1788. being the king's proctor, had libelled in the admiralty concerning a ship and cargo, &c. whereas the ship was a wreck in the EastIndies, and that there had been a sentence in the admiralty that all was prize; and that, upon this sentence, the defendant libelled against the plaintiffs, charging them with embezzlement, &c. The Court.inclined, that the plaintiffs ought to have an opportunity to be heard, and to controvert the matter of fact; but, after hearing Dr. Lane, a civilian, and considering that, upon an appeal, the appellants would be let in to controvert the right, and to disprove the prize; and that prize, or no prize, was a matter not triable at common law, but altogether appropriated to the jurisdiction of the admiralty, the prohibition was denied." Carth. 398. 474.

"The question, prize, or no prize, is the boundary line." "The true reason why the jurisdiction is appropriated to the admiralty, is, that prizes are acquisitions jure belli, and jus belli "is to be determined by the law of nations, and not by the par"ticular municipal laws of any country."

"The jurisdiction of a Court of admiralty, generally, is limit"ed to matters arising upon the high seas, and is, in that respect, "local: but it is not so in cases of prize; for, in them, the ju"risdiction does not depend on the locality, but the nature, of "the question, which is such as is not to be tried by any rule of "the common law, but by a more general law.” Douglas.

If the validity of a sentence by a Court of admiralty in a cause of prize, is not determinable by a Court of common law; if even after an acquittal by the admiralty, declaring a ship to be no prize, an action, at common law, is not maintainable for the capture, or for any transaction in consequence of it, certainly the proceedings in the Court of Common Pleas, are not warranted by law.

We now proceed to the second principal point.

It is contended, by the counsel for the appellant," that if the "Court of admiralty had jurisdiction, yet the judgment in re"plevin being subsequent to the decree of condemnation, is an "affirmance of property in the appellant, of which, as such an "affirmance, we are bound to take notice, and thereby to be con"cluded."

As this assertion, if well founded, will be productive of very important effects, it deserves a strict investigation.

If the Court of Admiralty had jurisdiction of the original cause, that is of the capture as prize, it is equally plain, from.the books, that it had jurisdiction of all consequences, to the exclusion of every Court of common law. The action of replevin for the Endeavour and her cargo, ought not, therefore, to have been brought. The Court of Common Pleas had no jurisdiction in the case. Again; if the Court of Admiralty had jurisdiction, an injury was done to the respondent, by the determination of the Common Pleas, that the Court of Admiralty had not jurisdic

tion; and if, by the judgment in replevin, we are estopped from 1788. relieving him, though he applies to us for relief, in a legal manner, here is an injury that must forever remain without a remedy; which the law justly abhors.

These irregularities may be set right, by a due arrangement of the several parts of this cause. On the trial, in the Common Pleas, the respondent tendered two bills of exceptions. In one of them, he objected to the record, in the action of replevin, being given in evidence against him, " inasmuch as he was not a party "to the same: but the Court over-ruled the objection." On this point, their judgment, supposing they had jurisdiction, appears to have been regular. In the other, he objected to the decision of the judges, that "the Court of Admiralty had not jurisdiction."

These bills are separate. These objections are distinct. If, on either of them, an erroneous decision was given, wrong was done to the respondent, or, to express it in other words, that was dealt out to him for law, that was not law: yet, it is urged, by the appellant's counsel, that they ought to be so considered together, as utterly to deprive the respondent of all benefit by the last. (11)

The question before us, is not, whether a judgment by default in replevin, is an affirmance of property: but, whether, in the present instance, we are obliged to consider it as such an affirmance.

The judgment in replevin, was merely a piece of evidence given to the jury. It had its effect, mingled with other evidence, in the general verdict. It is impossible for us, with any respect for substantial justice, to separate it from the other evidence, shut up in that verdict, because it is impossible for us to determine, what effect the proceedings, in the Court of Admiralty, would have had upon the jury, if the judges of the Common Pleas had not condemned them by deciding, that "the Court of Admiralty "had not jurisdiction." In what inextricable confusion should we involve the merits of this cause, by regarding the judgment in replevin, as an affirmance of property in the appellant, superseding every other consideration?

