Ejectment to recover a lot of land, being the first division lot
laid out to the right of the society in the Town of Pawlet. The
plaintiffs are described in the writ as
"The Society for the Propagation of the Gospel in Foreign Parts,
a corporation duly established in England within the dominions of
the King of the United Kingdom of Great Britain and Ireland, the
members of which society, are aliens, and subjects of the said
King."
The defendants pleaded the general issue of not guilty. The
general issue admits the competency of the plaintiffs to sue in the
corporate capacity in which they have sued.
If the defendants meant to insist on the want of a corporate
capacity in the plaintiff's to sue, it should have been insisted
upon by a special plea in abatement or bar. Pleading to the merits
has been held by this Court to be an admission of the capacity of
the plaintiffs to sue. The general issue admits not only the
competency of the plaintiffs to sue, but to sue in the particular
action which they bring.
In the record there is abundant evidence to establish the right
of the corporation to hold the land in controversy. It is given to
them by the royal charter of 1761 which created the Town of Pawlet.
The society is named among the grantees, as "The Society for
Propagating the Gospel in Foreign Parts, to whom one share is
given." This is a plain recognition by the Crown of the existence
of the corporation and of its capacity to take. It would confer the
power to take the land even if it had not previously existed.
The statutes of limitation of Vermont interpose no bar to the
institution by the Society for the Propagation of the Gospel,
&c., of an action for the recovery of the land in
controversy.
The plaintiffs are a foreign corporation, the members of which
are averred to be aliens and British subjects, and the natural
presumption is that they are residents abroad.
The act of the Legislature of Vermont, which prohibits the
recovery of mesne profits in certain cases, applies to the claims
to such profits by the plaintiffs in this suit, and the provisions
of the treaty of peace of 1783, and those of the treaty with Great
Britain in 1794, do not interfere with the provisions o�
that act. The law has prescribed the restrictions under which mesne
profits shall be recovered, and these restrictions are obligatory
on the citizens of the state. The plaintiffs take the benefit of
the statute remedy to recover their right to the land, and they
must take the remedy with all the statute restrictions.
The action was an ejectment, brought to recover "the
Page 29 U. S. 481
first division lot laid out to the right of said society in
Pawlet, containing fifty acres."
The cause was tried at October term, 1828, and after the
testimony on both sides was closed, the jury was discharged upon
the disagreement of the judges of the court on the several points
herein stated arising upon the facts agreed in the case and stated
by the counsel for the parties. The facts agreed were,
On 26 August, 1761, George III, then King of Great Britain, by
Benning Wentworth, Esq., Governor of the then Province of New
Hampshire, made the grant or charter to the Town of Pawlet
aforesaid, particularly describing the boundaries thereof to the
grantees, whose names are entered on said grant, their heirs and
assigns forever, to be divided to and among them into sixty-eight
shares. Among the grantees whose names are entered in the said
charter is "one whole share for the Society for the Propagation of
the Gospel in Foreign Parts." A copy of the charter was filed among
the proceedings.
And afterwards, on 16 April, 1795, Ozias Clarke executed the
counterpart of a lease to the selectmen of the Town of Pawlet, for
the time being, for and on behalf of said town, his heirs,
executors, administrators and assigns, of the tract of land
mentioned in the plaintiffs' declaration, described as follows,
to-wit, all that tract of land, situate, lying and being in Pawlet
aforesaid, known and distinguished by being the first division
fifty-acre lot, laid out to the right known by the name of the
Society, or Propagation Right, to have and to hold the demised
premises, with the privileges and appurtenances thereto belonging,
&c., from 16 April, 1795, and onwards as long as trees grow and
water runs -- his yielding and paying yearly, and at the end of
every year, the sum of seven pounds lawful money, &c. A copy of
the lease was annexed and made part of this case. And thereupon
Ozias Clarke entered into the immediate possession and occupancy of
the said lot of land, and has been ever since in the possession and
occupancy of the same, and has paid the rent aforesaid to the Town
of Pawlet, yearly and every year since, at the rate of seven
Page 29 U. S. 482
pounds, equal to twenty-three dollars and thirty-four cents, for
each year, and the Town of Pawlet has received the said sum as rent
yearly from Ozias Clarke, and has applied the same for the benefit
of schools in the Town of Pawlet. And Edward Clarke, the father of
Ozias Clarke, went into the possession of the lot in the spring of
the year 1780, it not appearing that he had purchased any title
thereto, and so continued in the possession thereof till the
defendant entered.
