author: Selden, J.

text:
    Ludlam, Executrix, &c., v. Ludlam et al.

    In the absence of any law of the United States governing the particular case, the question, whether one born out of the United States is a citizen, is to be determined by the common law, as it existed, irrespective of English statutes, at the adoption of the Federal Constitution.
    At common law, the duty of allegiance and the rights of citizenship passed by descent, the child following the condition of the father; so that, if a father, out of the realm, was within the allegiance-of the king, his child by an alien wife was born a subject of the British crown.
    The statute (25 Edw. III, ch. 2), upon this point, is a declaratory, and not an enabling act.
    Whether a citizen is capable of renouncing his allegiance without the consent of }iis government, or may when his government has not prohibited it, quaere.

    But, if he may, he cannot divest himself of his citizenship until he becomes the citizen of another government; and this he cannot do until he arrives at full age.

      Beld, accordingly, that, where a citizen of the United States went tó Peru at the age of eighteen years, with the intention of indefinite continuance there for the purpose of trading, but took no steps to be naturalized in Peru, or to indicate an intention of a permanent change of domicil, otherwise than as before stated, his child, born to him in Peru of a wife the native of that country, is a citizen of the United States.
    A finding, as of a fact, that the father voluntarily “expatriated” himself, with the intention of becoming a permanent resident of Peru, regarded as immaterial.
    Such a child may, it seems, be subject to a double allegiance, and, upon arriving at his majority, may elect to retain the one and repudiate the other; but, until such election, he retains all the rights of citizenship in both countries, though discharging its duties in but one.

      Appeal from the Suprepie Court. The original plaintiff, Anna R. Ludlam, and the defendant Maximo M. Ludlam, were the only children of Richard L. Ludlam, who died at New York in April, 1838, when the said Anna R. was less than one, and her brother Maximo less than seven years of age. The other defendants were the testamentary guardians of the said Anna R. and Maximo M., during their minority. ' As such, they had received the price of certain lands in the city of New York belonging to said infants, as heirs of an uncle, and which were sold by order of the Supreme- Court. Soon after her arrival at the age of twenty-one years, Anna R. Ludlam commenced this action in the Supreme Court against the testamentary guardians and her brother Maximo, claiming the whole of the proceeds of the land, on the ground that her brother, having been born in Peru, South America, was an alien, incapable of. inheriting real estate in this State, and that she was the sole heir-at-law of her deceased uncle. Maximo answered the complaint, claiming that he was, at the time of his uncle’s decease, a citizen of the United States, capable of inheriting real estate, and that, on the death of their uncle, he and the plaintiff became seised, as tenants-in-common, of one-sixth part of the lands whereof such uncle died seised, subject to the life estate of Rebecca Ludlam, and that each was entitled to one-half of the proceeds of the sale thereof, then in the hands of the testamentary guardians. The guardians admitted the facts stated in the complaint, except as to the respective rights of the plaintiff and Maximo Ludlam, and prayed for the direction of the court in that respect. The cause was tried at the Kings County Circuit in July, 1859, before Mr. Justice Lott, without a jury. It was proved on the trial that Richard L. Ludlam was born in this country in the year 1804; that he left the country in the year 1822 “for the purpose of seeking employment and bettering his condition,’’ his intention being to go to Cadiz, and thence to Lima, in Peru; that he made a .direct passage, and arrived in Peru a few months after leaving the United States, where he remained until November, 1836, when he left on his return to New York, where he arrived in April, 1837, in poor health, and died in April, 1838. In 1828, at Lima, he married the present plaintiff, who was a native of Chili, but had removed in childhood to Peru, and had after-wards remained there. The only children of this marriage, except such as died in infancy in this country and in Peru, are the defendant Maximo M. Ludlam, who was born at Lima in ¡November, 1831, and the original plaintiff in this action, Anna E. Ludlam, who was born in New York in December, 1837. There was no evidence showing the object or design of Eichard L. Ludlam in leaving this country, beyond what is above stated, or that he ever took any steps to become a citizen of any other country. It appeared that, after his arrival at Lima, he acted, as a clerk until about the time of his marriage, when he went into business on his own account as á tobacco merchant, in copartnership with a Mr. Flint, and continued in such business until 1836, when the business was closed, and both partners came together to the United States. While in Peru, he corresponded with his brothers, sister and mother, remaining in the United States, but the communication was not frequent,. and nothing in his letters referred to a return. His widow, who was examined as a witness on the trial in behalf of her daughter, then plaintiff, testified that her husband always intended to return to this country to educate his children; that that object, and his ill health, were the reasons which induced him to return; that she was never in the United States, or out of South America, until she came with him and with their children in 1836-37, and was never naturalized. The findings of fact, by the judge, and his conclusions of law, so far as they bear upon the question in controversy, were as follows:
    “That the plaintiff was born within the United States, and that the defendant, Maximo M. Ludlam, was born at Lima, Peru, South America, and was never naturalized as a citizen of the United States, nor ever qualified as required, by law, of resident aliens, to take or hold lands within the State of New York.
    “ That Eichard L. Ludlam, father of Maximo M. Ludlam, and of the plaintiff, in the latter part of the year 1822, voluntarily expatriated himself from the United States, where he was a natural horn citizen, for the purpose of becoming a permanent resident of Lima, in Peru, South America, and of establishing his permanent domicil there, and, in a few months thereafter, did become such permanent resident in such last named place, and there established his permanent domicil.
    “ That in the year 1828, he there married a natural born citizen of Chili, who never became a citizen of the United States, and of that marriage the plaintiff and said Maximo were born, as afore stated.” •
    And, as conclusions of law, upon the facts so found, the j ustice determined:
    “ That the plaintiff is a natural born citizen of the United States,
    “ That the defendant, Maximo M. Ludlam, is not a natural born citizen of the United States, but, at the time of the death of his uncle, Thomas R Ludlam, was an alien, incapable, by law, of taking land or real estate within the State of Mew York.
    “ That the lands and real estate mentioned in the complaint, and whereof Thomas R. Ludlam died seised, upon his death, descended, as to one undivided one-sixth part thereof, to the plaintiff, in fee, as the representative of her father, to the exclusion of said defendant, Maximo M. Ludlam, and that the plaintiff is entitled to the whole of the proceeds thereof.”
    . The defendant, Maximo M. Ludlam, excepted to the several conclusions of fact and law above stated.
    Judgment was entered in accordance with those findings, and Maximo M. Ludlam appealed to the Supreme Court, at general term, when the judgment was reversed and a new trial ordered. (31 Barb., 486.) From that judgment the plaintiff brought this appeal, stipulating that final judgment be entered against her, in case the judgment of the general term should be affirmed.

      John K. Porter, for the appellant.

      Daniel Lord, for the respondent.
   Selden, J.

Our statute concerning tenures provides that “ every citizen of the United States is capable of holding lands within this State, and of taking the same by descent, devise or purchase.” (1 R. S., 719, § 8.) Aliens can neither take nor hold such lands except under certain conditions not claimed to exist here. (Id., §§ 15, 16, 17.)

The question, who are citizens of the United” States, must depend upon the laws of the United States. In 1790, Congress passed an act declaring that the children of citizens of tlje United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens.” (1 U. S. Statutes at Large, 103.) In 1795 the following provision was substituted for that previously existing, viz.: “ The children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States.” (1 U. S. Statutes at Large, 445, §§ 3, 4.) In 1802 Congress repealed the law of 1795, and enacted that, “ The children of persons who now are or have hern citizens of the United States, shall, though born out of the limits and jurisdiction of the United States, be considered as citizens of the United States.” This provision continued unchanged, until 1855, when an act was passed, declaring both the wife and children, in a case like the present, to be citizens. (10 Stat. at Large, 604.)

As the act of 1802 did not embrace the children of those who might thereafter become citizens, and as the father of the defendant, Maximo Ludlam, was born after 1802, and died before 1855, this case does not come within the provisions of any of the statutes of the United States on the subject. The same question is presented, therefore, in this respect, which arose in Lynch v. Clark (1 Sandf. Ch. R., 583), where it is, I think, very clearly shown .that, in the absence of any statutei or any decisions of our own courts, State or National, on the subject, the question of citizenship can only be determined by reference to the English common law, which, at the time of the adoption of the Constitution of the United States, was, to a greater or less extent, recognized as the law of all the States by which that Constitution was adopted.

