
    Jackson, ex dem. Gratz and others, against Catlin.
    ecutedadeed chased at”1" delirered'it totheattor-pfainbff'to be delivered by him to the grantee on the purchase-money, it was held to. be an that°uniifthe condition was thefesSte’ the debtor111 whose lands shid by toehUS sheriff. By clot of 2lt“ tainder of the sad October, A sheriff’s sale of lands is within the statute of frauds and’requires a deed or note in writing specifying with certainty the lands sold, to pass the es- . late. Where the sheriff ex-i779, estates upon condition, did not become forfeited, or vest in the people of this state. Where a person had purchased land at' a sheriff’s sale, .but bad not paid the-money, and afterwards became attainted, uoder the act, it was held, that the slate could not, by paying the money, perform the condition so as to make the deed, which had been délivered in an escrow, absolute, and thereby to vest the estate in (he person attainted. A person attainted under the act is considered as civiliter mortuus. If, by a private act óf the legislature, the. property of a person is directed to be sold by the surveyor-general, without any warranty, and the money to be paid to certain creditors, it does not take away the rights of third persons, but amounts only to a quitclaim of any right or interest of the state. '
    This was an action of ejectment for lands, in the conn? ty of Otsego. The cause was tried before Mr. Justice Spencer, at the Otsego circuit, the 3d June, 1806.
    At the trial, the plaintiff gave in evidence, letters patent, dated the 16th January, 1770, under the great seal of the province of New-York, for 40,000 acres of land, situated in the county of Try on (now in Otsego) t oAlexan-der M’Kee, and 39 other persons; and also a release from M’Kt e, and the other patentees, of the whole tract t0 Ceorge Croghan. It was admitted, that the lessors of the plaintiff, are the grand-children, and heirs at law of Croghan; and it was proved, that the premises in'question are within the patent, and in possession of the de- „ , tendant.
    T0 sjj0W a subsisting title, out of the lessors of the _ ^ plaintiff, the defendant produced in evidence, a judgment l,Pon a scire facias in the supreme court of New-York, in favour of Williary. Peters, against George Croghan, for 5,7391. 12s. 2i¡d. debt and 91. Is. 10a. costs, docketed the' December, 1773 ; and an exemplification of ivvendi-tioni exponas to the sheriff of the' county of Try on, tested' t^le ^Oth April, 1774, and returnable at the . term of July following, Upon which there was an indorsment of the • • . ‘ principal, interest and costs to be levied, and a return in✓dorsed by the sheriff, that he had levied the debt and damages of the lands and tenements, &c. and had the money ready, &c. The defendant further offered in evidence the exemplification of a deed, dated the 9th No-vernber, 1774, from the sheriffof Tryon to Thomas in fee, of the premises in question, which deed recited, 1. A testatum fieri facias, upon the judgment against Croghan, tested the 22d of January, 1774, returnable the third Tuesday of April following, with a return of the seizure of the lands of Croghan, and that they remained unsold, &c. 2« The venditioni exponas mentioned above. 3. A testatum fieri facias out of the supreme court of Neio-York, tested the 19th April, 1774, in favour of John Morton against Croghan. 