Inglis v. Trustees of the Sailor's Snug Harbour in the City of New York/Concurrence Story

Mr Justice STORY.

This cause was argued with great ability and learning at the last term of this court, and has been held under advisement until this time. In the interval, I have prepared an opinion upon all the points argued by counsel; and upon one of those points of leading importance, I have now the misfortune to differ from a majority of my brethren. Upon another leading point, that of the alienage of the demandant, my opinion coincides generally with that of the majority of the court; but the reasons, on which it is founded, are given more at large than in that now delivered by my brother Thompson. Under these circumstances, I propose to deliver my opinion at large upon all the points argued in the cause, mainly in the order in which they were discussed by the counsel. It is not without reluctance that I deviate from my usual practice of submitting in silence to the decisions of my brethren, when I dissent from them; and I trust, that the deep interest of the questions, and the novelty of the aspect under which some of them are presented, will furnish an apology for my occupying so much time.

The first point is, whether the devise in the will of Robert R. Randall of the lands in question, is a valid devise, so as to divest the heir at law of his legal estate, or to affect the lands in his hands with a trust.

In considering this question, it appears to me that this court is to look into the terms of the will, and to construe it according to the intention of the testator. That intention has been justly said to constitute the pole star to guide courts in the exposition of wills. When the intention is once fairly ascertained, it is wholly immaterial that it cannot be carried into effect by the principles of law; for our duty is to interpret, and not to make wills for testators.

In looking at the terms of the present devise, it appears to me clear, that the testator's intention was to vest in certain persons, in their official, and not in their private capacity, all the residue of his estate for a certain charity stated in the devise. The language is, 'I give and bequeath the same unto the chancellor of the state of New York, the mayor and recorded of the city of New York, the president of the chamber of commerce,' &c. &c. Did he by these terms mean to devise to the individuals who then occupied these offices, the estate in question, or to the persons who might hold them at the time of his death, or to the persons who might successively from time to time hold them? It was certainly competent for him to devise to them personally, and in their private capacity, by their official description. If a testator were by his will to give an estate to the bishop of New York for life, or to him and his heirs, without giving him his christian or surname, there is no doubt that the devise might well take effect, as a devise to the then incumbent in office, as a descriptio personae. The law does not require, to make a devise or legacy valid, that the party should be designated by his name of baptism or surname. It is sufficient if he be pointed out by any description, leaving no room for doubt as to the identity and certainty of the person. A devise to the eldest son of A. is just as good as if his name were given. A devise to the present president of the United States could be just as good as if his name were written at large in the will. The maxim of law is, that the designation must be certain as to the person to take; and id certum est, quod certum reddi potest. There is no doubt, then, that the chancellor, mayor and recorder, &c. &c. of New York might take as individuals, if such were the intention of the testator. I go farther and say, that if the testator did intend the present devise to them in their private characters, they would take not merely an estate for life in the premises, but an estate in fee. My reason is, that the scope and objects of the charity, being perpetual, require that construction of the will to carry into effect the intention of the testator(a).

But the difficulty is in arriving at the conclusion upon the terms of the will, that the testator did mean any devise to them in their private capacities. It is manifest from his language, that he did not devise to the then chancellor, mayor and recorder, &c. &c. in their private capacities, because his language is, that it is to the chancellor, &c. &c. 'for the time being, and their respective successors in the said offices for ever.' It is then a devise to them, as officers, during their continuance in office, and the estate is to go to their successors in office for ever; so that none of the devisees are to take any certain estate to themselves, but only while they continue in office. It is said that the court may reject the latter words, if inconsistent with the avowed intention and objects of the will. If the other language of the will required an interpretation of these words different from the ordinary meaning, there might be good ground for such an argument; but that the devise will, in point of law, become ineffectual if they are not rejected, furnishes no ground for the court to exclude them. Words which are sensible in the place where they occur, and express the testator's intention, are not to be rejected because the law will not carry into effect that intention. If it were otherwise, courts of law would make wills, and not construe them. But what ground is there to say, that the words 'for the time being,' and 'their successors in office' ought to be rejected? The former clearly designate what chancellor, mayor and recorder, &c. &c. are meant. How then can the court take one part and reject the other part of the description? How can the court say that the testator meant the them incumbents in office, when he has spoken of them as the incumbents for the time being? His intention clearly is that the charity shall be a perpetuity. He devises to the successors in

But this exposition does not rest on a single clause of the will. It pervades it in all the important clauses. In another clause of the will the testator directs that the trustees shall administer the charity 'in such manner as the said trustees or a majority of them may from time to time, or their successors in office may from time to time direct.' And again, the testator adds, 'it is my intention that the institution hereby directed and created should be perpetual, and that the above mentioned officers for the time being, and their successors should for ever continue and be the governors thereof, and have the superintendence of the same.' Here is a most deliberate re-statement of his intention and objects. The governors and administrators of his charity are not to be the then incumbents in office, but the officers for the time being; not the individuals when out of office, but their successors in office. What right then can this court have to say that the successors in office shall not be governors? Would it not be a plain departure from the express intention and solemn declarations of the will? The testator seems to have been apprehensive, that after all there might be some impediment in carrying his intention into effect. What then does he provide? That his intention shall be disregarded? That provisions of his will, as to successors, &c. &c. shall be disregarded or rejected? No, so far from it, that he goes on to provide for the emergency, so as to give full effect to his intention. His words are, 'that it is my will and desire, that if it cannot be legally done, according to my above intention, by them (the trustees) without an act of the legislature, it is my will and desire that they will as soon as possible apply for an act of the legislature to incorporate them for the purposes above specified.' So that the successors in the manner above mentioned constituted a primary, as well as a perpetual object of the devise. It seems to me so plain and clear upon the language of the will, that the testator never abandoned the intention of having the trustees take in their official and not in their private capacity, that with great deference to the judgment of others, I am unable to perceive any ground on which to rest a different opinion.

If this is so, then it is next to be considered whether such devise is void at law. I am spared the necessity of going at large into that question, by the decision of this court in the case of the Trustees of the Philadelphia Baptist Association vs. Hart's Executors, 4 Wheat. Rep. 1, where the subject was very amply discussed; and for reasons, in my judgment unanswerable, it was there decided that such a devise was void at law. Upon that occasion I had prepared a separate opinion; but that of the chief justice was so satisfactory to me, that I did not deem it necessary to deliver my own.

If the devise was void at law at the time when it was to have effect, viz. at the death of the testator, the subsequent act of the legislature of New York could not have any effect to divest the vested legal title of the heirs of the testator. The devise was not a devise to a corporation not in esse, and to be created in futuro. It was a devise in presenti, to persons who should be officers at the death of the testator, and to their successors in office. The vesting of the devise was not to be postponed to a future time, until a corporation could be created. It was to take immediate effect; and if the trustees could not exercise their powers in the manner prescribed by the testator, they were to apply to the legislature for an act of incorporation. Assuming, then, that a devise per verba de futuro, to a corporation not in esse, which is to take effect when the corporation should be created, would be good, and vest, by way of executory devise, in the corporation when created, as seems to have been lord chief justice Wilmot's opinion (Wilmot's Opinion, p. 15); it is a sufficient answer that such is not the present case. From the other report of the same case, Attorney General vs. Downing, Amb. 550, 571, and Attorney General vs. Bowyer, 3 Ves. 714, 727, I should deduce the conclusion, that the case turned upon the peculiar doctrines of the court of chancery in respect to charities; and that Lord Camden's opinion was founded on that. His judgment is not, as far as I know, in print; and whether he thought that at law a devise in futuro to an executory corporation would be good, does not appear. In the case before him he acted upon it as a charitable trust, not as a devise of the legal estate(b).