The case agreed contains extracts from the minutes of the
society stating the proceedings thereof at their meetings in London
relative to the land in Vermont granted by Governor Wentworth to
the society. The first meeting was held on 16 July, 1762, and these
minutes show the measures adopted by the society relative to the
lands from that period down to 1810.
The proceedings on 16 July, 1762, and 16 March, 1764, show an
acceptance of the donation and a resolution that agents be
appointed to take charge of the patents and warrants for the land,
and for such other purposes as the interests of the society may
require.
At a meeting of the society held December 17, 1773, the society
agreed that it be recommended to the society to empower Mr. Cossitt
to see that justice be done to the society in the allotment of
glebes, &c., in New Hampshire.
The society resolved to agree that a letter of attorney be sent
to the Governor of New Hampshire empowering Mr. Cossitt to act in
behalf of the society with regard to these lands, and leaving
blanks for other persons whom the governor may think proper to
insert.
On 20 May, 1785, a report was made to the society relative to
its lands, and the meeting resolved that the secretary do write to
some one or more members of the church of England in each of the
states of America in which the society has any property to take all
proper care in securing said property, and further to inform such
persons that it is the intention of the society to make over all
such property to the use of the episcopal church in that country,
in whatever manner and form, after communication with the
Page 29 U. S. 483
several governments, shall appear to be most effectual for that
purpose.
On 16 May, 1794, an application was made to the society through
the Bishop of New York by the episcopal convention of Vermont
requesting the society to convey, for the support of the episcopal
church of that diocese, the land held by the society in Vermont,
under grants from New Hampshire. The committee of the society made
a report as follows:
The committee agreed in opinion that the Bishop of New York be
assured of the society's readiness to concur in any measures which
can forward the establishment of an episcopal church. But having
considered that former applications have been made from the State
of Vermont, differing in their intentions from the present, which
were rejected by the society in May, 1790, and at the same time Mr.
Parker of Boston, when he obtained a deed from the society for the
conveyance of their lands in New Hampshire, had signified that he
should not trouble them respecting Vermont till he should know the
operation of that deed, and having never since heard from Mr.
Parker on that subject, are of the opinion that there is not
sufficient ground for the society to execute the present deed.
At a meeting of the society on 16 November, 1810, the secretary
of the society was directed to obtain the fullest and most
particular information respecting the nature and value of the
rights of the society to the lands in Vermont, with the best means
of recovering and rendering the same available.
In consequence of certain votes of the society expressive of its
intention to appropriate the avails of their lands in the State of
Vermont for the use of the protestant episcopal church in that
state, the convention of the church in that state made application
to the society for the power of attorney, and the said society
executed to the Right Rev. Alexander V. Griswold, bishop of the
eastern diocese, and the other agents therein named, the power of
attorney, dated December 5, 1816, a copy of which was annexed to
the case.
