Chambers, J.,
delivered the opinion of the court.
At the trial of this case the plaintiff’s counsel made twelve points, upon which the court was asked to instruct the jury. They were all rejected.
The court then instructed the jury upon the seventh, eighth and ninth points, modifying the prayer of the plaintiff as is particularly stated in the exception, and then further instructed the jury in their own terms on several of the questions arising in the cause.
However, it may be proper as a general rule, that the court shall adopt the language of a motion for instruction as preferred by counsel, yet if this court can perceive that full .and substantial justice has been done to the party, by declaring the law accurately, and in terms explicit and intelligible to the jury, upon the points raised by the counsel, it is no ground for reversing the opinion that such instructions were not given in the words of the motion or prayer. It is sufficient that other language was employed by the court less subject to misconception, or that the prayer was gratified with sueh accompanying explanations as were necessary for a full and fair comprehension' of the law.
The exception professes to set out all the testimony in the cause, and the instructions were asked “upon the whole evidence.”
The first instruction moved for, it has been said in argument, was intended to raise the question whether the agreement as proved by Grafton, between the plaintiff and himself, constituted the plaintiff a tenant at will, or tenant from [405]*405year to year, of the house and farm on which the trespass is alleged to have been committed. We do not perceive that the prayer did raise this question, it calls upon the court to say to the jury, that if the plaintiff was in aetual possession of the house and premises, then such possession was sufficient to entitle the plaintiff to maintain her action. It did not assume that any of the evidence relating to a trespass was to be believed, that any act of violence against that possession, or that any specific wrong, was perpetrated. The words “upon which the acts were committed by defendants, as given in evidence,” are used, but they are used as descriptive of the house and premises, and are the only words used to identify the locus in quo. The jury might believe the plaintiff to have been in possession, and yet not believe the witnesses who gave evidence of the trespass. It was therefore in effect to ask the court to say that the trespass was sufficiently proved, if the jury believed the plaintiff to have been in possession of the premises, which the court properly refused to do.
The court, however, after rejecting the prayer, do instruct the jury, that if they believe that the plaintiff made no other agreement, in relation to the occupation of the premises, than that which Grafton swears to, then he could terminate all the possessory right of the plaintiff by an entry with the view to occupy the premises without notice, and also, “that if the defendant, Hall, entered into possession of the premises by the authority of Grafton, and that the plaintiff, by agreement with Grafton occupied the house and premises at the will of Grafton, then the plaintiff is not entitled to recover against Hail” — And again they say, “if Grafton made no other agreement than that which he proves, and the defendant, Hall, had authority from Grafton, his first entry is no trespass; and having thus taken possession, his second entry is justified unless he abandoned tho possession between the time of the first and second entry.” They proceed to say in their subsequent instructions, in regard to the defence taken by those defendants [406]*406who justified under Hall’s authority, that it must “depend upon the fact whether Hall has made out his justification that he was in possession under authority from GraftonP These opinions áre grounded we think in a misconception of the nature of the tenancy of the plaintiff, and of the effect of the agreement between Grafton and the plaintiff, as sworn to by Grafton.
The inclination of the courts has long been against that construction of a demise which will create an estate at will. The interests of. agriculture, and the importance to lessees of land, of certainty and security in their occupation, are opposed to such estates, and they scarcely, if at all, exist in fact. We do not think the circumstances of this case, or the intention of the parties justify such an interpretation of the relations existing between them.
Grafton took possession of the premises, as trustee under the deed. He put the plaintiff in possession, entitled to the fee simple interest in one undivided fifth part, of which she could dispose at her will and pleasure. There are no rights of control or management reserved by the deed to Grafton, no authority to remove her from the possession of the portion secured to her after the death of her father.
The consideration of the deed is the natural love, and affection which the grantor had for his daughter, the plaintiff, and her children. The object avowed in the deed is to make provision for them after his decease, and the means adopted is to convey to Grafton, in trust, to permit the grantor during his life, to take the rents and profits, and after his decease, in trust for the plaintiff and her four children, by name, and their heirs, as tenants in common, without an intimation that Grafton is to interpose the slightest obstacle to the complete enjoyment of the property, or the possession of it by them. Assuming then that the case is not within the statute of Henry VIII. and the use not executed — upon which subject we do not intend to decide— there is nothing to prevent the full and entire enjoyment of one-fifth part of the premises by the plaintiff, under the [407]*407deed, unless she has contracted to part with her interest and property in it.