But it is said, that there are cases in which it has been held, that a devise to persons in their official capacity is good to the party in his natural capacity; and that it is not true, that, because the devisees cannot take in succession, they cannot take at all: a case from Brook's Abridgement, title Corporation, pl. 34, is relied on. There the principal point was of a different nature: whether a corporation composed of a master and fraternity, could present the master to a benefice. And Pollard, J. on that occasion said, 'if J. S. is dean of P. I may give land to him by the name of dean, &c. and his successors, and to J. S. and his heirs, and there he shall take as dean, and also as a private man; and he is tenant in common with himself.' Now, the plain meaning of this is, that because he took one moiety in his official capacity to him and his successors, that did not disable him to take the other moiety to him and his heirs, but he held the latter in his private capacity. Another case is from Co. Litt. 46, b. where it is said, if a lease for years be made to a bishop and his successors, yet his executors and administrators shall have it in autre droit; for regularly no chattel can go in succession in case of a sole corporation, no more than

It is also said, that in a will a particular may be made to yield to a more general intent. Certainly it may; but then the difficulty in the application of this rule to the present case is, that the argument insists upon a construction which I cannot but deem an overthrow of the general, to subserve an intent not indicated. Because the testator has expressed an intent to be carried into effect one way, which cannot consistently by law be so; and the court can see another way, by which he might have carried it into effect, if he had thought of it; it does not follow that the court can do that which the testator might have done, and new model the provisions of the will. If a testator should per verba de presenti devise an estate to a corporation not in esse,

I come now to the other part of the question, whether, if the devise be void at law, the estate in the hands of the heirs is affected with the trust in favour of the charity. It appears to me most manifest, that it is affected by the trust, if we consult either the intention of the testator or the express terms of the will. The closing paragraph of the will is, in my view of it, decisive, as creating an express trust in the heirs. 'It is,' says the testator, 'my desire, all courts of law and equity will so construe this may said will, as to have the estate appropriated to the above uses; and that the same should in no case, for want of form or otherwise, be construed as that my relations, or any other persons, should heir, possess, or enjoy my property, except in the manner and for the uses herein above specified.'

If no trustees had been named in the will to execute the charity, it seems to me very clear that these terms would have created a trust in the heirs. There cannot, as I think, be a doubt, that independent of the statute of mortmain, 9 Geo. 2, ch. 26, the present devise would be held a good charitable devise, and would be enforced in equity, at least since the statute of 43d of Elizabeth of charitable uses. The case of White vs. White; of Attorney General vs. Downing, Amb. Rep. 550, 571; of Attorney General vs. Tancred, Amb. 351, S.C.. 1 Eden's Rep. 10; and of Attorney General vs. Bowyer, 3 Ves. 714, 717, would alone be decisive; but there are many others to the same effect(e). Whether the statute of 43 Elizabeth is in force in the state of New York, or whether, independent of any enactment, a court of equity could enforce this as a charitable trust in the exercise of its general jurisdiction, or as the delegate, for this purpose, of the parental prerogative of the state; or whether such court could hold it utterly void; it is unnecessary for us to consider; that point may well enough be left to the decision of the proper state tribunal, when the case shall come before it. At present I do not think it necessary to say more, than that if the trust be utterly void, then the heirs would be operation of law take the legal estate stripped of the trust. If the trust be good, then it is knit to the estate, and the heirs take it subject to the trust.

But it is said, that if the trust be valid, the legislature had a perfect right to enforce it, and their act of incorporation amounts to a legal execution of the trusts, and vests the estate in the corporation. Now, whatever may be the rights of the state, as parens patriae, to enforce this charity, it can enforce it only as a trust. If the legal estate is vested in the heirs subject to the trust, the legislature cannot by any act, ipso facto, divest that legal title, and transfer it to the corporation. It is one thing to enforce a charitable trust, and quite another thing to destroy the legal rights of the parties to which it is attached. If the devise had been to certain trustees by name, upon trust for the charity; could the legislature have a right to divest the legal title? The case of the trustees of Dartmouth College vs. Woodward, 4 Wheat. Rep. 518, in its principles, bears against such a doctrine. The right to enforce the trust and operate upon the legal estate is a right to be exercised by judicial tribunals, and not by legislative decrees. The doctrine of the supreme court of New York is, that the legislature thereof has no authority to divest vested legal rights(f).

But I cannot admit that the act of incorporation was intended to have such an effect; it has no terms which divest the legal title of the heirs; it merely incorporates the trustees and their successors, and clothes them with the usual powers to carry the trust into effect. It presupposes that the estate was already vested in them by the will. They are made 'capable in law of holding and disposing of the estate' devised by the will. It it true that the uses are added, 'and the same (estate) is hereby declared to be vested in, them and their successors in office for the purposes therein (in the will), expressed.' But this was not, as I think, intended to vest the estate in them as a legislative investiture; but to declare that the estate was vested in them for the purposes of the charity, and not otherwise. The preamble of the act too shows, that the trustees did not ask to have the estate vested in them, but that inconveniences has arisen in the management of the estate from the changes of office. This is very strong to show that the legislature acted solely for the purpose of avoiding such inconveniences, and not to give them an estate to which they then had no title, and which they then professed to have in their management.

In every view, therefore, in which I can contemplate this point, I feel compelled to say that the devise, if a valid devise, is not a devise valid so as to divest the heir at law of his legal estate; but that the devise can have effect, if at all, only as a trust for a charity fastened on the legal estate in his hands.

In this opinion as to the nature and effect of the devise, in which I have the misfortune to differ from that of the court, I am authorised to say that I have the concurrence of the chief justice.

Another question is, whether the demandant was or was not capable of taking lands in the state of New York by descent? And this question is presented upon four different aspects of the facts.

In order to explain the views which I take of this part of the case, it will be necessary to state some general principles upon the subject of alienage. The rule commonly laid down in the books is, that every person who is born within the ligeance of a sovereign is a subject; and, e converso, that every person born without such allegiance is an alien. This, however, is little more than a mere definition of terms, and affords no light to guide us in the inquiry what constitutes allegiance, and who shall be said to be born within the allegiance of a particular sovereign; or in other words, what are the facts and circumstances from which the law deduces the conclusion of citizenship or alienage. Now, allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is; and allegiance by birth, is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship; first, birth locally within the dominions of the sovereign; and secondly, birth within the protection and obedience, or in other words, within the ligenance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also at his birth derive protection from, and consequently owe obedience or allegiance to the sovereign, as such, de facto(g). There are some exceptions, which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean, is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. Birth within the dominions of a sovereign is not always sufficient to create citizenship, if the party at the time does not derive protection from its

The general principle of the common law also is, that the allegiance thus due by birth, cannot be dissolved by any act of the subject. It remains perpetual, unless it is dissolved by the consent of the sovereign or by operation of law. Upon the cession of a country it passes to the new sovereign; for the sovereign power is competent to transfer it by a voluntary grant. Upon the conquest of the country it passes by operation of law to the conqueror; who as sovereign de facto has a right to the allegiance of all who are subdued by his power, and submit to the protection of his arms. Upon the abdication of the government by one prince, it passes by operation of law to him whom the nation appoints as his successor. Thus, by the conquest of England, the allegiance of all Englishmen passed to William the Conqueror; by the abdication of James II. their allegiance passed to William of Orange; and by the cession to France of the Anglo-French provinces of England, the allegiance of the natives passed to the new sovereign. These cases are plain enough upon the doctrines of municipal law, as well as upon those which are recognized in the law of nations.

