own the farm in fee, solely and exclusively, and not as tenant in common with any person or persons. All the transactions of the government officers concerning it, Show an assertion of title and absolute dominion Over the whole property.

I have been thus minute on the first branch of the defence made by the plea, because the complainants strongest point was made on the assertion that Queen Anne held the farm as tenant in common with Cornelius Bogardus, and that the defendants, under the Queen’s grant, entered and held in the same manner.

Now, if it had been proved that the Queen’s possession was as tenant in common, the' case cited from 13 Johns. 406, shows that it would not establish the position that one to whom she granted the whole in fee, would also be a tenant in common and his entry made in that character ; while it is indisputable that if she were in possession, claiming the whole in fee, exclusive of any other right, her grantee would, as a matter of course, be deemed to have entered with a like claim, and to have continued an exclusive possession in severalty. In other words, if the complainants fail to show that the possession of the crown was that of one holding as a tenant in common, there is no shadow of pretence for alleging that the possession of Trinity Church ever bore that character.

The importance of the complainants effort on this part of the case, is obvious from this, that if the corporation of Trinity Church, in 1705, entered into possession of the Queen's Farm, under a patent or deed professing to convey the whole farm,, and continued in possession, claiming the entire title for sixty years next thereafter, such possession of itself would be a complete and perfect bar against all persons, however valid their title might have been to the whole, or any part of the farm, in the year 1705. And after twenty years of such possession, no action short of a writ of right, could have availed the adverse owner; while forty years were a bar to such an account as is sought by the bill in this cause. Such was the law of England and the law of this colony at that period. It was a sound and beneficent provision, which has so far found favor with the advancing intelligence of the present age, that the time of limitation in actions to recover lands, has been shortened in this state, until it is now only twenty years, where before the Revolution, sixty years were permitted to the claimant. It was a rule of law, applicable to corporations, as well as individuals; it protected the humble farms and tenements of the poor and lowly, as well as the manors and glebes of the wealthy and powerful.And it is a proper and just defence against old and dormant claims, in favor of the corporation of Trinity Church, and should be as readily conceded to them, as it would be to the complainants, were they invoking its aid against the corporation.

II. The remaining branch of the first great proposition contained in the plea, is that Queen Anne, on the 23d day of November, 1705, by letters patent, granted and conveyed the farm in question/to Trinity Church, by its then corporate name, in fee, reserving a quit-rerit of three shillings annually.

The bill of complaint sufficiently establishes this fact. It first states, that on or about the 23d of November, 1705, the corporation of Trinity Church, accepted and received the letters patent and grant of Queen Anne of that date, executed by Lord Corn-bury, then governor in chief of the province of New York, delivered to the corporation, and duly recorded in the office of the secretary of state; and that, by such letters patent, there was granted and conveyed to the corporation, that parcel of land, &c., then known by the name of the Duke’s Farm, King’s Farm, or Queen’s Farm, (describing it in brief terms.) Subsequently, the, bill charges that in and by those letters patent, the whole of the King’s Farm was granted to the corporation, including therein the shares of the heirs of Anneke Jans, who were parties to the instrument of transport in 1671. The latter clause is one of the intimations of a tenancy in common with which the bill abounds, and is not important in reference to the question immediately in hand.

The complainants, having thus made the execution of the grant from Queen Anne a part of their claim, it seems wholly needless to pursue the inquiry. The defendants, nevertheless, introduced the original letters patent, under the great seal of the province of New York, signed by the secretary, By His Excellency’s command,” and recorded among the patents in the secretary’s office. An objection was made to the letters patent, because they do not bear the signature of the governor, Lord Cornbury; and it was urged that an agent executing a deed for his principal, must always sign as well as seal the deed. The last argument proves too much, because an agent thus executing, must sign the principal’s name, adding his own as attorney. (Townsend v. Hubbard, 4 Hill’s R. 351, in the court for the correction of errors ; and Townsend v. Corning, 23 Wend. 435, in the supreme court.) Therefore, to have made the execution of this patent valid in form as the deed of Queen Anne, according to the complainants argument, it should have been signed, Anne, by her governor, or attorney, Cornburyand, moreover, should have had her own seal, and not the seal of the colony, appended to it.

Laying aside the suggestion as to the seal, I venture to say, that not an instance has ever been known, among the hundreds of letters patent of various descriptions granted here while New York was a colony, or in the thousands of similar instruments executed in the name of the sovereign in England, where such a form of execution was used.

The distinction is, that these letters patent are emanations from the sovereign power, the evidences of the pleasure or bounty of the government, and are attested by the governmental authorities as public acts.

The commissions from the sovereign to the provincial governors, were never signed by the monarch in person. They were attested by the privy seal, and by the signature of the officer intrusted with its immediate custody.

Those commissions, in the colony of New York, authorized the governors to make grants of lands, which, on being passed and sealed with the great seal of the province, and entered on record, were to be good and effectual.

The sovereigns of England, never granted lands by deed. Their alienations were always of a higher character, being known in the law as alienations by matter of record. The grants wére recorded in the proper office, and the great seal was affixed to the transcript, as evidence of the grant to the public. The letters of gift or transfer were thereby made patent, or open to the world. In practice, whatever rescript or authority for letters patent emanated from the sovereign personally, whether under his sign-manual or by writ of privy seal ; it formed the warrant for the officer holding the great seal, to affix the same to the letters patent, and was retained as his authority for the act.

It is very evident that grants of land in the colony, pursuing the forms used at home, were frequently, if not usually, made without the governor’s signature, and in the precise form of attestation that is used in the letters patent of 1705 to Trinity Church.

The letters patent granted in 1732, and again in 1733, by Governor Cosby to Anthony Rutgers, for the Swamp or Fresh Water, so called, at and near the Colch or Collect, were attested precisely like these, by the great seal and the deputy secretary’s signature, and were not signed by the governor.

Governor Fletcher, it appears, signed the letters patent to John Evans, in 1694, before mentioned, and the lease to the corporation of Trinity Church, as well as the charter to that church, in 1697. On the other hand, Lord Cornbury, when governor, did not, so far as it appears, attach his signature to such instruments ; nor did Governor Montgomerie, or Governor Cosby, who succeeded him. The charter of 1708, granting to the city of New York, the ferry rights between Manhattan Island and Long Island, and the lands on Long Island opposite the city, between low and high water mark, was not signed by the governor, but is attested like the grant to Trinity Church in 1705.