4. A mortgage subsequent to the principal judgment in favour of Peters, and prior to that of Morton, dated 14th February, 1770, from Croghan to Goldshrow Banyer, on the said tract of land. 5. A sale at auction on the 12th and 13th of July, 1774, of the premises in question,' to satisfy the said debts, &c. and that Jones was the highest bidder and purchaser. Upon the deed to Jones was indorsed a receipt in full for the consideration money, as paid at the date of the deed, &c. The defendant also produced the exemplification of a deed of release, dated the 30th of November, 1774, from Banyer to Jones, in fee, indorsed on the deed poll from the sheriff, reciting the mortgage and the assent of Banyer to the sale, and releasing his right to the premises. The deed and release were, on the 5th October, 1789, proved by a subscribing witness to have been executed and delivered to James Duane, as escrows, to be delivered to Jones, the purchaser, whenever the consideration money, mentioned in the sheriff’s deed, should be paid by him to Duane; and upon this proof the deeds were recorded in the clerk’s office in Montgomery county, ©n the 11th November, 1794.
    The counsel for the plaintiff objected to the evidence, 1. Because the sale by the sheriff, and the deed given by him were void, having been made on credit. 2. Because the condition on which the deeds were delivered was not proved to have been performed ; but the judge overruled the objections, and the deeds were read in evidence.
    The plaintiff then read in evidence, an act of the legislature of this state, passed the 22d March, 1788, which recited that William Peters had, by his petition, represented to the legislature, that previous to the late war, he obtained a judgment against George Croghan, on which a venditioni exponas issued to the sheriff of Try on, who thereby seized certain lands, &c. and sold the same to Thomas Jones, and three others, in different parcels, and that the sheriff on the 9th November, 1774, had executed deeds to the purchasers respectively, and delivered the same to James Duane, the attorney for the plaintiff, as escrows, to take effect on the payment of the purchase-moneys ; that the purchasers not having paid any part of the purchase-moneys, the conveyances still remained with the said James Duane; and that the plain-tiffin the suit, by reason of the war, and the attainder of the said four purchasers, had been prevented from taking measures to compel them to pay the purchase-money. The act then enacted, that it should be lawful for the surveyor-general to sell the lands so purchased by Thomas Jones and others, in the manner directed by the act for the sales of confiscated estates ; and to pay the amount of the purchase-moneys on the sales in 1774, with interest from 9th November, 1774, to the judgment creditors of Croghan, according to the priority of their judgments; the overplus, if any, to be paid into the treasury, provided that before the payments be made, W. Peters should deliver to the commissioners the sheriff’s deeds in 1774 and the venditioni exponas, and that the deeds on such sales by the state should not operate as a warranty. The act further directed the surveyor-general, to file the venditioni exponas in the clerk’s office of the supreme court, and to record the said sheriff's deeds in the clerk’s office of Montgomery.
    
