Den on the Dem. of Bayard v. Singleton

• Citation: 1 Mart. 48
• Court: North Carolina Supreme Court
• Decision Date: 30 November 1787
• Parties: DEN ON THE DEM. OF BAYARD and wife v. SINGLETON.

1 Mart., 48

DEN ON THE DEM. OF BAYARD and wife

v.SINGLETON.

SUPERIOR COURTS OF LAW AND EQUITY OF NORTH CAROLINA

November Term, 1787.

By the constitution every citizen has a right to a decision In regard to his property by a trial by Jury. The act of Assembly therefore of 1785, requiring the Court to dismiss on motion, the suits brought by persons, whose property had been confiscated, against the purchasers, on affidavit of the defendants that they were purchasers from the commissioners of confiscated property, is unconstitutional and void.

Aliens cannot hold land, and if they purchase, the land is forfeited to the sovereign.

An act of Assembly passed during a war and confiscating the property of an alien enemy by name is at least as effectual In vesting the property in the State, as any office found according to the practice in England.

Ejectment. This action was brought for the recovery of

a valuable house and lot, with a wharf and other appurtenances, situate in the town of Newbern.

The defendant pleaded not guilty, under the common rule.

He held under a title derived from the State, by a deed from a Superintendent Commissioner of confiscated estates.

At May Term, 1786, Nash for the defendant, moved that the suit be dismissed, according to an act of the last session, entitled an act to secure and quiet in their possession all such persons, their heirs and assigns, who have purchased or may hereafter purchase lands and tenements, goods and chattels, which have been sold or may hereafter be sold by commissioners of forfeited estates, legally appointed for that purpose, 1785, 7, 553.

The act requires the Courts, in all cases where the defendant makes affidavit that he holds the disputed property under a sale from a commissioner of forfeited estates, to dismiss the suit on motion.

The defendant had filed an affidavit, setting forth that the property in dispute had been confiscated and sold by the Commissioner of the district.

This brought on long arguments from the counsel on each side, on constitutional points.

The Court made a few observations on our constitution and system of government.

ASHE, J., observed, that at the time of our separation from Great Britain, we were thrown into a similar situation with a set of people ship-wrecked and cast on a maroon'd island—without laws, without magistrates, without government, or any legal authority—that being thus circumstanced, the people of this country, with a general union of sentiment, by their delegates, met in Congress, and formed that system or those fundamental principles comprised in the constitution,, dividing the powers of government into separate and distinct branches, to-wit: the legislative, the judicial and executive, and assigning to each, several and distinct powers, and prescribing their several limits and boundaiers: this he said without disclosing a single sentiment

upon the cause of the proceeding, or the law introduced in support of it.

CURIA ADVISARE VULT.

At May term, 1787, Nash's motion was resumed, and produced a very lengthy debate from the bar.

Whereupon the Court recommended to the parties to consent to a fair decision of the property in question, by a jury according to the common law of the land, and pointed out to the defendant, the uncertainty, that would always attend his title, if this cause should be dismissed without a trial; as upon a repeal of the present act, (which would probably happen sooner or later) suit might be again commenced against him for the same property, at the time when evidences, which at present were easy to be had, might be wanting. But this recommendation was without effect.

Another mode was proposed for putting the matter in controversy on a more constitutional footing for a decision, than that of the motion under the aforesaid act. The Court then, after every reasonable endeavor had been used in vain for avoiding a disagreeable difference between the Legislature and the Judicial powers of the State, at length with much apparent reluctance, but with great deliberation and firmness, gave their opinion separately, but unanimously for overruling the aforementioned motion for the dismission of the said suits.

In the course of which the Judges observed, that the obligation of their oaths, and the duty of their office required them in that situation, to give their opinion on that important and momentous subject; and that notwithstanding the great reluctance they might feel against involving themselves in a dispute with the Legislature of the State, yet no object of concern or respect could come in competition or authorize them to dispense with the duty they, owed the public, in consequence of the trust they were invested with under the solemnity of their oaths.

That they therefore were bound to declare that they considered, that whatever disabilities the persons under whom the plaintiffs were said to derive their titles, might justly

have incurred, against their maintaining or prosecuting any suits in the Courts of this State; yet...