CH. 3. Art. 2. mitted to live according to the nature and tenure of their respective estates and titles therein; and may grant, sell, or devise the same to whom they please, in like manner as if they were natives; and that neither they, their heirs, or assigns shall, so far as it may If an alien enrespect the said lands and the legal remedies incident thereto, emy be perbe regarded as aliens." By this provision, British subjects, in the U. their heirs, and assigns, though otherwise aliens, may hold, sue States, in time of war, for, and recover such lands here, as native citizens may, and not or(many lands in the United States are subject to this provision,) dered away but cannot recover in time of war. by the Executive, a li cense is im be sued; 10 -Institutes Domat's Civ 5. By the 11 Art. of the treaty made between France and the United States, in Feb. 1778, it is provided, that the plied, and he goods, or things moveable or immovable of American citizens may sue and in France, may be disposed of by them as they pleased, and Johns. R. 69, that their heirs might inherit them, subjects of the United 75, 117, 183. States, residing whether in France or elsewhere. There was of the French a similar provision as to the estates of Frenchmen in the Uni- Law, by Arted States. Biens meubles et immeubles, are the words in gou. the original treaty. Biens in the French law means" estates;" il and Pubbiens meubles, personal estate; and biens immeubles, real estate. lic Law. Before this treaty was made void, a few Frenchmen aliens Code enacted acquired lands in the United States under it, which they hold, 11th and 12th and will continue to hold as long as they live. And according years of the to the case above, of Sheaff v. O'Neil, they can till office French Republic. found grant them, notwithstanding the treaty has been declared void, but it is conceived they have not a legal capacity to transmit them by descent. This article involves the droit d'aubaine. Where a prisoner of war, a neutral by birth, may sue, see 8 East 287; 1 Bos. & P. 168; 2 do. 268. French Civil Kilham v. Ward jun. § 6. In this case it was held that the plt., who left this state 2 Mass. R. after April 19, 1775, went to and resided in the British terri- 236 to 268, tories till early in 1730, and then returned to the U. States, and before the treaty of peace, was not an alien, but a citizen; and that the Act of April 30, 1779, operated as no disqualification upon him, as he was not prosecuted and convicted un- 2 Wheaton's der it. Same Gardiner v. Ward jun. &c. p. 244, &c. R. 259, 278. See French 1778, & 1800. 1801, Essex, Downer. Palmer v. § 7. But in the case of Palmer and wife v. Downer, it was Nov. Term holden, that one Downer, who was taken and carried into Boston by the British, in the summer of 1775, went with them to New York, and there held an inferior office under the British government, and after the peace in 1783 settled in Nova Scotia; thereby became an alien to the United States, and that from 1775. $8. Aliens generally in regard to actions, in different sit- 4 Mass. R. uations have different rights. An alien friend may have a sect. 198.-Co. L. 129.-Dyer 2.-Litt. sec. 198.-Co. L. 129.-Salk 46.-Cro. El. 683.-7 Co. 16, Cro. Ch. 9.-Foster 186.-Stra. 1082.-Mod. 431.-1 Com. D. 415, 416. Сн. 3. 3 Burr. 1734, Ricord v. Bellingham. 6 T. R. 25 to 28, Brandon v. 1 Dal. 71.3 Dal. 1. personal action, but no real or mixt action; but an alien enemy can have neither, except he may sue as executor or administrator, or the reasons above; and Co. L. 129. So he may sue if he have a safe conduct, or a protection; Wells v. Williams. So if an alien come into the country in a time of peace, as the French protestants did, and remain after the war takes place, he may maintain a personal action; and there is no difference between an alien Christian, and an alien infidel. Plea alien enemy, Stra. 1082; Cooper's Pl. 24. § 9. So the captain of an enemy's ship may sue on a ransom bill, given in a time of war, by a British master for the redemption of his captured ship. For this contract, like a treaty with an enemy, arises out of an act of hostility, and is binding, and is not an illegal contract with him. Sued after the peace. § 10. But in a subsequent case, it was observed, that that r. Nisbitt action, Ricord v. Bellingham, was brought after the peace made in 1763. And in this after case it was said, that no alien enemy can maintain an action. This was an action on a policy on goods in an American ship, at and from London to Bayonne, brought by Brandon, an agent, who in his declaration averred the policy was effected for A, B, C, D, and E, interested in the goods. Pleas that these persons were aliens, and before the ship sailed were enemies. Replication, that they owed the plt. beyond the amount of their interest in the goods, &c. General demurrer. Judgment for the deft., on the ground an action will not lie either by or in favor of an alien enemy. No case found of such an action. In this case were cited the above and also Winch v. Kuly, 1 T. R. 619; Bristow v. Towers, Dougl. 