So of the charter granted to the city of New York by Gov. Montgomerie, on the 15th of January, 1730; which, besides the great seal, has only the approval of the attorney-general: yet it is the existing charter of the most powerful and important municipal corporation in America.

The letters patent granting the Church Farm, appear to have been recorded in the secretary’s office, in Liber No. 7 of Patents, fol. 338, &c. But the indorsement on the original, does not

state the date of the recording, nor is it proved. It however appears that the patent granting the Swamp to Evans, in 1694, was recorded in the same office, in Liber No. 6 of Patents, page 470; and, as it was annulled in 1699, and never restored, it was doubtless recorded at or about its date. Hence the grant to the church, to have appeared in the next book of patents, must also have been recorded at or about the period of its execution. This is rendered the more certain, from the great number of such patents executed in Governor Fletcher’s time, as shown by the annulling act of 1699, and which, in due course, would be entered of record intermediate the grant to Evans and that to Trinity Church.

The execution of Queen Anne’s grant to the defendants, as set up in their plea, is therefore established by the proofs, as well as by the complainants own charge in the bill of complaint.

There is one further objection to the grant, founded upon the act of the colonial assembly, heretofore mentioned, passed May 12, 1699, by which it was provided that it should not be in the power of the provincial governors, to grant or demise the King’s Farm, and certain other lands, for any longer period than for their own time in the government; and declaring that such lands were for the benefit and accommodation of the governors of the province for the time being.

This act was repealed by the assembly on the 27th of Nov. 1702, and was not in force in the colony from that time to June 26, 1708, when the Queen disapproved the repealing act, and confirmed the act of 1699. 1 (1 Van Schaack’s Laws, 31, 51.) It is contended that the effect of her disapproval, was to undo all that had been done while the repealing law continued in force.

Such a rule of construction, applied to private rights, would be denounced as most tyrannical, arbitrary, and unjust. For instance, we have an act of Congress requiring a residence of five years to entitle an alien to naturalization. Suppose that Congress, at its late session, had repealed this law, and enabled aliens at once to become citizens, and an alien now arriving here, should take the necessary oaths, become a citizen, and purchase lands ; and, at the next session of Congress, the act of the late session should be repealed. Would not the doctrine that thereby all that was done under the statute while it existed, was avoided, be denounced as monstrous and absurd?

The principle is the same, in respect of the repealing act of 1702. Rights acquired under it, prior to the Queen’s disapproval, were as valid and effectual as if the act of 1699 had never been enacted.

It is further contended, that the repealing act of 1702, was of no force until it received the Queen’s assent, and it never did receive her sanction. If the argument held good, it would be suicidal to the complainants, because the Queen never approved the annulling act of 1699, till June 26, 1708; and thus the latter act was not in force, when the letters patent were granted. But this was not the effect of the colonial legislation. Such statutes were valid and in force, until they were disapproved by the sovereign. The governor’s approval was sufficient in the •first instance.

In truth, the whole discussion, as to the force and validity of the letters patent, is foreign to the only question in issue ; and the defence is just as perfect, if the patent were defective in form and in its execution, or were contrary to the positive enactments of an existing statute ; as if its validity in all these respects were conceded.

. To found the defence of adverse enjoyment under a claim of •title, it is wholly immaterial whether the claim be made under a deed valid in form, or under one wanting in all the essentials of a proper conveyance. Indeed, an actual occupancy by one claiming the title, will ripen into a perfect right in twenty years, although he has no written evidence of title whatever.

Nor does the circumstance that the title claimed is void, or that it was taken or commenced in fraud of the law, detract from the force of an adverse possession maintained under it. In "the case of Harpending v. The Reformed Protestant Dutch Church, the immense property in dispute, was adjudged to the Church by the Supreme Court of the United States, on a naked .plea of an actual occupancy for forty years, claiming the title adversely to the complainants, without setting up any written title or claim. And although it appeared that the Dutch Church originally took the property and entered upon it under a will, at a 'time when they had no right to take property by devise, and when they were prohibited by law from so doing, and it was contended that such an entry in defiance of the law, was fraudulent, and could never become the basis of an adverse possession, nor prevent the entry of the true owner; yet that high tribunal declared that those facts did not impair the defence of the Dutch Church, and that their plea was a perfect bar to all the world. (16 Peters’s Rep. 455.) A precisely similar decision, was made by the highest court in this state, in Humbert v. Trinity Church, (24 Wend. 587.)

So in this case, the defence arising from the possession and claim of title is equally effectual, if proved, as if there were no question, or even criticism, on the force and validity of the letters patent of 1705. Whether they were good against the crown, or were void, they constituted a written color of title, under which the parties entered and claimed to hold the land.

All these principles as to adverse possession, were decided by the court for the correction of errors, in Clapp v. Bromagham, (9 Cowen, 530.) It was there held that possession under claim of title, with or without a valid deed, is adverse; and though the possessor’s title be clearly defective, yet the true owner must sue within twenty years, or his entry is barred. And that the entry of one of several heirs, claiming the whole and denying possession to his co-heirs, and selling the land to a stranger, constitutes a possession adverse to the co-heirs, and, being continued twenty years, bars their right of entry. (See also Jackson, ex dem. Vanderlyn v. Newton, 18 Johns. Rep. 355; and La Frambois v. Jackson, ex dem. Smith, 8 Cowen, 589.)

SECOND. The second head or proposition contained in the defendant’s plea, is that the corporation of Trinity Church, on the day of the date of the letters patent, entered upon and became seised in their demesne as of fee in the Q.ueen’s Farm ; claiming, by force of the letters patent, and not otherwise, to be of right sole and exclusive owners of the whole farm in fee-simple.

The bill charges that the church entered upon the whole farm in 1705, under the letters patent, and the instrument of transport executed by the heirs of Anneke Jans in 1671. And the complainants seek to connect the transport with the entry) by a letter from a committee of Trinity Church, in 1785, to the,. claimants of apparently, another property, called Dominie’s Hook.

As to this letter, I cannot add any thing to the conclusive remarks of Chancellor Walworth, when this plea was before him in 1833. The letter contains no statement or admission that the church ever claimed under the transport; and if the admission had been direct and positive, it could have no influence upon the defence. The church had for eighty years possessed the property under the grant of Queen Anne, which conveyed the whole, and they had claimed the whole. The title thus acquired could not be shaken or impaired by the fact that Queen Anne, when she granted the whole, really owned but five undivided sixth parts; much less by an admission of the fact made eighty years subsequent to her grant. The letter was simply intended to point out to the claimants, what it was supposed they did not know, that their ancestors had conveyed in 1671, the title which they set up in 1785. And it does not appear that the committee who wrote it were aware that Annelce Jans left any heirs, save those by whom the transport appeared to have been executed.

