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court, to enable it to judge of its lain dormant, from the year 1758 to application to the present case. But the year 1787, when it was proved and we cannot accede to the broad propo-· recorded, which affords the presuinpsition it is said to lay down. We tion that it was then revived, for the think the law in this state as well as purpose of overreaching the attainder in England, is well settled, that mere. of Roger Morris and his wife. ly cancelling, or destroying a deed, will It is to be observed, however, that not revest the title in the grantor. A the proving and recording were not necontrary dsctrine would be in the face cessary for the purpose of passing the of the statute of frauds, which pro- title, but only for safe keeping, and vides, that no interest in lands (except preserving the evidence of the due ex. leases for a term not exceeding three ecution of the deed. The situation of years) shall be granted or assigned, this country in relation to England, unless by deed or writing. A jury for some considerable portion of this may, however, presume a deed or time, and the absence of Beverly Rowriting for that purpase, to have been binson, in England, may account, in given, where the acts of the parties some measure, for the delay. But the for a great length of time, have been deed cannot be considered as having inconsistent with the existence of the lain dormant during the whole of that original conveyance; and if you shall period. For Col. Barclay testifies, be of opinion that such is the case, in that he was very intimate in the fami. the present instance, you may pre- ly, and repeatedly heard it spoken of, sume a reconveyance, so as to vest the as early as the year 1770, as a prudent title in Mary Philipse. But it is to be measure, on the part of Mrs. Morris' borne in mind, that this must have mother, to secure the property to the been done some time before her inter- children; and Judge Benson saw it in marriage with Roger Morris, or at all the possession of Gov. Livingston in events, before the birth of any of their the year 1784. children, for upon that event the chil. 3. The next circumstance relied dren acquired an interest under this upon, is the long possession of the deed, of which they could not be de. occupants of the farm now in question, prived, without their consent; and, as well as of other lands in the patent, from the evidence in the cause, this claiming to hold as tenants under Mormust have been only a short period. ris, previous to the revolution. A numThe precise time of their marriage ber of old witnesses have been exdoes no appear; but Colonel Barclay amined, who have fully established swears that their children, four in that fact, and if the interest claimed to number, were born before the year have been held by the tenants, was in. 1774.

compatible with, or greater than that The circumstances which have been which Morris had in the lands, it relied upon to raise a presumption would be a strong circumstance against against ihe title under this marriage considering this marriage settlement settlement deed, are :

at that time a subsisting deed. But 1. That it purports to have been the witnesses only say generally, made tripartite, and only one part has that the occupants held the land as been shown on the present trial. The tenants, under Morris. Whether there answer given to this circumstance is was a tenancy from year to year, or for certainly well founded, and en itled to a term of years, or during the life of great weight : that it was unnecessary Morris, does not appear. And this for the purpose of showing the title of holding was not therefore inconsistent the lessors of the plaintiff, to give in with the right which Morris had in the evidence more than one part. The land, for ur der the marriage settleothers are not presumed to be in their ment he had a life estate therein. Nor possession.

was the giving the deeds, by Morris 2. Again, it is said, this deed has and his wife, to William and Joseph

Merrit, in the years 1765 and 1771, as to what extent the interests of the shown in the evidence, at all at war parties to it were affected by the atwith the right and interest they held tainder of Roger Morris, and Mary his under the marriage settlement. They wife, in the year 1779. conveyed these three farms in fee sim- This is purely a question of law, and ple, and they had full and ample power by no means free from difficulty, and it so to do. For the marriage settlement would have been more satisfactory if deed secured to them the right of self- the cause could have been thrown into ing land to the amount of £3000, and the shape of a special verdict, or å the amount sold was only £1200. All case agreed upon, so as to have given these possessions, by the tenants, and the court, time and opportunity for a sales made by Morris and his wife, are more full and deliberate examination perfectly consistent with the interest of these questions. But as the counthey held in the land, and afford no sel have chosen to adopt a different presumption against the validity of the course, we are called upon to express deed.

an opinion according to our present 4. Again, it has been proved by a impressions. number of witnesses, living upon the We shall not at this time enter much lands falling within the present claim, at large, into the examination of these that they never heard of this marriage questions, but only state generallv, the settlement until within fifteen or six- opinion of the court, so as to enable teen years past.