250; Planch v. Fletcher; here it did not appear the goods were French property; Anthony v. Fisher, Dougl. 648, 649; 1 Bl. Rep. 563. See more on this head of alienage, plea in abatement, and in bar, for it, and ch. 131, alienage at large. An Englishman living in, and carrying on trade under the protection and for the benefit of a hostile state, cannot sue in England. See 1 Bos. & P. 163, 345; 8 D. & E. 548; 8 East 273; 9 East 321; 8 Bos. & P. 97. Who is an alien as to commercial purposes of a hostile character. See Chitty's law of nations, 31, &c.; 1 Bos. nel r. Hector. & P. 163; 5 Rob. R. 161; 3 East 332. 3 Bos. & P. 113, M'Con 11. Persons convicted. As to these the laws are different in different states. Wherever the law allows a man to have property, it gives him an action to recover it. And how far one convicted of a crime has property must depend on the law of the land. Every citizen has a capacity to have property till the law disables him to have it. § 12. Judge Blackstone states it as a principle, "that all CH. 3. Art. 3. property is derived from society," and is a civil right, and may be forfeited by violating the municipal law, and the state may justly resume, on this account, one's portion of property, or any part of it, this law has assigned him, and that a forfeiture is a punishment annexed by law to some illegal act or negligence. These principles are clear, but the question still 299-2 Bl. is, how far our law has extended this forfeiture; and of course, Com 267. how far it has disabled a person convicted of a crime to sue. See Forfeiture post. 13. It is clear that the English laws, in regard to forfeiture and punishments in capital cases, have never been adopted in the United States. §14. By the 3d art. sect. 6, of the Constitution of the United States, no attainder of treason can work corruption of blood or forfeiture, except during the life of the person attainted. Nor is any forfeiture, by English or American law, incurred by verdict; but only by judgment. 1 Bl. Com. Judicial. 15. By a law passed in the colony of Massachusetts A. Colony laws D. 1641, it was enacted, (among other things,) that there 1641, Death should be no forfeiture for, or upon death judicial. And there is no statute, or clause of a statute, of the United States or of Massachusetts, that respects the forfeiture of estates, real or personal, for crimes, except said law of 1641 and Massachusetts treason act of 1777, or except certain sums, or fines, or specified portions of property. § 16. Upon these principles, in Massachusetts Sup. Judi- Blackburn's cial Court, in Nov. 1795, one Blackburn was convicted of mur- case. der, and had sentence of death passed upon him for killing with a sword, and executed; and he had some property, but no inquiry was made concerning it, or the weapon as a deodand: nor is it recollected that any inquiry has ever been after the property generally, of one capitally convicted and punished in Massachusetts, or in the courts of the United States. Imp. M. P. ART. 3. How in actions several persons may be plts., and Co. L. 132.general forms in suing. §1. When several persons join in Salk 119.an action, it must be in a certain form prescribed by law. 51. Therefore the wife must be sued with her husband, whenever injured in her person or property, and the injury be of a nature to survive with her; but not if she has a separate maintenance, or if the wrong be to the damage of the husband only. Wheeler v. 2. In some cases the law gives her an action, even against Essex Nov. her husband, as where one Wheeler and wife were divorced Term 1800, from bed and board, in Massachusetts, and he was decreed to Wheeler pay her a quarterly sum. This being in arrear, she brought an action of debt against him for certain arrears, and on de Сн. 3. Co. L. 133.— 12 Mod. 603. -1 T. R 5, Corbett's case.-3 Bl. Com. 464.- Co. L. 247. 1 Rol. Rep. 41, Pigot's case. Mass. Statutes. 3 Bac. 339.2 Wils. 3. 1 Bos. & Pul. shall 219, Vignier v. Swanson. murrer, the court held the action lay, from the reason and necessity of the case. §3. So if the husband is banished or has abjured, he is civiliter mortuus, and the wife must sue as a feme sole. And so if she have a separate maintenance. But see Marshall v. Rutton, post. §4. So an infant must sue by his guardian or next friend, who is any person that will undertake his cause, in which case the deft. is called upon to answer to the minor who sues by A. B. his next friend or guardian, &c. § 5. So an ideot, one non compos mentis, or any one under guardianship, must sue by his guardian, and it must be expressed that he sues by him as guardian. § 6. If a feme covert or a minor, join in a contract with A, he must be sued alone, for it binds him only. This is the legal operation, and in this case it must be pursued. $7. There are some cases in which one may sue, on a wri346.