The implied admission which the complainants attempt to derive from the letter of 1785, is far from being as strong or legitimate as that which might be supposed to arise from the circumstance of taking a deed from the real owner. Yet the supreme court decided against such an inference in Jackson v. Newton, (18 Johns. 355.)

The fact that the corporation of Trinity Church entered in 1705, and claimed, as is alleged in the plea, is abundantly proved. The lease to Ryerse, in 1704, shows that they did not then claim as owners or in fee. Every act and claim of theirs, after 1705, are those of an absolute owner of the whole estate. The rent reserved in Governor Cornbury’s lease, was no longer paid. No rents were ever after paid, save the quit-rent reserved in the letters patent. The church leased the land at pleasure, from that period onward to the present time, for long terms, generally for 21 years, and ranging to 99 years, and in process of time, sold large portions of it in fee.

The time of their entry is fixed by the bill, as cotemporary with the patent from the queen. To what else can this entry be attributed than that grant 1 They had no other deed or muniment of title. They received a deed in fee, they entered, and they claimed in fee. Can there possibly be a doubt that they entered under such deed ? It does not appear that they had ever heard of the deed of transport. The inferences are ail adverse to such a supposition. The government is never to be presumed to grant the same land twice. (Jackson, ex dem. Stoutenburgh v. Murray, 7 Johns. R. 5.) The farm had been known as the Duke’s and the King’s, for more than thirty years, without the assertion of a hostile right or claim. And no person receiving a title from the sovereign power of the state, either at that day or this, would think of inquiring into the source of the title, or of investigating it, as in the instance of conveyances by private individuals.

But there is another, and certainly, in view of all the facts, a very strange argument, urged against referring the entry in 1705, to the letters patent, and according to it, the character of a claim of title adverse to any other right. It is, that the corporation of Trinity Church continued in possession as tenants to the crown, till the American Revolution; and from thence to the present time, have been the tenants of the people of this state. This position, it is to be observed, is directly in the teeth of the bill of complaint, which alleges positively that the church entered into the farm under the transport and the letters patent, and thereby became and were seised as tenants in fee, &c. And it is directly in contravention of the letters patent, as stated in the bill, and as proved. Much of the argument, it is true, was based upon the alleged invalidity of the grant of Queen Anne, of which I have already said quite enough. But it was urged with apparent gravity, aside from that point. Now, I have been unable to discover a particle of evidence, in support of the idea, that the church continued in possession of the farm as a tenant, holding over after the expiration of Lord Cornbury’s lease ; while the mass of evidence introduced in support of the next head of the plea, is uniform and conclusive to the contrary, in every instance. As to the permission of the government to their continued occupancy, coupled with the oft-asserted illegality and nullity of the grant, in 1705, there is much testimony rebutting both positions, and hone in favor of any such permission. I should have alluded before, to the extended, but vague and undefined allusions to the conduct of Lord Cornbury in reference to Trinity Church, and the singular reasons imagined for his not signing the letters patent. All of these, as well as the assertion of illegality, may be further put to rest by a recurrence to the testimony, and to historical facts.

Trinity Church, as a part of the religious establishment connected with the state at home, was, from its institution, favored and patronized by the government here ; and to such an extent, that prior to the Revolution, it was repeatedly the cause of great offence to other religious sects, and of many political struggles and broils in the colony. The grant of the Queen’s Farm, was in entire accordance with the uniform policy of the provincial government. It appears, by a paper laid before the clergy convened by Lord Cornbury, at . New York, in October, 1704, that he had recommended to the Queen to bestow the King’s Farm to the use and benefit of Trinity Church. In November, 1705, the grant was made, which, from its extent and notoriety, and the hostility already exhibited toward Governor Cornbury in the -province, to say nothing of the jealousy of those of other religious denominations, would be likely to reach the ears of the government in England, without much delay. If, therefore, the grant had been made without the previous assent of the Queen, or, being made without it, had been deemed extravagant and improvident, it would doubtless have been revoked within a year or two after its date.

Instead of any such proceeding, it appears by a letter from her secretary of state, Lord Bolingbroke, dated April 14, 1714, in the queen’s name, addressed to Governor Hunter, who succeeded Lord Cornbury, that the queen, on learning that the church had been prosecuted in chancery for the rents which Governors Fletcher and Cornbury had omitted to collect, and that her letters patent to the church were rendered disputable, directed that all such proceedings should cease until her further pleasure was signified. In this document, the grant of the farm to the church by Lord Cornbury is mentioned by way of recital, as having been made by virtue of the authority derived from the queen, and granted under the seal of her province of New York, without any intimation of its being unwarranted or improper. No further proceedings were ever had, or directions •given as to the suit, so far as it is known.

In the thirty-fifth section of Governor Montgomerie’s charter to the city, there is an express grant and confirmation to all the inhabitants and freeholders, of all lands on Manhattan Island, to them granted and conveyed, or intended so to be, by any of the late governors of the province.

Besides this testimony, the quit rents on the letters patent, were paid in full by the church to the colonial receiver general, in 1738, in 1751, and in 1768, and to the treasurer of this state in 1786, when they were commuted ; and for one hundred and forty years, there has been no effort made or pretence set up, on behalf of the government, to subject Trinity Church to the position of tenants holding the Church Farm under the king of England, or under the people of the state.

The notion of any such tenancy having existed after 1705, is entirely unfounded.

The residue of the statement of the plea, that the corporation of Trinity Church, upon their entry in 1705, became seised of the farm, of and in their demesne as of fee, is not only asserted by the complainants in their bill, but is a direct and necessary •consequence of their entry, claiming the whole title in fee by force of the letters patent. (Co. Litt, 15, a; Ricard v. Williams, 7 Wheaton, 59 ; The People v. Leonard, 11 Johns. 504.)

