Eager v. Commonwealth

A writ of error must be sued within twenty years from the time when the title to it accrued, or within five years after the same disability, which existed at that time, has ceased.

This was a writ of error brought in the county of Worcester, to reverse a judgment of confiscation of the inferior Court of Common Pleas of that county, in December, 1780, rendered upon a certain complaint, " wherein the commonwealth of Massachusetts, by Levi Lincoln, Esquire, specially appointed by Robert Treat Paine, Esquire, then attorney-general, for that purpose, was prosecutor and plaintiff against * Michael Martin, late of [*183] Northborough, in said county of Worcester, gentleman, and Zilpher, his wife, in which said complaint, it was, among other things, alleged that the said Michael and Zilpher had freely renounced all civil and political relation to each and every of the United States, and had become aliens ; and that three several tracts of land therein described, lying in Northborough aforesaid, of which the said Michael and Zilpher, in her right, had been seised and possessed, ought to escheat, enure, and accrue, to the sole use, benefit, and behoof, of the late government and people of the state of Mas sachusetts Bay, now commonwealth of Massachusetts.” The writ of error was sued out by Oliver Eager, of said North-borough, and Seraphina, his wife, who was the daughter and heir of the said Michael and Zilpher, who are both alleged in the writ to be deceased. The writ issued July 31, 1806, and was return' able at the September term following. After oyer of the record complained of, The defendants filled the following plea in bar, viz.: — “ The said Abraham Munroe, for himself in his own proper person, and James Sullivan, Esquire, Attorney-General of the same commonwealth of Massachusetts, under which, by deed of bargain and sale with warranty, the said Munroe holds the lands described in the judgment, on which the same writ of error is brought, come here in Court, and defend, &c., and submitting to whatever, in this Court, in this cause, they by law ought to submit to, for plea say, that by the process and record certified on the writ of error aforesaid, by the said chief justice of the said Court of Common Pleas, and of which oyer has in this case been granted, it appears that the same judgment, on which the same writ of error is brought, was given and rendered at an inferior Court of Common Pleas begun and held at Worcester, within and for the county of Worcester, on the second Tuesday of December, being the twelfth day of said month, Anno Domini 1780, by adjournment from the first Tuesday of the same December, by a resolve of the great and general court. And the said Munroe and Sullivan further, as before, plead and say, that by an act or law of the said commonwealth of Massachusetts, made and passed by the General Court thereof [*184J * on the fifteenth day of February, in the year of our Lord 1806, it was enacted and provided that no judgment in any action or suit theretofore rendered should, from and after the passing of the same act, be reversed or avoided, for any error or defect therein, unless the writ of error, brought for recovering the same, should be sued out within twenty years next after the rendition of such judgment; and this the said Munroe and Sullivan are ready to verify; wherefore, inasmuch as it appears by the record, now on the same writ of error certified, that the judgment, on which the same writ is so brought, was rendered more than twenty years before the thirty-first day of July, 1806, and that the said writ was brought and issued on that day, the said Munroe and Sullivan pray the judgment of the Court here, whether the said Oliver Eager, and Seraphina, his wife, shall have and maintain the same writ of error for the reversal of the said judgment. J. Sullivan, A. Munroe. " And the said Oliver and Seraphina say that, by any thing by the said Sullivan and Munroe in the plea aforesaid alleged, they, the said Oliver and Seraphina, ought not to be precluded from having their writ of error aforesaid maintained; because they say that, at said Northborough, on the thirty-first day of January, 1783, the title of the said Seraphina to her said writ of error first accrued, and at that time the said Seraphina was there a minor, under the age of twenty-one years, viz., of the age of fifteen years, and no more : and that there afterwards, viz., on the nineteenth day of June, 1785, the said Seraphina being still a minor, under the age of twenty-one years, viz., of the age of eighteen years, and no more, she was lawfully married to the said Oliver, and has been ever since covert of the said Oliver to this time ; and this the said Oliver and Seraphina are ready to verify ; wherefore they pray judgment if, by any thing by the said Sullivan and Munroe above in pleading alleged, they ought to be precluded from having their writ of error aforesaid maintained, &c.” T. Bigelow * “ And the said commonwealth of Massachusetts, by [ * 185 | Barnabas Bidwell, Attorney-General, and the said Abraham Munroe, for himself in his own proper person, say that by any thing in the replication aforesaid of the said Oliver Eager, and Seraphina, his wife, alleged, they, the said Oliver and Seraphina, ought not to have their said writ of error for the reversal of the judgment aforesaid maintained, because, though true it is that the title of the said Seraphina to her said writ of error first accrued on the thirty-first day of January, 1783, and though it is also true that she was at that time under the age of twenty-one years, as in the replication aforesaid is alleged ; yet the said commonwealth and the said Munroe say, that after the title of the said Seraphina to her said writ of error had accrued as aforesaid, and after she had become of the full age of twenty-one years, the term of five years had elapsed before the suing out of the said writ of error, of the said Oliver and Seraphina, in this case, viz., at Northborough aforesaid, on the first day of March, 1794; and this the said commonwealth and the said Munroe are ready to verify; wherefore they pray judgment, if the said Oliver and Seraphina, by any thing in their replication above alleged, ought to have their writ of error maintained. B. Bidwell, A. Munroe.” To this rejoinder the plaintiffs in error demurred generally; and the defendants joined in demurrer.