To ascertain whether she did so contract with Grafton, it may be proper to consider the circumstances under which his agreement with the plaintiff was made. He was the guardian of the children, and their trustee. By the terms of the agreement, she was to clothe and feed the children j she was to lease the other farm on which she was residing, and to occupy these premises “with the object and intention expressed at the time, that she and the children should eat, and wear each his, and her fifth part of the proceeds of the property.” She took possession of the premises in April or May, 1829, and continued to reside upon, and cultivate it to the time of the alleged trespass, and nothing is stated to shew that she did not feed and clothe the children. The right reserved by Grafton was “at all times to manage and control the trust property by himself and agents.”
We think it clear this right of management and control was to be exercised during the plaintiff’s possession, and that it was not a right to dispossess her at pleasure, but a right of supervision and general direction as to the course of cultivation, and general conduct of the property. The obligation to furnish food and clothing for her children, was one of daily expense ; many months must elapse from the period when she took possession, before the farm could yield a crop of any kind.
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Chambers, J.,
delivered the opinion of the court.
At the trial of this case the plaintiff’s counsel made twelve points, upon which the court was asked to instruct the jury. They were all rejected.
The court then instructed the jury upon the seventh, eighth and ninth points, modifying the prayer of the plaintiff as is particularly stated in the exception, and then further instructed the jury in their own terms on several of the questions arising in the cause.
However, it may be proper as a general rule, that the court shall adopt the language of a motion for instruction as preferred by counsel, yet if this court can perceive that full .and substantial justice has been done to the party, by declaring the law accurately, and in terms explicit and intelligible to the jury, upon the points raised by the counsel, it is no ground for reversing the opinion that such instructions were not given in the words of the motion or prayer. It is sufficient that other language was employed by the court less subject to misconception, or that the prayer was gratified with sueh accompanying explanations as were necessary for a full and fair comprehension' of the law.
The exception professes to set out all the testimony in the cause, and the instructions were asked “upon the whole evidence.”
The first instruction moved for, it has been said in argument, was intended to raise the question whether the agreement as proved by Grafton, between the plaintiff and himself, constituted the plaintiff a tenant at will, or tenant from [405]*405year to year, of the house and farm on which the trespass is alleged to have been committed. We do not perceive that the prayer did raise this question, it calls upon the court to say to the jury, that if the plaintiff was in aetual possession of the house and premises, then such possession was sufficient to entitle the plaintiff to maintain her action. It did not assume that any of the evidence relating to a trespass was to be believed, that any act of violence against that possession, or that any specific wrong, was perpetrated. The words “upon which the acts were committed by defendants, as given in evidence,” are used, but they are used as descriptive of the house and premises, and are the only words used to identify the locus in quo. The jury might believe the plaintiff to have been in possession, and yet not believe the witnesses who gave evidence of the trespass. It was therefore in effect to ask the court to say that the trespass was sufficiently proved, if the jury believed the plaintiff to have been in possession of the premises, which the court properly refused to do.
The court, however, after rejecting the prayer, do instruct the jury, that if they believe that the plaintiff made no other agreement, in relation to the occupation of the premises, than that which Grafton swears to, then he could terminate all the possessory right of the plaintiff by an entry with the view to occupy the premises without notice, and also, “that if the defendant, Hall, entered into possession of the premises by the authority of Grafton, and that the plaintiff, by agreement with Grafton occupied the house and premises at the will of Grafton, then the plaintiff is not entitled to recover against Hail” — And again they say, “if Grafton made no other agreement than that which he proves, and the defendant, Hall, had authority from Grafton, his first entry is no trespass; and having thus taken possession, his second entry is justified unless he abandoned tho possession between the time of the first and second entry.” They proceed to say in their subsequent instructions, in regard to the defence taken by those defendants [406]*406who justified under Hall’s authority, that it must “depend upon the fact whether Hall has made out his justification that he was in possession under authority from GraftonP These opinions áre grounded we think in a misconception of the nature of the tenancy of the plaintiff, and of the effect of the agreement between Grafton and the plaintiff, as sworn to by Grafton.
The inclination of the courts has long been against that construction of a demise which will create an estate at will. The interests of. agriculture, and the importance to lessees of land, of certainty and security in their occupation, are opposed to such estates, and they scarcely, if at all, exist in fact. We do not think the circumstances of this case, or the intention of the parties justify such an interpretation of the relations existing between them.
Grafton took possession of the premises, as trustee under the deed. He put the plaintiff in possession, entitled to the fee simple interest in one undivided fifth part, of which she could dispose at her will and pleasure. There are no rights of control or management reserved by the deed to Grafton, no authority to remove her from the possession of the portion secured to her after the death of her father.
The consideration of the deed is the natural love, and affection which the grantor had for his daughter, the plaintiff, and her children. The object avowed in the deed is to make provision for them after his decease, and the means adopted is to convey to Grafton, in trust, to permit the grantor during his life, to take the rents and profits, and after his decease, in trust for the plaintiff and her four children, by name, and their heirs, as tenants in common, without an intimation that Grafton is to interpose the slightest obstacle to the complete enjoyment of the property, or the possession of it by them. Assuming then that the case is not within the statute of Henry VIII. and the use not executed — upon which subject we do not intend to decide— there is nothing to prevent the full and entire enjoyment of one-fifth part of the premises by the plaintiff, under the [407]*407deed, unless she has contracted to part with her interest and property in it.
