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Jackson

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mer; and as his naturalization must now be unavoidably suspended, to the great embarrassment of his affairs, your petitioner humbly prays that his name may Clarke. be inserted in the bill now before the honourable the legislature, to grant a similar privilege of holding lands within this state, notwithstanding the want of naturalization, and your petitioner shall pray, &c.

GEORGE CLARKE,

By GOLDSB. BANYAR, and JAS. DUANE, his Attorneys.

And the jurors aforesaid, upon their oath aforesaid, further say, that on the twenty-second day of March, in the year 1791, an act was passed by the legislature, of the state of New-York, in the words following, to wit: "An act to enable Francois Christophe Mantel, and the several other persons therein named, to purchase and hold real estates within this state. Be it enacted by the people of the state of New-York, represented in senate and assembly, and it is hereby enacted by the authority of the same, that it shall and may be lawful for Francois Christophe Mantel, Samuel Clows, junior, Samuel Richardet, William Robert O'Hara, Erick Glad, George Turnbull, Thomas Mounsey, and Jan Barnhard, respectively, to purchase lands, tenements and hereditaments within this state, and to have and to hold the same to them respectively, and their respective heirs and assigns, forever, as fully to all intents and purposes as any natural born citizen may or can do, any law, usage, or custom, to the contrary notwithstanding. And be it further enacted by the authority aforesaid, that it shall and may be lawful for George

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V.

Clarke.

Clarke, who is great grandson of George Clarke, formerly lieutenant governor of New-York, to purchase any Jackson lands, tenements or hereditaments within this state, and to have and to hold the same, and all other lands, tenements and hereditaments which he may now be entitled to within this state, by purchase or descent, to him the said George Clarke first above named, his heirs and assigns, to his and their own proper use and behoof forever, and to sell and dispose of the same, or any part thereof, as fully, to all intents and purposes, as any natural born citizen may or can do, any law, usage or custom to the contrary notwithstanding." And the jurors aforesaid, on their oath aforesaid, farther say, that the said George Clarke, the said defendant, and the said George Clarke, greatgrandson of George Clarke, former lieutenant gov ernor of New-York, mentioned in the said act, is one and the same person. And the jurors aforesaid, on their oath aforesaid, further say, that on the first day of May, in the year 1810, the said George Clarke, the said defendant, was in actual possession and occu pation of the said lands and tenements, in the said dec laration specified, with the appurtenances, and that on the day and year, last aforesaid, the said people of the State of New-York, lessors of the said James Jackson entered into the said tenements, with the appurtenances, and from thence put out and removed the last aforesaid George Clarke, and were seized thereof as the law requires; and being so seized thereof, the said people, on the day and year last aforesaid, demised to the said James Jackson, the tenements aforesaid, wit h VOL. III.

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1818.

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the appurtenances, to have and to hold to the said James Jackson, and his assigns, from the said first day of May then last past, until the full end and term of twenClarke. ty-one years from thence next ensuing, and fully to be complete and ended, in the manner in which the said demise is set forth in the said declaration of the said James Jackson. By virtue of which said demise, the said James Jackson entered into the said lands and tenements, with the appurtenances, and was thereof possessed; and he being so possessed thereof, the said George Clarke, the said defendant, afterwards, to wit, on the tenth day of May, in the year last aforesaid, with force and arms, &c. entered into the said tenements, with the appurtenances, which had been demised to the said James Jackson as aforesaid, and ejected, expelled and amoved the said James Jackson from his said possession, as the said James Jackson hath above complained against the last aforesaid George Clarke.

And the jurors aforesaid, upon their oath aforesaid, further say, that at the time of the commencement of this action, the tenements aforesaid, in the said declaration specified, were, and ever since have been, and yet are, of a value exceeding the sum of five hundred dollars, exclusive of all costs and expenses. And the jurors aforesaid, on their oath aforesaid, further say, that the said James Jackson, at the time of the commencement of this action, was and yet is a citizen of the state of New-York, in the United States of America. And that at the time of the commencement of this action, the said George Clarke, the said defendant, in the said declaration named, was and

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yet is a subject of the king of the united kingdom of Great Britain and Ireland. But whether upon the whole matter aforesaid, by the jurors aforesaid, in manner aforesaid found, the said George Clarke, the Clarke. said defendant, is guilty of the trespass and ejectment above mentioned, the said jurors are entirely ignorant, and pray the advice of the court thereon. And if it shall appear to this court, that the last aforesaid George Clarke, in construction of law, is guilty of the trespass and ejectment above mentioned, then the said jurors say upon their oath, that the last aforesaid George Clarke is guilty of the trespass and ejectment in the said declaration of the said James Jackson mentioned, in manner and form, as the said James Jackson hath above in his said declaration

plained. And they assess the damages which the said James Jackson hath sustained by reason of the said trespass and ejectment, besides his costs and charges by him about his suit in this behalf expended, at six cents, and for his said costs and charges at six cents. And if it shall appear to the court, that the last aforesaid George Clarke is not guilty of the said trespass and ejectment, then the said jurors say upon their oath, that the last aforesaid George Clarke is not guilty thereof, in manner and form as he hath above in his plea alleged.

On the foregoing special verdict, judgment was rendered for the defendant, George Clarke, by the circuit court, to reverse which, this writ of error was brough

Mr. Champlin, for the plaintiff in error, made the Feb. 5. following points, and cited the authorities in the mar

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gin. 1. That Secretary George Clarke, at the time of his death, was an alien enemy, and there being at that time no statute of wills in force in the state of NewClarke. York, the people of the state, at his death, became seized of the premises. 2. That Secretary George Clarke, being an alien enemy, had no power to make a valid will, or alien his estate in any manner whatever. 3. His will being void, and George Hyde Clarke being an alien enemy, took nothing by descent. 4. That, af ter the death of Secretary George Clarke, there was no person competent to take the premises by inheritance. or devise, whereby the people of the state of New York at his death, became ipso facto possessed thereof, without office found.

Mr. D. B. Ogden, contra, was stopped by the

court.

Mr. Chief Justice MARSHALL delivered the opinion of the court, that every question arising in the cause had been settled by former decisions.

Judgment affirmed, with costs.e

a Dawson v. Godfrey, 4 Campbell v. Hall, Cowp. 208.

Cranch, 321. Gardner V.

Wade, 2 Mass. Rep. 244.

Vattel, L. 3, ch. 5. s. 7.

b 5 Bac. Abr. Tit. Will. B. 499. 7 Co. Rep. 13. 1 Bl. Com. 372.

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c In the case of M'Ilvaine v. Coxe's lessee, 3 Cranch, 209, the court determined that a person born in the colony of NewJersey, before the declaration of independence, and residing

there until 1777, but who then joined the British army, and ever since adhered to the British government, has a right to take lands by descent in the state of New-Jersey. But in

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