This conclusion does .not involve the question very earnestly debated soon after the organization of the government, whether the common law of England became the law of the Federal Government, on the adoption of the Constitution. (1 Tucker’s Blackstone, appendix E, p. 378; 1 Story’s Com. on the Const., § 158, and note 2; Madison’s Rep. to the Virginia Legislature, 1799,1800; Instructions of Virginia to her Senators in Congress, January, 1800; Speech of Mr. Bayard on the Judiciary, 2 Benton’s Debates, 616; 1 Kent’s Com., 331, 343.) It only assumes, what has always been conceded, that the common law may properly be resorted to in determining the meaning of the terms used in the Constitution, where that instrument itself does not define them. Judge Tucker, at the close of his essay against the common law powers of the Federal Government, says: “We may fairly infer, from all that has been said, that the common law of England stands precisely upon the same footing in the Federal Government and the courts of the United States, as such, as the civil and ecclesiastical laws stand upon in England, that is to say, its maxims and rules of proceeding are .-to be adhered to, whenever the written law is silent, in cases of similar or analogous nature." (1 Tucker’s Blackstone, app., E, p. 429.) The legislature of Virginia, in its instructions to the Senators of that state, in Congress, in January, 1800, directing them “to oppose the passage of any law founded on, or recognizing the principle, that the common law of England is in force under the government of the United States,” expressly excepted “ from such opposition, such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government.” The Constitution uses, repeatedly, the terms, “ citizen of the United States,” but does not define them. Our statute, above referred to, uses the same terms, and also leaves them undefined. It becomes necessary for the court to decide whether the defeudant, Maximo M. Ludlam, under the circumstances of his birth and life, is a citizen of the United States within those terms. No case, so far as we are informed, presenting a similar question, has ever been before the courts in this country, state or national, and we are compelled, therefore, to exercise' an arbitrary discretion, or to resort for precedents and information to English writers, and the decisions of English courts.

The question presented here, having been definitely disposed of, so far as related to England, by act of Parliament in the 7th year of Queen Anne, if not as early as the 25th of Edward III, no decisions on that subject since the earliest of those dates, of the courts of that country, based exclusively upon the prior common law, are to be found; and it is only by resorting to a more remote period in .the history of the common law that we obtain any light to guide us to a decision of that question.

It seems to have been adjudged by the Court of King’s Bench, as early as 7 Edw. III, that the children of British subjects, in the service of the king, though born beyond the sea, were capable of inheriting; and this was confirmed by Parliament in the 17th year of the same reign. (Dyer, 224., note 29.) An effort was made at the same Parliament to obtain a further declaration or enactment on the subject, which failed, but was renewed a few years afterwards, when the statute of 25 Edw. III, ch. 2, was passed, which, among other things, provides, that children, “which henceforth shall be born-out' of liegeance of the king, whose fathers and mothers, at the time of their birth, be and shall be, at the faith and liegeance of the king of England, shall have and enjoy the same benefit and advantage, to have and bear inheritance within the same liegeance, as the other inheritors aforesaid, in time to come, so also that the mothers of such children passed the sea by the license and will of their husbands.”

It is essential to our present inquiry to ascertain whether this statute was introductory of a new rule, or simply declaratory of the previous law. There are considerations of weight on both sides of this question. The preamble shows that the act was passed to complete what was left undone by the previous Parliament in 17 Edw. III, and the action of the latter Parliament was purely declaratory, as it simply confirmed what had been decided by the King’s Bench ten years before. It also shows that the application to both parliaments was for the purpose of resolving a “ doubt,” and that the King, in order that the law on the subject be “ declared and put in certain,” caused Parliament “to deliberate” upon this doubt. The application to Parliament was by “ petition,” and of course came from the people; and it is well known how tenaciously the people of England, at that day, adhered to the rules of the common law, and how unwilling they were that Parliament should change them. It seems clear to me, therefore, that what was desired and expected from Parliament at this time was, not any new law, but simply a declaration removing the doubts which obtained as to the existing law.

On the other hand, the terms of the statute would seem to imply that the introduction of a new rule was intended. It is limited to children “henceforth" to be born, and provides for their inheritance “in time to come.” It not unfrequently happens, however-, that statutes are passed in language importing a new enactment, which afterwards prove to be merely confirmatory of the prior law. It is perhaps not easy to determine, therefore, from the statute itself, taken in connection with its history, whether it was in truth an enabling or a declaratory act. Principles, however, have, since the statute, been thoroughly settled, which in my view are decisive of the question.

The subject of alienage was very elaborately examined in Calvin's case. (7 Coke, 1, 6 James I.) Among the principles settled in that case, and which-have remained unquestioned since, are these:

1. That natural allegiance does not depend upon locality or place; that it is purely mental in its nature, and cannot, therefore, be confined within any certain boundaries; or, to use the language of Coke, that “liegeance, and faith and truth, which are her members and parts, aré qualities of the mind and soul of man, and cannot be circumscribed within the predicament •of ubi:' (P. 76.)

2. That it is not sufficient, in a plea of alienage, to aver that the plaintiff was born out of the kingdom, or out of the jurisdiction of the king, but every such plea must aver that the plaintiff is not of the allegiance of the king; and judgment was given for the plaintiff in Calvin's case, “ for that the plea in this case doth not refer faith or liegeance to the king indefi- ' nitely and generally, but limiteth and restraineth faith and liegeance to the kingdom.” (Id., p. 10, a.)

3. That allegiance and protection (i. e., the rights and the duties of citizenship), are reciprocal, the one being the consideration for the other. (Id., p. 6, a.)

4. That a British subject, although residing abroad, still' owes allegiance to the king of England.

It seems to me to result of necessity from these principles, that the children of English parents, though born abroad, are, nevertheless, regarded by the common law as natural born citizens of England. The decision upon the plea in Calvin's case, which was merely repeating what was decided in Cobble-dike's case, as early as the reign of Edw. I. (See Calvin's case, p. 9 b.), necessarily implies that a child may owe allegiance to the king (i. e., not merely local or temporary, but natural and permanent allegiance), although born out of the king’s dominions ; and also, that this was a broad general rule, not confined to a few exceptional cases, because, if it was an exception, the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin's cases; but the exception must have been pleaded.

How, upon what ground can allegiance in such cases be claimed? If natural allegiance, or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend ? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being, then, the nature of permanent allegianee, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If, then, the child of English parents, though born abroad, is, subditus natus, a born subject of the king, he must also be a born citizen of the kingdom. Allegiance and citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long, therefore, as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, “owe similar allegiance, and be entitled to the corresponding rights of citizenship.

This conclusion needs no other support than the principles laid down in Calvin’s case. It is sustained, however, by a remark in Brooke’s Abridgement, Title Denizen 6, which is as follows: “Nota, per Hussey, chief justice. H a man be born beyond sea, whose father and mother are English, he should be inheritable before the statute, but the statute makes this clear.” This opinion of Hussey is in no manner weakened by the case of Hyde v. Hill (Cro. Eliz., 3), where it is said to have been held upon evidence, that, “if baron and feme, English, go beyond sea without license, or tarry there after the time limited by tha license, and have issue, that the issue is an alien, and not inheritable, contrary to the opinion of Hussey,” because it is plainly implied in this that, if the parents were abroad, with license, their issue would inherit. The not being inheritable, therefore, was a penalty for the supposed offence of going abroad without license. When it came to be held, as it was later in the reign of Elizabeth (Dyer, 296, a.), and has been ever since, that it was not an offence to depart the kingdom without license, the penalty of course did not attach. What is meant by the words “ contrary to the opinion of Hussey,” does not distinctly appear. The case, as it is stated, tends, impliedly, to support the note in Brooke. The court must have had in view the common law, as the statute was not mentioned, and has nothing to do with the question of license. The right to go abroad, without license, appears to have been secured to the subject by the magna charta of King ' John; and how a license could afterwards have been supposed necessary, it is not easy to discover. The language is, “It shall be lawful, henceforth, for any one to go out of our kingdom, and return, safely and securely, by land or by water, saving his allegiance to us, unless in time of war, by some short space, for the good of the kingdom.” (Ch. 49.) Much more might be urged, but enough has, I think, been said to make it quite clear, both upon principle and authority, that the statute of 25 Edward III was merely declaratory of the common law. The reasoning here adopted is intended only to apply to cases where the fathers and mothers were natural born subjects of the king of England.