    The plaintiff further gave in evidence, a deed from the surveyor-general, dated 8th September, 1795, reciting a sale at public vendue on 7th January, 1789, to James Duane, for 2,445Z. and conveying the premises, <fcc. to James Duane ; and also a deed poll indorsed thereon, dated 9th November, 1795, from J. Duane, to certain trustees appointed by William Peters, of which Richard Peters was one. The plaintiff then produced a witness who proved, that the defendant had acknowledged him-' seif to be tenant to the said trustees, and had paid rent to him as their attorney The parol evidence was objected to, but the judge was of opinion, that the declarations and acts of the tenant were" good evidence of the tenancy under the trustees.
    It was admitted, that Thomas Jones was attainted by the act of attainder of the 22d of October, 1779.
    A verdict was taken for the plaintiff, subject to a case containing the above facts, with liberty to either party to turn the same into a special verdict; and it was agreed that the court might award a new tria!, or grant a non-suit, or order judgment for the defendant, according as they should be of opinion. The case was argued at the last term.
    
      Henry, for the plaintiff.
    I shall contend, 1st. That nothing passed by the sheriff’s sale to Jones. 2d. That the act of 1788 was void, and could give no title.
    1. The statute of 5 Geo. II. ch. 2. first rendered real estates liable to be sold under a. fieri facias, and they were directed to be sold in the same manner as personal property. This was the law of the colony. A sheriff has no authority to sell on credit. He can sell only for ready money. It is a wise and politic provision of the law, for the better security of creditors, whose debts would be in danger of being lost, if the sheriff were allowed a discretion in transferring the property seized by him, without receiving the.purchase money. It is true, that in the present case, the sheriff was so cautious as.to deliver the as an escroiu; but he had no authority .even to make such á delivery. It .was, in fact, a -sale on credit, and, therefore, void. Admitting, however, that the sheriff had authority to deliver the deed as an escrow, still, as the condition was never performed,-the deed was-inoperative and void. -The deed was t.o be delivered on payment of the money, and no time was fixed for the payment. Where no time or place is appointed for. the performance of an act or condition, it must be-done immediately or within a resonable time, and what is a reasonable time, is a question of law.t The general rule, that where no time is fixed for the payment of money, it ought t0 {je done presently, applies with-peculiar force to.sheriff’s sales : it follows,- therefore, that from 177.4 to. 1779, deed was inoperative,, for the condition had not been performed. The act of 1788, in its preamble, expressly states, that the condition had never beeir. fulfilled.
    By. the act of attainder, in 1779, Jones became civilly dead, and was incapacitated from performing the condition. The attainder of Jones, however, could not vest any right in the people of this state to. avail themselves of- the condition, nor did they acquire any right to the land. The act for which Jones was attainted was not ■treason; but even in case of treason in England, the king could not avail himself of-a condition. The sale, there-f°re>'was inoperative, first, from the lapse of time ; and secondly, from the legal incapacity of--the partv to per- . form the condition.
    ■ 2. There is nothing in the act of 1788 which shows that any right to the land was vested in the people, by the attainder of Jones. The recitals, on the contrary, which set forth the motives of the-legislature in granting the act, exclude every pretence of a right to the land, The sale is directed to be made in the same manner as under the' commissioners of forfeiture ; yet the act ex-prcssly declares, that the legislature are not to warrant the Ian» sold in this case. The act authorizes the sale of the land, but not of any interest of the state. The deed from the surveyor-general conveying the title and interest of the people, went beyond his powers under that act. But the act itself was unconstitutional. It directs the land to be sold in an extrajudicial manner, so as to devest the heirs of Croghan, without being heard. The legal remedy was by a scire facias, in which the heirs of Croghan might have been brought before the proper court, and have pleaded, and had the benefit of a trial ^ jury.
    SpenceR, J. If the state had no right in the land, none could pass by the act of the legislature.
    