Page 29 U. S. 484
The act of the Legislature of Vermont passed October 27, 1785,
entitled an act for settling disputes respecting landed property;
an act entitled an act for the purpose of regulating suits
respecting landed property, and directing the mode of proceeding
therein, passed November 5, 1800; also, the several acts to keep
the acts last aforesaid in force for later periods than those
contained in said act; an act passed November 15, 1820, entitled an
act for the purpose of regulating suits respecting landed property,
and directing the mode of proceeding therein; and all the statutes
ever passed in Vermont for the limitation of actions, and all the
additions thereto, as found in the several statute books, including
the act passed November 16, 1819, entitled an act repealing parts
of certain acts therein mentioned; an act passed October 26, 1787,
authorizing the selectmen of the several towns to improve the glebe
and society's lands, and an act in addition thereto, passed October
26, 1789; an act passed October 30, 1794, entitled an act directing
the appropriation of the lands in the state, heretofore granted by
the British government to the Society for the Propagation of the
Gospel in Foreign Parts, and all other statutes of said state, that
either party considers applicable to this case, are to be
considered as a part of this case.
Upon the foregoing case, the opinions of the judges of the
circuit court were opposed upon the following points:
1. Whether the plaintiffs have shown that they have any right to
hold lands?
2. Whether the plaintiffs are barred by the three years'
limitation in the act of 27 October, 1785, or any other of the
statutes of limitation?
3. Whether, under the laws of Vermont, the plaintiffs are
entitled to recover mesne profits, and if so for what length of
time?
Page 29 U. S. 500
MR. JUSTICE STORY delivered the opinion of the Court, MR.
JUSTICE BALDWIN dissenting on the first point.
The original action was an ejectment, in the nature of a real
action, according to the local practice, in which no fictitious
persons intervene, and it was brought in May, 1824, to recover a
certain lot of land, being the first division lot
Page 29 U. S. 501
laid out to the right of a society in the Town of Pawlet. The
plaintiffs are described in the writ as
"The Society for the Propagation of the Gospel in Foreign Parts,
a corporation duly established in England within the dominions of
the King of the United Kingdom of Great Britain and Ireland, the
members of which society are aliens and subjects of the said
King."
The defendants pleaded the general issue, not guilty, which was
joined, and the cause was submitted to a jury for trial. By
agreement of the parties at the trial, the jury was discharged from
giving any verdict upon the disagreement of the judges upon the
points growing out of the facts stated in the record. Those points
have been argued before us, and it remains for me to pronounce the
decision of the Court.
The first point is whether the plaintiffs have shown that they
have any right to hold lands.
In considering this point, it is material to observe that no
plea in abatement has been filed denying the capacity of the
plaintiffs to sue, and no special plea in abatement or bar that
there is no such corporation as stated in the writ. [
Footnote 1] The general issue is pleaded,
which admits the competency of the plaintiffs to sue in the
corporate capacity in which they have sued. If the defendants meant
to have insisted upon the want of a corporate capacity in the
plaintiffs to sue, it should have been insisted upon by a special
plea in abatement or bar. Pleading to the merits has been held by
this Court to be an admission of the capacity of the plaintiffs to
sue.
Conard v. Atlantic Insurance
Company, 1 Pet. 386,
26 U. S. 450.
[
Footnote 2]
But the point here raised is not so much whether the plaintiffs
are entitled to sue generally as a corporation as whether they have
shown a right to hold lands. The general issue admits not only the
competency of the plaintiffs to sue,
Page 29 U. S. 502
but to sue in the particular action which they bring. But in the
present case, we think there is abundant evidence in the record to
establish the right of the corporation to hold the lands in
controversy. In the first place, it is given to them by the royal
charter of 1761, which created the Town of Pawlet. Among the
grantees therein named is "The Society for the Propagation of the
Gospel in Foreign Parts," to whom one share in the township is
given. This is a plain recognition by the Crown of the existence of
the corporation, and of its capacity to take. It would confer the
power to take the lands, even if it had not previously existed. And
the other proceedings stated on the record establish the fact that
the society had received various other donations from the Crown of
the same nature and had accepted them. Besides, the act of 1794,
under which the Town of Pawlet claims the lands, distinctly admits
the existence of the corporation and its capacity to take the very
land in controversy.
