
    Thomas Cutts, Plaintiff in Error, versus The Commonwealth.
    An information under the Conspirators Act, passed April 29,3779, must describe the estate claimed and the title set up thereto by the commonwealth, must allege that the conspirator was seised of the land demanded in his own right, and also that he was seised between the 19th April, 3775, and the date of the act. Such an information may be filed in a different county from that where the land lies, and the summons be made returnable in the latter county.
    This was a writ of error brought in the county of York, to reverse a judgment rendered there in the Supreme Judicial Court, October term, 1805, upon an information or inquest of office filed by the Solicitor-General, in behalf of the commonwealth, against the now plaintiff in error. The Chief Justice and Judge Parker having been of counsel in the cause, it was continued nisi at the last term in York, to be argued and determined here.
    * The original information, which was filed in Suffolk,- [ * 285 ] at the March term of this Court, A. D. 1804, sets forth, •• That there is in the town of Pepperelborough, in the county of York, a certain tract or parcel of land, now in the occupation of 
      Thomas Cutts, Esq., of, &c., bounded, &c., which said tract of land the said commonwealth are entitled to hold and possess.
    “ And the said Solicitor-General further gives the said Court to understand and be informed that, prior to the nineteenth day of April, in the year of our Lord 1775, and also since that time, one William Pepperdl, Baronet, was seised and possessed, and was entitled to be seised and possessed, of the tract of land above described ; and that afterwards, viz., on the thirtieth day of April, in the year of our Lord 1779, in and by an act of the then state of Massachusetts Bay, entitled ‘ An Act to confiscate the effects of certain notorious conspirators against the government and liberties of the inhabitants of the late province, now state, of Massachusetts Bay,’ it was enacted and declared, That all the goods and chattels, rights and credits, lands and tenements, of every kind, of which any ol the persons named in the said act (one of whom was the said William Pepper.ell) were seised and possessed, or were entitled to possess, hold, enjoy, or demand, in their own right, or which any other person stood seised or possessed of, or was entitled to have or demand to and for their use, benefit, and behoof, should escheat, enure, and accrue, to the sole.use and benefit of the government and people of the (then) state, now commonwealth aforesaid ; and the same were accordingly, in and by the act aforesaid, declared so to escheat, enure, and accrue; and that the said government and people should be taken, deemed, and adjudged, and in and by the act aforesaid they were declared, to be in the real and actual possession of all such goods and chattels, rights and credits, lands, tenements, and hereditaments, without further inquiry, adjudication, or determination, thereafter to be had.
    “ Wherefore the said Solicitor-General moves the Court that a scire facias may issue against the said Thomas Cults, and that such proceedings may be had, as that the said commonwealth may obtain the lawful seisin and possession of the premises ”
    [ * 286 ] * The errors assigned were, 1st. That in the said information there is no allegation that the commonwealth ever granted the lands therein described, on any condition, nor that the same had escheated to the commonwealth for defect of heirs of the person last seised, or because the same had been purchased by an alien.
    2d. There is no allegation in the said information that the commonwealth was seised or possessed of the lands therein described, at the time of filing the said information, or at any other time, but only that it had right to be seised and possessed thereof.
    3d. There is no allegation in the said information that the said Thomas Cutts had e'\er intruded into said lands, or any of them, but only a reciting that, at the time of filing the said information, the eaid lands were in his occupation, and so no tort or wrong is alleged m the said Thomas Cults.
    
    4th. The said information is filed at a Supreme Judicial Court holden within the county of Suffolk, and not within the county of York, in which last county the lands therein described are situated.
    5th. The general error.
    The Attorney-General,
    
    who appeared for the plaintiff in error, doubted if the proper process had been used in the original case. If the commonwealth, which is the legal and constitutional successor of the government and people of the late state of Massachusetts Bay, was ever actually seised, as the Conspirators Act declares them to be, it could not be disseised, and a writ of intrusion was the proper remedy. If the commonwealth had only a right to be seised, he thought the declaration ought to have been more special, and set forth all the facts on which such right was supposed to be grounded. There is not in the information any positive and direct allegation that the property of Sir William Pepperell ever escheated to the commonwealth.
    The Solicitor-General,
    