But a case of more nicety and intricacy is, when a country is divided by a civil war, and each party establishes a separate and independent form of government. There, is the old government is completely overthrown, and dissolved in ruins, the allegiance by birth would seem by operation of law to be dissolved, and the subjects left to attach themselves to such party as they may choose, and thus to become the voluntary subjects, not by birth but by adoption, of either of the new governments. But where the old government, notwithstanding the division, remains in operation, there is more difficulty in saying, upon the doctrine of the common law, that their native allegiance to such government is gone, by the mere fact that they adhere to the separated territory of their birth, unless there be some act of the old government virtually admitting the rightful existence of the new. By adhering to the new government, they may indeed acquire all the rights, and be subject to all the duties of a subject to such government. But it does not follow that they are thereby absolved from all allegiance to the old government. A person may be, what is not a very uncommon case, a subject owing allegiance to both governments, ad urtiusque fidem regis. But if he chooses to adhere to the old government, and not to unite with the new, though governing the territory of his birth, it is far more difficult to affirm, that the new government can compel or claim his allegiance in virtue of his birth, although he is not within the territory, so as to make him responsible criminally to its jurisdiction. It may give him the privileges of a subject, but it does not follow that it can compulsively oblige him to renounce his former allegiance. Perhaps the clearest analogy to govern such cases is to bring them within the rule that applies to cases of conquest, where those only are bound to obedience and allegiance who remain under the protection of the conqueror.

The case of the separation of the United States from Great Britain, is perhaps not strictly brought within any of the descriptions already referred to; and it has been treated on many occasions, both at the bar and on the bench, as a case sui generis. Before the revolution, all the colonies constituted a part of the dominions of the king of Great Britain, and all the colonists were natural born subjects, entitled to all the privileges of British born subjects, and capable of inheriting lands in any part of the British dominions, as owing a common allegiance to the British crown. But in each colony there was a separate and independent government established under the authority of the crown, though in subordination to it. In this posture of things the revolution came; and the declaration of independence acting upon it, proclaimed the colonies free and independent states; treating them not as communities, in which all government was dissolved, and society was resolved into its first natural elements, but as organized states, having a present form of government, and entitled to remodel that form according to the necessities or policy of the people. The language of the declaration of independence is, that congress solemnly publish and declare, 'that these united colonies are, and of right ought to be, free and independent states; that they are absolved from all allegiance to the British crown; and that all political connexion between them and the state of Great Britain is and ought to be totally dissolved; and that as free and independent states, they have full power to levy war, conclude peace, contract alliances, establish commerce, and do all other acts and things which independent states may of right to.' It is plain that this instrument did not contemplate an entire dissolution of all government in the states; which would have led to a subversion of all civil and political rights, and a destruction of all laws. It treated the colonies as states, and simply absolved them from allegiance to the British crown, and all political connexion with Great Britain. The states so considered it: some of them proceeded to act and legislate before the adoption of any new constitution; some of them framed new constitutions; and some of them have continued to act under their old charters down to the present day. They treated the case as it was treated in England upon the abdication of James II. and provided for it, by resorting to that ultimate sovereignty residing in the people, to provide for all cases not expressly provided for in their laws.

Antecedent to the revolution, the inhabitants of the colonies, whether natives of the colonies, or of any other of the British dominions, owed no allegiance except to the British crown. There was not, according to the common law, any secondary or subordinate allegiance to the colony itself, or the government therein established, as contradistinguished from the general allegiance to the British crown. When, therefore, the declaration of independence absolved all the states from allegiance to the British crown, it was an act of one party only. It did not bind the British government, which was still at liberty to insist, and did insist upon the absolute nullity of the act, and claimed the allegiance of all the colonists as perpetual and obligatory. From this perplexing state of affairs, the necessary accompaniment of a civil war, it could not escape the notice of the eminent men of that day, that most distressing questions must arise; who were to be considered as constituting the American states, on one side, and 'the state of Great Britain' on the other? The common law furnished no perfect guide, or rather admitted of different interpretations. If, on the one side, it was said, that all persons born within a colony owed a perpetual allegiance to that colony, whoever might be the sovereign, the answer was, that the common law admitted no right in any part of the subjects to change their allegiance without the consent of their sovereign, and that the usurpation of such authority was itself rebellion; for 'nemo potest exuere patriam,' was the language of the common law. In respect to persons who were not natives, but inhabitants only, in a colony, at the time of the assertion of its independence, there was still less reason to claim their allegiance. If they were aliens, there was no pretence to say that they could be bound to permanent allegiance against their will. If they were born in England, or elsewhere in the British dominions, out of the colony, they were as little bound to permanent allegiance; because they inhabited, not as colonists, but as British subjects. In respect to both these cases, (i. e. foreigners and British subjects,) no colony, upon assuming to be an independent state, could, against their will, make them members of the state. It would be an exercise of authority not flowing from its rights as an independent state, and at war with the admitted rights of other nations, by the law of nations, to hold the allegiance of their own subjects. In order, therefore, to make such persons members of the state, there must be some overt act or consent on their own part, to assume a character; and then, and then only, could they be deemed, in respect to such colony, to determine their right of election.

Under the peculiar circumstances of the revolution, the general, I do not say the universal, principle adopted, was to consider all persons, whether natives or inhabitants, upon the occurrence of the revolution, entitled to make their choice, either to remain subjects of the British crown, or to become members of the United States. This choice was necessarily to be made within a reasonable time. In some cases that time was pointed out by express acts of the legislature; and the fact of abiding within the state after it assumed independence, or after some other specific period, was declared to be an election to become a citizen. That was the course in Massachusetts, New York, New Jersey, and Pennsylvania. In other states, no special laws were passed; but each case was left to be decided upon its own circumstances, according to the voluntary acts and conduct of the party. That the general principle of such a right of electing to remain under the old, or to contract a new allegiance, was recognised, is apparent from the cases of the Commonwealth vs. Chapman, 1 Dall. Rep. 53. Caignet vs. Pettie, 2 Dall. Rep. 234. Martin vs. The Commonwealth, 1 Mass. Rep. 347, 397. Palmer vs. Downer, 2 Mass. Rep. 179, note. S.C.. Dane's Abridg. ch. 131, art. 7, sec. 4. Kilham vs. Ward, 2 Mass. Rep. 236, and Gardner vs. Ward, 2 Mass. Rep. 244, note; as explained and adopted in Inhabitants of Cummington vs. Inhabitants of Springfield, 2 Pick. Rep. 394, and note. Inhabitants of Manchester vs. Inhabitants of Boston, 16 Mass. Rep. 230, M'Ilvaine vs. Coxe's Lessee, 4 Cranch, 209, 211(h). But what is more directly in point: it is expressly declared and acted upon, by the supreme court of New York, in the case of Jackson vs. White, 20 Johns. Rep. 313. It appears to me that there is sound sense and public policy in this doctrine; and there is no pretence to say, that it is incompatible with the known law or general usages of nations. The case of Ainslie vs. Martin, 9 Mass. Rep. 454, proceeds upon the opposite doctrine; but that case stands alone, and is incompatible with prior as well as subsequent decisions of the same court; and so it has been