      Platt, for the defendant.
    We shall contend that the legislature had power to convey the land.
    Kent, Ch. J. If the state had no right, they could grant none. Wo do not wish to hear the plaintiff’s counsel on that point.
    
      Platt and Gold, contra.
    
      {Hoffman and Pendleton also on the same side.) 1st. No authority has been cited to show that a sheriff cannot sell upon a credit; but were it otherwise, it would not render the sale void. The only effect would be, to make the sheriff responsible to the party injured, in case of loss. But the sale, in the present instance, was not upon credit. There was no stipulation before, or at the sale, that any credit should be given to the purchaser. Some delay of payment was necessary, in order to prepare the conveyances , but such a delay is no evidence of a credit given. The reason assigned by the other side for this objection is, the delay of payment to the creditor. .The objection, then, ought to come from the creditor, not from the debtor. The policy of the rule contended for, applies only where the responsibility of the sheriff comes in question, not where the creditor himself steps in, and assumes the risk of payment on himself. Here, by an agreement made between the plaintiff’s attorney and Jones, after the sale, time was given for the payment. No possible evil can result in such a case. Suppose the creditor should appear at the sale, and request the sheriff to accept a particular person as a bidder; this would exonerate the sheriff, and no danger of fraud could exist.
    Again; it is said that this deed was delivered as an escrow. There is no evidence of its being delivered as an escrow, except what was said by the subscribing witness, who might have called it a mortgage, with equal propriety. To make a deed an escrow, it must be delivered to a stranger to be kept, until certain condition be' performed, to be then delivered to the grantee. The delivery in such case should be explicit and formal. If a deed be delivered to the grantee, or party in interest, it is absolute. Here the deed was delivered, not to a stranger or naked trustee, butto the attorney of the plaintiff himself. The sheriff returned the execution satisfied. The title of Croghan was devested by the sale, and satisfaction of the judgment, whether the purchase-money was paid or not. Had the sale been conditional, the sheriff would not havé returned the venditioni exponas satisfied. If the deed had been delivered to Jones, and he had refused to pay the money, the sale would not have been void. If a bill in equity had been filed against Jones, it would not have been necessary to make Croghanst party. If Jones had persisted in not paying the purchase-money, the chancellor would have ordered a sale of the land to indemnify Peters, rendering the surplus, if any on such sale, to Jones,-- or making him responsible for the deficiency.
    Again; there is an obvious difference between a trailsier by a common person, and a sale by a sheriff. In the first case, many circumstances may arise to alter, or put an end to the contract of sale; the law, therefore, requires the delivery of a deed as the consummation of the contract. A sheriff’s sale does not require the formal and technical sealing and delivery of a deed. If sales by sheriffs are within the statute of frauds, and memorandum in writing, whether indorsed on the execution, or connected by a schedule, would be a sufficient compliance with the act. If the distinction now contended for be well founded, a sale by a sheriff cannot be affected by the doctrine of escrow. Jones directed the deed to be lodged with Duane. The delivery of it to Duane completed the sale as it regarded the sheriff. He was then functus oficio ; no further act should be done on his part.
    Supposing the deed to have been delivered as an escrovj, we contend that the condition, in judgment of law, has been performed, and the deed to Jones thereby become absolute. If a grantee die, or be attainted before a performance of the condition, and it afterwards be performed, the delivery of the deed has relation back to the original purchase, and enures to the persons rightfully claiming under the grantee. By the attainder of Jones, all his interest in the land became vested in the state, as fully as if it had been assigned by deed. They acquired the right of redeeming the pledge, or performing the condition by paying the money, or compromising with the creditor. The act to be performed was not personal, and. might as well be done by the state as by Jones himself. The result was a compromise with Peters, and a sale of the lands, by which he was paid nearly the whole amount of his principal and interest. All has been done that a court of chancery would have directed in such a ease.
    Again; where no time is fixed for the performance of a thing', it may be done at any time, unless the party to be benefited take some measure to hasten the performance< Peters was the only person to be benefited by the condition; he alone could compel its performance, or take advantage of the failure of the other party. But ° events of the revolution, and the situation of the parties furnish sufficient reasons for the delay. The act was not unconstitutional. The legislature had a right to order the sale of land to pay a debt judicially ascertained by a regular judgment. It deprived the debtor of no common law light. The only ground for impeaching the validity of the act of the legislature, would be some fraud practised by Peters in obtaining it; but this is not pretended. The whole case is fully and fairly disclosed in the recital. The act may be said to have a double aspect. If the sale under the sheriff was complete, and transferred the title from Croghan to Jones, then it was intended that the estate of Jones should be sold to pay Peters. If the title of Croghan was not devested by the sheriff’s sale, then it was intended to sell the estate of Croghan or his heirs, to satisfy a bona fide judgment creditor. ' The state very properly refused a warranty. The act was passed on the petition of Peters. The legislature could not know the precise state of the title of Croghan or ones, and it was prudent to avoid responsibility. Tb„ payment of the surplus into the treasury furnishes no gifc.wd of objection. The legislature directed precisely whaf a court of equity would have ordered in case of an equitable mortgage. The act was just and equitable,* and the court will adopt every favourable in-tendment in support of it, and of the title of the defendant.
    
