Page images
PDF
EPUB
[ocr errors]

the jurisdiction as to revenue forfeitures, was intended THE to be given to the Court of the district, not where the BRIG ANn, offence was committed, but where the seizure was made. MCLAIN, And this with good reason. In order to institute and MASTER. perfect proceedings in rem, it is necessary that the thing should be actually or constructively within the reach of the Court. It is actually within its possession when it is submitted to the process of the Court; it is constructively so, when, by a seizure, it is held to ascertain and enforce a right or forfeiture which can alone be decided by a judicial decree in rem. If the place of committing the offence had fixed the judicial forum where it was to be tried, the law would have been, in numerous cases, evaded; for, by a removal of the thing from such place, the Court could have had no power to enforce its decree. The legislature, therefore, wisely determined that the place of seizure should decide as to the proper and competent tribunal. It follows, from this consideration, that before judicial cognizance can attach upon a forfeiture in rem, under the statute, there must be a seizure; for until seizure it is impossible to ascertain what is the competent forum. And, if so, it must be a good subsisting seizure at the time when the libel or information is filed and allowed. If a seizure be completely and explicitly abandoned, and the property restored by the voluntary act of the party who has made the seizure, all rights under it are gone. Although judicial jurisdiction once attached, it is divested by the subsequent proceedings; and it can be revived only by a new seizure. It is, in this respect, like a case of capture, which, although well made, gives no authority to the prize Court to proceed to adjudication, if it be voJuntarily abandoned before judicial proceedings are instituted. It is not meant to assert that a tortious ouster of possession, or fraudulent rescue, or relinquishment after seizure, will divest the jurisdiction. The case put (and it is precisely the present case) is a voluntary abandonment and release of the property seized, the legal effect of which must, as we think, be to purge away all the prior rights acquired by the seizure.

On the whole, it is the opinion of the majority of the Court that the decree of the Circuit Court ought to be affirmed.

[blocks in formation]

This Court

tion, where

one

Absent....TODD, J.

THIS was a case certified from the Circuit Court has jurisdic for the district of Vermont, in which, upon an action of party ejectment brought by the town of Pawlet to recover posclaims land un- session of the glebe lot, as it was called, in that town, der a grant from the state the opinions of the judges of that Court were opposed of New Hamp- upon the question whether judgment should be rendershire, and the ed for the Plaintiff or for the Defendants, upon a vergrant from the dict found, subject to the opinion of the Court, upon the following case stated:

other under a

state of Ver-
mont, although
at the time of
the first grant,
Vermont was
part of New
Hampshire.
A grant of

tract of land in

equal shares to 63 persons, to mongst them

be divided a

veys only a six

If one of the

"In this cause it is agreed on the part of the Plain-' "tiffs, that the lands, demanded in the Plaintiffs' decla❝ration, are a part of the right of land granted, in the a charter of the town of Pawlet, by the former governor of the province of New Hampshire, as a glebe for the church of England as by law established; and that in the year 1802 there was, in the town of Pawlet, a sointo 68 equal 66 ciety of Episcopalians duly organized agreeably to shares, with a specific appro"the rules and regulations of that denomination of priation of 56 Christians heretofore commonly known and called by shares, con- "the name of the church of England. That in the ty-eighth part same year the said society contracted with the reverend to each person. Bethuel Chittenden, a regular ordained minister of shares be de- "the Episcopal church, who then resided in Shelburn, clared to be, in the county of Chittenden, (but had not any settle"for a glebement as a clerk or pastor therein) to preach to the said society in the town of Pawlet at certain stated times, and to receive the avails of the lands in ques"tablished," tion, and that the said Chittenden thereupon gave a that share is "lease of the said land to Daniel Clark and others, "who went into possession of the premises, and still holds the same under the said lease, and that the said "Chittenden regularly preached and administered the their rights or "ordinances to the people of the said society, according "to his said contract, and received the rents and proThe church of Angland is not "fits of the said land until the year of our Lord Christ

<<-for the

"church of "England as "by law es

not holden in

trust by the grantees, nor is it a condition annexed to

shares.

THE

TOWN OF

PAWLET

v.

not receive a

church of such

"1809, when the said Chittenden deceased; and that in "1809 he said society contracted with the revd. Abra"ham Brownson, a regular ordained minister of the "Episcopal church, residing in Manchester, and offi"ciating there a part of the time, to preach to the said D. CLARK "society, a certain share of the time, and to receive the & OTHERS. "rents and profits of the said land; and that the said "Brownson has regularly attended to his duty in the a body corpo"said church, and administered ordinances in the same rate, and can"until September, 1811, about which time the said so- donation co "ciety regularly settled the revd. Stephen Jewett, who nomine. "now resides in the said town of Pawlet, and who from grant to the the time of his settlement is to receive all the tempo- a place is good ❝ralities of the said church. And it is further agreed at common law by the said parties, that the general assembly of the fee in the par"state of Vermont on the 5th of November, 1805, did son and his "grant to the several towns in this state, in which they such a grant be "respectively lie (reference being had to the act of the made by the general assembly aforesaid) all the lands granted by not be resumthe king of Great Britain to the Episcopalian church ed by the by law established (reference being had to the charter crown at its of the town of Pawlet aforesaid for the said grant of Land at compleasure. "the king of Great Britain) and that the lands, in the mon law may Plaintiffs' declaration mentioned and described, are pious uses bebe granted to "part of the lands so granted, by the king of Great fore there is a "Britain, to the Episcopalian church."