We have next to inquire what was rule of the common law in respect to children born abroad, when the father was a subject and the mother an alien. The earliest direct authority on this subject, to which we have been referred, is from Brooke’s Abridgement, Title Denizen, 21, where it is said that, “ if an Englishman pass the sea and marry an alien woman, by this the wife is of the king’s allegiance, and the issue will inherit,” for which reference is made to the Abridgement of Assizes. That the author speaks here of the common law, and not of the statute, is plain, from the reason he gives, viz.: that the wife owes allegiance in consequence of her marriage.

The question was very ably discussed in the case of Rex v. Eaton (Litt., 23.) An Englishman residing in Poland, as a merchant, married- a Polish woman, ahd had children born there; and the question was, whether they were aliens. It was held that they were not. Several of the judges, it would seem, who or how many does not appear, held that the words “ fathers and mothers,” in 25 Edw. III, should be taken distributively, and to mean fathers or mothérs. This ground, however, was not taken by the counsel who argued the case. He cited Bracton and Fleta in support of the position that, by the common law, where both father and mother were English, their children, born abroad, were not aliens; and argued that it could make no difference though the mother were alien, as it was a settled maxim of the common law that the issue follows the condition of the father.

We have the opinion of Lord Hale upon this question, in Collingwood v. Pace. (1 Vent., 413, 422.) He says: “Although an English man marry an alien beyond the seas, and having there issue, the issue will' be denizens, as hath been often resolved; ” and that he put this upon the common law ground, that the issue take the condition of the father, without regard to that of the mother, and not upon the statute of Edw. III, appears from what follows; for he continues: “ Yet it is without question that, if an English woman go beyond the seas, and marry an alien, and have issue born beyond the seas, the issue are aliens, for the wife was, sub'potestate viri."

The opinion of Judge Jenkins was the same, as appears by the following case, put by him in his Eeports: “ A merchant trading in a foreign country, marries an alien there, and has issue by her born there, this issue shall be heir to his father, although his mother was not an English woman. Otherwise of an ambassador; for the business of a merchant requires a long abode abroad, if he will not trust his whole fortune to factors; it is not so of an ambassador, it is not his profession.” (1 Jenk. Cent., case 2.) This distinction between a merchant and an ambassador, and the reason given for it, show conclusively that he put the case upon the common law, and not upon the statute; because, under the statute, no such distinction could be made.

These opinions are confirmed by that of the Court of King’s Bench, in the case of Bacon v. Bacon (Cro. Car., 601.) There, children born in Poland were held not to be aliens. It is true, the father and mother in that case were both English; but the court said it would make no difference, though the mother were an alien. This was not put, as I understand the case, solely upon the statute by any of the judges. As the ca$e before them came directly within the terms of the statute, it was natural that they should refer to it. But they seem to place their decision as much upon the common law as the statute. Their language is, “he being an English merchant, and residing there for merchandising, his children shall, by the common law, or rather, as Berkeley said, by the statute of 25 Edw. III, be accounted the King’s lieges, as their father is.” From this alone we might not be able to determine what the judges thought as to the common law. But they also say, that it would not be material, though the wife were an alien; for which they give this reason, viz.: that she is “ sub potestate viri, and quasi under the allegiance of the King.” This can have no reference to the statute. It is the common law argument upon the subject, and shows clearly the opinion of the judges to be, that the common law went further than the statute, and denizened the children in all cases where the father was a natural born subject.

I suppose the doctrine that children, if legitimate, follow, in regard to their political rights and duties, the condition of their fathers, to be founded in natural law, and to be substantially the same in most, if not all, civilized countries. Vattel says, “ Society not being able to subsist and perpetuate itself but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights." (B. 1, ch. 19, § 212.) In a subsequent section the same author says: “ It is asked whether the children born of citizens in a foreign country are citizens? The laws have decided this question in several countries, and it is necessary to follow their regulations. By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him. I say of itself, for the civil law, or politics, may order otherwise, from particular views.” (Id., § 215.) It is shown by Vice-Chancellor Sandford, in Lynch v. Clark (1 Sandf. Ch. R., 583, 675), that the law of France, Spain and Portugal, is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every, country, unless, as Yattel says, it is changed by the municipal law, “ from particular views.”

The case of Duroure v. Jones (4 T. R., 300) is cited in opposition to these views. The question principally discussed in that case was upon the construction of the statute of. Edward III, and not whether it was declaratory of the common law. It must be conceded, however, that the judges would seem to have assumed that it was an enabling act, and introductory of a new rule. It is also true that Blackstone and Chitty appear to have been of the same opinion. But neither the judges in that case, nor these elementary writers, appear to have discussed the question upon principle, or to have dwelt upon the authorities, which have been referred to here. Indeed there was no occasion for them to do so, the question having been disposed of in England by the statute. Chancellor Kent has examined the subject with more care, and although he expresses no decided opinion upon the question which I have considered, yet it may fairly be inferred from what he says, that in his opinion children born abroad, under such circumstances as attended the birth of Maximo Ludlam, might establish their citizenship, by reference to the principles of the common law, notwithstanding he speaks of those principles as “ dormant and doubtful.” (2 Com., 50-53.)

The correctness of this intimation of Chancellor Kent is controverted in an able article on the subject, published in 1854, in 2 Am. Law Reg. (p. 193), attributed to Mr. Horace Binney (Brightley’s Dig., p. 132), which doubtless induced the passage of the Act of Congress of 1855, that act following literally its recommendations. By inducing the removal by Congress, for the future, of all doubt upon a question of such importance, that article has proved useful; but if it should have the effect, in regard to antecedent cases, to establish the position with which it commences, that all the children of American families “ born in a foreign country are aliens,” a vast balance of evil would be chargeable to its account. All the cases which the author cites to sustain his position have been above referred to; and after a careful examination of them, I am satisfied that they do not sustain his conclusion. • Besides, he does not notice the opinion of Lord Hale in Collingwood v. Pace, above referred to, which is directly adverse to his conclusion. If he had examined that opinion, he would not have .said that the case of Rex v. Eaton was overruled by that of Duroure v. Jones, because, upon the ground taken by Lord Hale, the two decisions are entirely consistent with each other. The injustice and inconvenience which would often result in the division of intestate’s estates, from the rule that all foreign born children are aliens, furnish a strong argument against it, which tends to confirm the inference which I draw from the decided cases.

' Such rule.would not only most unjustly interrupt the course of descents, but other difficulties, not less serious, would result from its adoption. Our government, in common with every other civilized government, extends its protection over its citizens when in foreign countries, whether merely journeying there,'or having a permanent domicil, for purposes of trade. (2 Phil. on Int. Law, 4; Halleck on Int. Law, ch. 29, § 4, p. 698.) It can hardly be doubted that it would protect the infant child of such citizen, though born abroad, to the same extent that it would protect the father.

Provision was made for the protection of English merchants residing abroad, by the great charter of King John. Chapters 47 and 48 areas follows“All merchants shall have safe and secure conduct to go out of and to come into England, and to stay there, and to pass, as well by land as by water, to buy and sell by the ancient and allowed customs, without any extortion, except in time of war, or when they shall be of any nation at" war with us.

“ And if there shall be found any such in our land in the beginning of a war, they shall be attached, without damage to their bodies or goods, until it may be known unto us, or our chief justiciary, how our merchants are treated who happen to he in the country at war with us; and if ours he safe there, theirs shall he safe in our hands." Chapter 80 of the great charter of Henry HI is to the same effect. (2 Inst., 57.) Would not the persons who might be seized in England under these provisions, as hostages for .the good treatment of English merchants by the hostile country, be held also as security for like treatment to the children of such merchants, though born abroad? It will hardly be questioned that protection would be thus extended.'

An officer in command of one of our vessels of war was fully justified by our government in obtaining, by an exhibition of force, the surrender from an Austrian frigate, of Martin Koszta, a natural born citizen of Austria, claiming the rights of naturalization here, who had been forcibly and wrongfully seized in Smyrna, and taken on board the frigate. Can it be doubted that the same protection would have been extended-to a minor child of Koszta, if he had been seized with his father, though born in Austria? The rule .which we are asked to sanction would compel the government, in all such cases, to distinguish between father and child, extending its protection to the father, and denying it to the child.

