Martin v. The Commonwealth of Massachusetts

James Martin v. The Commonwealth and William Bosson and others

This was a writ of error upon a judgement of the inferior court of common pleas rendered in this county in the year 1781.

The record of the judgement was certified to be as follows, viz.

"Suffolk, ss. At the inferior court of common pleas holden at Boston, within and for the county of Suffolk on the first Tusday of October, in the year of our Lord one thousand seven hundred and eighty-one. Robert Treat Paine, Esq.-- Attorney General for the Commonwealth of Massachusetts, and in their behalf, complains of William Martin late of Boston in the county of Suffolk, Esquire, and Anna Martin, his wife, and gives the court here to understad and be informed, that the said William Martin and Anna Martin since the nineteenth day of April in the year of our Lord one thousand seven hundred and seventy-five, viz. on the twentieth day of the same April, being inhabitants and members of the late Province, now State of Massachusetts Bay, levied war and conspired to levy war against the Government and People of this Province, Colong and State, and then and there adhered to the King of Great Britain his fleets and armies, enemies of the said Province, Colony, and State, and then and there did give to them aid and comfort-- and that the said William Martin and Anna Martin since the said nineteenth day of April, viz on the thirtieth day of March, in the year of our Lord one thousand seven hundred and seventy-six, without the permission of the legislative or the executive authority of this or any other of the United States of America, did withdraw themselves from this Province, Colony and State into parts and placees under the acknowledged authority and dominion of the said King of Great Britain, and into parts and places within the limits of some of the said Provinces, Colonies and United States being in the actual possession and under the power of the fleets and armies of the said King; viz. to Halifax, in the Province of Nova Scotia, and to New York in the Province, Colony and State of New York - and that siad William Martin and Anna Martin have not since returned into any of the said United States and been received as subjects- and that the said William Martin and Anna Martin, by means of all and singlar the offences aforesaid, have freely renounced all civil and political relation to each and every of the said United States and have become aliens- and the said Attorney General further alleges that the said William Martin and Anna Martin since the said nineteenth day of April, viz. on the twentieth day of the same April, were seized and possessed and entitled to be seized and possessed of, and to have and demand to his own use the following lands situate in the said county of Suffolk, viz. a lot of land in Boston aforesaid (described) and its appurtenances to him the said William Martin during his natural life, and to the said Anna Martin  and her heirs- also a lot of land lying in the south precinct of Braintree in the county of Suffolk (described) and about one acre and half an acre of land (described) and the appurtenances of the same two pieces of land to him the said William Martin during his natural life, and to the said Anna Martin and her heirs- also a piece of land lying in the said Braintree in the south precinct (described) and the appurtenances to him the said William Martin during his life, and to the said Anna Martin  and her heirs. And said Attorney General further alleges that by force of the premises and of the law of this State entitled "an act for confiscating the estates of certain persons commonly called Absentees," the above described lands and appurtenances ought to escheat, enure and accrue to the sole use and benefit of the Commonwealth aforesaid, and they accoridngly ought to be in teh posssession thereof. Wherefore the said Attorney General in behalf of the Commonwealth aforesaid, prays the advice of the Court here in teh premises and due process in this behalf to be made. This libel or complaint was filed at the inferior court of common pleas held at said Boston on the second Tuesday of July last, when and where notifications were ordered to be issued agreeable to law, and from thence the same was continued unto this term by order of Court. And now proclamations being made agreeable to law but no person appearing to defend this suit- it is therefore considered by the Court that the above described lands and appurtenances escheat, enure and accrue to the sole use and benefit of the Commonwealth. Haǒ. fac. pos. issued Feb. 5, 1781. (a)

The plaintiff in error, at Feb. term 1801, presented his petition to this court for a writ of error on the judgement aforesaid, in which he alleged that he was the only son and heir of William and Anna Martin, both deceased- and assigned errors (that being the usual practice here.) It was suggested in the petition for the writ of error that William Bosson was ter-tenant of that part of the premises which is in Boston, and Levi Thayer and Paul Thayer of those parts which are in Braintree. On the original petition on file is minuted- "Notice to the Attorney General to shew cuase why a writ of error should not issue. Writ ordered."