THIRD. The remaining proposition constituting the defendants plea, is that by themselves and those claiming under them, they have, from the time of their entry under the letters patent into the dueen’s Farm, on the 23d of November, 1705, continually down to the year 1831, when their plea was filed, been in the, uninterrupted, sole, exclusive, and actual seisin and possession of the premises called the Dominie’s Bowery, and of every part thereof, claiming the same as sole and exclusive owners in fee ; and have been in the sole and exclusive receipt and enjoyment of the rents, issues, and profits, to their own sole and separate use and benefit, without having paid over or. aecounted for any part of the same to the complainants, or to any person under whom they claim, and without at any time having held or possessed any part of the premises, or any rents or profits therefrom, or any estate or interest therein, in common and undivided with, or as trustee of the complainants, or of any person under whom they claim to derive title, and without ever having admitted or acknowledged that the complainants, or any person under whom they claim, were entitled to any payment or account, or had any estate, share, or interest, in common or undivided, in the premises in controversy.

The testimony introduced by the defendants in support of this branch of their defence, was most full, complete, and overwhelming. Its historical interest, and the patient, minute, and almost Herculean labor of its preparation and development, richly merit a far more extended notice than my pressing duty to other suitors in this court, will enable me to bestow upon the subject. My notice of the testimony will, therefore, be brief and general.

But first, the fact that the church was in the actual possession of the property from 1705 to the present time, (with a solitary exception after the Revolutionary War, which will be discussed hereafter,) is conceded by the complainants throughout their bill. They found their claim for an account upon this allegation, together with the assertion that the church held as tenant in common with their ancestors respectively.

The issue made by the plea, therefore, is mainly upon the character of the possession thus maintained by the church. Was it a possession claiming the whole title, exclusive of any other right; or was the church, for more than a century, occupying the land, and receiving the rents, for the use and benefit of the successive Cornelius Bogarduses, and the heirs of the last of the name, as well as for the church’s own benefit ?

It is a rule of evidence, founded on the experience of human affairs, that when a state of things is once established by proof, the law presumes that such state of things continues to exist till the contrary is shown, or till a different presumption is raised from the nature of the subject in question. (1 Gireenleaf’s Law of Evid. § 41.)

Starting with the conceded fact, that the church took possession of this farm in 1705, claiming it as owner under a grant of the whole from the crown, which neither mentioned nor alluded to the right of any person whatsoever; and following it with the ascertained fact, that for eighty years there was no interruption of its possession ; it must be obvious to the plainest common sense, that strong and cogent proof is requisite to show that during all this long period the church held merely as a tenant in common.

Instead of proof of this character, there is nothing of the kind presented on the part of the complainants ; while a continued series of acts of ownership, extending through the whole period, and utterly inconsistent with any recognition of any claim, interest, or right in any person other than the church, is proved on the part of the defendants.

First. The historical evidence of the claim of ownership on the part of the Corporation of Trinity Church, exclusive of any other right.

The most ancient map of the city which I have met with, exhibiting “ New Yorke,” in 1695, limits the populated territory on the north, to what is now Wall street, where there was a wall at that day. The King’s Farm, is laid down as extending north from a boundary line drawn near where Dey street is now situated; and the tract where Trinity Church now stands, is designated as the ground proper for building an English Church.” A copy of this map is to be found in the excellent Manual prepared by Mr. Valentine, clerk of the Common Council, for the years 1845-6.

Next, is a “ Plan of the city of New York, from an actual survey made by James Lyne,” dated 1728, a copy of which is published in Mr. Valentine’s Manual for 1842-3, and also in Dunlap’s History of New York. The most northwardly street laid down on this map, west of Broadway, is Windmill lane, about midway between the present Cortland and Liberty streets, (though lines are drawn, as if for a street where Cortland street now runs ;) and the King’s Farm ” is laid down as extending along the North river, an undefined distance from a point a little below the present Fulton street, northwardly beyond the present Park, which was then a common. Broadway terminated at the lower end of the common, from whence the “ High Road to Boston ” set out, passing up what is now Park Row and Chatham street. The common extended to the “ Fresh Water,” which is mentioned in the grants to John Evans and Anthony Rutgers.

The map of the city of New York, made by Francis Maerschalck, city surveyor, which to this day is frequently referred to in conveyances of lands, in what is now the extreme lower part tif the city, was published in 1755. Upon this map, the King’s Farm is laid down as extending from Partition street, (now Fulton,) northerly along Hudson’s river; and from Partition to Warren street it is marked as being laid out in blocks, with intersecting Streets, and at great intervals scattering tenements are designated on this portion of the farm. It may be well to mention here, that the Palisades, built in the French war, (frequently called the Stockadoes in the leases, &c.¡) are laid down on this map as extending in a succession of lines, making obtuse angles with each other, with block-houses at the angles, from St. James’s street, East river, across the common,, (now the Park,) to the North river, about one hundred and ten feet north of Warren street, crossing what is now Broadway about the same distance above Warren street, and keeping that average distance to the river.

The History of the Province of New York, by William Smith, is a work of great authenticity; and from the circumstance that its author was an eminent lawyer, born and residing in the province, and as an ardent Presbyterian, entering zealously into the controversies of his day, especially the one relative to King’s, (now Columbia) College, in which Trinity Church was very conspicuous; it can not be suspected of any partiality toward that church, or of any disposition to favor its character or pretensions. The first volume of this history was published in 1756-7, bringing the narrative of events down to the year 1736 ; and the appendix contains an account of the state and condition of the colony, at the time of its publication. In his description of the 11 City and County of New York,” the author describes the line of palisadoes, as laid down on Maer? schalck’s map; and in reference to the corporation of Trinity Church, he says, “ The revenue of this Church is restricted by an act of Assembly to £500 per annum; but it is possessed of a real estate at the north end of the town, which, having been lately divided into lots and let to farm, will in a few years produce a much greater income.”

In the second volume of Judge Smith’s history, published by his son after his death, the author, in giving his account of the political and sectarian struggles preceding the chartering of King’s College, says that, “so early as the 8th of April, 1752, the wardens and vestry of Trinity Church, by Mr. Barclay, their rector, offered a part of the estate of their opulent corporation, in the suburbs of the capital, for the erection and convenience of the college.” Concurrently with this, we have in evidence the munificent grant made by Trinity Church to King’s College, being a deed in fee to the college corporation, dated. May 13, 1755, and conveying all that part of the King’s Farm, lying between Barclay and Murray streets, and extending from Church street to the North river.

After the lapse of nearly a century, no higher evidence of possession and claim of title can be imagined, than this, furnished from the pen of a learned and eminent historian, who, during his whole life, was unfriendly to the institution whose title he commemorates; and who, on at least one occasion, as will be mentioned in another place, was employed in his pro? fessional capacity against Trinity Church, in respect of this identical property.

