Jackson ex dem. Pell v. Prevost — 2 Cai. 164

Majority

p. 164

Jackson, ex dem. Pell, against Prevost.

Headnote

Lauds descending between indictment and conviction are forfeited under the act of October, 1119, against persons adhering to the enemies of this state. If a man be known by the addition of junior to his name, an indictment against him, without that addition, is not conclusive that he was not the person indicted, if found by a special verdict that he was meant, it being matter of fact on which a collateral issue ought to be taken at the trial.

This case was submitted without argument, and came before the court, on special verdict, containing substantially the following facts:

Joshua Pell the elder, of the manor of Pelham, in the county of Westchester, yeoman, the father of the lessor of the plaintiff, was, in his lifetime, seised in fee of the premises in question; and, being so seised, he died on *the 31st day of July, 1781, leaving the lessor of the plaintiff his eldest son and heir at law. On the 10th day of November, 1780, at a court of general sessions of the peace, held for the county of Westchester, an indictment was found against Joshua Pell, of the manor of Pelham, in the county of Westchester, yeoman, under the act of the legislature of this state, passed the 22d of October, 1799, entitled “ An act for the forfeiture and' sale of the estates of persons who have adhered to the enemies of this state, and for declaring the sovereignty of the people of this state, in respect to all property within the same.” In October, 1782, judgment was pronounced against Joshua Pell, now, or late of the manor of Pelham, in the county of Westchester, yeoman, by default, he having been duly notified to appear and traverse the said indictment, pursuant to the directions of the act aforesaid. This judgment was signed on the 15th day of July, 1783: it was found Joshua Pell, the lessor cf the plaintiff, and not Joshua Pell the elder, was meant and intended by the said indictment and judgment; the lessor of the plain

p. 165

tiff always distinguishing himself as Joshua Pell, jan. The title of the state to the premises in question, was in due form of law conveyed to the defendant, on whom Joshua Pell, the lessor of the plaintiff, entered, after the death of the said Joliua Pell the elder, aud became seised thereof, as the law requires.

delivered the opinion of the court. It is submitted to this court to determine whether, from the facts found by the special verdict, the plaintiff is entitled to recove!'? Two questions appear to present themselves': 1. AYhether the judgment must be considered as standing against Joshua Pell the elder, or against Joshua Pell the lessor of the plaintiff; and, 2. The legal operation of that judgment on the premises in question. We think the judgment must be considered as standing against the lessor of the plaintiff. It is expressly found, by the special verdict, that he was the person intended, and the only variance complained of is the omission of the addition of junior to his name. Notice was given, pursuant to the directions of the act, to appear and traverse the indictment; this was enough to put the *lessor of the plaintiff on inquiry. He should have appeared and traversed the indictment, and then made the objection. It is now too late. In the case of Jackson ex dem St. Croix, v. C. & I. Sands, decided in this court, in April term, 1801, proceedings under this statute were considered analogous to convictions by bill of attainder,'and with respect to the description of the persons convicted, were construed with more liberality than ordinary judicial proceedings; that the identity of the person attainted was matter of fact, triable in a collateral issue, and that an incomplete description of him was not fatal. The finding of the jury, therefore, in the present case, must be conclusive, as to the indemnity of the person. The next question, then, will be as to the operation of such judgment

p. 166

upon the premises in question. It appears that the lessor of the plaintiff derived his title by descent from his father, who died on the 31st day of July, 1801. The indictment was found in November, 1780, but judgment was not rendered until the year 1782. which was subsequent to the time when the lessor of the plaintiff acquired his title; and the act under which these proceedings were had, declares the forfeiture to attach upon all the estate which the person had at the time of conviction. By this conviction, then, the premises became forfeited, and the title to the same vested in the people of this state, which title has since been, iu due form of law, conveyed to the defendant. We are therefore of opinion that the defendant is entitled to judgment.

Judgment for the defendant.