"Whereas," says the act,
"the Society for the Propagation of the Gospel in Foreign Parts
is a corporation created by and existing within a foreign
jurisdiction, to which they alone are amenable, by reason whereof,
at the time of the late Revolution of this and of the United States
from the jurisdiction of Great Britain, all lands in this state,
granted to the Society for the Propagation of the Gospel in Foreign
Parts, became vested in this state,"
&c.
And the act then proceeds to grant the right of the state so
vested in them to the various towns in which they are situated. So
that the title set up by the state is under the society, as a
corporation originally capable to take the lands and actually
taking them, and their title being divested, and vesting in the
state by the Revolution. In the latter particular the legislature
was mistaken in point of law. This Court had occasion to decide
that question in
Society for the Propagation of
the Gospel in Foreign Parts v. Town of New Haven, 8
Wheat. 464, where it was held that the Revolution did not divest
the title of the society, although it was a foreign corporation.
That case came before us upon a special verdict which found the
original charter of the society granted by William the Third,
and
Page 29 U. S. 503
its power to hold lands, &c. We do not, however, rely on
that finding, as it is not incorporated into the present case. But
we think the other circumstances sufficient,
prima facie,
to establish the right of the society as a corporation to hold
lands, and particularly the lands in question. In
Conard v.
Atlantic Insurance Company, 1 Pet. 386,
26 U. S. 450,
the Court held evidence far less direct and satisfactory
prima
facie evidence of the corporate character of the plaintiffs. A
certificate ought accordingly to be sent to the circuit court in
answer to the first question that the plaintiffs have shown that
they have a right to hold the lands in controversy.
The second point is whether the plaintiffs are barred by the
three years' limitation in the Act of 27 October, 1783, or any
other statute of limitations of Vermont.
The act of 1785 recites in the preamble that many persons have
purchased supposed titles to lands within the state and have taken
possession and made large improvements, &c. It then proceeds to
provide in the first eight sections for the allowance of
improvements, &c., to the tenants, in cases of eviction under
superior titles. There is a proviso which prevents these sections
from extending to anything future. The ninth section is as
follows:
"Provided always, and it is hereby further enacted by the
authority aforesaid, that this act shall not extend to any person
or persons settled on lands granted or sequestered for public,
pious, or charitable uses, nor to any person who has got possession
of lands by virtue of any contract made between him and the legal
owner or owners thereof."
The tenth section provides that nothing in the act shall be
construed to deprive any person of his remedy at law against his
voucher. The eleventh and last section is as follows:
"That no writ of right or other real action, no action of
ejectment or other possessory action of any name or nature soever,
shall be sued, prosecuted or maintained for the recovery of any
lands, tenements, or hereditaments where the cause of action has
accrued before the passing of this act unless such action be
commenced within three years next after the 1st of July in the
present year of our Lord, 1788. "
Page 29 U. S. 504
Now in order to avail themselves of the statute bar under this
last section, it is necessary for the defendants to show that the
cause of action of the plaintiffs accrued before the passing of
that act. To establish that, it is necessary to show that there had
been an actual ouster of the plaintiffs by some person entering
into possession adversely to the plaintiffs. No such ouster is
shown upon the facts. It is indeed stated
"that Edward Clarke, the father of the said Ozias Clarke, went
into possession of the said lot in the spring of the year 1780, it
not appearing that he had purchased any title thereto, and so
continued in possession thereof until the said defendant entered as
aforesaid,"
that is, under the lease of the town. Edward Clarke is therefore
to be treated as a mere intruder without title, and no ouster can
be presumed in favor of such a naked possession. And it is not
unworthy of notice that the fourth section of the act of 1785
provided
"That no person who hath ousted the rightful owner or got
possession of any improved estate by ouster otherwise than by legal
process shall take any advantage or benefit by this act."
So that a plain intention appears on the part of the legislature
not to give its protection to mere intruders who designedly ousted
the rightful owners.
It is also to be considered that the defendants do not assert
any claim of title under him or in connection with him, and the
other circumstances of the case lead to the presumption that he
never set up any possession adverse to the society's rights, for
the possession was yielded without objection to the town when the
act of 1794 enabled the town to assert a title to it.