To ascertain whether she did so contract with Grafton, it may be proper to consider the circumstances under which his agreement with the plaintiff was made. He was the guardian of the children, and their trustee. By the terms of the agreement, she was to clothe and feed the children j she was to lease the other farm on which she was residing, and to occupy these premises “with the object and intention expressed at the time, that she and the children should eat, and wear each his, and her fifth part of the proceeds of the property.” She took possession of the premises in April or May, 1829, and continued to reside upon, and cultivate it to the time of the alleged trespass, and nothing is stated to shew that she did not feed and clothe the children. The right reserved by Grafton was “at all times to manage and control the trust property by himself and agents.”
We think it clear this right of management and control was to be exercised during the plaintiff’s possession, and that it was not a right to dispossess her at pleasure, but a right of supervision and general direction as to the course of cultivation, and general conduct of the property. The obligation to furnish food and clothing for her children, was one of daily expense ; many months must elapse from the period when she took possession, before the farm could yield a crop of any kind. Could she have intended to subject herself to be removed at any moment, after pitching a crop, and cultivating it, and before it should be harvested, at any any season of the year, at any hour of the day or night. It would be, we think, in direct violation of the intention avowed, as Grafton swears, at the time of the agreement. He acted in reference to some supposed rights vested in him as trustee, to superintend the property, but could not be authorised by any thing in the agreement, to go or send an agent at midnight to break open the doors, destroy the windows, injure the enclosures, and lock up the clothes of the plaintiff, and treat her with rudeness. These are acts [408]*408sworn to have been committed by the defendants, and as it was not possible for the court to ascertain whether the jury could, or would not give credit to the witness, who testified to them, they must be regarded as a part of the case in reference to which the court have said the plaintifF cannot recover in the case assumed in their instructions.
It is the province of the court to determine the legal effect of contracts, and we think in this case, the legal eiFect of the agreement sworn to by Grafton, as made between himself and the plaintifF, taken in connexion with the deed of trust, was not to create a tenancy at will, as the court have assumed, as the foundation of the several opinions we have referred to — but a tenancy from year to year, in that part of the premises which was secured to the children by the deed, leaving the plaintiff in the full enjoyment of her absolute right of property in her fifth part.
The second point upon which the plaintifF asked the in-, struction of the court was, “that the paper purporting to be a power of attorney from Grafton to Hall did not authorise any of the defendants to commit the acts complained of in the declaration, or of which evidence has been given to the jury.”
Considering the expressions, “acts complained of in the declaration, or of which evidence has been given,” to be understood as referring to the acts of violence and injury to the premises, and the insult to the person of the plaintiff sworn to by the plaintiff’s witnesses, we have disposed of this question by what has been already said, from which it follows that the court erred in not giving the instruction.
The third point relates to the warrant issued by the magistrate against Kilbourn.
The prayer is that if the jury believe the tenor or substance of the complaint as reduced to writing upon said warrant, or upon the paper containing or prefixed to said warrant, was as follows, then setting out in lime verba the affidavit on which the warrant issued, that then the warrant was not a legal warrant, and would not ’justify the defend[409]*409ants. This application manifestly and erroneously assumes that the regularity of the complaint, which is the oath of the person at whose instance the warrant issues, must determine the authority of the officer who executes the warrant.
Now if the warrant were in due form, that is, if it commanded the constable to arrest the party, to give security for the peace upon complaint made, the officer who executed it had no reason to inquire what were the particulars of the complaint, or whether any were made at all. It was his duty to execute the warrant, because upon its face it disclosed a case of which the magistrate could take cognizance. The warrant is not set out in the evidence, and therefore this court cannot express an opinion upon its sufficiency, but we think the court properly rejected the prayer to declare the warrant illegal, and not sufficient to justify the constable, solely because the complaint was not such as to justify the magistrate in issuing it.
The fourth prayer assumed the legality of the warrant, and asked the court to instruct the jury that it did not authorise the constable and his assistants to break the door of plaintiff’s house, if Kilbourn was not then in the house. This instruction we think ought to have been given. The court in their subsequent instructions, make this question to depend upon the nature of the plaintiff’s possession.