The domicil of the-minor child is always that of the father during his life (Westlake on Priv. Int. Law, 35; 5 Ves., 750, 787); and I think the same rule applies in regard to citizenship; that the citizenship of the father is that of the* child, so fkr as the laws of the country of which the father is a citizen are concerned; but the child, from the circumstances of his birth in a country where the father is not a citizen, may acquire rights, and be subject to duties in regard to such country, which do not attach to the father.

It does not militate against this position, that by the law of England the children of alien parents, born within the kingdom, are held to be citizens. There are many instances of double allegiance; as for instance, one may owe a natural and permanent allegiance to the country of his. birth, and a local and temporary allegiance to the country in which he resides. (Sherley's case, Dyer, 144 a. Other cases will be referred to hereafter.) So, as I suppose, a child may be in a position which will enable him to elect, when he becomes of age, of which of two countries he will become a permanent citizen. Indeed, the argument of the appellant’s counsel here goes much further than that, and assumes that every adult citizen has that right. I do not apprehend that if a child, born in England of alien parents, should, before arriving at manhood, return to and become a permanent resident of the country to which his parents belonged, without any intention of ever returning to England, or of claiming any rights as a natural born citizen of that country, he would still be claimed as a subject of the British crown, and indictable for the crime of treason if he should take up arms against that country. Mr. "Westlake says, speaking of the rule “which would impose the duty of allegiance on all those born inter quatuor maria ”: “We cannot believe that it was ever so strictly carried out, as that if a son was born in England to a foreign merchant, such son, on being afterwards taken in arms, a case one would imagine of no infrequent occurrence, should have been hung, drawn and quartered as a traitor.” (Pr. Int. Law, ch. 2, § 12; Opinion of Northey, Attorney-General, in the Case of Gillingham, Chalmers’ Colonial Opinions, 645.)

Thus far, the case has been considered, rather with reference to the evidence given on the trial, than to the conclusions ' drawn by the court from that evidence. . This court is bound by the report of the judge before whom the trial was had, in regard to the facts, so far as they are found by him, excepting that where there is any doubt or uncertainty as to the meaning of such report the evidence may be referred to, in aid of the report. (19 N. Y., 210; 21 id., 550.) Among the facts found by the court are the following, viz.: “ That Richard L. Ludlam, the father of the said Maximo M. Ludlam, and of the plaintiff, in the latter part of the year 1822, voluntarily expatriated himself from the United States, where he was a natural born cititzen, for the purpose of becoming a permanent resident of Lima, in Peru, South America, and of establishing his permanent domidl there, and, in a few months thereafter, did become such permanent resident in such last named place, and there established his permanent domicil.”

It becomes necessary for us to ascertain the meaning and determine the effect of this statement, and especially of that part of it which relates to expatriation. Webster’s definition of the term “ expatriate,” is as follows: “ In a general sense, to banish. To expatriate one’s self, is to quit one’s country, renouncing citizenship and allegiance in that country, to take residence and become a citizen in another country. The right to expatriate one’s self, is denied in feudal countries, and much controverted in the United States.” Worcester’s definition is, “ To banish from one’s native country; to remove from one’s country.” Expatriation, “Act of Expatriating; Banishment; Emigration.”

There is nothing in the evidence to warrant the inference that Bichard L. Ludlam, in leaving the United States, intended to renounce his allegiance to this country, or to become a citizen of Peru, or of any other country. If it were necessary to decide the question, I should be of opinion that the terms “ expatriated himself,” as used by the .court at special term, were not intended to express the idea of a renunciation of allegiance, or citizenship, on the part of Bichard L. Ludlam, but only a change of domicil, for the purpose of permanently engaging in business in the foreign country, with only such change of his relations to his native country as the laws of nations accord to such change of domicil. The repeated use of the word “ domicil,” in the report, which relates to residence only and not to citizenship, would strongly favor this construction.

Assuming, however, that we are to understand, from the finding of the court, that Bichard L. Ludlam intended to renounce allegiance to his native country, and to become a citizen of Peru, that intention has never been carried into effect so as to divest him of his character as a citizen of the United States. The right of expatriation, on the part of citizens of the United States, without the consent of the government, has never been recognized by the courts of this country, or by any of the writers upon public law. Chancellor Kent, after giving a very careful review of the decisions on the subject says: “ The better opinion would seem to be that a citizen cannot renounce his allegiance to the United States, without the permission of government to be declared by law; and that, as there is no existing regulation in the case, the rule of the English common law remains unaltered.” (2 Kent’s Com., 49, and note a; Halleck’s Int. Law, ch. 29, § 3.) Whether this statement of the law is to be considered as in all respects correct, may perhaps admit of doubt, as some courts and statesmen have been disposed to regard the right of expatriation as existing where the government has taken no steps to prohibit or limit it. The Court of Appeals of Kentucky has so decided, and that decision was approved by Attorney-General Cushing; and General Cass, when Secretary of State, went so far .as to deny the right' of governments to prohibit expatriation, except where the act of expatriation, if recognized, would deprive the government of the power to punish the citizen or subject for an offence previously committed. (Halleck’s Int. Law, ch. 29, § 4.)

But none of the opinions go so far as to say that a citizen of any country can, by any act of his own, divest himself of such citizenship, until he becomes a'citizen of another government. (9 Mass., 461.) Chief Justice Robertson delivering the opinion of the Court of Appeals of Kentucky, in the case before referred to (9 Dana, 178), says: “The government, for the purpose of preventing abuse, and securing the public ■ welfare, may regulate the mode of expatriation But where it has not prescribed any limitation on this right, and the citizen has, in' good faith,. abjured his country, and become a citizen or subject of a foreign nation, he should, as to his native government, be considered as denationalized.” (Halleck’s Int. Law, supra; 1 Sandf. Ch. R., 657.) General Cass says: “The moment a foreigner becomes naturalized, his allegiance to his native country is severed forever. He experiences a new political birth, a broad and impassable line separates him from his native country.” (Halleck, ch. 29, § 4.) Westlake, in his treatise before cited, says: “ Change' of nationality involves two points, the acquisition of a new national character and the loss of the old.” (Id., 19, § 20.)

I cannot fully concur in the opinion expressed by the Court of Appeals of Kentucky, and by Secretary Cass, that a citizen has a right to renounce his allegiance at pleasure. The argument of Mr. Butherforth, against the propriety of that doctrine, possesses much force. He says: “If each individual was at liberty to leave the state to which he belongs, whenever he pleases, civil society would be nothing but a rope of sand; it would be impossible for a common good to be effectually promoted, or for a common mischief to be effectually guarded against. Every member of the society would be at liberty either to continue in it, and endeavor to advance the general interest, or to leave it in order to advance a separate interest of his own. And in times of public distress, whoever could shift for himself, would be at liberty to do so, though he left the other members of the society to perish for want of his assistance. But the great end of forming civil societies is to promote a common good, and to guard against a common mischief. Certainly, therefore, the nature of civil society can never allow such a liberty as this to its members, because it is inconsistent with, the end which a civil society proposes to itself" (B. 2, ch. 2, § 7.)

Without, however, pursuing this subject further, it is sufficient for the present case, that all writers, including those who would give the greatest license to the citizen in the exercise of the power of expatriation, agree, that no person casts off his allegiance to his native country before he becomes a citizen or subject of another country; and as Bichard L. Ludlam, whatever may have been the intention with which he left his native country, did not, so 'far as the case shows, become a citizen of any other country, he remained a citizen of the United States during all the time of his residence in Peru.

There is, in the present case, a narrower and more technical ground, which, so far as the intention with which Mr. Ludlam left the United States bears upon the question of his citizenship, leads to the same conclusion. When he left this country, and is found by the report to have “ expatriated himself,” he was but 18 years of age, and, therefore, totally incapable of making any election in regard to his citizenship (26 Wend., 625), and the case is silent as to any later resolution by him on the subject. He has at all times, therefore, remained an American citizen, and, according to the established rule of the common law, partus sequitur patrem, communicated that character to his children born in Peru.