    for the commonwealth, observed that having but a few hours before been furnished with the errors * assigned, he was not sufficiently prepared to [ * 287 ] defend against them ; but as the whole was matter of law, and exclusively respected the course of judicial proceedings in our own country,' the Court could not need his aid in forming a correct opinion. A few observations, however, should be submitted.
    The first objection seems to be, that enough is not set forth in the original information, or, in other words, that an inquest of office was not a ptoper remedy in the case as disclosed. After insisting, from the provisions of the statute directing the manner in which inquests of office shall be taken, &c.,  that this was the regular remedy, the Solicitor-General read a resolution of the legislature, directing him to institute this process in this particular case. If there were doubts under the general statute, this legislative declaration removed them in the consideration of this case.
    As to the second error assigned, it was believed that it was not a fatal one. This process is to be considered as a civil one, and as such is entitled to a liberal construction in support of it, and especially after a verdict. The Conspirators Act, which is a public act, declares that the estates, of which the persons therein named were seised, shall escheat, enure, and accrue, to the state, without further inquiry, adjudication, or determination, thereafter to be had; this statute is recited in the information, and it is alleged that Sir William Pepperell is one of the persons named in the statute; that he was seised of the land in question, and that the commonwealth is entitled to hold and possess it. The statute respecting inquests of office, before referred to, does not require the commonwealth to have been seised. The expression used is, “ upon information describing, among other things, the estate claimed, and the title sot up thereto, by the commonwealth.” This information describes both these.
    The same answer will apply to the third error assigned, ft is apprehended that it was not necessary to allege an intrusion by Cutts. The statute against conspirators, and that re- [ * 288 J specting * inquests of office, are substantially pursued. Perhaps the information might have been drawn in a more technical form, but enough is contained in it, as to this point, to support the verdict which the commonwealth has obtained. It is alleged that Cutts was in possession, and that the commonwealth was entitled to be reseised. In a writ of intrusion, it would have been essential to allege a disseisin by Cutts; in an inquest of office it is otherwise. He may have a title under which he may have entered, and the commonwealth have a better and paramount right.
    As to the fourth error assigned, it was answered that the constant practice, which had always received the countenance of the Court, had been to file these informations in any county ; but the scire facias had always been made returnable in the county where the land lies. It was so in this case, and the trial was had in that county. The statute requires that inquests of office shall be taken in the county where the land lies, and so it was done in this case. In criminal prosecutions for neglect of schools, defective highways, &c., it is every day’s practice to file informations in any county, and issue a summons returnable in the county where the offence is alleged to have been committed. A fortiori, such a practice may be sustained in a civil suit, which this undoubtedly is.
    The Attorney-General, in reply,
    observed that the whole record was before the Court, and he would not take up their time to enforce what he conceived abundantly apparent. There is no averment of any entry on the part or behalf of the commonwealth, and without entry the commonwealth could not be seised. There is no averment that this land ever did escheat, but only that the statute says it shall escheat, &c. This amounts to no more than a judgment for possession, without extent of execution, which gives no seisin.
    This information alleges, that Sir William Pepperell was seised of the premises before the 19th day of April, 1775, and also since that time; but these allegations do not bring the case within the Conspirators Act. It might notwithstanding be true that he was not seised on the 19th of April, nor at any time * after that day, and before the treaty of peace, which put [ * 289 ] an end to all forfeitures on account of the part taken by any one in the revolutionary war. Neither is there any declaration of what estate he was seised. It might have been an estate for life only. As to the practice suggested of filing informations in other counties than that where the trial was to be, the Attorney General had no knowledge of it; and he considered it as not conforming to the statute, which requires inquests of office to be taken in the county where the land lies. The Court will determine whether filing the information does not come within this phrase.
    
      
       June 18, 1791.
    
   The opinion of the Court was thus delivered by

Sedgwick, J.

This case is brought before the Court by a writ of error, which complains of a judgment of the Court founded on a suit in favor of the commonwealth, against the plaintiff in error, instituted by the Solicitor-General, by the order of a special resolve of the legislature, in pursuance of the act passed June 18, 1791, directing the manner in which inquests of office shall be taken to revest real estate in the commonwealth, or to entitle the commonwealth thereto.”

This writ is grounded on the second section of the statute, which enacts, that “ in all other cases, where an inquest of office is necessary by law, to entitle the commonwealth to hold lands, tenements, or hereditaments, such inquest shall be taken by the Supreme Judicial Court, in the county where such estate lies, upon information of the Attorney-General, describing (among other things) the estate claimed, and the title set up thereto by the commonwealth.”