-1 Mar- ting or contract, in which he is really interested, though not named in it. As where Grandelos and Company got insurance made, but were not named as agents in the policy, for De Vignier, their principal, Vignier, though not named at all in the policy, was allowed to sue and support his action. It was averred in the declaration, the interest was in him; though it was objected that Grandelos and Co. should have been named agents on the 28 Geo. 3. But it is understood that this policy was, as in the case of Wolf and Horncastle, in the English form, that is, as well in their own names, as for and in the name or names of all and every other person or persons, to whom the same did, might, or should appertain, in part or in all." Pearson v. 8. But it has been decided in the Supreme Court of the Lord, 6 Mass. United States and in Massachusetts S. J. Court, that where R. 81, and Greave's these words are not in the policy, as is the case of many late case. forms in the United States, one in Vignier's situation not named in the policy, cannot maintain an action upon it, but in this new form the underwriter must know who he insures. 1 Esp. 27.-1 Stra. 516, Conner v. Martyn.-3 Wils. 5. 1 Bos. & Pul. v. Russell. Tenant v. 9. If a note be made to the wife, the law vests the property solely in the husband, and he must sue it, and alone endorse it. See Baron & Feme. And her endorsement is void, Dougl. 653. § 10. If A recover money of B, to the use of C, C may 296, Farmer recover it of A, though the consideration on which B paid A be illegal; for A shall not retain the money upon any pretence, he recovered it illegally; he cannot invalidate his own recovery. If a policy be signed by an agent, the assured may declare on one as signed by the principal; or on one as signed by the agent duly authorized; the last is the best way. 2 Burr. 1188, Nickolson v. Croft. 11. The plt. cannot demand, in the same declaration, several satisfactions for the same thing; but must, pro formâ, lay the thing demanded under an alias in each count after the first. CH. 4. 2 Ld. Raym.. 841. CHAPTER IV. WHEN THE PLT. HAS A RIGHT OF ACTION AND OF WHAT KIND. (General principles. The detail in subsequent chapters.) ART. 1. 1. Some writers have made a difference on moral principles, between a right of action and right of compensation. As if certain persons pull down my house to stop a fire, or to impede an enemy, or to effect some public good, 4 Home's and do this with sufficient cause, I can have no action against them. Yet, as my loss is to the benefit of others, I have a right to a compensation from them. Sketches 22, 23, &c. &c. 3 Bl. Com. 2. A right of action accrues, 1. When one unlawfully takes personal property from the owner; 2. Unlawfully detains it from him; or 3. Does an injury to it in his possession. 119, 120, 144, So if one party violate his contract, a right of action accrues 166. to the other. So a right of action accrues to one for an injury to his body, limbs, health, reputation, or connexions, or for an unlawful restraint of his personal liberty. And the kind of action depends on the nature of the case. Cowp. 414, 419, Lindon 3. In bringing actions there is one general settled rule; that is, that the kind of action shall be brought, which will decide the right, and in which the record will shew how it is v. Hooper.— decided; for it is the very intention of the law in prescribing 1 Esp. 97, an action to decide and settle the right; and it must ever be material that the record shew how the right is decided. As if one receive my money, he is not legally entitled to keep, and the question of right cannot be completely tried in an action of assumpsit for money had and received, but may be in replevin, then replevin shall be brought. As when A takes my cattle damage feasant, and impounds them, and though I claim a right of common, I pay him money charged for the damage, I cannot have assumpsit to try the right. 1. Because on the general issue the deft. cannot be apprised of the point to which to apply his defence. 2. The right will not be decided; for it will not afterwards appear on the record. But I must bring trespass or replevin, wherein the right will come in question, and appear on the record. The deft. ought to be apprised, and generally from the record, what points he is to prepare to defend; and of course, what evidence he is same case. |