If we assume that the laws of Peru are similar to ours on the subject of citizenship, there is no doubt that Maximo Ludlam would be, in that country, regarded as a citizen of Peru. (1 Sandf. Ch., 583.) This would involve him, according to the rules which I find established, in a double allegiance, to this country and to Peru; and it cannot be denied that inconveniences might result from such a condition. The case, however, is not new, and I am not aware that any practical inconvenience has ever resulted to persons occupying such positions ; their immunity in this respect resulting, mainly, it may be presumed, from the liberality of civilized governments toward persons thus situated. Many persons were placed in that position by the treaty of peace between this country and Great Britain, at the termination of the war waged to secure our independence, and the subject has been often discussed. (Ainslie v. Martin, 9 Mass., 460; 2 Kent’s Com., 50.) In an opinion written in 1808, by Mr. Reeve, author of the History of the English Law, it is said: “ As to the anomaly and inconsistency of Americans being citizens of the United States while there, and being British born subjects when here, this is not a novelty, nor is it peculiar to Americans. It may happen to any British subject, and it is allowable in our law, which recognizes this double character of a person being as was before shown, ad fidem utriusque regís. British subjects may voluntarily put themselves in such a situation; it is a part of the privileges of a British subject to be at liberty to do so. Have we not British subjects who are naturalized in Holland, in Russia, in Hamburgh, in various places on the continent of Europe? Do not British subjects become citizens of the United States? Some persons are born to such double character; children and grandchildren, born of British parents in foreign countries, are British born subjects; jet these, no doubt, by the laws of the respective foreign countries, are also deemed natural born subjects there. I am aware of the difficulties which such persons may labor under with these double claims of allegiance upon them. Such difficulties must be got through, as circumstances will allow, and consideration should be had for the parties according to their respective situations, more especially with a distinction between those who brought themselves into such embarrassing situation voluntarily, and those who were born in it.” * * “These are inconveniences in the way of full exercise and enjoyment of the rights in question, but detract nothing from the rights themselves. On the one hand, the king cannot reckon upon the full and absolute obedience of such persons, because they owe another fealty besides that due to him; on the other hand, the subject cannot have full enjoyment of his British rights.” (Chalmers’ Colonial Opinions, 702, 703; Westlake’s Pr. Int. Law, p. 10, § 12, p. 20, § 22; 18 State Trials, 857.)

It is no part of my object to show how the difficulties growing out of the double allegiance to which, upon my theory, Maximo Ludlam may be subject, are to be surmounted; it is sufficient for my present purpose to show that there is nothing in the fact of such double allegiance, to which my conclusion subjects him, to demonstrate that such conclusion is unsound. Uo such difficulty would be likely to arise during his minority, and on his arriving at maturity he would have the right to elect one allegiance and repudiate the other, and such election would be conclusive upon him, and would doubtless be respected by the governments.

However this may be, the inconveniences of such double allegiance are rather theoretical than real. Practically, the person so situated secures all the rights of citizenship, or at least the right of inheritance, in two countries, and discharges the duties of allegiance in only one. The balance of advantages is decidedly in his favor. (Halleck, ch. 29, § 4)

I am, therefore, of opinion that Maximo Ludlam was an - American citizen at the time of the decease of his uncle, and is entitled to share equally with his sister in the proceeds of the lands of which their uncle was seised at the time of his decease.

The judgment of the Supreme Court should be affirmed.

• All the judges concurring,

Judgment affirmed.


source: Caselaw Access Project

author: Marvin, J.

license: Public Domain

text:
    McKinster v. Babcock, Administrator, &c.
    A chattel mortgage may be sustained by evidence that its real consideration was the indorsement by the mortgagor of the mortgagee’s note for $1,000 for the accommodation of the latter, and, upon his failure to raise money thereon, of two notes for $500 substituted in its place, although the consideration stated in the mortgage was a present absolute indebtedness of $1,000, and no such indebtedness existed, and no money was advanced.
    In such a case, evidence is admissible that the mortgagee indorsed the substituteil notes of $500 in reliance upon the mortgage as security therefor, and that it was the purpose of the mortgage to secure any such substituted liabilities.
    Action to recover the value of personal property, taken by the defendant’s intestate, sheriff of Monroe county, upon an execution issued upon a judgment in favor of one Cappell, against Thomas Young. The plaintiff claimed, the property under a chattel mortgage executed by Young to him, and put it in evidence, and gave evidence tending to show that the property, or most of it, was in his possession at the time it • was taken’.
    The. mortgage bore date February 6, 1856, and it declared that Thomas Young, of, &c., was “indebted unto Gilbert G. McKinster in the sum of one thousand dollars, being for money advanced by said McKinster to me: for securing the payment of the said debt I do hereby sell,” &c., specifying the property. The mortgage was upon the express condition that if Young should pay to McKinster the sum of $1,000, with interest, in six months from date, which Young agreed to pay, then the transfer was to be void and of no effect. There was a covenant to pay any deficiency. The defendant proved by Young that the latter did not owe the plaintiff any money, nor did he receive any money from him at the time the mortgage was executed. The plaintiff then stated, as a witness for himself, that he indorsed Young’s note of $1,000, at four or six months, to assist Young in raising money, and that the mortgage was given as ■ collateral security for- the indorsement of this note, or any note to assist Young to raise money. Young did not succeed in raising money upon this note, and two notes, each for $500 were substituted, one at three and the other at four months,- which notes the plaintiff paid after they became due. The plaintiff, as -a witness, was asked whether he indorsed the two $500 notes, relying on the security of the chattel mortgage, and to this question the defendant’s counsel objected, The objection was overruled and the defendant excepted, and the witness stated that he had no other reliance, so far as the property should go.
    The referee found, as a fact, that it was the purpose of the parties to the mortgage to secure the plaintiff for the indorsement of the note of $1,000, and of any other that might be substituted for it, and to this the defendant excepted. Also, that the plaintiff paid the two $500 notes, Also, that the mortgage was made in good faith, for a valuable consideration, and without any intent to defraud the creditors of the mortgagor, and to this the defendant excepted. As a conclusion of law, the referee found that the plaintiff was entitled to recover. There was an exception. The judgment was for the value of the property taken, and interest, $383.51. Upon appeal this judgment was'reversed, and the plaintiff appealed to this court.

      James L. Angle, for the appellant.

      Danforth & Terry, for the respondent.
   Marvin, J.

The chattel mortgage was in due form, and apparently valid. By the statute it was void if it was “ made with the intent to hinder, delay or defraud creditors,” and. such intent would readily be found, if it was made upon no consideration. The defendant did not prove that the mortgage was without consideration, but simply that the mortgagor did not owe the plaintiff any money, and did not receive any money from him at the time the mortgage was made, thus contradicting the particular consideration recited or declared in the mortgage. He did not show, or propose to show, that the mortgage rested upon no consideration. Would the referee have been bound to find, as the evidence then stood, that the mortgage was made with the intent to hinder, delay or defraud creditors, and that it was, therefore, void as to the defendant ? If so, then, in every case where the consideration in a chattel mortgage is not truly stated, it must be declared to be void as to the creditors of the mortgagor, unless the true consideration may be shown by evidence contradicting or explaining the consideration clause.

In this case the referee decided to admit parol evidence to prove the real consideration, differing from that expressed in the instrument, and in this there was no error. It is a general rule that parol evidence cannot be given to contradict or vary written evidence. To this there are some exceptions. Parol evidenge may be given to contradict or explain a mere receipt, and this rule was long since applied to the acknowledgment of the receipt of the consideration expressed in a deed. (Shepherd v. Little, 14 John., 210; Bowen v. Bell, 20 id., 338.) In McCrea v. Purmont (16 Wend., 460), the English and American cases are largely considered, and it was held that it might be shown that the consideration was iron, of a specified quantity, valued at a stipulated price, instead of money paid, as expressed in the deed. And it was said in the opinion that the cases decided surrendered the consideration clause in a deed to the utmost latitude of inquiry, whenever this should become material to a personal action between the parties.

It has been adjudged in several cases that parol evidence is admissible to show the purpose and intent for which a mortgage was executed, though, upon its face, it should appear to be for the payment of a specified sum of money. It may be shown that its purpose was security for future advances, or responsibilities, or-for balances which might be due from time to time.

In Shirras et al. v. Craig (7 Cranch, 34), the mortgage purported to secure a debt of" £30,000 sterling, due to all the mortgagees. It was shown, by parol evidence, that the intent and purpose of the mortgage was to secure different sums due at the time to different mortgagees, and advances afterwards to be made, and liabilities tobe incurred to an uncertain. amount. (See, also, Bank of Utica v. Finch, 3 Barb. Ch., 293.) In Truscott v. Wing (2 Seld., 147), a judgment was confessed for $20,000. It was shown by parol evidence that the purpose of the judgment was a security for future advances. These cases relate to the purposes and objects of the mortgages or judgment which bound real estate, and parol evidence was admitted for the purpose of showing the true consideration, under the rule that the consideration is open to inquiry. The Supreme Court of the United States have applied the same " rule to a chattel mortgage made in Illinois, (Lawrence v. Tucker, 23 How. U. S., 14.)

