THE

authorized the selectmen of the towns to lease and reTOWN OF cover possession of such glebes. This act was repoaled POWLET by the statute of the 5th of November, 1779. But by the statute of the 5th of November, 1805, the glebes were D. CLARK again granted to the respective towns, for the use of the &OTHERS. Schools of such towns; and power was given to the selectmen to sue for possession of, and to icase the same.

v.

By the operation of these statutes, and especially of that of 1794, which, so far as it granted the glebes to the towns, could not afterwards be repealed by the legisla ture so as to divest the right of the towns under the grant, the towns became respectively entitled to all the glebes situate therein which had not been previously appropriated by the regular and legal erection of an Episcopal church within the particular town; for in such case the towns would legally represent all the parties in interest, viz. the state which might be deemed the patron, and the parish.

Without the authority of the state, however, they could not apply the lands to other uses than public worship; and in this respect the statute of 1805, conferred a new right which the towns might or might not exercise at their own pleasure.

Upon these principles the Plaintiffs are entitled to rccover, unless the Defendants shew, not merely that before the year 1794, there was a society of Episcopalians in Pawlet, regularly established according to the rules of that sect, but that such society was erected by the crown, or the state, as an Episcopal church (i. c. the church of England,) established in the town of Pawlet. For unless it have such a legal existence, its parson cannot be entitled to the glebe reserved in the present charter.

The statement of facts is not, in this particular, very exact; but it may be inferred from it that the Episcopal society or church was not establish d in Pawlet previous to the year 1802. In what manner and by what authority it was then established does not distinctly appear. As the title of the Plaintiff's is however prima facie good, and the title of the Defendants is not shown to be sufficient, upon the principies which have been stated the Plaintiffs would seem entitled to judgment.

There is another view of the subject which if any doubt THE hung over that which has been already suggested would TOWN OF decide the cause in favor of the Plaintiffs. And it is PAWLET entitled to the more weight because it seems in analagous cases to have received the approbation and sanction of D. CLARK the state Courts of New Hampshire. In the various & OTHERS.

royal charters of townships in which shares have been reserved for public purposes (and they are numerous) it has been held that the shares for the first settled minister and for the benefit of a school, were vested in the town in its corporate capacity; in the latter case as a fee simple absolute, in the former case as a base fee, determinable upon the settlement of the first minister by the town.

The foundation of this construction is supposed to be that the town is by law obliged to maintain public worship and public schools; and that therefore the legal title ought to pass to the town, which is considered as the real cestui que use. By analogy to this reasoning the share for a glebe might be deemed to be vested in the town for the use of an Episcopal church; and then before any such church should be established, and the use executed in its parson, by the joint assent of the legislature and the town, the land might at any time be appropriated to other purposes.

We do not profess to lay any particular stress on this last consideration, because we are entirely satisfied to vest the decision upon the principles which have been before asserted.

On the whole, the opinion of the majority of the Court. is, that upon the special statement of facts by the parties, judgment ought to pass for the Plaintiffs.

JOHNSON, J. The difficulties in this case appear to me to arise from refining too much upon the legal principles relative to ecclesiastical property under the laws of England.

I find no difficulty in getting a sufficient trustce to sustain the fee until the uses shall arise.

It is not material whether the corporation of Pawlet VOL. IX.

43

บ.

THE

v.

consist of the proprietors or inhabitants. The grant TOWN OF Certainly vests the legal interest in the proprietor; and it PAWLET is in nothing inconsistent with this idea to admit that the corporate powers of the town of Pawlet are vested in D. CLARK the inhabitants. The proprietors may still well be held & OTHERS. trustees, but the application of the trust may be subject to the will of the whole combined population.

I therefore construe this grant thus, we rest in you so much territory, by metes and bounds, in trust to divide the same into sixty-eight shares; to assign one share in fee to each of you, the grantees, two to the govenor, one to the church of England as by law established, &c. This certainly would be a sufficient convey. ance to support the fee for the purposes prescribed.

But the difficulty arises on the meaning of the words "church of England as by law established." This was unquestionably meant to set apart a share of the land granted, for the use of that class of Christians known by the description of Episcopalians. But was it competent for any man, or any number of men to enter upon this land, without any legal designation or organization identifying them to come within the description of persons for whose use this reservation was made? I think not. Some act of the town of Pawlet, or of the legislature of the state, or at least of Episcopal jurisdiction, became necessary to give form and consistency to the cestui que use, until such person or body became constituted and recognized. I see nothing to prevent the legislature itself from making an appropriation of this property.

Their controlling power over the corporate body denominated the town of Pawlet, certainly sanctioned such an act; and before the act passed in this case there does not appear to have been in existence a person, or body of men, in which the use could have vested.