Next, in the order of time, is a “ Plan of the City of New York,” by Bernard Ratzen, a lieutenant in the British army, made from a survey in 1767. On this map, Warren street is the farthest street up Broadway which has a name; but the present Chambers and Reade streets, and one block of the present Duane street, are marked out; and Church and Chapel streets are laid down, the former nearly as far north as what is now Thomas street, and Chapel street stopping south of the point where Duane street now intersects it. The “Road to Greenwich” is also laid down, running along and near the margin of the river, beyond where Mr. Lispenard’s house and garden are designated; and certain tenements are laid down as “Mr. Harison’s,” west of the road to Greenwich, just above where Duane street now intersects Greenwich street. Adjoining Greenwich road, between Warren and what is now Chambers street, another garden is portrayed on the map, which corresponds in position with the place designated on Lyne’s map, in 1728, as the “ Bowling Green Garden.” The King’s or Church’s Farm, is not mentioned on Ratzen’s map, but the localities to which I have alluded, are prominent points in the documentary evidence of the possession of the church.

Second. Tne record and documentary evidence of the possession and exclusive ownership of Trinity Church, from 1705 to 1831.

The lease of the whole farm to George or Joris Ryerse already mentioned, extended to the year 1709. The depositions of Kooning and Layton, taken in 1751, already noticed, declare that Ryer Ryerse succeeded Joris Ryerse in the possession of the King’s Farm, under the church; Francis Ryerse succeeded to Ryer Ryerse; and he was succeeded by one Harrison, and the latter by one Balm, who was succeeded by Cornelius Cozine. That Cozine had it for some years, and then Adam Yandenburgh took it, and he was in possession in 1751. And that all of these persons, as the declarants often heard, and always understood, held as tenants of the English Church.

Original counterparts of leases were introduced by the defendants, extending through this period as follows: From the corporation of Trinity Church to Robert Harrison, dated July 20, 1721, for ten years, for the King’s Farm, reciting that it was lately demised to Francis Ryerse, excepting six acres leased to W. Lake, and the lots laid out and staked at the south end of the farm. A lease from the same corporation to Cornelius Co-zine, May 1, 1732, for a term of ten years, in which the land is designated as the Church Farm.

A record of conviction, and an original writ of restitution in the supreme court, were read in evidence, by which it appeared that in 1746, and indictment for forcible entry and detainer, was found against Jacob Brower and others for the Church Farm, described as being the freehold of Trinity Church, in the possession of Adam Yandenburgh ; on the trial of which, Brower and others were convicted, and restitution was ordered to reseise the church, and put Yandenburgh in possession.

In 1750, the church commenced leasing the southern part of the farm in single city lots, and thus demised some thirty three lots during that year, including several which were on that part of the farm claimed as the Dominie’s Bowery. Most of these lots were let for twenty-one years. The number of these leases of city lots, increased with great rapidity from 1750 to the Revolution, so that, at the latter era, almost every foot of the Church Farm lying south of what is now Reade street, (except the part conveyed to Columbia College,) was under lease for various terms, from Trinity Church, sometimes for sixty-three years, but generally for terms of twenty-one years.

I will refer to two or three of the principal leases, as exhibiting most conclusively, the entire and exclusive possession and control of the corporation over the King’s Farm, in different parts of the so called Dominie’s Bowery, nearly one hundred years ago.

In 1764 and 1768, respectively, the church granted two leases to Leonard Lispenard, one of eight acres, and the other of over nine acres, of the part of the farm called the Dominie’s Bowery; the one for a term of nearly one hundred years, and the other for more than thirty years. These tracts are situated northwardly and eastwardly of what is now known as Hudson or St. John’s Square, and the former is designated as “Mr. Lispenard’s,” on Ratzen’s map, made in 1767. It was proved by living witnesses, that both of these tracts had been held under these demises continuously, and the eight acres down to the present time.

Elias Degrushe, on the 28th of February, 1750, obtained a lease from the church of the three lots at the northwest corner of Warren street and Broadway, for twenty-one years. The northerly lot extended west from Broadway twelve hundred feet, almost to the bank of the river. The description in this lease, shows that the farm above the long lot was not laid out in builling lots; and as that below was so laid out, it follows that the part of the King’s Farm leased as a farm to Vandenburgh, was wholly upon the Dominie’s Bowery.

The possession of Degrushe, is established by Maerschalk’s map, on which his rope-walk is laid down as occupying the demised premises.

The lease to Burnham, of five acres at the northwest part of the King’s Farm, was also given in 1750, as is noticed hereafter.

On the first of February, 1759, a lease for twenty-one years, was made to one Marshall for four fifths of an acre, called the old Bowling Green, being the same parcel which is laid down on Dyne’s map, of 1728, and Ratzen’s in 1767.

On the 25th March, 1769, these premises were included in a lease of a larger tract for three successive terms of twenty-one years each, to Samuel Francis. This lease was surrendered to the corporation in 1789, and a large part of the premises conveyed in fee the same year.

A lease was granted to George Harison, on the 24th of October, 1765. of a tract containing twenty-four lots between Greenwich street and the river, and situated between two streets which afterwards received the names of Harison and Jay streets, for a term of ninety-nine years. This tract is shown by Ratzen’s map to have been occupied by Mr. Harison, in 1767.

On the 5th of May, 1768, the church demised a parcel of more than two and a half acres to John Keating, for sixty-three years, extending from Provost (Franklin) to Moore (North Moore) street, and from Greenwich street eastwardly to Rutgers land, On this parcel, some of the demonstrations were made by persons asserting the Bogardus title, in or about 1785, which resulted in an expulsion by an indictment for forcible entry and detainer, as hereafter mentioned ; and all the demised premises were north of the south bounds of the Dominie’s Bowery.

To return to the Church Farm generally. A lease executed by Adam Vandenburgh was proved, by which he demised of the church, on the 5th of March, 1752, for five years, the whole farm north of the Stockadoes, excepting the four acres at the northwest part of the farm, adjoining Sir Peter Warren’s land, which had been leased by the church, February 28th, 1750, to William Burnham, as before mentioned. The lease of Yandenburgh contains intrinsic evidence that the land was used and cultivated as a farm ; and all the demised premises were north of the south bounds of the Dominie’s Bowery.

On the 17th of March, 1758, the corporation demised the Church Farm, (described as containing seventy-seven acres, excepting about three acres and an eighth adjoining the palisadoes,) to Cornelia Rutgets and Leonard Lispenard for twenty-one years. This lease was surrendered by Lispenard, as survivor, on receiving the long lease of eight acres in 1764.