I think the authorities settle the question that the plaintiff in this case was not precluded, by the recital or statement, in the mortgage of the indebtedness of $1,000, for money advanced, and that the sale and transfer of the goods were made to secure the payment of such sum, from showing the real consideration, to wit: the security of the plaintiff for his indorsement.

The position of the defendant’s counsel is that the parol evidence was not for the purpose of explaining the consideration merely, but its effect was to change the entire contract, and show the purpose of the execution of the mortgage to have been different from that expressed in the writing. But the evidence was confined to the question of the consideration of the mortgage, and I do not think, it necessary to consider its subsequent provisions .or conditions. The question of consideration was raised by the defendant’s proving, by the mortgagee, that no money was advanced to him upon the mortgage. It then became proper, if not necessary, to show what the real consideration was, and this was all that was done. The plaintiff had a valid mortgage, as to the mortgagor. He would not have been permitted to impeach it by showing that the consideration was not money advanced to him, and then shutting out evidence of the true consideration. As to the creditors of the mortgagor, the question was whether the mortgage was made without intent to hinder, delay or defraud them, and this involved the question of consideration. It is undoubtedly always advisable to state, fairly and plainly, the true consideration, and when this is hot done, the instrument may be open to suspicion, and the question may be fairly raised whether, in stating an untrue, instead of the true, consideration, there was not a design to mislead and deceive the creditors of the mortgagor, or judgment debtor, and to hinder, delay' or defraud them. Our system touching the filing of chattel mortgages, and thus givingnotice may also be taken into account upon the question of intent to defraud. In this case-the referee passed upon this question, as one of fact, and found that the mortgage was executed in good faith and for a valuable consideration, without any intent to defraud the creditors of the mortgagor.

If I am right thus far, the objection made to the question put to the plaintiff, as a witness, touching his reliance on the security of the mortgage for his indorsement of the two $500 notes, was not well founded. The question, in effect, was whether the two $500 notes were substituted' for the $1,000 note. ■ The position of the defendants’ counsel, all through the case, has been that the liability of the plaintiff, as indorser, was not covered by the mortgage, and that it could not be shown by parol evidence that it was. This position has been fully considered, and found not to be tenable, and the objection to the question falls with the main position..

The order of the Supreme Court should be reversed, and the judgment should be affirmed.

All the judges concurring,

Order reversed, and judgment affirmed.


author: Denio, Ch. J. Rosekrans, J.

text:
    Betts v. Garr, Executor, &c.
    TJpon an application by the assignee of a judgment for leave to issue execution (under § 284 of the Code), the fact that the judgment-debtor is the owner, by assignment, of judgments to a greater amount against the moving party, is no answer to the motion.
    The right to an execution in such case is a legal one, and it cannot be countervailed by the allegation of what may be an equitable offset, without giving the party demanding his legal right an opportunity to controvert the equitable ground, e. <7., his insolvency, on which a right to set off the counter-judgment might be founded.
    Upon such an answer to such an application, the most the court should do is to suspend the decision for the purpose of giving time to the party resisting to make his motion to allow a set-off.
    The denial of a motion for leave to issue execution in such a case affects a substantial right, and the order is appealable.
    Appeal from an order of the Court of Common Pleas of the city and county of New York, denying a motion made by John M. Martin for leave to issue execution upon a judgment of that Court for $77.58, which order was affirmed at a general term. The judgment was recovered August 22, 1842, against A. S. Garr, who died pending the appeal, and his executor was substituted as respondent. The affidavit of Mr. Martin, on which the motion was made, showed that the judgment was assigned to him by the plaintiff, Betts, in 1854, and a copy of the assignment was annexed; that immediately after the entry of the judgment an execution was issued and returned unsatisfied; that no part of the judgment has been paid to him, nor, as he has been informed and believes, to the plaintiff, Betts. A. S. Garr produced his affidavit, in opposition-to the motion, showing that he was the owner, by assignment, of two judgments recovered in 1854 by Cornelius Kanouse against Martin, who made the motion, as assignee, amounting to $382.71, one of them having been recovered in the Supreme Court of the- United States, and the other in the Superior Court of the city* of New York, and that no part of these judgments has ever been paid. It is not stated that execution has been issued upon either of them, or whether Martin, the defendant therein, was or was not responsible: and there is no attempt to impeach the validity of the judgment owned by Martin. The denial of the motion was placed, by the general term, upon the ground that Carr had an equitable right of set-off, which he ought to be allowed to avail himself of then, to prevent circuity of proceedings.

      John M. Martin, for the appellant.

      H. S. Mackay, for the respondent.
   Denio, Ch. J.

A party who has recovered a judgment against another, has a general right to the legal remedy of a writ of fieri facias ; but where there has been such a delay as was suffered in this case, he is obliged to obtain leave of the court, upon an application made upon notice to the judgment debtor. (Code, § 284.) After a delay of five years from the judgment, or from the return of an execution unsatisfied, the law indulges a presumption that the judgment has been paid, released or in some way discharged, and, therefore, the debtor is afforded an opportunity' of being heard before his property is exposed to be seized on the execution. If the motion for leave to issue execution was an appeal to an equitable jurisdiction, there would be reason in saying that the plaintiff should not have the relief asked for until he had paid the judgment debtor whatever he might owe him on any other account; for if the judgment debtor had brought an action on the judgment, the statute of set-off would apply. But, as I have said, the right to an execution is a legal one, if the judgment remains unimpaired. A counter demand of the judgment debtor is not an impeachment of the validity or force of the judgment, whether such counter demand has itself been reduced to judgment or not. There is no strict legal right to set-off in -such cases, for there is no suit pending and undetermined, in which a set-off can be pleaded. Courts of equity have a jurisdiction to compel judgments to be set off; and the same remedy may be obtained by applying to the equitable jurisdiction of the court in which the judgments, or one of them, were obtained. But the party against whom the set-off is sought must have an opportunity to answer. It may be that if called upon, he could show that the judgment which it was desired to set off was no longer in force. There was no application in this case for leave to make the set-off. For aught that appears Martin is quite responsible, and has property subject to levy sufficient to pay the judgments; and if such is his case, there seems to be no reason why he should not be left to pay the judgments against him in the ordinary course of justice, and to have his remedy against his debtor in the same form. If Mr. Carr had shown that he would be prejudiced by the payment of the judgment against him, as, for instance, that his counter judgment could not be collected, on account of the insolvency of Martin, and that he had taken, or was about to take, measures to enforce a set-off of' so much of his judgment as would satisfy the one which Martin had against him, it would, I presume, have been, of course, to suspend the actual issuing of Martin’s execution until such application could be decided. But the denial of the motion without any set-off having been made, or any application for such relief instituted or contemplated, seems to me to have been erroneous. The parties are left precisely where they were, the judgment ,of the moving party being still in force, and yet he is denied the ordinary process provided by law for its enforcement.

I think the order should be reversed.

Rosekrans, J.

The owner of a judgment has a clear right to have an execution issued upon it, after the lapse of five years from the entry of the judgment, by complying with the provisions of section 284 of the Code of Procedure; and of this right he cannot be deprived unless the judgment debtor contradicts the facts which the creditor is required to set forth as the .foundation of the motion for leave to issue an execution. The only inquiry contemplated by the Code, upon an application for leave to issue the execution, is whether the judgment, or any part of it, remains unsatisfied and due. The Court has no. discretion to exercise, if the facts, stated in the moving papers are uncontradicted. The creditor is as much entitled to an execution in that case as he was originally, entitled to his judgment. If the debtor, in opposition to the motion, shows that he is the owner of a judgment against the moving party, the Court may require him to make a motion to set off his judgment against the one upon which an execution is sought to be issued, but it cannot, upon the mere proof of the existence of a judgment against the party, applying for the execution, deny the application of the latter. In the case before us, the assignee of the plaintiff’s judgment had no opportunity to deny the allegation of the deceased, that he owned a judgment against such assignee, nor to show that the amount claimed to be due upon such judgment was not due. The motion of the plaintiff’s assignee was denied, although all the facts upon which it was based were admitted, without giving him an opportunity to controvert the new matter set up in the papers read in opposition to his motion.

The order of the general term affected a substantial right, and is appealable, and, being erroneous, should be reversed, with costs.