I therefore concur in the decision of the Court.

OTIS v. WATKINS.

1815.

March 10th.

Absent....TODD, J.

ERROR to the Supreme Judicial Court of the the facts sta commonwealth of Massachusetts, under the 25th section ted in a special of the judiciary law of the United States, vol. 1, p. 63, mount in law plea do not ain an action of trespass by Watkins against Otis, a depu to a justifica ty collector for the district of Barnstable, for taking, tio, yet if issue be joined carrying away and destroying the Plaintiff's schooner thereon, and if Friendship and her cargo of cod-fish.

the facts be proved as sta ted, it is error

maintain the

vessel, under

the 25th of

he need not

The Defendant pleaded that he was a deputy collector in the judge to for the district of Barnstable; that by the 11th section of instruct the ju ry that the the act of congress of the 25th of April, 1808, (vol. 9, p. facts so proved 150) it is enacted, that the collectors of the customs do not in law ❝be, and they are bereby respectively authorized to de- issue on the "tain any vessel ostensibly bound with a cargo to some part of the Defendant. "other port of the United States whenever, in their If a collector ❝ opinions, the intention is to violate or evade any of the justify the de"provisions of the acts laying an embargo, until the tention of a "decision of the president of the United States be had the 11th sec"thereupon." That the schooner Friendship with her tion of the em cargo, was lying in the harbor of Provincetown, in the bargo law, of district of Barnstable, ostensibly bound to some other April, 1808, port in the United States, in the opinion of the collector, vol 9, p. 150, with an intent to violate or evade the provisions of the show that hi acts aforesaid; whereupon the collector, by the Defen- opinion was dant, his deputy, caused the said vessel and her cargo that he used to be detained and removed from the port and harbor of reasonable care and dili Provincetown to the port and harbor of Barnstable, gence in ascerthat she might be securely kept; and there also caused taining the facts her to be detained, as it was lawful for him to do, so upon which his opinion was that the decision of the president of the United States formed. It is might be had thereupon; and that the president, after- sufficient that wards, on the 3d of January, 1809, upon the report and tertained the representation of the said collector, approved and con- opinion upon which he acted. firmed the detention; all which is the same taking, &c. Quere? Whe. To this plea there was a general replication and issue, ther, under upon the trial of which a bill of exceptions was taken, that act, the which stated that the Defendant, in order to shew that bound to transthe collector had reasonable ground to believe that this mit to the prevessel intended to violate or evade the embargo laws, ment of the

correct, nor

he honestly en

collector was

sident a state

บ.

OTIS offered in evidence the deposition of an inspector of the Customs who testified that he went on board the schoonWATKINS. er, at Provincetown, which was wholly laden with fish in bulk, and a barrel of beef and a number of packages of small stores and three or four barrels of water.

facts upon which he form

olate the em

care and dili

gence in ascertaining the

ed his opinion That he supposed she was bound to sea and inforgave that the vessel nation thereof, and of his suspicions, to the collector. intended to vi- That she had also a number of kegs of pickled oysters bargo law on board; and that he judged that the groceries were and, whether sufficient for the crew of such a vessel for thirty days, he was bound in law to use and that he had no doubt of her being bound to sea; reasonable which was the reason of his giving the information. Upon cross-examination he said he had never lived in the county of Barnstable, and did not know the course and facts chus to manner of their trade and navigation. It further apthe president. peared in evidence, that on the 19th of December, 1808, Whether the written orders were given, by the collector, to one Ancollector had a drew Garrett to detain the schooner, then lying in Proright, under that act. to re- vincetown barbor, and bring her to the port of Barnmove a vessel stable, and there secure her in the best manner possible. bor to another, That the distance from Provincetown to Barnstable is as well as to about 30 miles by water. That on the voyage she acci

be lid before

from one har

detain her?

dentally ran on a point of land, and could not be got off until she was frozen up in the ice, and there remained until March following, when she was got off, and brought up to the wharf and her cargo unladen and safely stored. That about 70 quintals of cod-fish were damaged, but the residue was in good order. That when she was so detained she had nine barrcle of water on board, but no bread. That her sails were on shore. That on the 24th of December, 1808, the collector wrote to the secretary of the treasury that he had detained the schooner Friendship, loaded with dry cod-fish and evidently intended for a foreign port, as she had an unusual quantity of small stores ou board sufficient for such a Voyage and fully watered, that their plea was that she was intended for a store ship, and a neighboring market, both of which it was sufficiently evident were without foundation. That on the Sd of January the secretary answered, that the detention of the schooner was approved and confirmed by the president. That the collector had used due care and diligence in the preservation of the vessel and cargo. That on the 30th of January, 1809, the secretary of the treasury wrote to the collector, authorizing him to release all vessels detained by him under the