the parties to avail themselves of their This is at best but negative evi- legal rights, to have this opinion redence and warrants no just conclusion viewed, if they shall be dissatisfied against the validity of the deed, when with it. not only its existence, but the asser- The opinion of the court is, that tion of a claim under it long before this marriage settlement deed conthat time, is so fully proved by positive veyed to Roger Morris and Mary his testimony. Col. Barclay heard it wife, upon their intermarriage, an spoken of in the family as early as the estate for their lives, and the life of year 1770; Judge Benson saw it in the survivor, and a contingent remain. the possession of Gov. Livingston in der to their children, which vested in the year 1784 ; it was proved and re- them respectively, as they were born. corded in the office of secretary of It is contended, on the part of the state, in the year 1787 ; and in this defendant, that the contingent estate same year, a claim under it was assert- of the children could not vest until the ed by a petition to the legislature of natural death of their parents, who the state, and the only answer receiv- held the particular estate, and that, by ed was, that if the facts set forth in the their attainder, they became civilly petition were true, the ordinary course dead, and the particular estate thereby of law was competent to the relief of ended, by reason whereof, there was the petitioners; and that it was un- no particular estate to support the connecessary for the legislature to inter- tingent remainders, as the law repose. But this claim could not be set quires. And that, although the life up in a court of justice during the life estate of Roger and Mary Morris, of Mrs. Morris, and she has died might have been transferred to the within the last two or three years. people of this state, yet the state could Under these circumstances, it will be not stand seised to the uses declared for you to say, whether the plaintiffs in the deed. It is no doubt a well set. are justly chargeable with any delay, tled rule of law, that a contingent rewhich ught to prejudice the claim mainder to be valid, must vest, during now set up.

the continuance of the particular III. The only remaining inquiry is, estate, or at the instant of its terminaas to the legal effect and operation of tion, so that no estate can intervene this marriage settlement deed, and between the two. But the vesting of


the contingent remainder may be at according to the provision in the deed. any time during the continuance of the by way of shifting uses. But, by their particular estate, whenever the con attainder, both their life estate and tingency happens upon which it is to their contingent remainder, over to vest. The enjoyment of it, however, them, would have become forfeited, is deferred, until the particular estate and vested in the people of this state. is ended. If the estate of the chil. So that the whole interest in the land dren did not vest, until the natural in possession and remainder, would death of their parents, their civil death have gone to the state, if Morris and by the operation of the attainder, and his wife had survived their children. the transfer of their life estate to the These are briefly the views of the people of this state, might present court with respect to the construction some difficulty in supporting the con of this marriage settlement deed. And tingent remainders, without the inter- it follows of course, that the forfeiture, vention of trustees to preserve them. by reason of the attainder of Roger But we think no difficulty arises on Morris and his wife, attached only this ground, as the contingent estate upon their life estate, and that upon of the children vested upon their the death of their parents, there was birth. And all were born before the

no legal impediment to the children's year 1779, when their parents were coming into the possession and enjoyattainted, And after the contingent ment of their estate. interest of the children became vest. The plaintiff will therefore be entied, it was unimportant, as it respected tled to recover, if the jury shall find their rights, what became of the par that the lease, as well as the release ticular estate. It is unnecessary for were duly executed and delivered, at, us to express any decided opinion as or about the time of the date. And to the ultimate limitations over, to that the estate thereby conveyed, was Morris and wife, in case they should not afterwards divested, by any deed survive their children, as provided for or instrument in writing. These ques. in the marriage settlement. It may, tions, being matters of fact, are subhowever, be observed, that if they had mitted to the decision of the jury. not been attainted, and had survived The jury returned a verdict for the their children, we see no insuperable plaintiff. objection to their taking the estate,




Oyer and Terminer,

Nov. 27, 1828.

Michael M'Garvey.

The sheriff began to call the jury the court, and the jury box was finally immediately upon the opening of the filled as follows: court. After 10 were sworn, 6 challenged for cause, (3 on the part of the prisoner, and 3 on the part of the Thomas Morris, John Moore, commonwealth,) 8 set aside for blun Harrisan Hall, John Twaddell, ders in the return and summoning, Robert Mason, Isaac Macauley, and 15 challenged by the prisoner pe. John Warner,

Henry Lentz, remptorily, the pannel became entirely J. Williamson, R. B. Carson, exhausted. A tally was ordered by Capt. W. West, George Wall

Thomas M. Pettit, Esq. prosecuted; see anything till the neighbours came W. W. Haly and F. W. Hubbell, in. I thought he struck her the last Esqrs. for the defendant.

time I went down, but I was not cerAfter the jury had been sworn or tain I was too much frightened to go affirmed, and the indictment, charge, up again. When the neighbours came &c. impressively stated by F. A. Ray- in, the deceased was in bed. I heard bold, Esq. who acted as prothonotary, the prisoner tell her before the second the attorney general opened the case time I went up, to go-he did not say for the commonwealth. He gave where; she said, yes. There was a merely an outline or skeleton of the great deal of blood upon the floor facts alleged by the prosecution, pre- after it was over. That morning the ferring, as he said, for the cause of deceased had got breakfast, and went mercy, that the jury should receive the to her father's afterwards. After dinfirst impressions of the facts from the ner she was making a shirt; she was witnesses themselves. The learned sewing at it when the prisoner came attorney general stated briefly the law in. She was taken away from the pertinent to the case, and that the house after it was over. commonwealth and the case would call Cross examined. When I first upon them for the highest verdict went up to Mrs. M.G. we had no parknown to the law. The indictment ticular conversation. The prisoner contained two counts—lst, killing said nothing to me. I did not stay in Margaret McGarvey with a cart whip; the room long. The deceased did not 2d, killing her with a knife. The wit- say a word. The prisoner struck her nesses were called, and testified as with a whip—can't say how he held follows:

it. He called her a drunken strapRosetta M-Guire, sworn.