      Harison, in reply.
    The power of a sheriff, in regard to sales, is so liable to abuse, that it waá very wisely de-cided by this court, in Simonds v. Gatlin,
      
       that they were within the statute of frauds, and that no estate would pass from him without some note or memorandum in writing. In the present case there was no writing or act of Jones, bv which he could be compelled, in a court of , , , , , equity to complete the purchase, If there was any sale, it was upon credit for a limited or unlimited time. It was not a sale for ready money, for none was paid. A power in a sheriff to sell on credit, is inconsistent the policy of the law. It would open the door to speculation and fraud, to the great injury of creditors. There is nothing in the return of the venditioni eoaponas, which can help the sale. The writ appears not to have been filed prior to the act of the legislature. True, it is now filed, but there is no date of the time indorsed. There is nothing, therefore, to prevent the court from saying that this sale by the sheriff was void. If no estate passed from the sheriff, then the fee remained vested in Croghan, descendible to his heirs; but liable to be devested, in case Jones should complete the purchase. It is said, that the deed from the sheriff was not delivered as an escroiv. The parties werenot ignorant persons, and must have well understood themeaningofthe word. In every legal sense, it was an escrow. The deed Was signed, sealed, and delivered, not to the party, but to a third person, or trustee. The parties were Croghan, by his agent, the sheriff, and Jones, the grantee. Duane was no party, for he had no interest, neither in re nor ad rem. The mere circumstance of Duane’s being the attorney of Peters, does not make him a party, in the legal sense of the word ; it gave him no interest whatever in the land. If the sale then was on credit and void, or if the deed was delivered as an escrow, the estate never passed out of Croghan, for ¿fee cannot be in abeyance. In this case it must have remained in Croghan or his heirs, until the condition was performed. Has the condition been performed? From 1774, to 1776, Jones did no act whatever to consummate the sale. He was attainted in 1779, at which time he had no interest in the land. He had no estate, either in possession, reversion, or remainder, or by way of executory 
      devise; and there are no words in the act by which estates, on condition, or mere possibilities, would vest in the state. As this was not an attainder for treason, and our act is different from the act of 33d Henry VIII. it must rest on the common law doctrine. Before that act, hereditaments or conditions were not vested in the king. In the 'Dulce of Norfolk's case, the distinction is laid down as to the personal conditions, and conditions to be performed by another. It was decided, that personal conditions were not forfeited to the king on attainder for treason. '
    Again ; a condition like the. one in the present case, must be performed in the life-time of the party, and not at any indefinite period. The right to perform cannot descend from generation to generation, ad infinitum. By the attainder and banishment of Jones, he became civil-itu-r mortuus, and the legal consequences may be considered the same, as in case of his natural death. If so, then there was an end ofhis power to perform the condition.
    But it may be asked, is Peters to be without remedy ? The filing of the writ of venditioni exponas was a voluntary act in him or his agent, and he must abide by the consequences. If the writ had not been returned and filed, he might have brought a scire facias to revive the judgment, and called in the party to show if it had been paid or satisfied. This is the ordinary and common law mode of proceeding. Or if it had appeared that there was a mistake in filing the writ, a court of equity might perhaps lend its aid to correct the mistake, and to compel the payment of the debt. But Peters has thought proper to apply to the legislature for its extraordinary interposition and relief. The right of the state to dispose of the property of an individual for public purposes, subject to a compensation to the party, is not questioned. But it would be against all law and right, for the legislature to take the property of one person to pay another; knd by this extraordinary mode of proceeding* deprive the party whose property is taken away, of the benefits of the common law process and trial by jury, in the ordinary course of justice. In this view the act must be considered unconstitutional; for if they had power, by the recital of a debt in an act, to direct the property of the debtor to be sold or conveyed to satisfy the creditor, there would be an end to thte right of trial by jury. But, in truth, the legislature neither intended to do, nor have they done any such thing. They acted under some mistake about the right of the state in the land, acquired by the attainder of Jones, and they intended merely to transfer such right, if any such existed in the state. They never could intend to convey the estate, or rights of Croghan. If the state had no right to the land, nothing pass-ed under he act; the property still remains in the heirs of Croghan, subject to the equitable claim, on account of the debt due Peters.
    
    
      
      
        Greenleaf'8 edition of the Laws of JV. Y. vol. 2. p. 222. But the section giving relief to Peters is omitted in this edition.
    
    
      
      
        Greanlmfs Ed. of Laws of JV. Y. vol 2. p. 200.
    
    
      
      
        \ Bad Ab 665. Cond. p. ^Co.IAtt'zos' &6 Co. 30, 6. † 6 Comyn's Temps^íp)
      
    
    
      
      3 Co. 2. h. 4. \csTasee,% Co. 21. An-glefield's case, hatch, 107.
    
    
      
      
        Shepherd’s Touchstone, 56. 57. Co. I Ml. 36. a. 3 Viner, tit.fail, (J. K.)
    
    
      
      2 Caines, 61, CaXttn- “ *
      
    
    
      
       2 Caines, 61.
    
    
      
      
        Co Lilt. 133. a. Jenk. Cent I. case 4 Slack. Coni' 132.
    
   Kent, Ch. J.

delivered the opinion of the court. The title of the lessors of the plaintiffs, as heirs to Croghan, having in the first instance been made out, the merits of the defence depend on the legal operation and effect of the sheriff’s sale, in 1774, and of the sale by the surveyor general, under the act of the 22dof March, 1788.