Another point, which necessarily arises in the present discussion, is, whether a party, who, by operation of law, or by the express enactment of the legislature of a state, after the declaration of independence, became a citizen of the state, could afterwards, by any act of his own, flagrante bello, divest himself of such citizenship. It is clear, that during the war; however true it might be that the state by its own declaration, or by his consent, might hold him to his allegiance as a citizen, and absolve him from his former allegiance; such declaration or consent could be binding only between him and the state, and could have no legal effect upon the rights of the British crown. The king might still claim to hold him to his former allegiance, and until an actual renunciation on his part, according to the common law, he remained a subject. He was, or might be held to be, bound ad utriusque fidem regis. In an American court, we should be bound to consider him as an American citizen only; in a British court, he could, upon the same principle, be held a British subject. Neutral nations would probably treat him according to the side with which he acted at the time when they were called upon to decide upon his rights. It might well be presumed, that from various motives, numbers would change sides during the progress of the contest; some because they were compulsively held to allegiance, and others, again, from a sincere change of opinion. It is historically true, that numbers did so change sides. The general doctrine asserted in the American courts, has been, that natives who were not here at the declaration of independence, but were then, and for a long while afterwards remained, under British protection, if they returned before the treaty of peace, and were here at that period, were to be deemed citizens. If they adhered to the British crown up to the time of the treaty, they were deemed aliens; some of the cases already referred to are full to this point, and particularly Kilham vs. Ward, and Gardner vs. Ward. In respect to British subjects, not natives, who joined us at any time during the war, and remained with us up to the peace, a similar rule of deeming them citizens has been adopted. The cases in 9 Mass. Rep. 454; 2 Pick. Rep. 394; and 5 Day Rep. 169, are to this effect. The ground of this doctrine is, that each gevernment had a right to decide for itself who should be admitted or deemed citizens; that those who adhered to the states and to Great Britain, respectively, were, by the respective governments, deemed members thereof; and that the treaty of peace acted by necessary implication upon the existing state of things, and fixed the final allegiance of the parties on each side, as it was then, de facto. Hence the recognition on the part of Great Britain of our independence, by the treaty of 1783, has always been held by us as a complete renunciation on her part of any allegiance of the then members of the states, whether natives or British born. And the same doctrine has been in its fullest extent recognized in the British courts, in the case of Thomas vs. Acklam, 2 Barn. & Cress. 779. Lord chief justice Abbott, in delivering the opinion of the court on that occasion, said, that the declaration in the treaty, that the states were free, sovereign, and independent states, was a declaration that the people composing the state shall no longer be considered as subjects of the sovereign by whom such declaration is made. And in a subsequent case, Auchmuty vs. Mulcaster, 8 Dowl. & Ryl. Rep. 593; S.C.. 5 Barn. & Cress. 771; the same court held, that a native American, born before the declaration of independence, who adhered to the royal cause during the war, still retained his allegiance, and was to be deemed, not an American citizen, but a British subject. Mr. Justice Bayley, on that occasion, said, 'the king acknowledges the United States to be free, sovereign, and independent states.' 'Who are made independent? The states. Does not this mean the persons who at that time (of the treaty) composed the American states,' 8 Dowl. & Ryl. 603. And again he added, 'the treaty, &c. &c. made those persons who were at that period of time adhering to the then American government or constituted authorities, free of their allegiance to the crown of these kingdoms, and left them to adopt their allegiance to the new government.'

In Kilham vs. Ward, 2 Mass. Rep. 236, and Gardner vs. Ward, 2 Mass. Rep. 244, note, a like doctrine was avowed. The language of the court there was, that by the treaty those who by their adherence and residence had remained the subjects of the king of Great Britain on the one part, and those who by their adherence and residence were then the people of the United States on the other part, were reciprocally discharged from all opposing claims of allegiance and sovereignty. This doctrine appears to me so rational and just, and founded upon such a clear principle of reciprocity and public policy, that it is, I own, extremely difficult for me to admit that the treaty does not indispensably require that interpretation. It is true that the treaty contains no renunciation on our part, of the allegiance of any of our citizens who had adhered to the British crown; but the reason of the omission is obvious. Great Britain claimed the allegiance of all the colonists as British subjects; she renounced by the treaty that claim as to all who them adhered to the American states. We acquiesced in that result; and must, in the absence of any stipulation to the contrary, be deemed to admit the allegiance to have been retained, of all whose allegiance was not expressly or impliedly renounced.

I am compelled, however, to admit the language of this court in M'Ilvaine vs. Coxe's Lessee, 4 Cranch, 209, 214, leads to an opposite conclusion. There is no doubt that the treaty of peace does not ascertain who are citizens on the one side, or subjects on the other. That is a matter partly of law and partly of fact; but when the fact is ascertained that the party was de facto, at the time, under the allegiance of, and adhering to either government, he is to be treated as a subject of that government, and as such, a party to the treaty. What right have the American states to say that all persons shall be deemed citizens who, at any time previous to the treaty, were deemed citizens under their laws; any more than Great Britain has, to hold all persons subjects whom she had previously deemed subjects, in virtue of their original allegiance. Each party must, I think, be presumed to deal with the other upon the footing of equal rights as to allegiance, and to act upon the status in quo the treaty found them. If, however, the case of M'Ilvaine vs. Coxe's Lessee is to be deemed not an administration of local law, but of universal law and the interpretation of treaties, it overthrows the reasoning for which I contend. I cannot admit its universality of application; on the contrary, sitting in Massachusetts, I should feel myself constrained to re-examine the doctrine as applicable to that state, upon a point which affected her political rights and her soil, and which the courts of the state had the most ample jurisdiction to entertain and determine. In New York there is no decision either way; and it seems to me, therefore, that it is fit to be re-examined upon principle. I adopt the suggestion of lord chief justice Abbott in Doe ex d. Thomas vs. Acklam, 2 Barn. & Cress. 798, that the inconvenience that must ensue from considering any large mass of the inhabitants of a country to be at once citizens and subjects of two distinct and independent states, and owing allegiance to each; would, if the language of the treaty could admit of any doubt of its effect, be of great weight toward the removal of that doubt. The treaty ought to be so construed, as that each government should be finally deemed entitled to the allegiance of those who were at that time adhering to it(i).

With these principles in view, let us now come to the consideration of the question of alienage in the present case. That the father and mother of the demandant were British born subjects, is admitted. If he was born before the 4th of July 1776, it is as clear that he was born a British subject. If he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen, whether his parents were at the time of his birth British subjects or American citizens. Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth. If he was born after the 15th of September 1776, and his parents did not elect to become members of the state of New York, but adhered to their native allegiance at the time of his birth,

His parents being born British subjects, it is incumbent upon those who set up the defence, to establish, that having a right of choice, his parents elected to become American citizens. This is attempted to be deduced by operation of law, from certain resolutions and acts of the government de facto of the state of New York. As early as the 15th of September 1776, his parents joined the British troops in New York, and remained under the protection of the British arms during the war. At the close of the war his father withdrew (his mother being then dead) with the British authorities; and he continued ever afterwards under the protection and allegiance, de facto, of the British crown. So far as the acts, therefore, of the parents, manifested by a virtual adherence to the British side, go, they negative any intentional change of native allegiance. But it is said that they were bound to make their election in a reasonable time. I agree to this; but the effect of the omission to manifest an election in favour of the state of New York, was in my judgment decisive of their adhering to the allegiance of their native sovereign. But if it were otherwise, if the election to remain British subjects must be affirmatively established; still, I think, in point of law, under all the circumstances, an election by taking the British protection in September 1776, was within a reasonable time; and the case of Jackson vs. White, 20 Johns. Rep. 313, in my judgment warrants such a conclusion.