The question before us, on this point, finally resolves itself into the same that was before the judges of the Common Pleas, that is, whether the judgment in replevin, was regularly admissible as evidence," inasmuch as the respondent was not a "party to it," not, what was its legal operation on the property in contest. The law is clear, that "a bill of exceptions is not to "draw the whole matter into examination again. It is only for a single point." (12)

Not

(11) If, upon a trial, a party takes several bills of exception; and, upon a writ of error, succeeds in supporting only one of them, the judgment below is to be reversed, because he was injured by this decision against him, though he was not by the rest.

(12) "Evidence is to be given in open Court, in the presence of the parties, "their attornies, the counsel, and all by-standers, and before the judge and jurs;

64

1788.

Not one case has been produced, by the learned counsel for the appellant, to show, that, upon a bill of exceptions to another point, and after a general verdict, we are bound to consider a judgment by default in replevin, brought before us, as this is, as an affirmance of property; though struck with the position, we desired that such a case, if to be found, might be produced. Not a case has been offered, that can, by any analogy, be made to maintain the inference drawn in behalf of the appellant.

The judgment of the Supreme Court affirmed.

Robinson et al. Appellants, versus The Lessee of Adams,
Respondent.

DICKINSON, J. An action of trespass of ejectment, was
brought, by the respondent, against the appellants, in the
Common Pleas, of Sussex, for a tract of land situated in that
county. The action was removed into the Supreme Court, by cer-
tiorari; and, upon the trial there, the jury found a special verdict.

The verdict states, that Thomas Bagwell was seised in his "demesne as of fee, of a moiety of à tract of land, called Long"Neck, of which the land in question is part, and, by his will, "dated the 15th day of April 1690, devised the same in manner "following: I Thomas Bagwell, &c. for my worldly estate, that the Lord hath endowed me with, do give and bequeath as followeth: Item, I make my dear wife the executrix. Item, I give 'to my two sons, namely, William and Francis, all my land at 'the Horekiln, in Sussex county, &c. to be equally divided be'tween them, and their heirs, forever. Item, this plantation, ' where I now live, &c. I give to my son John, to him, his heirs 'forever; that is, from a white oak, by the creek side, &c. to the head line. Item, I give to my son Thomas, the rest of my land here, to be equally divided, and he to have share in the 'orchard; and, likewise, my part of the cedar island, I give to Thomas and John, to be equally divided between them, to them and their heirs forever; only my two daughters, namely, Ann Bagwell and Valiance Bagwell, to have an equal share of the 'said island, so long as they keep themselves unmarried, and no longe. Item, I give to my son Thomas, two hundred acres of land, adjoining William Burton's branch, to him and his heirs forever. Itein, I give to my son John, one negro woman.

jury; each party having liberty to except to its competency, which excep"tions are publickly stated, and, by the judge, are openly and publickly al"lowed, or disallowed, in the face of the country; which must curb any secret "bias or partiality that might arise in his own breast. If, either in his direc"tions, or decisions, he mis-states the law, by ignorance, inadvertence, or design, the counsel, on either side, may require him, publicly, to seal a bill of exceptions, stating the point wherein he is supposed to crr.” 3 Blackstone, 372. Buller, $10. • Item,