The act of 1785, being then in terms applicable only to cases
where the cause of action accrued before the passing of that act,
cannot govern this case where no such cause existed. There is,
moreover, another difficulty in setting it up as a bar if the
proviso of the ninth section extends, as we think it does, to every
section of the act. It has been argued by the counsel for the
defendants that the ninth section ought to be restricted in its
operation to the eight preceding sections. But we see no sufficient
reason for this. The words are "that this act shall not extend,"
&c., not that
Page 29 U. S. 505
the prior sections of this act shall not extend, &c. It
would be strange indeed if the legislature should interfere to
prevent any improvements being paid for, in cases of lands granted
or sequestered for public, pious, or charitable uses, and yet
should allow so short a period as three years to bar forever the
right of the grantees for charity. There are good grounds why
statutes of limitation should not be applied against grants for
public, pious, and charitable uses when they may well be applied
against mere private rights. The public has a deep and permanent
interest in such charities, and that interest far outweighs all
considerations of mere private convenience. The Legislature of
Vermont has thought so, for we shall find in its subsequent
legislation that it has by a similar provision excepted from the
operation of all the subsequent statutes of limitation grants to
such uses. There is then no reason why the court should construe
the words of the ninth section as less extensive than their literal
import. The case ought to be very strong which would justify any
court to depart from the terms of an act, and especially to adopt a
restrictive construction which is subversive of public rights and
justified by no known policy of the legislature. We feel compelled,
therefore, to construe the words that "this act shall not extend,
&c.," as embracing the whole act, and carving an exception out
of the operation of the eleventh section of it.
Let us then see how far any subsequent statute of limitations of
the state applies to the case. The next statute in the order of
time is the act of 10 March, 1787, which provided as follows:
"That no writ of right or other real action, no action of
ejectment, &c., shall hereafter be sued, &c., for the
recovery of any lands, &c., where the cause of action shall
accrue after the passing of this act, but within fifteen years next
after the cause of action shall accrue to the plaintiff or
demandant, and those under whom he or they may claim. And that no
person having a right of entry into any lands, &c., shall
hereafter thereinto enter but within fifteen years after such right
of entry shall accrue."
This act contained no provision excepting grants for public,
pious, or charitable uses from its operation. But it contained
Page 29 U. S. 506
a proviso that the act should not extend to bar any infant,
person imprisoned or beyond seas without any of the United States.
The act was prospective, and applied only where the cause of action
accrued after the passing of it. This act was superseded and
repealed by another act of 10 November, 1797, which constitutes the
present governing statute of limitations of the state. It contains,
however, a proviso (sec. 13) that the act shall not be construed to
extend to or affect any right or rights, action or actions,
remedies, fines, forfeitures, privileges, or advantages accruing
under any former act of acts, clause, or clauses of acts falling
within the construction of that act in any manner whatsoever, but
that all proceedings may be had and advantages taken thereon in the
same manner as though that act had not been passed, and that the
former act or acts of limitation, clause or clauses of acts, which
are or were in force at the time of passing the act shall for all
such purposes be and remain in full force. This proviso preserved
the operation and force of the act of 1787, as to causes of action
accruing in the intermediate period between the act of 1787 and the
act of 1797.
In this view of the matter, it is important to consider the
entry of the defendant under the lease of the town on 16 April,
1795. If that entry was adverse to the title of the plaintiffs,
then the act of 1787 began to run upon it from that period, for the
cause of action of the plaintiffs then accrued to them by the
ouster.