But it is said that the ordinance of the 16th of July 1776, which declares 'that all persons abiding within the state of New York, and deriving protection from the laws of the same, owe allegiance to the said laws, and are members of the state,' by necessary conclusion and operation of law made the parents of the demandant American citizens; because they were then abiding within the state and deriving protection from its laws. Now, assuming that the convention of the state of New York had plenary powers for this purpose, so as to bind a British subject not born in New York to allegiance to the state, from the mere fact of his local residence at the time (a proposition that is encumbered with many difficulties), the term 'abiding,' as here used, has never been construed to exclude the right of election of persons who were inhabitants at that period, to adhere to the old, or contract a new allegiance. The case of Jackson vs. White, 20 Johns. Rep. 313, is decisive of that.

We must then give a rational interpretation to the word, consistent with the rights of parties, and the accompanying language of the ordinance. By 'abiding' in the ordinance is meant not merely present inhabitants, but present inhabitancy coupled with an intention of permanent residence. This is apparent from the next clause of the ordinance, where it is declared, 'that all persons passing through, visiting, or making a temporary stay in the state being entitled to the protection of the laws during the time of such passage, visitation, or temporary stay, owe during the same allegiance thereto.' Their 'temporary stay' is manifestly used in contradiction to 'abiding,' and shows that the latter means permanent intentional residence. So Mr. Chief Justice Spencer, in Jackson vs. White, 20 Johns. Rep. 313, 326, considered it. He says, 'residence in this state prior to that event (the declaration of independence) imported nothing as regards the election or determination of such residents to adhere to the old or adopt the new government. The temporary stay mentioned in the resolution of the convention passed only twelve days after the declaration of independence by congress, and within five days after the adoption of the declaration by the convention of this state, clearly imports, that such persons who were resident here without any intention of permanent residence, were not to be regarded as members of the state;' they had a right to a reasonable time therefore, after the ordinance was passed, to decide whether, with reference to the new government, they would adopt a permanent residence in the state, and to become members thereof.

A similar declaration is to be found in the statute of 1777 of Massachusetts, and there the term 'abiding' has been construed not only to apply to an intention of permanent residence, but of a prospective abiding(j). The reasoning in the Commonwealth vs. Chapman, 1 Dall. Rep. 53, persuasively conducts us to a similar conclusion. This ordinance, then, cannot be deemed to dissolve the native allegiance of the parents of the demandant, unless it shall be clearly established that they intended a permanent residence in New York, and to become members of the state under the new government, anterior to their assuming British protection in September 1776.

But even admitting that his parents did elect to become citizens of New York before the 15th of September 1776, still I am of opinion that the demandant, if he was born after the British took possession of the city of New York, in September 1776, while his parents were under the protection of, and adhering to the British government de facto, was to all intents and purposes an alien born. To constitute a citizen, the party must be born not only within the territory, but within the ligeance of the government. This is clear from the whole reasoning in Calvin's Case, 7 Co. 6, a. 18, a. b.(k) Now in no just sense can the demandant be deemed born within the ligeance of the state of New York, if, at the time of his birth, his parents were in a territory then occupied by her enemies and adhering to them as subjects, de facto, in virtue of their original allegiance.

The act of the 22d of October 1779, which confiscates the estate of the parents of the demandant, throws great light upon this part of the subject; it demonstrates that they were deemed to be then adhering to the British, the enemies of the state. It begins with a preamble reciting that 'divers persons holding or claiming property within this state have voluntarily been adherent to the said king (of Breat Britain), his fleets and armies, enemies to this state and the said other United States, with intent to subvert the government and liberties of this state and of the said other United States,

This act deserves an attentive consideration on several accounts. It is apparent, upon its face, that it is not an act which purports to be an attainder of citizens of the state only, on account of their treason in adhering to the public enemies; for it embraces persons who never were, nor were pretended to be citizens; neither does it affect to confiscate the property on account of the alienage of the persons named therein, by way of escheat. The persons described as subjects of attainder are, 'persons holding or claiming property within this state,' which description equally applies to citizens and British subjects, and may include foreigners of other nations. It seems, indeed, a summary exercise of the ultimate power of sovereignty, in inflicting the penalty of confiscation upon the property of enemies, jure belli. But it demonstrates clearly the sense of the legislature, that the persons named therein were at that time voluntary adherents to the British crown, and enemies of the state; and it affords a very cogent presumption of such adherence from the time that they first came under British protection. It farth denounces such persons as enemies or traitors, who have forfeited all right to the protection of the state, and punishes them by a sentence of perpetual banishment, and makes their residence within the state a capital felony.

Such a sentence, under such circumstances, must be deemed on the part of the state, a perpetual renunciation of the allegiance of those persons, and to deprive them of the rights, and to absolve them from the duties of citizens. There can be no allegiance due where the sovereign expressly denies all protection, and compels the party to a perpetual exile. In this view of the matter, the demandant's parents were by the sovereign act of the state itself obsolved from all future allegiance, even if they had antecedently owed any to the state. In this state of things, the treaty of 1783 found the father adhering to the British crown as a native born subject.

What then is the operation of the treaty of 1783? It is clear to my mind, that the father of the demandant must be considered as a party to that treaty on the British side. I say this upon the presumption, which is not denied, that he was then adhering to the British crown; and that he was there recognized and protected as a subject owing allegiance to the British crown. In this state of things the treaty must, upon the grounds which I have already stated, be deemed to operate as an admission that he was in future to owe no allegiance to the state of New York, but he was to be deemed a British subject.

The question then arises as to what was the operation of the treaty upon his son, the demandant, who was then an infant of tender years, and incapable of any election on his own part. It appears to me, that upon principles of public law as well as of the common law, he must if born a British subject, be deemed to adhere to, and retain the national allegiance of his parents, at the time of the treaty. Vattel considers the general doctrine to be, that children generally acquire the national character of their parents (Vattel, B. 1, ch. 19. sec. 212, 219); and it is certain, both by the common law and the statute law of England, that the demandant would be deemed a British subject. The argument itself assumes that the demandant now acts officially in that character, and that ever since his arrival of age he has adhered to his British allegiance.

Upon the whole, upon the point of alienage as presented in the case, the following are my opinions under the various postures of the facts.

1. That if the demandant was born before the 4th of July 1776, he was born a British subject.

2. That if he was born after the 4th of July 1776, and before the 15th of September 1776, he was born an American citizen; and that it makes no difference in this respect, whether or not parents had at the time of his birth, elected to become citizens of the state of New York, by manifesting an intention of becoming permanently members thereof, in the sense which I have endeavoured to explain.

3. That if the demandant was born after the 15th of September 1776, when the British took possession of New York, and while his parents were there residing under the protection of, and adhering to the British crown as subjects, de facto, he was born a British subject, even though his parents had previously become citizens of the state of New York.

4. That if the demandant was born after the 15th of September 1776, and could be deemed (as I cannot admit) a citizen of the state of New York in virtue of his parents having, before the time of his birth, elected to become citizens of that state, still his national character was derivative from his parents, and was under the peculiar circumstances of this case, liable to be changed during the revolutionary war; and that if his parents reverted to their original character as British subjects, and adhered to the British crown, his allegiance was finally fixed with theirs by the treaty of peace.

