Platner v. Sherwood , 1822 N.Y. LEXIS 157 ( 1822 )

The Chancellor.

The question raised by the demurrer, is, whether the plaintiff, upon his conviction and attainder of felony, in June, 1799, and consequent imprisonment under the judgment of imprisonment in the state prison for life, became, in contemplation of law, civilly dead, so as to have caused his estate to descend to his heirs. It is admitted, that if his estate had become once vested in his heirs, by reason of his attainder, a subsequent pardon did not restore it to him.

The statute of the 29th of March, 1799, enacted, that in all cases where any person should be duly convicted or attainted of any felony, thereafter to be committed, and adjudged to imprisonment for life, in the state prison, he should be deemed and taken to be civilly dead, to all intents and purposes, in the law. But the bill, in this case, states, that the plaintiff was convicted of a felony, charged in the indictment to have been committed before the 29th of March, and, ‘ therefore, the statute does not reach the case.

This same point arose, incidentally, in respect to this same conviction, in the case of Troup v. Wood, (4 Johns. Ch. Rep. 228.) and I was there induced to think, upon the authority of Lord Coke, that every person attainted of felony, was accounted, in law, civiliter mortuus. It was not a necessary or very material point in that case, and I did not pursue the subject to the extent I should have done, if it had been then, as it is now, the direct and material point in issue. I have, likewise, since, had the benefit of a full and able discussion, and of a diligent and accurate research, particularly on the part of the plaintiff, respecting this very unusual question of law.

Lord Coke says, in the passage I formerly referred to, (Co. Litt. 130 a.) that “ besides men attainted in a praemunire,, every person that is attainted of high treason, petit treason, or felony, is disabled to bring any action, for he is extra legem positus, and is accounted, in law, civiliter mortuus.” But, if we compare this passage with other parts of the Institutes, we shall perceive, that this dictum is not to be taken in the full latitude of expression. It is true, that a person attainted of felony, is disabled to bring an action, but it is not true, that he is dead in law, like a person who enters into religion, and becomes a monk professed, according to the example given by Littleton. Lord Coke, in another place, seems to confine the civil death to persons professed, or who have abjured the realm, or been banished by statute or process of law. (Co. Litt. 132 a. b. 133 a.) and he says, in his third Institute, (3 Inst. 215.) that there is a great diversity between an attainder of treason or felony, and an entry into religion. He that is at-tainted of treason or felony, has capacity to purchase lands, to him and his heirs, which he cannot do who en- / ’ ters into religion.

The strict civil death seems to have been confined to the cases of persons professed, or abjured, or banished the realm, and I do not find that it was ever carried further by the common law.

The consequences of the civil death, are illustrated in the case of entry into religion. The executor and the administrator administered upon the personal estate, as in the case of natural death, and the land descended to the heir. (Litt. s. 200. Co. Litt. 132 b.) But even here the fiction was not carried throughout, for the wife was not to be endowed until his natural death, and the person who was professed was entitled to sue en autre droit. (Ibid.)

A person attainted of felony, and adjudged to imprisonment for life, may have been regarded as dead in law, sub modo, but he certainly was not “ deemed and taken to be civilly dead, to all intents and purposes in the Jaw,” until the act of 1799.

In the case of Bannister v. Trussel, (Cro. Eliz. 516.) it was, upon consideration of the old cases, adjudged in the C. B., in 38 and 39 Eliz., that if an action of debt be brought against a person attainted of felony, he could not plead the attainder in bar, but should be put to answer. Lord Coke (3 Inst. 215.) referred to that case, and held, that if judgment be given against a man in treason or felony, his body was his own until execution' ; and if he was slain before execution, without authority of law, his wife might have an appeal; for, notwithstanding the attainder, he remained her husband, and his body, after such attainder, might likewise be taken in execution, at the suit of a subject. The reason stated in Brooke, and after-wards by Foster, (tit. Appeal, pl. 5. Foster’s Crown Law, 62, 63.) why the heir could not also have his appeal, was, because there was the corruption of blood, by reason of the attainder, between the party and his heir, which dissolved all relations grounded on consanguinity. This corruption of blood was taken away with us by the statute of the 21st of February, 1788, and the ground of that disability in the heir did not exist.

The doctrine of the case in Croke was recognised and confirmed by the K. B., in Ramsay v. Macdonald. (1 Wils. 217. Foster’s Crown Law, 61.) He was charged in a civil suit while under sentence of death for treason; and Sir John Strange, the attorney general, moved for his discharge from that process, and it was urged by him, though said “ not to be strongly insisted on,” that a person, under attainder, was cimliter mortuus ; but Mr. Henley, in answer, denied it, because, if he was slain before execution, his wife was entitled to her appeal, and he was likewise enabled to purchase lands to him and His heirs, and might be charged in civil suits, and compelled to plead to the merits, according to Trussel’s case, already cited. The Court held, that the law had been long settled, that an at-tainted person was liable to civil suits.

In short, as Foster observes, (Ibid. p. 62, 63.) a person attainted is not absolutely at the disposal of the crown» He is so, for the ends of public justice, and for no other purpose. Until execution, his creditors have an interest in his person for securing their debts, and he is himself under the protection of the law, and to kill him, without warrant of law, is murder. He was, indeed, disabled to sue in his own name, but if beaten or maimed, while under attainder, or if a woman was ravished, while under attainder, and a pardon afterwards ensued, the party injured might maintain an action, or appeal, as the case might require, for the intermediate injury.

A person who is regarded in law as alive for so many purposes, cannot, surely, have been deemed dead, to the extent of transmitting his estate by descent to his heir.. The act of the 26th of March, 1796, declared, that no conviction, or attainder of felony, should work a forfeiture of estate, and, as there was no corruption of blood, or forfeiture of property, consequent on the attainder, and the party could be sued in a civil suit, and as the matrimonial contract continued, and, also, his capacity to purchase lands to himself and his heirs, it could not well be held, prior to the act of March, 1799, that an attainder of felony, or imprisonment in pursuance of it, did, eo instanti, devest Mm of his estate, and enable it to descend to his heirs, as in the case of natural death. The penal consequences of attainder, must be necessary deductions, severely required by the premises ; and as there was to be no forfeiture of estate, the law would not be consistent with itself, if it held the party alive, for the purpose of being sued and charged in execution, and yet dead as to the purpose of transmitting Ms estate to his heirs.

The case of Coppin v. Gunner, (2 Ld. Raym. 1572. 1 Barnard. K. B. 339.) is very applicable to a case like this, where there is no forfeiture; and it shows decidedly the sense of the K. B., in 1730, that the party attainted of felony was not deemed dead so as to pass his estate. The defendant had been convicted under the black act of 9 Geo. I. ch. 22. Having received sentence of death, a motion was made for leave to sue him for debt, it being alleged he had an estate fallen to him, and there was a proviso in the act that no attainder for any offence made felony by it should work corruption of blood, or forfeiture of estate. The motion was granted, the plaintiff undertaking not to sue out execution against the body, as there was an application for his transportation.

I am, accordingly, of opinion, upon the reason and authority of the cases, that the demurrer be overruled, and that the defendant, Sherwood, within six weeks, answer the bill, and that no costs of this demurrer be charged by either party as against the other.

Order accordingly.