I shall first consider the effect of the sale by the sheriff. This sale was made at auction, in July 1774, and a deed was executed on the 9th of November following, in favour of Jones, the purchaser, and delivered to James Duane, as an escroto; and to be delivered to Jones on payment of the purchase-money. This fact appears, not only from the testimony of a subscribing witness to the deed, but from the petition of William Peters, as recited in the act of March, 1788; and it is conclusive proof, that the sale was not intended to be absolute, until the purchase-money was paid. There is nothing in the case to warrant the idea that the sale was upon credit. It was, no doubt, the understanding of the parties, that the deed was to be executed and the money paid, within a reasonable time, or with all convenient speed ; and that until the money was paid and the deed delivered, the sale was not to operate, and the title was to continue in Croghan. This is not only the obvious meaning of the transaction, but it is the conclusion of law. According to the decision in Simonds v. Catlin, (2 Caines, 61.) a sheriff’s sale of lands is within the statute of frauds, and requires a deed or note in writing, to pass the estate. The deed in question was clearly an escrow. It was left with Duane to be delivered over to Jones, on payment of the purchase-money. This was a plain and specific condition, to be performed before the deed could operate. A deed is delivered as an escrow, when the delivery is conditional, that is when it is delivered to a third person, to keep until something be done by the grantee ; and it is of no force until the condition be fulfilled. The condition may consist in the payment of money as well as in the performance of any other act. (S. Touch. 55. 7 Viner, tit. faits. O. pl. 4.) There is no weight in the observation made by the counsel, that the deed was not delivered to a stranger. Duane was attorney to Peters, the plaintiff in the execution, but he was still 'a stranger to Jones, the purchaser. There was no privity existing between them. If the deed did not pass the estate for want of delivery, the return uPon the execution clearly did not. The case of Simonds and Catlin settled this point. The note, or memorandum in writing, must specify with sufficient certainty, the lands sold, and who was the purchaser, for it does not otherwise answer the intent of the statute. The return, in the case before us, has no manner of certainty'. It states only, that the sheriff had sold of the lands of the defendant to the amount, of the demand. My opinion then is, that neither the sale, nor the deed, nor the return on the execution, passed the estate. We are next to see whether the condition has at any time since been perform-’ ed, so as to confirm the sale and give effect to the deed. The petition of William Peters, to" the legislature, in .1788, admitted that the purchase-money had not then been paid, and that the deed was still remaining in the hands of Duane. The title .to the premises, of course, continued in Croghan, for the fee cannot be in abeyance, but must .abide in some, person. Not having passed* to Jones, by the sale, for the want of payment, it rested in Croghan. This leads me to consider, in the second place) the effect of the act of attainder and of the sale by the surveyor-general.

The act of the 22d October, 1779, attainted, among others, Thomas Jones, of the offence of adhering to the enemies of this'state. This Was a specific offence, and was not declared or understood, to amount to treason, because many of the persons attainted had never owed any allegiance to this state. The forfeitures arising from .this attainder, must be sought for in the act, and no where else. By this act, Jones forfeited “all his estate, both real and personal, held or claimed bj' him, whether in possession, reversion, or remainder, and also all estates and interests claimed by executory devise or contingent remainder.” It is then to be examined, whether the state, by this act of attainder, acquired any right to perform the condition.

The expression, real estate, signifies such an interest as the tenant hath in land. Jt is the condition or circumstance in which the owner stands, with regard to his property. (1 Inst. 345, a. 2. Black. Com. 103.) It implies, Here the statute defines the estate. It must be an therefore, a right, interest, or ownership existing in the soil, interest in the land existing in possession, reversion, remainder, by .executory devise, or contingent remainder. The condition in question was neither of these. No in* •terest, whatever, in the premises had vested. Jones bad nothing, not even a scintilla juris, in the land, which he; could assign so as to enable tbc assignee to perform the condition. A mere posibihty is not the subject of a grant,unless it be a.possibility coupled with an interest. (Chep. Touch. 414. pl. 18. 38 Viner. tit. Possibility. B. tit. Grant. N.) In Marks v. Marks, (10 Mod. 419. 1 Str. 129.) it was admitted to be a maxim of law, that a stranger could not take advantage of a condition, for it was not assignable. An assignee must be privy in estate, and have an interest in the condition, or he cannot perform it. (Litt. sec. 330. Co. Lit. 207. b.) Such general words as those used in the act of attainder, have never been construed, in any period of - the English law, as extending to a condition. At common law, no condition, use, or mere right of action was forfeited to the king upon attainder of treason, notwithstanding such attainder reached the lands and tenements. (3 Inst. 19. 1 Hale 244. 247. 2 Hawk. 637.) This restriction led to the statute of 33 H. 8. c. 20. which declared, that uses, entries, and conditions, as well as possessions, reversions, and remainders, should be forfeited upon every such attainder. And since that statute the only questien has been, whether the condition was personal, and inseparable from the party at-tainted, or could be performed by the crown. The statute of 26 H. 8. c. 13. declaring the forfeiture in treasons, extended it to all estates of inheritance, in use or possession, in lands, tenements, and hereditaments, by any right, title, or means, See. These words are certainly as broad as those used in our act of attainder; yet they were not considered as including a condition, or a mere right of action. It required the express words of the statute of 33 H. 8. to embrace those cases.