It was proved that, in 1749, an ejectment was commenced by Cornelius Brower against the corporation of Trinity Church, for the recovery of a farm of sixty-three acres, described as in the possession and tenure of Adam Yandenburgh, and which is identified as the farm in question. The plaintiff’s attorney was the historian, William Smith, Esq.; and the suit, after being at issue two years, resulted in a judgment as in case of a nonsuit. This record furnishes evidence of the possession of the farm by Yandenburgh, as tenant of the church.

Another suit in ejectment for the same premises, described as in the possession of Cornelius Yandenburgh, was commenced by Judge Smith, in favor of Brower, against the corporation, in the year 1757. The suit was tried in October, 1760, and a verdict found for the defendants. This is the same suit in which the lease to Dirck Seekers was produced, as heretofore mentioned.

The defendants proved their actual possession of the church Farm, claiming it as their own, from 1768 or 1770, to the present time, by living witnesses, among whom were Morgan Lewis, formerly governor of the state, Peter Lorillard, and Peter Embury.

The number of city lots leased by the corporation, down to the year 1764, on that part of the farm in which the complainants locate the Dominie’s Bowery, was from one hundred and forty to one hundred and fifty, dispersed in every direction between Warren street and Rutger’s land. After 1764, the leases multiplied very rapidly, and more than three hundred and fifty, executed prior to this suit, were read in evidence; generally for twenty-one years, and most of them for several lots. Nearly two hundred leases of a later date were proved. And evidence of the demise of more than a thousand city lots was thus exhibited, which, with the large tracts leased for long terms of years, yet unexpired, embraced apparently, every foot of the Dominie’s Bowery.

The possession of the church, and their claim of ownership in fee, exclusive of any other right, from 1786 to this day, was so fully proved by oral testimony, as well as historical and documentary evidence, that no question was raised upon it at the hearing. It is sufficient to say on this head, therefore, that the defendants read in evidence several hundred conveyances in fee, executed by their corporation, from 1784 to the hearing, transferring four hundred and eighty lots, of which deeds three hundred and six were executed before the commencement of this suit, and all the lots thereby conveyed were within the Dominie’s Bowery.

The demises and eonveyances introduced, also proved that the corporation had, from the earliest period, always treated that part of their farm which included the Dominie’s Bowery, in precisely the same manner that they did the portion of their farm lying south of the Bowery, to which portion their title has never been questioned.

No difference is perceptible in their leases or conveyances of the one or the other, and there is no appearance of their ever having known any dividing line, or any distinction between them.

There is, therefore, on the part of the defendants, an unbroken current of evidence of the highest character, proving their 1 possession of the Church Farm, claiming it as their own, from 1705 to 1846. There can be no stronger testimony of ownership in fee, than is exhibited in the records, leases, and conveyances, produced on this occasion. The extent of the proof and its immense force would be marvelous, in the case of a title owned by an individual. Nothing but the conservative nature of the continued existence of a corporation aggregate, could have enabled the defendants to em body such a mass of testimony, extending through nearly five generations of men.

But it is contended with great earnestness that the chain of the defendants long possession was disturbed and broken in 1784-5 ; and that the breach destroys the force of their plea.

Without entering upon a minute detail of the testimony relative to the occupancy of Cornelius Bogardus, in 1784, and the year or two following, it will suffice to state the result in brief terms. The lot upon which he lived, was before the revolution, possessed under a lease from the church for twenty-one years, which expired in 1782, and the occupant died about the time of the peace. This lot was taken by the city to enlarge Chambers street, before 1799. John, the son of Cornelius, is shown to have lived on some of the lots, in 1784 and 1785. In the first instance, he was on a lot leased by the church in 1761, for twenty-onfe years, and then, in 1782, for fourteen years, to Christopher Smith, and which, in 1788, the church conveyed in fee to W. Alexander, His next move was into a house vacated just before by an under-tenant of the church, the lease not having expired, and from which John Bogardus was turned out by the church, in 1786, and the lot by them conveyed to James Ryker in fee, in 1789.

After this, John Bogardus lived on two or three different lots for short periods, all of which had been previously rented by the church for various terms ; and as his father left the city in 1786, and there is no pretence that he held under his father after that time, it is needless to trace his migrations.

The testimony as to the gravel pit is unimportant, for it is clear that it was not on the Church Farm or the Dominie’s Bowery.

As to the persons put in possession by Cornelius Bogardus, after the peace of 1783, they are five or six in number, and their possessions appear to have been in what was then a mere suburb of the city, at and about Chambers street; and, so far as the locations were designated, it is shown that a part of the lots thus taken were, or had been, under leases from the church, in which the tenure continued, and all are shown to have been, very soon after, in their undisputed possession. A possession-house and fence were erected by one of the Bogarduses, toward what is now Hudson Square, which, it appears, brought matters to a crisis ; some violence ensued, and the possessor was put out by summary legal process.

The defendants produced from the files of the supreme court the record of a conviction on the 27th June, 1786, in a forcible entry and detainer, prosecuted by John Keating against Cornelius Bogardus, tried before the chief justice. The premises were in the west ward, and evidently a part of those demised to Keating in 1768. From the same files were produced two records of judgments in trespass on lands, in favor of Keating, one against Bogardus, and the other against Malcolm; the latter, after a trial before the chief justice, on which the jury gave £90 damages, and the other on a confession after issue joined, given after Malcolm’s trial. These records undoubtedly contain the judgment of the law, on the attempts of Bogardus to intrude into the possession of the Church Farm.

This was in 1786, and with it apparently terminated all possession, or color of possession, of any part of the premises, by the complainants ancestors.

The whole subject of this possession, is in a legal view, quite insignificant, and it effected no change in the rights of the parties. On the one side, was this corporation, having for eighty years been in the sole possession of the farm by their tenants, and thereby, if not by the Queen’s grant, having acquired a perfect title against all the world. The advance of the city, had converted the extreme south part of the Dothinie’s Bowery, into city lots. The part thus laid out, was doubtless, as in the suburbs of our growing cities of the present day, in part actually occupied by tenants, and a greater part lying waste in uninclosed commons. The possession of the latter, it is hardly necessary to say, continued in 'the church, as much as that of the lots actually inhabited. The war, and the long occupation of the city by an army hostile to a great part of the citizens, unquestionably aggravated the waste and destroyed the inclosures of the Church Farm. When the city was eva'cuated in the fall of 1783, and the state government resumed its sway, Cornelius Bogardus, probably believing he had some claim to this farm, availed himself of the confusion, and the relaxation of civil authority consequent upon the change of government, to effect a lodgment upon the debatable portion of the farm, which was at the moment neither city nor country. In the multitude of their leases, and still more in the uncertain position in which the Church of England parishes were placed by the new order of things, this lodgment was, in its humble and unobtrusive way, of two or three years duration. And it is possible that the popular enmity then entertained against the church, as a seeming branch and portion of the expelled regal prerogative, weakened the arm of justice, and for a time deterred the corporation from invoking its aid.