5. That it was competent for the British government to insist, at all times during the revolutionary war, upon retaining the allegiance of all persons who were born or became subjects; and for the American states to insist in the like manner. But that the treaty of peace of 1783 released all persons from any other allegiance than that of the party to whom they then adhered, and under whose allegiance they were then, de facto, found. That if the demandant's father was at that time so adhering, it was a final settlement of his allegiance on the British side; and that the demandant, unless born after the 4th of July 1776, and before the 15th of September 1776, remained, to all intents and purposes, a British subject

6. That if the case of M'Ilvaine vs Coxe's Lessee, 4 Cranch, 209, should be thought to have overturned this doctrine so that it is no longer re-examinable, still that in this case the parents had a right to elect to which government they would adhere; and that a period up to the 15th of September 1776, was not an unreasonable time for that purpose; and that unless some prior, clear act of election could be shown, the adherence to the British from the 15th of September to the close of the war, afforded strong evidence to repel the presumption of any prior election to become citizens, arising from the fact of abiding in the state up to that period.

From these views, meaning to be understood to leave any disputed facts open for inquiry, (although no other facts seem in dispute, except the actual period of the birth of the demandant) my judgment would be that the demandant was, unless he was born between the 4th of July and the 15th of September 1776, an alien at the time of the treaty of 1783, and has ever since remained so. I agree to the doctrine in Dawson's Lessee vs. Godfrey, 4 Cranch, 321, that the right to inherit depends upon the existing state of allegiance at the time of the descent cast, and not merely upon a community of allegiance at the time of birth; and the same doctrine is recognized in the fullest manner in the British courts(l). If the demandant then was an alien at the time of the descent cast, he is incapable to inherit the estate in point of law.

But it has been suggested as matter of doubt, whether alienage of the demandant can be taken advantage of or rejected on the mise joined. This objection cannot in my opinion be maintained; it is laid down in the books that every thing in bar upon the merits may be given in evidence under

In this connexion it nay be well to dispose of another objection, which was much pressed at the argument. It is this: the demandant in his count alleges the seisin of Robert R. Randall, and makes title by descent to the premises as his next collateral heir on the part of his mother. At the death of Robert R. Randall, he left a brother Paul R. Randall, and a sister, Catherine Brewerton, on whom the alleged right to the lands descended in moieties, and through whom (though not from whom) the demandant deduces his title by descent, they having died without issue. The tenants offered evidence to establish that Catherine Brewerton had disposed of her right in the premises by will; and that the right of Paul R. Randall also had been transferred during his life time. Now the objection is, that this evidence is inadmissible, because it is an attempt to set up the title of third persons, to defeat a recovery in a writ of right, which is inadmissible. The cases of Green vs. Liter, 8 Cranch, 229, and Green vs. Watkins, 7 Wheat. Rep. 28, have been relied on to support this objection. Nothing is better settled in this court than the doctrine that a better title in third persons cannot be set up to defeat a recovery in a writ of right, because that writ brings into controversy and comparison the titles of the parties only; but it is perfectly consistent with this doctrine, that the tenant may show that the title set up by the demandant is in fact no title at all. One material allegation in the present count is its seisin of Robert R. Randall the ancestor; and this seisin is admitted, and indeed constitutes a part of the title of both parties in the present case. Another material allegation is, that the right to the demanded premises descended to the demandant as heir. Now, it is clear upon the general principles of pleading, that what is essential to the demandant's right, as stated in his count, must, when that right is denied by the issue, be proved by the demandant, and may be disproved by the tenant. If, therefore, the demandant be incapable of taking as heir by descent, although there be a right, that may be shown by the tenant; as if he be an alien, because it defeats the asserted descent of the title. On the other hand, if the heirship be admitted, and the right was parted with by the ancestor, or by any other person, upon whom it intermediately devolved before it could reach the demandant, that, for a better reason, may be shown, because it shows that no right or title descended at all. Both are necessary to establish the demandant's claim; there must be a right or title subsisting, capable of descent, and a capacity in the demandant to take as heir. If the ancestor has actually parted with his whole right and title to the premises by a legal conveyance, how can it be said that there remains any descendible right in him? If his right has been parted with by any intermediate heir by a legal conveyance, how can it be said to have devolved upon the demandant? The true and real distinction is this: if the demandant shows any right, as stated in his count to have descended to him from his ancestor, the tenant cannot show that there is a better right subsisting in a third person, under whom he does not claim, for that does not disprove the title of the demandant as asserted in his writ; and if the demandant's title, such as it is, is better than the tenant's, then the demandant ought to recover; but the tenant may show that the demandant has no right whatsoever by descent, for the possession of the tenant is sufficient against any person who does not show any right, or a better right. And this, as I understand it, is the doctrine in Green vs. Watkins, 7 Wheat. Rep. 28. Here, title in third persons is offered, not to prove that there is a better outstanding title, but that no right whatsoever descended to the demandant, as he claims in his count. It seems to me that it is clearly admissible.

The next point is whether the will of Catherine Brewerton was sufficient to pass her right and interest in the premises in question, so as to defeat the demandant in any respect; the premises being at the date of the will, and ever since, held adversely by the tenants in the suit.

If this point were to be decided with reference purely to the common law of England, there might be some reasons for doubt. The question whether a right of entry was under the British statute of wills devisable, seems never to have been directly decided until a recent period. There is indeed to be found in prior cases, many dicta going to affirm the doctrine that such a right of entry is not devisable. Such seems to have been the opinion of Lord Holt in Bunker vs. Cook, 11 Mod. R. 122, and of Lord Eldon in Attorney General vs. Vigor, 8 Ves. 282, as well as of other judges in former times, whose dicta are collected and commented on in Goodright vs. Forrester, 8 East's Rep. 552, 566, and 1 Taunt. Rep. 604(m). There are also dicta the other way; and at all events there is reasoning which leads to the conclusion, that in modern times the judges have been disposed to give a far more liberal construction to the statutes, and to hold that whatever is descendible is devisable. The cases of Jones vs. Roe, 3 Term Rep. 88, and Goodtitle d. Gurnall vs. Wood, Willes's Rep. 211, 3 Term Rep. 94, by Lord Kenyon, are most material. In Goodright vs. Forrester, 8 East's Rep. 552, the court of king's bench held a right of entry not devisable. But when that case came before the court of the exchequer chamber in error, lord chief justice Mansfield very much doubted that point, and the case was finally decided on another. But it is the less necessary to consider this question upon the English authorities, because it has undergone an express adjudication in the state of New

It has been said that the present case differs from that in 7 Cowen's Rep. 238 in this, that the demandant claims through, but not under Mrs Brewerton, not as her heir, but as heir of Robert R. Randall; and that the estate was not descendible to her heirs according to the known principles of the common law, as she was never seised of the premises, but to Robert's heirs, as the person last seised. That is true; but it does not alter the application of the principle of law. If Mrs Brewerton had been possessed of a reversion by descent from Robert R. Randall, and she had died before the life estate fell in, it would not have gone to her heirs, but to his. And yet there is no doubt that she might grant such a reversion, or devise it, and it would pass by her will to the devisee and thus interrupt the descent. So, if Mrs Brewerton had a right of entry in the premises, and she could devise it, it is of no consequence that it would not, if undevised, have passed to her heirs; for having the jus disponendi, when she exercise it it passes her right to her devisee, and so interrupts the descent to the heirs of Robert R. Randall. It appears to me, therefore, that as to the moiety of Mrs Brewerton it passed under her will, and that the demandant, in any view of his claim, has no title to a moiety of the demanded premises. A right of entry may well pass under the devise of an hereditament(n).

The next question is, whether the proceedings against Paul R. Randall as an absent and absconding debtor passed his right or interest to the other moiety in the lands in question to, and vested the same in the trustees appointed under the same proceedings, so as to defeat the demandant in any respect.

