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OF THE

Supreme Court of the United States.

FEBRUARY TERM, 1818.

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[Common Law.]

and ejectment above mentioned are supposed to have been committed, namely, on the tenth

JACKSON, Ex Dem. The People of the State of day of April, 1706, Anne, Queen of England,

New York.

V.

CLARKE.

by letters patent under the great seal of the then colony of New York, did grant unto Sampson Broughton, and divers other persons in the said letters patent named, and their G. C., born in the colony of New York, went to heirs, a certain tract of land, situate in the England in 1738, where he resided until his de- then colony, now state of New York, to have cease; and being seized of lands in New York, he, and to hold the same to them, their heirs and on the 30th of November, 1776, in England, devised the same to the defendant and E. C., as tenants assigns, forever, as tenants in common, and in common, and died so seized on the 10th Decem-*not as joint tenants. And that the lands [*3 ber, 1776. The defendant and E. C. having entered, and tenements, with their appurtenances speciand becoming possessed, E. C., on the 3d December, fied in the foregoing declaration of the said 1791, bargained and sold to the defendant all his Interest. The defendant and E. C. were both born James Jackson, were part and parcel of the In England long before the revolution. On the 22d said tract of land granted, as aforesaid, by the March, 1791, the legislature of New York passed an act to enable the defendant to purchase lands, and said letters patent. And the jurors aforesaid, to hold all other lands which he might then be en- upon their oath aforesaid, further say, that the titled to within the state, by purchase or descent, said Sampson Broughton, and the said other in fee-simple, and to sell and dispose of the same in the same manner as any natural born citizen persons to whom the said tract of land was might do. The treaty between the United States granted as aforesaid by the said letters patent, and Great Britain of 1794 contains the following being so seized in fee-simple, and possessed of provision: "Article 9th. It is agreed that British subjects who now hold lands in the territories of the said tract of land by virtue of the said letthe United States, and American citizens who now ters patent, did afterwards, to wit, on the 2*1 hold lands in the dominions of his Majesty, twelfth day of April, in the year last aforesaid, shall continue to hold them according to the nature and tenure of their respective estates and ti- by good and sufficient conveyance and assurtles therein; and may grant, sell, or devise the ance in the law, for a valuable consideration, same to whom they please, in like manner as if grant, bargain, sell, and convey unto George they were natives, and that neither they nor their heirs or assigns shall, so far as respects the said Clarke, now deceased (who was formerly Lieulands and the legal remedies incident thereto, be tenant-Governor of the said colony, and who considered as aliens." The defendant, at the time was then a subject of England, and who reof the action brought, still continued to be a British subject. Held, that he was entitled to hold the mained so until the time of his death), and to lands so devised to him by G. C. and transferred to his heirs, one equal undivided ninth part of the him by E. C. said tract of land granted as aforesaid, in, and by the said letters patent, to have and to hold

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This was an action of ejectment commenced in the Supreme Court of the state of New York, and removed thence into the Circuit Court of the United States, for the New York district, where, in September, 1815, a trial was had, and a special verdict found, in the words following, to wit:

At which day in this same court, at the city of New York, in the New York district, came the parties aforesaid, by their attorneys aforesaid, and the jurors aforesaid being called also come, who, to say the truth of the above contents, being elected, tried and sworn, say, upon their oath, that long before the above-mentioned time when the trespass

to him, his heirs and assigns, forever. And the jurors aforesaid, upon their oath aforesaid, further say, that partition of the said tract of land mentioned in the said letters patent was afterwards, to wit, in the year last aforesaid, made in due form of law, between the last aforesaid George Clarke and the other proprietors of the said tract of land mentioned and granted in and by the said letters patent. And that by virtue of the said partition, the last aforesaid George Clarke became, and was sole seized in fee-simple, and possessed of the lands and tenements, with the appurtenances specified in the said declaration of the said James Jackson, *and continued to be so seized and [*4 possessed thereof, until the time of his death. And that the last aforesaid George Clarke died