66

and vests the

successors. If

crown it can

grantee in existence competent to take

mean time the

cannot be re

the crown.

it related to

The charter of Pawlet is dated the 26th of August, it, and in the 1761, and purports to be a grant from the king, issued fee will be by Benning Wentworth, governor of New Hampshire, in abeyance. and has these words: "Know ye, that we, of our speSuch a grant "cial grace," &c. "have, upon the conditions and re- sumed at the "servations herein after made, given and granted, and pleasure of by these presents for us, our heirs and successors, do The common "give and grant, in equal shares, unto our loving sub- law, so far as "jects, inhabitants of our said province of New Hamp- the erection of "shire, and our other governments, and to their heirs churches of "and assigns forever, whose names are entered on this the Episcopal persuasion of "grant, to be divided amongst them into sixty-eight England, the "equal shares, all that tract or parcel of land situate, right to pre"lying, and being within our said province of New sent or collate "Hampshire, containing by admeasurement 23,040 es, and the "acres, which tract is to contain six miles square and corporate capacity of the "no more," &c." and that the same be and hereby is "incorporated into a township by the name of Parlet," of to take in

to such church

parsons there.

THE

&c. "To have and to hold the tract of land as above exTOWN OF " pressed, together with all," &c. "to them and their respective heirs and assigns forever," &c.

PAWLET

2.

D. CLARK

succession, was recognized and adopted in New Hampshire.

66

On the back of which grant were indorsed, "The &OTHERS. “ names of the grantees of Pawlet, viz: Jonathan Wil"lard," and others, being in all 62, then follow these words, "His excellency Benning Wentworth, esquire, "a tract of land to contain five hundred acres as mark"ed in the plan B. W. which is to be accounted two of "the within shares-one whole share for the incorpo"rated society for the propogation, of the gospel in fo"reign parts; one share for a glebe for the church of "England as by law established; one share for the first "settled minister of the gospel; one share for the bene"fit of a school in said town."

It belonged exclusively to

the crown to erect the

church, in each

that

tow,
should be
entitled to take
the glebe, and
upon such
erection to col-
late through
the governor,

[ocr errors]

a parson to the benefice. A voluntary society of Episcopalians with in a town, un

the crown,

The act of the 5th of November, 1805, is entitled, “An "act directing the appropriation of the lands in this state, heretofore granted by the government of Great "Britain to the church of England as by law esta"blished."

"Whereas the several glebe rights granted by the authorized by British government to the church of England as by "their law established, are in the nature of public re“servations, and as such became vested by the revolu"tion in the sovereignty of this state; therefore,

could not entitle them-* selves to the glebe. Where no such church was duly erected by the crown, the

"Sect. 1. Be it enacted by the general assembly of the "state of Vermont, that the several rights of land in this glebe remain-state granted under the authority of the British go❝vernment to the church of England as by law esta“blished, be and the same are hereby granted severally "to the respective towns in which such lands lie, and "to their respective use and uses forever, in manner following, to wit:

ed as an hæreditas jacens, and the state which

succeeded to the rights

of the crown, 66 might, with

the assent of the town, alien

or incumber it; or might erect an Episcopa

"It shall be the duty of the selectmen in the respective towns in the name and behalf, and at the expense, of such towns, if necessary, to sue for and recover the "possession of such lands, and the same to lease out collate, either" according to their best judgment and discretion, re"serving an annual rent therefor, which shall be paid through the into the treasury of such town, and appropriated to

lian church therein, and

directly or

vote of the

THE

"the use of schools therein, and shall be applied in the "same manner, as monies arising from school lands are, ToWN OF by law, directed to he applied."

PAWLET ཡ.

This cause was argued at last term by PITKIN, and D. CLARK WEBSTER, for the Plaintiffs, and by SHEPHERD, for the &OTHERS. Defendants.

PITKIN, for the Plaintiffs.

town indirect

ly, its parson, who would thereby be

tion capable of

tance.

succeeded to

On the part of the Plaintiffs it is contended, that the come seized of the glebe juce share in question, or the sixty-eighth part of the town ecclesie, and of Pawlet, which in the charter was granted or reserv- be a corporaed "for a glebe, for the church of England, as by law transmitting established," did not at the time of the grant pass from the inheri the king, for want of proper persons to take; that it By the revolaremained in the grantor until the revolution, when it tion, the state passed over and vested in the state of Vermont, who had, of Vermont therefore, full right to dispose of it. By the words of the all the rights charter, the tract of land therein described is to be di- of the crown vided among those whose names are entered on the char- to the unapter into 68 equal shares. The names of 63 persons are well as appromentioned, including Benning Wentworth, who has two priated glebes. By the statute shares, making for those 63 persons 64 shares, leaving four of Vermont of shares; one of which is for the incorporated society for 30th Oct. 1794, the propogation of the gospel in foreign parts; one for towns became the respective a glebe for the church of England as by law established; entitled to the one for the first settled minister of the gospel; and one for schools: making in the whole 68 shares.

propriated, as

property of the
glebes thereia
situated.
A legislative
grant cannot

It is clear, from the terms of the grant, that no per- he repealed. son named on the back of the charter, or intended as No Episcopal church in Ver

it was duly

the revolution,

grantee, except B. Wentworth, can take but one share, mont can be as the town is to be divided into 68 shares, and those entitled to the shares are to be equal. B. Wentworth is to have 500 glebe, unless acres, which are particularly designated and marked in erected by the the plan annexed to the charter, and are to be account- crown before ed two shares. This exception also proves that the or by the state other grantees are to have one share only. In no event, since. therefore, could the share in question, or the two other public shares, as they have been called. be divided among the individual persons named. Nor has this ever been the case. In the division of the town of Paw let the share intended for a glebe, was located by itself, and called the glebe lot. It was intended, in the grant, as a name; and if it could not pass as designated, for

« PreviousContinue »