The decisions which have since been made in England, on the question of the forfeiture of conditions, are instructive examples of the strictness with which the courts have construed this right of forfeiture since the statute of H. 8. and of the independent spirit displayed in the discussions on this subject, even under the enormous pressure of the prerogative of the Tudors and Stuarts. In the Duke of Norfolk's ease, 11 Eliz. a personal condition was held not to be forfeited by attainder for treason ; and in Englefield’s case, 33 Eliz. (7 Co. 11.) it was ruled that a condition, not being personal, might be performed by the Queen, and yet it was not thought prudent to rely upon this judgment, and the statute of 35 Eliz. confirmed the forfeiture. The case of Wardner v. Hardwin, (Latch, 107. Wm. Jones, 137.) on the question whether the condition was forfeited, is said to have walked through all the courts in Wesiminster-Hall, and the court of king’s bench was at last equally divided. In Smith v. Wheeler, (1 Mod. 38. 1 Hale, H. P. C. 246.) it was decided that the trust was personal, and not forfeited by attainder, notwithstanding the attainted person had the jus disponendi, and was according to Sir Matthew Hale, “.guilty of the execrable murder of the king..1*

In every view, therefore, of this question, whether we consider the technical force and meaning of the words used, or the rule that such a possibility is not assignable j whether we consider the principle of the common law, that á condition was not subject to forfeiture for treason, or the series of decisions since the statute of H. 8- showing the strictness with which such forfeitures have been regarded, 1 am clearly of opinion, that the attainder of Jones did not vest in the state, any right to pay the purchase-money and take the land. The state was a stranger to the condition, and had no right to perform it.

Jones was to be considered as civilitcr mortuus by the act of attainder -, but whether his legal representatives were competent to perform the condition it is unnecessary to ihquire, because there is no evidence before us, that any snch performance was ever attempted. The heirs of Croghan have, therefore, an existing title to the premises,- unlesss the sale by the surveyor-general was an alienation of their right. The sale was made under tjjC act 0f tjje Q2d of March, 1788, which, so far as related to this subject, was a private act, and liable to the rules of construction applicable to such* statutes.

England, a general saving clause is now always added, at the close of every private act, of the rights a'd interests of all persons, except those whose consent is obtained ; and before this practice of inserting the saving clause, it was held that a private act did not bind strangers. (2 Black. Com. 345. 4 Cruise’s Dig. 518, 9.) In Boswell's case, (25 and 26 Eliz. cited in Barrington's case, 8 Co. 138, a.) it was resolved in the court of wards, that when an act of parliament maketh any conveyance good against the king, or other person-certain, it should not take away, the right of any other, although there be not any saving in the act. This just and liberal decision, and which is also warranted by the opinion of Sir Matthew Hale, (1 Vent. 176.) is perfect!}7 applicable to the present case. The act directs only the surveyor-general to sell the lands so purchased by Thomas Jones, and to execute a deed without a clause of warranty; but docs not declare the operation of this deed as against the rights of Croghan and his heirs. In the language of Barrington's case, this act does not make the deed good, as against any person certain, except it be the state, and therefore, it shall not take away the right of any private person. •It is a mere quit-claim of the right and interest, which the state might have had in the premises, without declaring the extent or certainty of that right. If the act had declared the sale to be a bar to the claim of Croghan, a very serious question would have arisen on the validity -of á statute taking away private property, without the consent of the owrner, and without any public object, or any just, compensation. But it, is evident that no such operation was contemplated. The act passed, probably, tinder a misapprehension of the rights of the state, rcsuiting from the attainder of jones. The ’sale was directcd upon the suggestion of Peters, for.the purpose of passing the interest of the state, whatever it might be, valeat quantum valere potest. • The title-of Croghan is not so much as once mentioned in the act, and was undoubtedly ' *f intended to be left to its due weight and effect, in the ordinary course of justice.

The court are therefore of opinion, that the plaintiff is entitled to judgment.

Judgment for the plaintiff.  