The writ of error issued June 27th, 1801, and was returnable to the then next term of this court, to be holden on the second Tuesday of August 1801- and the sci. fa. of the same date with the writ of error, reciting that errors had been assigned, was to James Sullivan the Attorney General on behalf of the Commonwealth, to William Bosson, Levi Thayer and Paul Thayer, the ter-tenants of the real estate described int he information, to appear at teh same term to hear and rejoin to the errors aforesaid, if they should think fit, &c.

The sci. fa. was served on the Attorney General on the 8th of July 1801, and onthe ter-tenants at, or soon after, the same time. 

The errors assigned were-

First. It doth not appear in the rendition of siad judgement, that any offence was charged upon the said Anna Martin, to whom the reversionary right of the estates aforesaid belonged, or that any fact, matter or thing was alleged against said William or Anna as by the law aforesaid is provided, or to either of them, or to any other peson or persons whomsoever, that the information or complaint was filed or suit commenced against them by the Commonwealth aforesaid, concerning the estates aforesaid, or to recover the right to and the possession thereof.

Thirdly. It doth not there appear but that some person or persons appeared and claimed the lands and estates aforesaid, mentioned and described in the siad informationa nd complaint, and shewed cause why the same should not escheat and enure to the Commonwealth aforesaid and to their use and benefit-- nor doth it appear that there was ever any trial in the premises according to law.

Fourthly. Because, by the information and complaint aforesaid, it doth appear that the said William Martin was owner of the estates aforesaid during his natural life only, and that the fee-simple thereof belonged to the said Anna Martin, then said. William's wife, who by the act or law aforesaid, referred to in said information, was not liable to have her estates confiscated as aforesaid, and against whom the process and judgment aforesaid could not by law extend.

. . .

Attorney General. The questions we wish to have determined are first, whether the rule as to not pleading in abatement after an imparlance applies, generally, to writs of error- and seondly, if the rule be so, then whether there be not an exception in favor of the Government.

The Court decided that they would hear an argument on the question whether the plea in abatement should be received.

. . .

But it is a question whether the rules, even in cases of private persons, as to pleading abatement, extend to writs of error. In writs of error a plea to the jurisdiction of this court would not be allowed, becasue the Supreme Judicial Court has, necessarily, jurisdiction in all cases of error in inferior jurisdictions. As to pleas of misnomer and the like, from the nature of them, they cannot be to a writ of error- there are no authorities to be found which are in point. The reason why I do not wish to risk the cause on a plea of alienage in bar is, that Anna Martin, the mother of the plaintiff in error, might have died since Jay's Treaty- and upon a plea in bar the judgement would be final- but if the plea in abatement is allowed to be entered an it should be determined to be bad there would be judgement of respondeat outster, and then I will plead in nullo est erratum- but I do not choose to risk the interest of the Government without first trying to plea in abatement. But admitting that the rules extend to private persons these rules do not bind the Government. The Commonwealth by their prerogative may plead this plea at any time- we have adopted, and practised upon, the maxim Nullum tempus occurrit Regi.

. . .

Additional errors- viz. first, That no such seizin of Anna Martin is alleged as comes within the statute. 

Secondly. That judgement was rendered after one continuance, when by the statute there ought to have been two continuances before judgement.

Blake. As to the first point, it does not appear that Anna Martin was so seized of the estate as to make it liable to be confiscated. The information alleges that William Martin  was seized of the freehold during his life, and Anna Martin of the remainder in fee- or that bother were seized to his use during his life with a remainder to her in fee- the substance of the allegation, as it respects her seizin, is, that she had a remainder in fee. There are no words in the statute which extend to an estate in remainder.