so seized and possessed, in the year 1759. And late colony, now state of New York, and that the jurors aforesaid, upon their oath aforesaid, in the year 1738 he went to that part of Great further say, that George Clarke, who was late Britain called England, and thenceforth consecretary of the colony of New York, was the tinued to live and reside there on his family eldest son, and heir at law of the before-men- estate, until and at the time when he made aud tioned George Clarke, formerly Lieutenant-published his said last will and testament, and Governor as aforesaid. And that upon the ever after, and until and at the time of his death of the said George Clarke, formerly Lieu- death. And the jurors aforesaid, upon their tenant Governor as aforesaid, the said George | oath aforesaid, further say, that on the fourth Clarke, late secretary as aforesaid, as son and day of July, in the year 1776, the late colony heir aforesaid, entered upon, and was seized in of New York, together with the other colonies fee-simple, and possessed the lands and tene- of Great Britain in North America, now called ments, with the appurtenances, specified in the the United States of America, declared themsaid declaration of the said James Jackson. And selves free and independent states, and that being so seized and possessed, did afterwards, from that day to the first day of September, to wit, on the thirtieth day of November, 1776, in the year 1783, the said United States and at Hyde, in the county palatine of Chester, the citizens thereof, were at open and public in the kingdom of Great Britain, make and war with the King of Great Britain and his publish, in due form of law to pass real estate, subjects. And the jurors aforesaid, upon their his last will and testament, and did thereby de- oath aforesaid, further say, that the said George vise unto his grand nephews, the said George Clarke, the said defendant, was born in EngClarke, the defendant in the said declaration land on the twenty-eighth day of April, in the named, and Edward Clarke, and to their heirs year 1768. And that the said Edward Clarke and assigns, as tenants in common, and not as was born in England on the twenty-eighth day joint tenants, the lands and tenements in the of November, in the year of our Lord 1770. And said declaration specified with the appurtenan- that the said George Clarke, the said defendant, ces. And the jurors aforesaid, upon their oath and the said Edward Clarke, were born British aforesaid, further say, that the said George subjects. Clarke, late secretary as aforesaid, afterwards, And the jurors aforesaid, on their oath aforeto wit, on the tenth day of December, 1776, at said, further say, that the said George Clarke, Hyde aforesaid, in the said county palatine of late secretary as aforesaid, died without issue, Chester, in the said kingdom of Great Britain, and that at the time of his death one George died so seized and possessed as aforesaid, Hyde Clarke was his nephew; and that the and without having altered or revoked his said George Hyde Clarke, if he is capable of in5*] said last will and *testament. And the heriting the real estate of the said *George [*7 jurors aforesaid, upon their oath aforesaid, Clarke, late secretary as aforesaid, within the further say, that upon the death of the said state of New York, is the heir at law of the George Clarke, late secretary as aforesaid, the said George Clarke, late secretary as aforesaid; said George Clarke, the said defendant, and that the said George Hyde Clarke was and the said Edward Clarke, claiming under born in Great Britain before the fourth day of the said last will and testament, entered upon July, in the year 1776, and hath ever since reand became possessed of the said lands and sided, and still doth reside, in Great Britain, tenements, with the appurtenances, in the said and is still living; and that no other person declaration specified. And the said George than the said George Hyde Clarke is, or can be, Clarke, the said defendant, and the said Ed- the heir at law of the said George Clarke, late ward Clarke, being actually possessed of the secretary as aforesaid; and that the said George said lands and tenements, with the appurtenan-Hyde Clarke is capable of inheriting the real esces, in the said declaration specified, as under tate of the said George Clarke, late secretary as the said last will and testament, the said Ed- aforesaid, within the state of New York, unward Clarke did afterwards, to wit, on the twen-less he is incapable of inheriting such real esty-third day of December, 1791, by a deed of tate, by reason of his having been born, and bargain and sale, duly executed, grant, bargain and sell, for a valuable consideration, to the said George Clarke, the said defendant, and his heirs, one equal moiety of the said lands and tenements, with the appurtenances, in the said declaration specified, and all the estate and interest of the said Edward Clarke, in and to the said lands and tenements last afore-wit: said, with the appurtenances, to have and to hold the same to the said George Clarke, the said defendant, his heirs and assigns; by reason whereof the said George Clarke, the said defendant, entered upon, and became, and was actually possessed of, the said lands and tenements, with the appurtenances, in the said declaration specified, claiming to be seized thereof in fee-simple, and so continued until the entry of the people of the state of New York, hereafter mentioned. And the jurors aforesaid, upon their oath aforesaid, further say, that the 6*] said George Clarke, *late secretary as afore- | said, was born in the city of New York, in the

having resided in Great Britain, as aforesaid. And the jurors aforesaid, on their oath aforesaid, further say, that on the eighth day of February, in the year 1791, the said George Clarke, the said defendant, caused to be presented to the legislature of the state of New York, a petition, in the words following, to

To the honorable, the Senate and the Assembly of the state of New York, in legislature convened: The petition of George Clarke humbly showeth, that your petitioner was born in England, and is great grandson of George Clarke, formerly Lieutenant-Governor of New York; that he resided in the city of New York for about a year preceding the month of October last, with intention, at the end of two years, to have been naturalized under the statute of the United States; that he was unexpectedly called abroad on important business, but expects to return in the course of the *ensuing sum- [*8 mer; and as his naturalization must now be un

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