Item, I give to my daughters, Ann and Valiance, two hundred 1788. ་ twenty and five acres of land, adjoining John Abbot, Thomas · Mills, and Francis Wharton, to them and their heirs forever. If any one of my aforesaid children should die, before they come to lawful age, their lands to go to the survivors; that is, if Thomas should die, before he comes to lawful age, I give his share of land where William now lives, to my daughter Eliza'beth Tilney, to her, and the lawful begotten heirs of her body, 'forever; provided Thomas have heirs before he comes to lawful age, then to him, and his heirs, forever: and, likewise, if 'William should die without heirs, to go to Francis; and if Ann 'should die without heirs, to go to Valiance; and if John should 'die before he comes to lawful age, without heirs, then his share ' of land here, where I now live, I give to my daughter Comfort Leatherberry, to her, and her lawful begotten heirs of her body, forever. Item, I give to every one of my grand-children a calf, 6 to them, and their heirs, forever; to my daughters Ann and 'Valiance, a feather bed a-piece, to them, and their heirs, forever; to my four sons, Thomas, William, Francis, and John, a gun 6 a-piece, to them, and their heirs, forever; to my son Thomas, my pistols and holsters, forever, &c. And all the rest of my personal estate, I give to my wife, and my six aforesaid chil dren, to be equally divided among them, to them, and their heirs, forever; to wit, Thomas, William, Francis, John, Ann, ' and Valiance. I set my boys at age at eighteen, and my girls at sixteen; and their estate to be divided presently after my de'cease, by my friends William Curtis, William Burton, and Wil'liam Parker, which I leave overseers over my children, &c.' "That the testator died, seised as aforesaid; that his will was "duly proved, the 16th of September 1690; that he left issue, all "his sons and daughters before mentioned; that after his death, "William, his eldest son, entered into the premises, in the decla"ration of the plaintiff mentioned, and being thereof seised, died " intestate, leaving issue William, his only son, by one venter, and "Agnes, his only daughter, by another venter; that the said "William and Agnes, after their father's death, entered into the "premises, of which he died seised, and made partition, as by "the records of the Orphan's Court appeareth, and the lands in "the declaration mentioned, were allotted to the said William, "the son, who died intestate, seised thereof, leaving two daugh"ters, Patience and Elizabeth, and a widow, Ann; that the said "Ann, as tenant in dower, and the said Patience and Elizabeth, "as heirs of the said William, entered, and were seised, &c.; "that the said Patience, and Elizabeth, died without issue; that their mother, Ann, married Benjamin Burton, and died, leaving "issue by him, two daughters, Ann, and Comfort, who entered, " and were seised, &c.; that the said Ann married Thomas Ro"binson, and died, leaving issue, the appellants; that Comfort

1788. "without issue; that Agnes, the daughter of William Bagwell, "the first, married John Adams, by whom she had issue, seve"ral children, of whom John Adams, the lessor of the plaintiff, "is the eldest son, and heir at law; that he entered and demised, "&c. upon whom the defendants entered, &c. But, whether upon the whole matter, &c. the jurors doubt, and pray the "opinion of the Court, &c. And if, &c. they find for the plain"tiff, and assess damages, to five shillings and six pence for costs, "besides the costs expended: but if, &c. they find for the de"fendant."

Upon this verdict, the Supreme Court, in April 1787, gave judgment for the plaintiff, from which judgment the defendants appealed. An habere facias possessionem was awarded to issue, for delivering possession to the plaintiff, upon security tendered,

&c.

It is stated, by the counsel on both sides, that the only question in this cause is, whether William Bagwell, the son of Thomas Bagwell, took, under his father's will, an estate in fee simple, or an estate in fee tail. If he took an estate in fee sim ple, then, by our intestate acts, that estate is vested in the appe.lants. If he took an estate in fee tail, the land in question descended to the lessor of the plaintiff, now respondent, the heir in tail.

It is time that this controversy should be finally decided, or, large as the contested property is, it may prove ruinous to all persons concerned. We are informed, that several suits have been brought, for this estate; verdicts given against one another; and contradictory opinions, of very eminent lawyers, in several parts of America, obtained. The present action has continued above fifteen years.

It is contended, by the counsel for the appellants, that William Bagwell, the devisee, took an estate in fee simple, subject to an executory devise, to Francis Bagwell, contingent on William's dying under age, and without issue.

Their argument opened with an observation, that "estates in "fee tail are no favourites of the law, and particularly ought "not to be so, under republican forms of government, so that if "there be any doubt in this case, the determination should in"cline rather towards the appellants, than the respondent." (1)

"The

(1) It is greatly to be desired, that the persons appointed by our Courts, for viewing and dividing lands among the children of intestates,, would not suffer themselves so easily to be prevailed upon to report, that the lands will not bear a division. Thus, very often, an estate is adjudged, as incapable of division, to one of the children, that might well be divided into five or six, if not more, farms, as large as many in the castern states, upon which the industrious and prudent owners live very happily. By the usual way of proceeding among us, one of the children is involved in a heavy debt, that frequently proves ruinous to him; or, if the debt of valuation is paid to the other children, it is in a number of such triking sums, and at such distances of time, one

from