
    Bowman and others, Devisees of Cattel, against Middleton.
    An act of assembly, passed in 171% transferring1 a freehold from the heir at law of one JVY-cholls, and also from the eldest son and Jieir of John Cattel, deceased, and vesting it in a second son, William Cattel, without a trial by jury, considered as null and void, and that the descendants of IVilliam, the second son, eould claim no title under such an act, being against common right and the principles of mug-via chai'ta.
    
    THIS was an issue directed from the court of chancery, and tried by a special jury at Charleston, and was the second trial (that court having, on account of some alleged mistake, directed a new trial) in order to ascertain the location of a tract of land, situate on Ashley river, which the defendant had purchased at the sales by the master in chancery, of the estate of Cattel, and sold for 490 acres.
    The land in question had been sold by virtue of a decree of the court of chancery; at which sale the defendant, Middleton, became the purchaser ; who soon after discovered (as he alleged) that the lines of several elder tracts ran into it, and, by that means, took off so considerable a portion of it as to defeat, in a great degree, the main object he had in view at the time of the purchase, that of making an extensive settlement on it. The master in chancery soon after laid him under a rule to shew cause why he did not comply with the conditions of the sale, and give his bonds for the purchase-money, when he assigned the foregoing reason as the ground of his non-compliance.
    The devisees of Cattel, in support of the rule, insisted that the defendant had the whole of the land sold him, and That there wao no deficiency in the quantity. The present issue was, therefore, sent down to ascertain, by the verdict of a jury, whether there was any, and what deficiency in the land in question ? And, in the decretal order, it was directed, that the devisees, who were defendants in equity, should be plaintiffs at law; and Middleton, who was the complainant, should be the defendantj in order that the}' might recover by the strength of their title, and not turn round the present defendant, Middleton, to combat the right with the supposed elder grantees. The land sold, consisted of sundry small tracts, which had been purchased or run out by John Cattel, the ancestor of the plaintiffs, or acquired by length of possession. The evidences were numerous, and examinations lengthy, on both sides j but they chiefly went either to confirm or defeat boundary lines, or to establish or destroy a right by possession ; all of which was very proper for the consideration of the jury, to whom they were ultimately submitted.
    The only point of law of any importance which occurred in the course of the trial, was a title, set up under an act of assembly passed so long since as in the year 1712. From the ancient grants and papers produced, it appeared, that in August, 1677) one Roger Nickolls obtained a grant for 510 acres of land on Ashley river. That in 1701, John Cattel, the father of William Cattel, (under whoiri the plaintiffs claimed,) obtained a grant for 240 acres, on Addey river., adjoining Nicholas; but, from the examination of the plots, it appeared that the grant to John Cattel ran into Nieholh?* land so far as to include 14G acres of his tract. John Cattel soon after died intestate. In 1712 an act was passed confirming the right and title of John, William, Benjamin., and Peter, sons of John Cattel, deceased, and John, a minor grandson of old John Cattel, of, in, and to, sundry tracts oí land, in the said act particularly mentioned ; and, among others, this tract of 240 acres on Ashley river, which had been run out by old John Cattel, in 1701, was confirmed to William Cattel, the second son, his heirs and assigns for ever. Under this act, therefore, the plaintiffs claimed 2-iO acres of the land in dispute, being part and parcel of the 490 acres sold.
    
      For the defendant, an objection was taken by his counsel, that no title could be transferred by this act. That it was against common right and reason as well as against magna charta ; therefore, ipso facto, void. In the first place, it went to deprive the heir at law of Nicholls of 146 acres of land, without being called upon to answer or defend his title; and that too without the intervention of a trial by his peers. In the next place, it went to deprive the eldest son of old John Cattel of his inheritance, (his father dying intestate,) by settling the estate in William, the second son. So that, in fact, it wrought a two-fold injury, by depriving the heir at law of Nicholls and the heir at law of Cattel of their free» holds, without a trial by jury. They admitted that there might be great and urgent occasions wherein it might be justifiable for the state to take private property from individuals, (upon a full indemnification,) for the purposes of fortifications or public works, &c. but in no case could the legislature of the country interfere with private property, by taking it from one man and giving it to another, to the prejudice of either party, or that of third persons, who might be interested in the event. That the courts of justice were always open to give redress, and determine on the right; and that these courts were the 'proper tribunals to apply t® for redress in such cases.
    This point, without further argument, was submitted to
   The Court,

(present, Grimke and Bay, Justices,)

who, after a full consideration on the subject, were clearly of opinion, that the plaintiffs could claim no title under the act in question, as it was against common right, as well as against magna charta, to take away the freehold of one man and vest it in another, and that, too, to the prejudice of third persons, without any compensation, or even a trial by the jury of the country, to determine the right in question. That the act was, therefore, ipso facto, void. That no .length of time could give it validity, being originally founded on erroneous principles. That the parties, however, might, if they chose, rely upon a possessory right, if they could establish it.

Pringle, Moultrie and Harper, for plaintiffs.

Pinckney, Parker and Ford, for defendant.

Verdict for defendant.  