However this may be, the possession of Cornelius Bogardus, was not such an entry as to disturb or turn the current of the legal possession of the church. His individual entry was that of an intruder, and the entries of John were clearly as a tenant under the church. A landlord does not lose his possession, by a tenant’s yielding the same to an adverse claimant. And the result of the attempt, terminating in their dispossession, without an effort for more than forty years, to recover the land, is conclusive to show that the entry was a trespass, and not a legal or rightful entry upon lands. The rule of law, as established for two hundred years, is, that an entry shall not be deemed sufficient or valid as a claim, unless an action be commenced thereon within one year after the making of such entry, and within twenty years from the time when the right to make such entry descended or accrued. This rule is a part of our revised statutes. (2 R. S. 293, § 7.)

It is also the law, and has been made a part of our statutes, that the occupation of lands shall be deemed to have been under, and in subordination to the legal title, unless an adverse possession of twenty years is shown.

In,this instance there was a legal title, and over a century’s possession, in the corporation of Trinity Church and its grantors ; and except the proof be distinct, that the Bogarduses did not enter into the lands held by the tenants of the church, and that they did hold adversely for twenty years, their entry must be deemed to have been under the title of the church.

No such adverse holding is claimed for them, and their entry was clearly unavailing in respect of the title.

But, further, the claim now is, that Cornelius Bogardus entered as a tenant in common only. So far from any such inference being deducible from the complainants testimony, it shows an entry in severalty, claiming it for himself and the other heirs of Anneke Jans.

Indeed, the whole testimony on this point, as introduced, showing, if any thing, a hostile entry and claim, excluding any right of the church, is directly in the face of the complainants bill, which asserts throughout, that the defendants have been in possession, without interruption, from 1705 to the time it was filed, and makes no issue whatever upon that fact. The only approach to such a point in the bill, is the equivocal expression applied to the last Cornelius Bogardus, 11 taking certain of the esplees and profits,” which relates to another and negative allegation in the plea, which is yet to be considered.

The negative averments in the third subdivision of the plea are, first, that the defendants have never paid or accounted to the complainants or their ancestors, for any rents or profits, and have never admitted that they were bound to do so, either in law or equity. Second. That the defendants never held or possessed the lands in question, or the rents and profits, in common or undivided with, or as trustee of, the complainants or their ancestors, and have never admitted that the latter had any estate, share, or interest in the lands, or the rents and profits thereof.

From the nature of these allegations, the principal burden of proof is upon the complainants. (2 Daniell’s Ch. Prac. 224,225, 1st ed.) They assert; the defendants deny the charge. The matters, if they exist, are peculiarly within the knowledge of the complainants. They are positive facts. All the defendants are bound to do, is to raise a presumption from their acts in respect of the property, its use, and disposal, that no such facts exist; and the presumption must prevail, unless met and overcome by proof on the other side. (See 1 Greenleaf’s Ev. § 74.)

For the whole period to which the memory of aged men extended, the defendants did prove distinctly, these negative allegations. From 1784 to this day, there has been no such payment, accounting, admission of right, or holding in common. As to the period anterior to living memory, they raise a violent presumption to the same effect, by their leases, reserving the whole rents and profits to themselves, and demising the whole premises.

On the other hand, there is not a scintilla of evidence in favor of the complainants, on either of these propositions.

The charge in the bill, as to “ taking certain of the esplees and profits,” is traversed by the plea. The proof as to the occupation and receipt of rents by Cornelius Bogardus, in 1784-5, as I have already observed, was that of a hostile and tortious entry upon the possession of an owner holding in fee, and not the entry of a tenant in common. The defendants title was absolute in 1784, even if dueen Anne had no title when her grant was made, (Clapp v. Bromagham, 9 Cowen, 530, before cited ;) and if Cornelius Bogardus then took any (1 esplees,” he was a trespasser.

An objection to the title and claim of the church, was made on the ground, that by the act of June 27, 1704, confirming the charter of the church, its clear income from lands was restricted to £500 a year, and the income from the church farm before the revolution exceeded that limit. This was urged, both as an obstacle to the corporation’s holding adversely, lands producing an excess over their legal income, and as showing that the surplus beyond £500, was an accumulated fund in the hands of the church, which they had no right to retain, and which, as trustees, they are bound to account for to the complainants.

On the other hand, the defendants say the act of 1704 was repealed by the legislature, by the law relative to the church, passed April 17th, 1784. (1 Jones and Yarick’s Laws, 128.)

The act of 1704 is undoubtedly repealed in express terms by the act of 1784. Whether the last section of the latter still leaves the church subject to any of the restrictions imposed by the former, it is unnecessary to decide ; for there are two short and conclusive answers to the objection, without reference to the repeal of the limitation. First, the church acquired the title to the King’s Farm, by the letters patent in 1705, when the whole farm was not worth as much as one city lot of twenty-five by a hundred feet, in almost any part of it, would sell for at this moment. Nor is it probable that the, most visionary speculator of that era, expected to live to see the day when the King’s Farm would yield a net income of £500 a year. In 1704, the church leased the farm for five years at £30 & year. It is undeniable, therefore, that the grant by Queen Anne, was clearly within one tenth part of the limitation imposed by the act of 1704.

Now it scarcely needs an observation to show, that the accidental increase in the income of a corporation derived from its vested estates, to a point beyond what its charter prescribes, cannot have the effect to divest its title in such estates, or in any portion of them. The excess of income in such a case, would not belong to the grantor of the property, much less to one claiming adversely both to the grantor and to the corporation.

