[Volume 5, Page 314]
Bowman v. Middleton1 Bay 252 S.C. 1792
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 freeholds, 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 to 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.
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