As this is a prosecution instituted by statute, in which, from the nature of the subject, the government, the party plaintiff, is the whole people, against an individual or individuals, the party defendant,— and against whom the judges are inevitably interested, — it becomes important that none of the guards which the law has provided for the security of the defendant should be dispensed with. The statute, as recited, has rendered it necessary that the information should describe, 1st, the estate claimed by the commonwealth ; and, 2d, the title set up thereto by * the [ * 290 ] commonwealth. If the information, on which the judgment was founded, was deficient in describing the estate claimed by the commonwealth, or its title thereto, the judgment must be reversed : then —

1. Does the information describe the estate which the common wealth claims in the demanded premises ? By “ estate ” in land I understand the kind and quantum of interest therein. This interest may be a freehold, or of an inferior degree. A freehold may be of inheritance or for life. If of inheritance, it may be pure or base, absolute or conditional, in fee simple or fee tail. If fee tail, it may be general or special. If for life, it may be for that of the tenant or of another person, with or without impeachment of waste, absolute or conditional. If the estate be less than freehold, the term may be of greater or less duration, and with duties to the superior more or less burdensome. In short, an estate, in real property, is susceptible of every possible variation in which man can be related to the soil. When the government claims, against an individual, lands in his possession, it is proper that the law should provide, as this act does, that the “ estate claimed,” the hind and, quantum of interest therein, should be described. Indeed, this is necessary, ordinarily, in controversies between private persons. Was this done by the information in this case ? I think not. After describing the land to which claim is laid, the information says, “ which tract of land the commonwealth are entitled to hold and possess.” Here, certainly, the estate claimed by the commonwealth is not described. Nothing could have been less precise, and more indefinite, than the words “ hold and possess,” as descriptive of an estate in lands ; they apply equally to many kinds of estates. The information gives no other description of the estate of the commonwealth in the lands demanded, than by describing that derived from Sir William Pepperell. And there is no other estate intended to be described as derived from him, but what is expressed by the allegation that he “ was seised and possessed, and entitled to be seised and possessed, of the tract of land ” demanded. Here, again, the words descriptive of the estate of Sir William are altogether vague and indefinite. The information, then, does not “ de- [ * 291 ] scribe” the * estate, the kind and quantum of interest claimed in the land demanded.

2. The remaining question is, whether the title set up, by the information, to the lands demanded, is such as would authorize a judgment for the possession, in favor of the commonwealth. The title set up is an act of the government, passed on the 30th of April, 1779, “to confiscate the estates of certain notorious conspirators,” &c. In this act, among others, Sir William Pepperell is named; and it enacts, “ that all the goods and chattels, rights and credits, and lands, tenements, and hereditaments, of every kind, of which any of the persons before named were seised or possessed, or entitled to possess, hold, enjoy, or demand, in their own right, or of which any other person stood, or doth stand, seised or possessed, or are, or were entitled to have or demand, to and for their use, benefit, and behoof, shall escheat, enure, and accrue, to the sole use and benefit of the government and people of this state, and are accordingly declared so to escheat, enure, and accrue; and the said government and people shall be taken, deemed, and adjudged, and are hereby accordingly declared, to be in the real and actual possession of the goods, &c., lands, &c., without further inquiry,” &c. To this there is a proviso, in these words: “ Provided always, that the escheat shall not be construed to extend to, or operate upon, any goods, chattels, rights, credits, lands, tenements, or hereditaments, of which the persons aforenamed and described, or some other in their right and to their use, have not been seised or possessed, or entitled to be seised or possessed, or to have or demand, as aforesaid, since the 19th day of April, in the year of our Lord 1775.”

From this recital it is manifest that, to derive a title to any lands, from the seisin or possession of a conspirator, named in the act, to the commonwealth, it was necessary, 1st, that the person from whom the title was derived should have been seised or possessed in his own right; and 2d, that such seisin or possession should have been since the 19th day of April, 1775, and before or at the time of passing the act. The act, however just or necessary, was certainly rigorous, and must therefore * have a [ * 292 ] strict construction. Now the information does indeed say, that Sir William Pepperell was seised and possessed of the land described ; but it does not aver that it was in his own right. He might have been seised and possessed, in trust, or in the right of another, of the land demanded, and yet no title derived, by the act, to the commonwealth. Again, to derive a title from Sir William to the commonwealth, he must have been seised, since the 19th day of April, 1775, and before the 30th day of April, 1779. But the allegation in the information is, that prior to the 19th day of April, 1775, and since that time, he was seised and possessed. All this might be true, and yet the lands demanded not be confiscated by the act. The allegation may be all true, and yet the whole time within which the act required a seisin and possession, to give effect to the confiscation, excluded. The title set up, therefore, is wholly defective, and cannot be aided by the verdict.

I have not encumbered my opinion with a recital of the errors assigned by the plaintiff, because it was found to be unnecessary, from .the view taken of the case by the Court. We are all of opinion, for the reasons which I have stated, that the judgment must be reversed.

Note.—After this opinion was delivered, the Solicitor-General inquired of the Court, whether filing the information in another county than that where the land lies was matter of error. Sedgwick, J. We are all of opinion that that exception '‘ould not avail.  