The answer must depend upon the true construction of the absconding debtor acts of 1786 and 1801, as compared with those proceedings. At the time of those proceedings, the premises were in the adverse possession of the tenants; and consequently Paul R. Randall had only a right of entry. And the question is, whether that right of entry passed by the statutes to the trustees; and if so, whether it did not by operation of law revest in him after all these proceedings were functi officio, his debts being paid and the surplus paid over to him.

At the common law a right of entry is clearly not grantable or assignable. The party has, in the sense of the common law, no estate in lands of which he is diseised; but this estate is said to be turned to a right, and can be recoverable only by an entry or an action. In the mean time he has not any estate in the lands, but he has merely the right to the estate. For this doctrine it is necessary to do no more than to refer to Littleton, sec. 347; Co. Litt. 214 and 345, a. b.; Preston on Estates, 20, and Com. Digest, Assignment, C. 1, 2, 3, and Grant, D.(n) Unless it shall appear that the common law has been differently construed in New York, or altered by some local statute, the same rule must be presumed to prevail there; for, by the constitution of that state, the common law forms the basis of its jurisprudence. No case has been cited in which the rule of the common law on

But it is said that by the law of New York a right of entry is attachable, and may be taken and sold on execution; and that an attachment under the absconding debtor acts of 1786 and 1801, is deemed analogous to an execution(o). It may, doubtless, well be so deemed in a general sense; but it by no means necessarily follows that because there is such an analogy, therefore, whatever may be taken in execution may be taken on such attachment, or, 12e converse. The subject of levies under execution, is expressly provided for by the statute of New York of the 31st of March 1801; and what effects or estate may be taken in execution depends upon the true construction of the terms of that act. It declares that 'all the lands, tenements, and real estate' of every debtor shall be liable to be sold upon 'execution,' &c. of the payment of any judgment against him for debt or damages. What has been the judicial construction of these words in this act, whether they include a right of entry, does not, as far as my researches extend, appear ever to have been decided. It is indeed suggested by Mr Justice Woodworth, in delivering the opinion of the court in Jackson vs. Varick, 7 Cowen's Rep. 238, 244, that the reasonable construction is, that it includes such a right; but the point was not then before the court, and he does not treat it as a point settled by adjudication. The words to which he refers in another part of the act, giving the form of the execution (sec. 9), in which it is confined to lands and tenements whereof the debtor was seised on the day when the same land became liable to the debt (by the judgment), would rather incline one to a different conclusion. And it is certain that under the statute of Westiminster 2, ch. 18, subjecting lands to execution, lands of which the debtor is disseised at the time of the judgment cannot be taken in execution(p). Be this as it may, it is certain that in New York the process upon executions, and under the absconding debtor act are not co-extensive in their reach. A judgment is not a lien upon a mere equity; and such an equity (not being an equitable estate under the statute of uses of 1787, sec. 4), is not an interest which can be sold on execution. And choses in action do not appear to be within the scope of the act respecting executions; for the language confines it to 'goods and chattels.' Yet choses in action by the express terms of the absconding debtor acts pass under the attachment; and there are various other interests which may well pass under these acts, which yet are not liable to be taken under a common execution. Several cases illustrative of this position, will be found collected in Mr Johnson's Digest, title Execution 2(o).

It appears to me, then, that the true mode, by which we are to ascertain whether a right of entry passes under the absconding debtor acts, is not by any forced analogy to the case of common executions, but by a just interpretation of the terms of the act themselves. The act of 1801 is in substance a revision of the act of 1786; no material distinction between them, applicable to the case before the court, has been pointed out at the argument; and they may therefore be treated as substantially the same.

The act of 1801 begins (section 1) by providing for cases of absconding and absent debtors, and upon proof thereof, provides that a warrant shall issue to the sheriff commanding him to attach and safely keep 'all the estate real and personal of such debtor,' and make and return a true inventory thereof. Goods, effects and choses in action are expressly declared to be within the reach of the act. It afterwards proceeds to provide for the appointment of trustees, and authorizes them (section 2.) 'to take into their hands all the estate of such debtor, whether attached as aforesaid, or afterwards discovered by them, and all books, vouchers and papers relating to the same; and the said trustees, from their appointments, shall be deemed vested with all the estate of such debtor, and shall be capable to sue for and recover the same; and all debts and things in action due or belonging to such debtor, and all the estate attached as aforesaid, shall be by the sheriff, &c. delivered to the said trustees; and the trustees, or any two of them, shall sell at public vendue after fourteen days previous notice of the time, and place, all the estate, real and personal of such debtor as shall come to their hands, and deeds and bills of sale for the same make and execute, which deeds and bills of sale shall be as valid as if made by such debtor,' &c. The act afterwards goes on to provide for the distribution of the proceeds of the sales among the creditors, and then declares, that 'the surplus, if any, after all just debts and legal charges as aforesaid are satisfied, shall be paid to such debtor or his legal representatives.' There is no provision in the act as to what shall be done in respect to any property which never came to the hands of the trustees, nor of any property remaining unsold by them when all the debts were satisfied; and the omission may easily be accounted for from the general policy of the act; for the language is, that the trustees shall sell all the estate which comes to their hands. If the point were material I should strongly incline to the opinion, that the act did not absolutely divest all right and title out of the debtor of any of his estate, which should not come to the hands of the trustees and be sold by them. But whether this be so or not, I am clearly of opinion that when once all the purposes of the trust are satisfied, and all the debts are paid; if the trustees have any legal interest or title vested in them in the estate of the debtor remaining unsold, it is subject to a resulting use for the benefit of the debtor, in the same manner as the surplus of the property sold. Suppose, before the sale all the debts should be paid, must the trustees go on to sell? Suppose all the debts are paid by a sale merely of the personal estate, is not their trust extinguished? The trustees take all the estate in the first place for the benefit of the creditors, and in the next place, they being paid, for the benefit of the debtor. Subject to the rights of the creditors, the use is in him; and by operation of law the estate revests in him, as soon as the trust for the creditors is exhausted or extinguished. This seems to me a reasonable, if not a necessary construction of the act; for it has provided for no express reconveyance by the trustees to the debtor, in any case whatsoever. It certainly could not intend to deprive him of his inheritance after all his debts were paid. And it is but just to give the act a construction favourable to the debtor, when all its other objects are accomplished. In the present case the whole proceedings afford a strong presumption that all the debts of P. R. Randall have been paid; and none are pretended to exist. His right of entry in the demanded premses was never sold by the trustees; and even if it vested in them, it afterwards by operation of law revested in him, if the trusts were all defunct and satisfied. But I go farther, and incline to the opinion that his right of entry in the demanded premises did not pass to the trustees under either of the attachments. The language of the acts of 1786 and 1801 is indeed quite broad, and extends to all the 'estate real and personal' of the debtor. But a right of entry is not, as has been already shown, an 'estate' in any just and legal sense of the word. Neither is it a 'thing in action;' for it does not depend upon any right to sue, but may be enforced by a mere entry. Indeed, a right of action and a right of entry are often used in contradistinction to each other.

The case of Smith, &c. vs. Coffin, 2 H. Bl. 444, turns altogether upon other considerations, and upon the interpretation of the words of the English bankrupt laws. Words of a very broad import are used in those laws; and the policy of them is far more extensive than that which governs the laws of New York, now under construction. A construction might be properly adopted in respect to the bankrupt laws, which would not apply to the absconding debtor acts of New York. The general policy of the common law is to discourage the grant or sale of mere rights of entry and action, with a view to suppress litigation. This policy spreads itself over many important interests; and is so fundamental, that nothing but a very clear expression of the legislative intention ought in my judgment to overthrow it. No such intention is to be found in the acts of 1786 and 1801. Can it be reasonably presumed that the legislature meant to authorise the sale of a right of entry to a purchaser? If not, was it the intention to enable the trustees to reduce the right into possession, and afterwards to sell the same? I think the former was manifestly not the intention of the legislature; and I found myself on the very words of the acts. The trustees are to sell, not all the estate of the debtor, but all the estate real and personal, as shall come to their hands; that is, as I construe the words, such as they shall reduce into possession; so that the estate may bring its uncontroverted value. But for the reasons already stated I incline also to the opinion, that it was not the intention of the legislature to pass the right of entry to the trustees so that they might be enabled to reduce it into possession.