All the judges concurring,

Order reversed.


author: Wright, J.

text:
    Wakely v. Davidson et al

    The grant of land, with “ the privilege of water to turn a fulling mill, when the same is not wanted for carding wool,” the grantor then owning and operating a carding machine, and the reservation by him in a subsequent grant of “ water for carding machines and fulling mill,” are not a limitation of the purpose to which the water is to be applied, but of the quantity to be taken.
    A quantity of water equal to that used, at the time of the grant and reservation, for carding and foiling, may be used by those claiming under the grant and reservation for any óther manufacturing purpose.
    Appeal from an order of the Supreme Court granting a new trial, with stipulation for final judgment. Action to recover damages for the alleged unlawful acts of the defendants in using water from certain premises and water privileges mentioned in the complaint, and for a perpetual injunction against the defendants, and for a decree settling the rights of the respective parties to the privileges and premises in question.
    TUe cause was tried at a special term held in Tompkins county in April, 1856, before Mr. Justice Balcom, without a jury. The facts admitted by the pleadings and shown by the several conveyances introduced in evidence, were substantially these:
    Prior to March, 1818,-one William Cobb was the sole owner of certain premises, dam and water power on Fall creek, in the county of Tompkins, and he had on the mill property a carding machine, propelled by the waters of the creek, through a race-way leading from the creek. On the 18th March, 1818, • Cobb and wife sold and conveyed to one Samuel Wash a portion of the land connected with the mill property, and also a piece situate on the east bank of the race-way, sufficient to build a fulling mill oh, not exceeding 24 feet wide and 40 feet back, with the privilege of water to turn said fulling mill when the samé is not wanted for carding wool; ” and Wash immediately thereafter erected and commenced using the fulling mill, and he and his grantees continued to use the privilege of water to turn the fulling mill, according to the terms of his conveyance, until about the year 1850. On the 6th May, 1818, Cobb and wife sold and conveyed to William Hanford one and a half acres of the land connected with the mill property: “also, all the land the blacksmith shop stands on; and also the privilege of water sufficient to carry the trip-hammer in said blacksmith shop, when the same is not wanted by the parties of the first part, their heirs or assigns, for carding machines .and fulling mill; said water to carry said trip-hammer to be taken out to the lest advantage.’” On the 19th May, 1819, Cobb and wife conveyed to John C. Ewer his remaining interest in the mill property, being two acres of land, on which were the carding machine, building and site, excepting and reserving all the land and privileges theretofore sold and conveyed by the grantors. The carding machines continued to be kept up and run by Cobb and his grantees, and to have the entire and exclusive use and benefit of the first privilege of water; and the fulling mill continued to be kept up and run upon the premises granted to Hash by him and his grantees, and to have the full and exclusive right and privilege to use said water for the purpose of running the same, when not needed by the carding machine for the purpose of carding wool, until after the month of February, 1851. On the 23d of February, 1824, John C. Ewer conveyed to Hash the two acres of land containing the carding machines, building and site, in which conveyance the water privilege was described in .these words: “ Also, the exclusive right or privilege of water when wanted for carding, or at the season of the year for carding.” By this deed Hash became the sole owner of the fulling mill and carding machine privileges. On the 1st May, 1845, Hash sold and conveyed to Samuel H. Starr the land occupied by the fulling mill and carding machine building, “ together with the water privilege described in the deed to him from Cobb. ” Also,. the privilege of water for carding, the quantity of which and the time for using the same to be ascertained by reference to the deed from Ewer to Hash.

      On the 22d February, 1851, Starr sold and conveyed to Eos well Noyes the same property, referring to the deed from Nash to him for a description of the water privileges. Noyes soon after turned the establishment into a turning and cabinet shop. On the 1st of April, 1853, Noyes sold and conveyed to the plaintiff the same property, with similar phraseology in describing the water privileges,.as in the deeds from Cobb to Nash, and from Ewer to Nash. The plaintiff soon after converted the concern into an iron foundry and machine shop.
    On the 10th February, 1827, William Hanford (Cobb’s grantor), sold and conveyed to John Neil the same land and water privilege described in the deed from Cobb and wife to Hanford, who converted the establishment into an iron foundry; and about 1st April, 1853, he was succeeded by the defendants, who carried on the same business, and who had used, and continued to use, the water privilege granted by Cobb to Hanford, for the purposes of their foundry.
    The complaint charged that the defendants had no legal right or authority to use or occupy any greater quantity of water than was necessary to carry a trip-hammer, and only, and at no other time, to use the same than when it is not wanted for the use and benefit of the premises and privilege of the plaintiff, in sufficient quantity at all times to carry the carding machines and falling mill, as owned by Mm; and that the right of the defendants to use sufficient water to carry the trip-hammer, for the purpose of their foundry, is at all times subject and secondary to the plaintiff’s previous and exclusive right and privilege to use, at all times, a quantity of water sufficient to carry said carding mill and fulling mill, and as was formerly used for that purpose, for the purpose of driving the machinery and bellows of the plaintiff; yet, that during all the time the plaintiff had owned and occupied the premises and privileges, the defendants had, and still continued, daily, wrongfully to divert and draw off, and use for the purposes of their foundry, a much greater proportion of water from the race and creek than they are entitled to use, to the prejudice of the rights and privilege of the plaintiff, and so as almost daily to deprive the plaintiff of water sufficient to carry and drive his bellows and other machinery, although the bellows and other machinery require much less water, in quantity, to propel them, than said carding machine and fulling mill, or either of them. Judgment was demanded for $1,000 damages; also judgment of the court settling and determining the respective rights of the plaintiff and defendants to the water power, and a perpetual injunction against diverting the water privilege to which the plaintiff should be deemed tó be entitled.
    The answer denied all the allegations of the complaint in ■respect to damage, and claimed the full and exclusive right and privilege of water sufficient, from the race-way or dam, to carry the trip-hammer, in the blacksmith shop; for driving the machinery of their iron foundry at all times and all seasons, when- the same was not wanted by William Cobb and wife, or their grantees; for carding wool with and by said carding machine; or for said fulling mill; that the plaintiff’s privileges were special grants, limited, the one to carding, and the other to the business of a fulling mill, and under them the water cannot be applied to other purposes.
    The judge found and decided:
    1st. That the plaintiff had the right to take water- from the dam and pond mentioned in the pleadings, above the shops of the respective parties, sufficient to propel a wheel for a fulling mill, and also sufficient to propel a'wheel for a carding machine.
    2d. That in determining the quantity of water sufficient for the purpose aforesáid, regard should be had to the quantity of water used at the fulling mill and carding machine wheels which formerly were on or near the place where the plaintiff’s shop and foundry now stands, and to the manner such water was formerly drawn from the dam and pond.
    ' 3d. That the plaintiff had the right to use the quantity of water aforesaid at all times, for propelling his wheel at his machine shop and foundry mentioned in the complaint.
    4th. That the right of the defendants to take water to propel the wheel at their machine shop and foundry was subordinate to the aforesaid right of the plaintiff, and that the defendants had no right to take or use water from the dam and pond when it interfered with the said right of the plaintiff.
    5th. That on different days in the year 1854, prior to the commencement of this action, the defendants did so draw and use water from said dam and pond as tó interfere with the aforesaid right of the plaintiff; and that by reason thereof the plaintiff sustained damages to the amount of fifty dollars.
    6th. That the defendants had not done, or threatened to do, any great or irreparable injury to the aforesaid rights of the plaintiff which entitles this plaintiff to a protection by ' injunction.
    7tn. The complaint was dismissed as to all claims for equitable relief by injunction or otherwise, but retained so far as • to authorize the plaintiff to recover fifty dollars damages against the defendants, without costs.
    Judgment was entered in conformity to this decision; the defendants appealed to the court at general term, when the judgment was reversed and a new trial ordered.

      B. G. Ferris, for the appellant.

      M. Goodrich, for the respondents.
   Wright, J.

The right of the defendants to use the water power for driving the machinery of their foundry was subordinate as respects the carding and fulling mill privileges of the plaintiff, such as they really were. The single question, therefore, in the case, is, whether the plaintiff and his grantors were restricted in the use of the water to the fulling and carding business, or whether they might change such use; in other words, whether the grant of the fulling mill power, and the exception of the carding wool power, form a measure of quantity, without reference to the specific purpose for which the water was to be used. The special term held that the plaintiff was not limited to the use of the water for the particular business of carding wool, or that of a fulling mill, but that he had the right to use the quantity of water used at the fulling mill and carding machine wheels which formerly were on the site of the plaintiff’s foundry and machine shop, at all times, for propelling the wheel at such machine shop and foundry. The general term was opposed to this view, deeming that the plaintiff was confined to the use of the water for carding machines and a fulling mill, and could not use it for other purposes.