It has been contended by the plaintiffs' counsel that the entry
of Clarke under the lease in 1795 was an entry for the plaintiffs
and in virtue of their title, and not adverse to it. We do not
think so. The Town of Pawlet claimed the right to the property not
as tenants to or subordinate to the right of the plaintiffs, but as
grantees under the state. Their title, though derivative from and
consistent with the original title of the plaintiffs, was a present
claim in exclusion of and adverse to the plaintiffs. They claimed
the possession as their own, in fee simple, and not as the
possession of the plaintiffs. A vendee in fee derives his title
from the vendor, but his title, though derivative, is adverse
to
Page 29 U. S. 507
that of the vendor. He enters and holds possession for himself,
and not for the vendor. Such was the doctrine of this Court in
B
light's Lessee v.
Rochester, 7 Wheat. 535,
20 U. S.
547-548. The lessee in the present case did not enter to
maintain the right of the plaintiffs, but of the town. He was not
the lessee of the plaintiffs, and acquired no possession by their
consent or with their privity. This entry then was adverse to any
subsisting title in them, and with an intention to exclude it. It
was therefore, in every just sense, an entry adverse to, and not
under, the plaintiffs.
The case then falls within the act of 1787, and unless the
plaintiffs are "beyond seas" within the proviso of that act, they
would, upon the mere terms of that act, be barred. The facts stated
upon the record do not enable us to say whether there is absolute
proof to that effect. The plaintiffs are a foreign corporation the
members of which are averred to be aliens and British subjects, and
the natural presumption is that they are resident abroad. If so,
there cannot be a doubt that they are within the exception. If any
of the corporators were resident in the United States, then a nicer
question might arise as to the effect of the proviso, whether it
applied to the corporation itself or to the corporators as
representing the corporation. But this it is unnecessary to devise,
and on this we give no opinion.
There is the less reason for it because, by a subsequent act
passed on 11 November, 1802 (long before the fifteen years under
the act of 1787 had run), it was provided
"That nothing contained in any statute of limitations heretofore
passed shall be construed to extend to any lands granted, given,
sequestered, or appropriated to any public, pious, or charitable
uses, or to any lands belonging to this state. And any proper
action of ejectment or other possessory action may be commenced,
prosecuted, or defended for the recovery of any such land or lands,
anything in any act or statute of limitations heretofore passed to
the contrary notwithstanding."
This act of course suspended the act of 1787 as to all cases
within its purview. That the grants to the Society for the
Propagation of the Gospel were deemed to be grants for pious and
charitable used within it is
Page 29 U. S. 508
apparent from the subsequent legislation of the state, as well
as from the objects of the institution. In November, 1819, the
legislature passed an act repealing this exception so far as
related to the rights "of lands in the state, granted to the
Society for the Propagation of the Gospel in Foreign Parts," thus
plainly declaring that they were previously protected by it. This
repeal cannot have any retrospective operation as to let in the
general operation of the statute of limitations in the intermediate
period between 1802 and 1819, but must upon principle be held to
revive the statute only in future. The present suit was brought in
1824, and the statute period of fifteen years had not then run
against the plaintiffs.
It is unnecessary to enter upon the consideration of the statute
of limitations of 1797, which contains similar provisions as to
this subject with that of 1787, and the exception of persons
"beyond seas." Charitable and pious grants were not excepted from
its operation, but that defect was cured by an act passed on 26
October, 1801, in terms similar in substance to those of the act of
1802 already referred to. The act of 1797 applies in terms only to
future causes of action, to causes of action accruing after the
passing of the act, and limits the action to the period of fifteen
years. If it had applied to the present case, it would have been
open to the same reasoning upon the exceptions which have been
already suggested in reference to the act of 1787.
Upon this second question, our opinion is that a certificate
ought to be sent to the circuit court that the plaintiffs are not
barred by the three years' limitation in the Act of 27 October,
1785, or by any other of the statutes of limitations of
Vermont.
The next point is whether, under the laws of Vermont, the
plaintiffs are entitled to recover mesne profits, and if so for
what length of time.
Previous to the year 1797, the English action of ejectment was
in use in Vermont, and the common law applicable to it, as well as
the action for mesne profits consequential upon recovery in
ejectment. By an act passed on 2 March, 1797, the mode of
proceeding was altered.