But supposing it to be otherwise; still it appears to me there is much reason to contend that the trustees, if they took the right of entry at all, took it sub modo and exactly as Paul R. Randall held it. The legislature did not intend to invest them with a better right than he had. He had a right of entry into the estate vested in him by descent, and he might perfect his estate by an actual entry during his life time. But if he died without such entry, then the right to the estate devolved not upon his own heir, but upon the next heir in the line of descent of Robert R. Randall. In this view of the act, the trustees were bound, then, to reduce the right of Paul R. Randall into possession during his life time, if they meant to perfect their title thereto. Not having done so, the title devolved upon the next heir who claimed, not through them, but from the ancestor from whom Paul R. Randall took it. This, however, is not the main ground on which I rely, though it fortifies some of the considerations already mentioned. The main ground on which I rely is, that whatever construction of the act may be adopted in other respects, as soon as all the trusts of the assignment are executed, there arises a resulting use to the debtor, which, by operation of law, will revest all the unsold estate in him.

Upon the whole, my opinion is, that the proceedings against Paul R. Randall did not pass his right or interest in the lands in question, so as to defeat the demandant in any respect; but if they did, and all the trusts have been satisfied, there is a resulting use to him in the unsold estate.

The next question is, whether, inasmuch as the count in the cause is for the entire right in the premises, the demandant can recover a less quantity than the entirety.

This is a question somewhat involved in technical learning, and therefore requires an accurate examination of the authorities. Reasoning upon general principles and the analogies of the law, there would be little difficulty in deciding it in the affirmative; for it is deciding no more than that he who has a right, shall recover according to his right, so, always, that he does not recover more than he sues for. No injury is done to the tenant by allowing the demandant who sues for ten acres and shows a title only to one, to recover for the latter; nor if he sues for an entirety and shows title to a moiety, to recover for the latter. And it is in furtherance of justice that he should so recover; because it prevents multiplicity of suits. For if his suit should abate for this fault, (and that is the only judgment which could be pronounced,) he would still be entitled to a new action for the part to which he had shown title. The falsity of the former writ would constitute no bar.

Let us see, then, how the case stands upon authority. By the old common law, if the writ of the demandant was falsified by his own confession (for it is far from being certain that it was ever true, when found by a verdict upon the merits, after the general issue joined)(q), as to any thing or part of a thing demanded in the writ, it abated for the whole. If the matter did not appear on the face of the record, but was to be made out by facts dehors, then the tenant, if he meant to avail himself of it, was compelled to do it by a plea in abatement. Thus if he meant to avail himself of nontenure of the whole, or a part, he must plead it. But where, upon the whole record, the falsity of the writ was apparent by confession of the party, there, although the tenant had not pleaded in abatement, it was the duty of the court, ex officio, to abate the writ.

Now, at the common law, there are two sorts of writs in

Such is a brief review of the doctrine at common law in respect to the abridgement of plaints by the demandant. It is not, however, to be imagined that the old authorities are all in harmony on this subject. On the contrary, diversities of opinion seem to have existed from an early period. In Godfrey's case, 11 Co. 42, 45, the court proceeded mainly on the rule already stated. Lord Coke, however, thought that the common and true rule and difference is where a man brings an action, be the suit general or certain and particular, and he demands two things, and it appears of his own showing that he cannot have an action or better writ for one of them, there the writ shall not abate for the whole, but shall stand for that which is good. But when a man brings an action for two things, and it appears that he cannot have this writ for one thing, but may have another in another form, there the writ shall abate for all, and shall not stand for that which is good. The distinction has sound sense in it; but it is inapplicable to the present case; because here, the plaintiff has not shown upon the pleadings, that he has no title to maintain his writ for the whole(y).

Writs of precipe quod reddat then, except so far as the statute 25 Edw. 3, of nontenure aided them, stood upon the footing of the common law. In respect to them, therefore, the demandant could not abridge his claim except in cases of nontonure; and if his writ could not by his own confession be maintained for the whole for which he sued, his writ abated for the whole; and it was not material whether he sued for the entirety of a certain number of acres, and showed title to a less number; or whether he sued for the whole or a moiety, and showed title only to a less aliquot part(z). But

It may then be assumed as certain, that from the time of lord Hobart the general doctrine has been, that the demandant in any real action is entitled to recover less than he demands in his suit, whether he demands an entirety or an aliquot part, if the variance is not taken advantage of until after a verdict found on trial had. If, indeed, the matter is pleaded in abatement, it is fatal to the whole suit. So if it appears of record by the confession of the demandant in the course of the pleadings, the writ is abateable for the whole, if the tenant choose to take advantage of it before verdict. But if the parties go to trial upon the merits, and a verdict, general or special, is found of any part for the demandant, there the variance between the writ and the title, even though by the confession of the demandant upon the pleadings, is cured by the statute of amendments of 18 Elizabeth, ch. 14. This, then, being the state of the law at the time of the emigration of our ancestors, and the statute of Elizabeth being a remedial and not a penal law, and the general principle being that statutes made in amendment of the law before that period constitute a part of our common law; the court might, if it were necessary, resort to this principle to support the present suit. But such a resort is not necessary; because, in the first place, the present case is not one where the defect appears upon the confession of the party; but if at all, appears from facts proved at the trial upon the general issue. In the next place, the provisions of the judiciary act of 1789, ch. 20, sec. 32, upon the subject of amendments and jeofails, are far more extensive than the English statutes, and would justify the most comprehensive construction in favour of the demandant. And in the last place, the original nicety of the common law doctrine upon this subject, at least since the time of lord Hobart, seems to have given way (where the matter was not pleaded in abatement) to the doctrine of common sense. As far as we can trace it, it has been long established in England. Its existence in America has never been maintained by any positive decision in its favour. On the contrary, in Massachusetts, where real actions constitute the ordinary remedy for disseisins and ousters, it has been solemnly adjudged, upon a careful consideration of the English authorities, that the demandant may in all cases recover less than he sues for, whether he sues for an entirety or an aliquot part. So are the cases of Dewy vs. Brown, 2 Pick. Rep. 387; and Somes vs. Skinner, 3 Pick. Rep. 52; and the opinion of very able commentators upon this branch of the law(3). There is nothing in the case of Green vs. Liter, 8 Cranch, 229, 242, which trenches upon this doctrine. So far, indeed, as that case goes, it is favourable to the demandant.

I have not thought it necessary to go into a particular examination of the point, whether, if the variance between the demandant's title and his demand in his writ be apparent only by the finding of the jury upon the general issue, and not by the pleadings of the parties, or the confession of the demandant, the writ was abateable for the whole, upon the old doctrine of the common law. There is much reason to believe, as has been already intimated, that under such circumstances the variance was never fatal to a recovery pro tanto; and the modern doctrine in England is certainly in favour of a recovery. But whether it be so or not, independent of the statute of jeofails, that statute certainly cures the defect upon the principles already stated.

Upon the whole my opinion is, that this question ought to be certified in favour of the demandant.