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Fisher v. Harnden.

claim, or demand in any lands supposed to have been forfeited in consequence of the attainder or conviction of any person for any act or crime committed during the late war, and which had therefore been granted to any person by the commissioners of forfeitures.

Before this act can be brought to bear on any case, there must have been an actual forfeiture by the attainder or conviction of some person, and a sale by the commissioners, of some property supposed to have belonged to such attainted and convicted person, but in fact claimed by some one else. The terms, “ supposed to have been forfeited,” cannot without violence, when taken in connexion with those which follow, receive any other meaning.

They refer to the estate which had been sold where there might be room for supposition and mistake, but not to the fact of attainder or conviction, which must ever be a matter of record and notoriety; and about which, therefore, there could be no doubt or mistake. Thus the lands of A. might easily and innocently be sold by the commissioners under a supposition of their having belonged to, and of their having been forfeited by, the conviction of B. Such cases no doubt must have occurred, and it was no more than right that the parties thus aggrieved should be barred, if, after a reasonable time, they neglected to assert their rights. But in the case before the Court there has been no forfeiture by the conviction of any person, which alone would have been a complete defence, but only a sale by the commissioners, and of course the defendant has altogether failed in making out one essential fact to constitute a case for the application of the limitation prescribed by this law.

It has not been pretended that the parties are barred by the general act of limitations, nor do any facts appear on the special verdict, to authorize such conclusion. It was supposed by the plaintiff's counsel, that the defendant might rely on the

Fisher v, Harnden.

alienage of his lessors, but although this ground was not taken, yet as the question is presented by the facts which are found, and lest it may be supposed to have been overlooked, the Court has no hesitation in saying, that as Donald Fisher held these lands at the time of the treaty of London, in 1794, neither he nor his heirs, devisees, nor assigns can, so far as respects this property, or the legal remedies ineident thereto, be regarded as aliens.

Upon the whole, then, as the judgment rendered against Donald Fisher was coram non judice, and therefore void, and as neither the title of the limitation act which has been relied on, nor its preamble, nor its enacting words, apply to a case where there has been no valid attainder or conviction, the Court is of opinion, that judgment must be entered for the plaintiff, but that the writ of habere facias possessionem be stayed until the further order of the Court.

T. A. EMMETT and P. A. Jay for the plaintiff.
C. D. COLDEN and E. WILLIAMS for the defendants.

Nole.-This cause was carried up to the Supreme Court, and the judgment of the Circuit Court reversed. It was very fully argued above, but the Court gave no opinion on the points here decided. They held that it should have appeared, as the lessors of the plaintiff were aliens, that their ancestor held the lands, that is, that the title was in him at the date of the treaty of 1794. This fact was not found by the verdict, and although nothing was found to show that he had parted with his title, the Court refused to presume that it was then in him. (Vide 1 Wheaton's Rep. 300.)

CIRCUIT COURT OF THE UNITED STATES,

NEW-YORK, APRIL TERM, 1813, AT NEW-YORK.

( How. BROCKHOLST LIVINGSTON, Associate Justice of the Sa. BEFORE

preme Court.
Hon. WILLIAM P. VAN NESS, District Judge.

PETERS ET AL. v. PREVOST,ET AL.

An injunction to stay proceedings in ninety-two suits in ejectment, where the

parties, pleadings, title, and testimony, were the same in each suit, until one or more could be tried, the remainder to abide the event, refused. A court of law can afford the necessary relief in such a case, if it be proper, by

a consolidation rule. Whether in such a case a perpetual injunction would be granted against pro

ceeding in the remaining actions after the defendants had obtained successive verdicts in several of the suits? Quere. The Court, having full power to issue commissions to take testimony abroad, when sitting as a Court of Common Law, will not entertain any proceedings for such a purpose, on its equity side.

This was a bill filed to obtain an injunction against proceeding in certain actions of ejectment commenced in this Court.

The bill stated that the defendants had commenced ninetytwo suits in ejectment against the complainants, and that the plamtiff, the lessors of the plaintiff, the defendants, and the declarations filed, were the same in each cause. That the title of the plaintiffs and of the defendants in each cause was the same.

Peters v. Prevost.

That one of the causes being at issue, an application had been made to the common law side of the Court to consolidate them, and that the whole should abide the event of one or more suits, such as the defendants might choose to try; but that the Court were of opinion that such an order could not, according to the strict rules of the common law, be made. The bill further stated, that the complainant had been unable to make the regular application at the last term for a commission to examine a foreign witness, in consequence of not knowing his name, and that the defendants had since refused to consent to the issuing of such commission. The prayer was for an injunction to stay all proceedings until the further order of the Court.

D. B. OGDEN and N. PENDLETON for the complainants.
T. A. EMMET and E. WILLIAMS for the defendants.

LIVINGSTON, J. This is a bill to enjoin the defendants from proceeding in certain actions of ejectment, on the ground that the parties litigating are the same; that the title of the plaintiffs and of the defendants in each cause is the same, and that the same testimony in each will be relied on. The prayer for an injunction is general, to stay all the actions until the further order of the Court; but the real object of the complainants appears to be to have the proceedings enjoined in some of them only, and to permit the plaintiffs at law to go on in so many as may be deemed necessary fairly to try and decide the right of the parties claiming title to the lands in question, and that all the other actions abide the event of those which may be directed to be tried.

This is neither a bill of peace, which generally lies where a right has been repeatedly tried and decided at law, to restrain further litigation, nor is it an application to have the rights of the parties determined upon issues directed by the

Peters v. Prevost.

Court to save the trouble and expense of suing a number of persons separately; but it is a prayer to consolidate actions, which it is not denied that the plaintiffs have a clear right to prosecute and have decided at law, merely on a suggestion that a multiplicity of trials will thereby be avoided, and much expense saved. The attempt to obtain the interposition of a Court of Equity in this way is novel, and of the first impression ; although instances of the same nature must very frequently have occurred in this state in prosecuting actions of ejectment. The cases which have been decided on bills in the nature of bills of peace, bear but little analogy to the present application. If this be a proper case for consolidation, a Court of law is competent to afford relief as well in this as in other cases, and the objections which lie to its interference in this way, must apply here as well as there. What right, it may be asked, has this Court to say, that one verdict in ejectment shall be final, when either party has a right to bring another action for the same land; and that it shall be final, not only in a particular action, but that nearly one hundred other actions shall be governed by it? and if two, three, or any other certain number, are permitted to be tried, who can say but that. the verdicts may be so variant or contradictory as to leave the title as doubtful as before? In one point of view the present application is quite unnecessary. If the complainants mean to be satisfied with one verdict, and it should be against them, they can easily prevent the expense of further trials by confessing judgments in the other suits; but this must be left optional with them, as it must be with the plaintiffs at law, whether they will submit to one verdict against them, this Court not having a right to impose such terms on either of them.

These actions of ejectment must originally have been prosecuted against the different occupants of different parcels of land, and although the landlords may have made themselves defendants in all of them, it cannot deprive the plaintiffs of the

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