The defendants justified upon two grounds, one the right of possession, derived under the deed and agreement between Grafton and the plaintiff,- — the other, the authority to enter upon the premises, and arrest Kilbourn under the warrant. The plaintiff in this prayer appears to have sought from the court an opinion as to the authority of the constable to break the door of the house occupied at the time by the plaintiff as her dwelling, in his pursuit of Kilbourn, against whom the warrant was directed. The constable in execution of a warrant to arrest a party, breaks another’s house at his peril. If it shall prove that the party is not in the house, the officer is a trespasser. If Mrs. Hall was [410]*410actually occupying the house at the time with her family, it was to this purpose her castle, and whatever controverted rights of possession there might be in relation to it, the officer derived no justification from that circumstance. We think the court should have so instructed the jury, as not to make the authority of the constable, under the warrant, dependent upon the collateral fact of possession.
The fifth point made by the plaintiff was, that before the defendants could be justified in breaking the door in executing the'warrant, the constable should have demanded entrance. We think this instruction should have been given as prayed, and we do not concur in the qualification after-wards given by the court, which excused the demand, if Mrs. Hall knew the purpose for which they came.
The sixth point relates also to the manner of executing the warrant.
Although the prayer does not distinctly assume as a preliminary hypothesis, that the jury should believe the plaintiff to have been in possession, yet as the whole evidence is referred to in the introductory part of the exception, and there does not appear to have been any conflict in the testimony upon that fact, we feel bound to consider it as implied. The court in their instructions upon this subject, have united its consideration with various other matters. It is clear that a legal warrant would not have authorized the officer charged with its execution to commit the acts enumerated in the prayer, and we think the court should distinctly have said so to the jury, and that if Kilbourn was not in the house, the breaking open the door was not justified, although it may have been done with as little mischief or inconvenience as possible to the plaintiff.
The seventh instruction prayed for was that the deed of trust conferred no right on Grafton, or any one acting under his authority, to dispossess the plaintiff of the trust property, if the jury believed the plaintiff was in possession either by the agreement of Grafton, or by his permission, &c.
[411]*411We Lave before expressed the opinion, that under the circumstances of this case the plaintiff had an absolute interest in one undivided fifth part of the premises, and was tenant from year to year, of the residue, and that Grafton had no authority in person, or by agent, to enter and dispossess the plaintiff at pleasure.
We cannot therefore concur in the modification of this prayer made by the court. It follows in like manner, from what has been said, that the eighth instruction should have been given, as prayed, without the modification.
The ninth instruction moved for by plaintiff relates to the re-entry of Ilall the defendant, after a previous entry, which is assumed to have been lawful.
In the view taken by this court, no such legal effect would ensue from the first entry of Hail, the defendant, as to dispossess the plaintiff.
If Hail, the defendant, did take possession in fact adversely to the possession of the plaintiff, and in her absence, he was a trespasser; and if the plaintiff afterwards returned to the premises, and finding them unoccupied by Hall, quietly repossessed herself of them, the defendant, Hall, could derive no sanction for a second entry, from the fact of his having previously entered. If the entries were made for the purpose of disturbing the plaintiff’s enjoyment of the property, or in a violent manner, or for any other purpose than to discharge the right of supervision reserved by Grafton’s contract, it was not in pursuance of any authority given either by the deed or the agreement. We do not concur, therefore, in the modification of the court to the ninth prayer. The tenth point has been abandoned by the appellant’s counsel.
The eleventh prayer asked the court to say, that if the jury believed the warrant to have been received and served by Sharer, and returned by the magistrate, and that Kilbourn had been produced before the magistrate who had "taken his recognizance, then the warrant, was functus officio, and could not again be re-issued.”
[412]*412The law anxiously regards the security of a ministerial officer in serving process directed to him by a competent jurisdiction. It may well happen that a magistrate issuing a warrant may act illegally and subject himself to an action or to a prosecution, while the constable executing the warrant illegally issued, will be justified. The evidence is contradictory, in regard to the return day in the warrant in this case. The magistrate swears there was no day of the month named in it as the return day, but that it was returnable forthwith. If a warrant be issued by a magistrate and delivered to a constable who executes and returns it, and produces the body of the party who is recognized or discharged, and before the return day the magistrate directs the same warrant to another constable, who without knowledge of the previous arrest, again arrests the party, we think he would be justified, although the magistrate's conduct would be illegal. The plaintiff, in stating the case upon which the prayer is founded, does not enumerate the circumstances under which the warrant was re-issued, except only that it had been previously issued, and served by another constable, and that the party had been taken and recognized. These particular facts might exist, and yet other circumstances might, also exist, which would justify the second officer who executed the warrant, and we think the motion was properly refused. The twelfth instruction was asked upon the ground that parol evidence could not be given of the warrant. It was traced to the hands of the magistrate who proved its loss, and we can discover no ground of distinction between this case, and the every day case of a lost paper, and therefore concur in the opinion which rejected this application.
JUDGMENT REVERSED, AND PROCEDENDO AWARDED.