There is no finding of facts by the judge who tried the cause, except as to the interference of the defendants with the use by the plaintiff of a quantity of water sufficient to propel the wheels of a carding machine and fulling mill, in propelling the wheel of his machine shop and foundry, and the amount of damages sustained by such interference. The respective rights of the parties in the water power are consequently to be ascertained and determined by a reference to and construction of the grants, in connection with such extrinsic facts as are admitted by the pleadings.

In 1818, and prior thereto, William Oobb was the sole owner of the mill property and water power in question, and he had a carding machine on the property, operated by such power. In March, 1818, he granted to Samuel Nash (through whom the plaintiff derives title), of such mill property, a piece of land sufficient to build a fulling mill on, of specified dimensions, with “ the privilege of water to turn said fulling mill, when the same was not wanted for carding wool.” Cobb and Nash, therefore, when this deed was given, owned the entire property. Cobb had a carding machine on it, and Nash was about to erect a fulling mill, having purchased land for that purpose, and Cobb granted to him the privilege of water to operate such mill, when the water was not wanted for carding wool; that is, when it was not wanted for operating the carding machine then on the part of the premises retained by Cobb. At this time, neither the defendants nor their grantors had acquired any interest or right in the mill property or water power. In May of the same year, Cobb and wife conveyed to William Hanford (through whom any rights the defendants have'are derived) “all the land the blacksmith’s shop stands on, and also the privilege of water sufficient to carry the trip-hammer in said blacksmith’s shop, when the same is not wanted by the said parties of the first part, their heirs or assigns, for carding machines and fulling mill, said water to carry said trip-hammer to be taken out to the best advantage.” At this point of time there were three several rights in the water. Cobb had the first and exclusive right to it, when he wanted it for carding wool; Hash had the next right, and he could exercise it only when Cobb did not want the water for carding wool, or when there should be a surplus for that purpose;: and-Hanford had the right to use the water only when not “ wanted ” by either Cobb or Hash, or when there should be a surplus over the use of both. Cobb was not limited as to time. If it should prove that he wanted the water all the time, then neither Hash nor Hanford could use more than the surplus; and if Hash should use all not wanted by Cobb, then Hanford would be without its use. Both Hash and Hanford purchased with these contingencies in view. The exclusive right in the water for carding wool did not depend on any reservation. The grants of the water to Hash and Hanford were limited, first to, the former, for fulling, and then to Hanford, for his trip-hammer; and the carding wool power was excepted. It remained with Cobb with the like force and effect as if no grant had been made. In May, 1819, Cobb conveyed all his remaining interest in the mill property to John C. Ewer; and the latter, in February, 1824, conveyed ■the same property to Hash, by which Hash became the sole owner of the fulling mill and carding machine privileges. The rights in the water power were thus reduced to two; one belonging to Hash, who was entitled to the entire and exclusive use of the water, when wanted for fulling and carding, and the other to Hanford, who was only entitled to the water when not' wanted by Hash; and this expresses the relative rights of the plaintiff and defendants, the former having succeeded to the rights of Hash, and the latter to those of Hanford.

The question arises, whether the original owner of the power, either in his direct grant to Nash of the right to use the water for his fulling mill, or in the exception by such owner, both in the deeds to Nash and Hanford, of the exclusive use of the power when wanted for carding wool, intended to limit or restrict the privileges granted or excepted, that of Nash to the business of a fulling mill, and his own to that of carding wool; or whether the grant and exception are to be deemed absolute as respects the right to use the water for any purpose. The latter construction is undoubtedly to be favored, ' if the language of the grant or exception will admit of it; and even when the construction is doubtful, that is to be preferred which would give to the grantee in the one case, and to the grantor, in the other, a right to an unrestricted, rather than to a limited, use of the quantity of water granted or excepted. (Cromwell v. Selden, 3 Comst., 253; Olmstead v. Loomis, 6 Barbour S. C., 152; Fiske v. Wilbur, 7 id., 805; Borst v. Empie, 1 Seld., 33.)

- The words of the grant te-Nash are: “ Also the privilege of water to turn said fulling mill, when the same is not wanted for carding wool.” This was, in terms, the grant of a certain quantity of'water, a quantity sufficient to drive the machinery of a fulling mill; and there is nothing in the language employed to indicate, or from which it can be inferred, that it was intended td limit the privilege granted to the specific business of a fulling mill. It is to be deemed an absolute grant of the right to use a specified quantity of water for any purpose.,-- I do not understand the defendant’s counsel to deny That the language .of the grant favors the construction which would give it the character of an unrestricted grant as to use. Indeed a contrary construction of similar terms in the grant to Hanford, viz.: of “water sufficient to carry the trip-hammer in said blacksmith shop,” would deprive the defendants of any- right to use their privilege for operating the machinery of an iron foundry.

Cobb, the owner of the water privilege, excepted from his grant to Nash and also to Hanford, the exclusive right-to the use of the water for carding wool; or, in other words, granted to them only the privilege of using it when it was not wanted by him for carding. The defendants claim that this exception was intended to limit and restrict the grantor’s use of his own water privilege to the particular business of carding wool. But I do not understand .this to be the intent or effect of the exception. It is not to be presumed that the grantor would limit the use of his own privilege; nor was it of any importance to Hash and Hanford, when they took their grants, to what use the water should be applied to which they had no claim. The argument is, that the terms of the exception indicate a particular business, and furnish no standard for the measurement of the quantity of water to be used, but leaves the grantor to use more or less, according to the requirements of such business; that in such case, as it would be impossible to say that the business was named as a measurement of quantity, the other inference is to be adopted; that it was named as limitation of use; or, in other words, the privilege cannot be held to be an unrestricted one, for the reason that the language of the exception will not admit of that construction. I do not think this is so; but that the terms of the exception itself, construed in connection with the admitted fact that, at the time the grants to Hash and Hanford were given, the grantor was operating a carding machine by the Same water privilege, furnish a standard for measuring the quantity of water to be used. The terms were, “ When not wanted for carding wool.” Manifestly, not generally in the business of wool carding by an indefinite number of machines; that would require the whole volume of water; but when not wanted for carding wool by the machines then operated by the grantor. This is the construction put upon the language of the exception by the original grantors, both of the plaintiff and defendants, and is undoubtedly the correct one. The exception was of a sufficient quantity of water to run a carding machine. [It is the policy of the law to construe all grants and exceptions of water power as absolute, and without restriction as to the use of the water, unless it clearly appears from the conveyance that the contrary was. intended^.-'It does not so appear in this case in respect to the carding wool privilege reserved.

In 1824, therefore, when Nash became the owner of both privileges, he was not restricted to the use of the water for fulling or carding purposes, but had the right to use it for any purpose not requiring a greater power than was sufficient to propel the wheels of a fulling mill and carding machine. He could change the use to- driving the machinery of a foundry, if he pleased, and the defendants or their grantors could not complain, as no right of theirs would be impaired thereby, if the quantity of water used was no greater than his fulling mill and carding wool privileges gave him; and this was the right to which the plaintiff succeeded. The right of the defendants’ grantors, and their own, was subordinate to the right of the plaintiff and his grantor, Nash. Prior to, and at the commencement of this action, both parties had converted their water privileges to other uses than those expressed in the original conveyance; but this worked no change in their relative rights. The plaintiff was first entitled to sufficient water to propel the machinery of a fulling mill and carding machine, which he might use in propelling that of a machine shop; whilst the defendants might take water from the dam or pond, to drive the machinery of their foundry, provided they did not interfere with the rights of the plaintiff. The change, by-the plaintiff, of the use of his water privilege, as the defendants had done themselves, gave them no authority to interfere to his injury.

I understand this to have been the view taken at the special term of the respective rights of the parties, while, on the contrary, the general term deemed the plaintiff’s use of the water limited to the fulling mill and wool carding business, and ordered a new trial.

The order of the general term should be reversed, and the judgment of the special term affirmed, with costs.

Balcom, J., took no part in the decision; all the other judges concurring,

Ordered accordingly.