Secondly, if when the church acquired the title, whether it were in 1705, or at the end of sixty years from their entry under the grant, the income were in fact more than £500, no private persons could take advantage of the fact. It is a question between the corporation and the sovereign power, in which individuals have no concern, and of which they cannot avail themselves in any mode against the corporation. This was so decided in regard to this church, in Humbert v. Trinity Church, in the highest court in this state, (24 Wend. 587, 604, 629); and the same objection was made and overruled in the case of Harpending v. The Dutch Church, (16 Peters, 492-3.) And see Vernon Society v. Hills, (6 Cowen, 23.) The same point was decided in the supreme court of Pennsylvania, in Baird v. The Bank of Washingtsn, (11 Serg. and Rawle, 418); and by the court of appeals of Virginia, in The Banks v. Poitiaux, (3 Randolph's R., 136.)

The notion of a trust for the complainants, as to the supposed excess of rents beyond the corporate capacity of the church, is founded on the assumption that the complainants have made out that the church has all the while been holding the farm as a tenant in common with them. If they have succeeded in establishing the latter proposition, they need no aid from the limitation of the income of the church. Their right to relief would rest upon much higher ground. If they have failed to show the holding in common, their assumption of a trust as to the excess, is left without any foundation for its support.

The result of my investigation is, that the defendants plea is fully sustained in all its parts and propositions ; and as the law of the cause has been decided in our court of last resort, it is an entire and effectual bar to the complainants suit, and their bill must be dismissed.

Before leaving the case, I will recur to one other view which was discussed on the argument. If it had been proved that Cornelius Bogardus entered lawfully and in his own right as tenant in common in 1784, and continued his possession, as is claimed by the complainants, they could not maintain their claim to the lands in question.

I have already referred to the law on this subject, (and it was the law before the King’s Farm was cultivated by Europeans,) which renders such an entry unavailing for any purpose, unless it be followed up by a suit for the recovery of the land, within the prescribed period limiting such actions. But, independent of that rule of law, the complainants are doubly barred from any relief founded upon the entry of their ancestors in 1784 : First, because the church, irrespective of actual title ; by their possession of the farm for seventy-eight years, claiming it as their own in fee-simple, exclusive of any other right, under a grant in writing ; had acquired a valid title to the farm against all the world. It would be a waste of time to cite any of the very numerous authorities which sustain this proposition. Against such a title, the entry of Cornelius Bogardus, was of no more consequence than would have been the entry of an entire stranger to the blood of Armeke Jans. If he had succeeded in retaining his foothold, so as to have driven the church to an ejectment, they would have recovered against him inevitably, on proof of the letters patent, and their long possession and claim under the same. (Smith v. Lorillard, 10 John. 338, 339.)

Secondly. Leaving wholly out of view the possession prior to 1786 ; from that time to the commencement of this suit, which was forty-four years, the church have undeniably been in the actual visible possession of the premises, claiming the whole in fee, under the latters patent, exclusive of any other rigjrt, and in direct hostility to the complainants claim. This is another full and perfect bar to that claim.

In answer to these points, it is said that they do not support the plea, which relies on an unbroken possession from 1705 to 1830.

It is to be borne in mind, that the plea was adjudged to be valid in law, by the court for the correction of errors, not because it set up an adverse possession of one hundred and twenty-five years, but because the corporation had maintained such possession for a period long enough to bar a writ of right. (See the report of the plea, Bogardus v. Trinity Church, 4 Paige, 178) and 15 Wend. 111.) This limitation, in 1705, was sixty years. In 1788, it was reduced to twenty-five years.

The defendants, in support of their plea, are bound to prove only its substance, and to such au extent as will maintain the bar which it interposes to the suit. To illustrate this proposition, I will suppose a bill filed at this time, relative to a trust created in 1830, to which the trustee pleads, that for fifteen years last past, he has done no act, nor admitted any thing in respect of the alleged trust, and that the complainant is barred by lapse of time, by the provisions of the revised statutes. The limitation to such suits by those statutes, is ten years; and if, on an issue taken upon such a plea, it should appear that for ten years before the suit, there had been no act or recognition respecting the alleged trust, I apprehend that the plea would be sustained beyond a doubt.

So, in this case, if the defendants have shown that such a state of facts relative to this farm, as is set up in the plea, con- j{ tinned for more than sixty years before the year 1784, and that . it continued, also, for more than forty years immediately prior to | 1830, it is clear in my judgmnet, that they have sustained the j substance of their defence, and have doubly sustained it. j

In concluding, justice to the defendants requires me to state, that the delay which has occurred since the argument of the cause before me as assistant vice-chancellor, has not been owing in the slightest degree, to any difficulty which it presented to my mind. When the argument was closed, it was made known that there was a defect of parties, arising from the death of some of the claimants. The cause necessarily stood over, to have the proper parties brought into the suit. Immediately on its being revived, the complainants counsel applied to have the decision suspended, until they could move the court for leave to introduce further testimony. When this motion was disposed of, I had ceased to be the assistant vice-chancellor, and there was no opportunity to submit the cause to me as vice-chancellor, until the close, of the last January term. A long illness immediately succeeding, and an unexampled pressure of business in the court ever since, have delayed my investigation of the cause, until the last month of my official term.

And now that I have been enabled to examine it carefully, and with due reflection, I feel bound to say, that a plainer case has never been presented to me as a judge. Were it not for the uncommon magnitude of the claim, the apparent sincerity and zeal of the counsel who supported it, and the fact, (of which I have been oftentimes admonished, by personal applications on their behalf,) that the descendants of Anneke Jans, at this day, are hundreds, if not thousands, in number; I should not have deemed it necessary to deliver a written judgment on deciding the cause.

A hearty dislike to clothing any eleemosynary institution with either great power or extensive patronage, and a settled conviction that the possession by a single religious corporation, of such overgrown estates as the one in controversy, and the analogous instance of the Collegiate Dutch Church, is pernicious to the cause of Christianity ; have disposed me to give an earnest scrutiny to the defence in this case; as, in the instance of the Dutch Church, they prompted me, in my capacity of counsel, to more zealous efforts to overthrow their title to the lands devised by Jan Haberdinck. .But the law on these claims is well settled; and it must be sustained, in favor of religious corporations as well as private individuals. Indeed, it would be monstrous, if, after a possession such as has been proved in this case, for a period of nearly a century and a half, open, notorious, and within sight of the temple of justice ;■ the successive claimants, save one, being men of full age, and the courts open to them all the time, (except for seven years of war and revolution ;) the title to lands were to be litigated successfully, upon a claim which has been suspended for five generations. Few titles in this country would be secure under such an administration of the law; and its adoption would lead to scenes of fraud, corruption, foul injustice, and legal rapine, far worse in their consequences upon the peace, good order, and happiness of society, than external war or domestic insurrection.

The bill must be dismissed, with costs.  