1. I lived so he said afterwards. I did not hear last week at the corner of Ball and him call her so. I said, “for God's Pine alley, near Fourth and Shippen. sake Michael, could I think there On Friday afternoon I was up stairs, would be this betwixt you and your and coming down, I had to pass wife.” He bid me clear to my own through Mrs. M'Garvey's room. She apartment.

The deceased was not was sitting in her room, sewing. I drunk. He began to strike her about left my baby in her apartment; this an hour before dark, but did not conwas about an hour before dark. When tinue on steady; she did not speak a I returned up stairs, I saw the pri- word, or cry out at all. About candle. soner. I heard a rattling up stairs, light my husband came in. that was the reason I went up. When I sell liquors in the house to my I went into the room, I saw no strokes, boarders. I did not sell liquor that but there was something in the coun- day to the deceased; the prisoner tenances of Mr. and Mrs. M'Garvey never charged me with selling any to that was disagreeable. I took up the her; I did not tell him that she had baby. The deceased attempted to go been at her mother's that day. I have down stairs; the prisoner struck her given liquor to the M‘Garveys at with a whip, and seized her by the times, but never to the deceased. She hair, and ordered me out of the room ; never asked me for a drop of liquor; I I went down stairs, and did not hear did give her about half of half a any strokes for a little time; I then glass once; he was by. I do not heard strokes of the whip, as if he know who told prisoner that deceased was beating her; I went back again, was at her mother's that day. I have and saw her bleeding in the head; the seen her drinking beer. There was no blood ran down her neck. He stopped wedding about that time in the family. beating her when I went in; he did I was just coming down stairs when not say any thing, nor she; she was prisoner came home. The deceased lying on her side, near the door. I never holloed a word. I heard her went down stairs again, and did not groan. I cannot tell whether he struck

her with the lash or handle of the down stairs; there was a great crowd whip when I saw her. I took no liquor about the stairs. No one went up. that day but what was useful to me. I After a considerable while, Bryan don't know how much is useful. I Mount came in; he and I went up. don't think I took more than was use We saw her hair tied to the bedpost; ful to me, a glass of liquor and of it was parted in half as near as I saw. beer. I was washing that day. There She had long hair. She was on her was a young woman below when I knees or haunches on the floor. The went down. The deceased told me hair kept her head from falling. The she thought there were strangers be- job was pretty well over at this time. low, and to fix my hair. I went down She could not speak; she was groanon her telling me. The prisoner was ing. I left Mount and came down in a violent passion; he kept calling stairs. There I met Mr. McCann; he her a drunken strap, off and on. I was coming up stairs. Mount told did not call in any neighbours while it him to stop below. McCann and I was going on; I thought it was some went for the constable; he was not at thing between man and wife that would home. McGarvey was down stairs soon cease. I was in the house all when I returned. They sent me for the time. The prisoner never came the doctor, and before I got back again down until he was done beating her. the prisoner was taken by another conMy memory is very good. I repeat stable. The beating began an hour that I never told the prisoner that his before dark ; it lasted altogether some wife was at her mother's that day. hours. The constable lived about After the business was over that night, three squares or so off. it was talked of in the house, but I Cross examined.—The prisoner and did not say it.

deceased lived together in the one Michael McGuire, sworn.—I was in room. They cooked there; had a the house when the prisoner came

fire there, shovel and tongs; they home last Friday. He went up stairs, eat there; I can't say they had and was not up long before I heard knives and forks there. They had some raps that I thought were whip reasonable good furniture.

I never sounds. I went up to the head of the saw them eating. I know the hair stairs; she was bloody. He said he was tied to the bedpost. I saw it. would cut her throat. I was afraid to The hair was wrapped or tied around go into the room and went down, went the bedpost. Her head was hanging out for a constable; saw one, but he down. There are some stout men would not come. I came back, went up living near. I did not go after them. stairs, and saw the prisoner having the McGarvey came in an hour before deceased by the hair, with a whip in his dark. I do not recollect where my right hand. The whip, a black leather wife was then. He walked up stairs one, was produced in court and iden- pretty smart. I did not hear him say tified by the witness. The prisoner any thing then. When I went up he held it by the butt, the lash out. I was not beating her; the door was went again to the constable's house, half way shut. I saw her; he shut corner of Plum and Third streets. the door half way. It was when I When I came back, I saw the arms was going up that he threatened to cut and head of the deceased out of the her throat. He had no knife; he did second

story window, and James not speak loud. I did not remain McColgey on the pavement, with his down stairs five minutes. I stood at arms held out to ca'ch her as she the front door, considering what to do. might fall. It was dark; I went up I was about a quarter of an hour stairs, and saw the prisoner having the away for the constable. On returning deceased sitting on the floor, his ar I saw my wife. I did not stay up stairs around her. She was all bloody about w th Mount long enough to hear what the head. Her hair was all covered the prisoner said. I did not hear my with blood. The floor too. I caine wife say she gave the deceased liquor.


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