Page 29 U. S. 509
The suit was required to be brought directly between the real
parties and against both landlords and tenants, and by that and a
subsequent act the judgment was made conclusive between the
parties. It was further provided that in every such action, if
judgment should be rendered for the plaintiff, he should recover as
well his damages as the seizin and possession of the premises. This
provision has ever since remained in full force, and has superseded
in such cases the action for mesne profits. In November, 1800, an
act was passed declaring
"That in all actions of ejectment which now are or hereafter may
be brought, the plaintiff shall recover nothing for the mesne
profits except upon such part of said improvements as were made by
the plaintiff or plaintiffs or such person or persons under whom
he, she, or they hold."
The act contained a proviso that it should not extend to any
person or persons in possession of any lands granted for public or
pious uses. This act continued in force until November, 1820, when
an act passed containing the same general provision as to the mesne
profits, but the proviso in favor of lands granted to pious and
charitable uses was silently dropped, and must be deemed to be
repealed by implication.
The question, then, is whether the act of 1820 does not take
away the right to mesne profits in this case, for the state of
facts does not show that any improvements have ever been made by
the plaintiffs. The treaty of peace of 1783, the British treaty of
1794, do not apply to the case. The right of action, if any, of the
plaintiffs, did not accrue until the year 1795. The entry then made
by the defendants was the first ouster, and at that time, in the
action of ejectment, the plaintiffs could not have recovered any
damages, but would have been driven to an action of trespass for
mesne profits. The legislature was competent to regulate the remedy
by ejectment, and to limit its operation. It has so limited it. It
has taken away by implication the right to recover mesne profits,
as consequential upon the recovery in ejectment, and given the
party his damages in the latter action. It has prescribed the
restrictions upon which mesne profits shall be recovered, and these
restrictions are
Page 29 U. S. 510
obligatory upon the citizens of the state. The plaintiffs have
not, in this particular, any privileges by treaty beyond those of
citizens. They take the benefit of the statute remedy to recover
their right to the lands, and they must take the remedy with all
the statute restrictions.
Upon this last question our opinion is that it ought to be
certified to the circuit court that under the laws of Vermont the
plaintiffs are not entitled to recover any mesne profits, unless so
far as they can bring their case within the provisions of the third
section of the Act of 15 November, 1820.
This cause came on to be heard on the transcript of the record
from the Circuit Court of the United States for the District of
Vermont, and on the points or questions on which the judges of the
said circuit court were opposed in opinion, and which points or
questions were certified to this Court for its opinion, in
pursuance of the act of Congress for that purpose made and
provided, and was argued by counsel, on consideration whereof, it
is ordered by this Court, that it be certified to the said circuit
court, on the points aforesaid, that this Court is of opinion, 1.
that the plaintiffs have shown that they have a right to hold
lands, and especially the lands in controversy; 2. that the
plaintiffs are not barred by the three years limitation in the act
of 27 October, 1785, or by any other of the statutes of limitations
of Vermont, and 3. that under the laws of Vermont, the plaintiffs
are not entitled to recover any mesne profits unless so far as they
can bring their case within the provisions of the third section of
the Act of Vermont of 15 November, 1820. All of which is
accordingly hereby certified to the said Circuit Court of the
United States for the District of Vermont.
[
Footnote 1]
Comyn's Dig. Abatement, E. 16;
Mayor of Stafford v.
Bolton, 1 Bos. & Pull. 40; 1 Saunders 340; Williams'
Notes; 6 Taunt. 467; 7 Taunt. 546.
[
Footnote 2]
See the case of
Sutton Hospital, 10 Co. 30b;
Comyn's Dig. Franchise, F. 6, 10, 11, 15; Capacity, A. 2.
See
also Proprietors of Kenebeck Purchase v. Call, 1 Mass. 482,
484;
Mayor of Stafford v. Bolton, 1 Bos. & Pull. 40; 1
Saunders 340, note by Williams.
