
    The People against Cutting.
    ALBANY,
    Feb. 1808.
    On a traverse of an inquest of office found in behalf of the people, in a case of escheat, the traverser is considered as a defendant, and if he shows that the people have no title, though he prove nothing session in himself, he will be entitled to judgment. but a bare pos-
    THIS was a case of escheat, and came before the court on a case made and agreed upon by the counsel for both parties# The following are the material facts in the case:
    On the 16th of June, 1798, a writ of escheat issued out of the court of chancery, in the usual form, and an inquisition was thereupon taken by the sheriff of the county of Orange, on the 25th of June, 1798, which stated, that 
      John Gatehouse, at the time of his death, was'seised in / fee of a certain parcel of land in the county of Orange, granted by letters-patent, on the 22d January, 1719, to Edtvard Gatehouse. That John Gatehouse died, on or about the 30th January, 1770, without making a will, and without leaving any heir capable of inheriting the said land.
    To this inquisition the defendant interposed a plea of traverse, in December, 1798, stating that John Gatehouse died, leaving William Gatehouse his son and heir, born at Leominster, in Great-Brilain, on the 28th May, 1725, to whom the said lands descended, and from whom the said lands, by divers descents and mesne conveyances, came to the defendant, who entered, and was thereof seised in fee, at the time of finding the said inquisition.
    To this plea, the attorney-general replied, that the said John Gatehouse did not leave any heir to inherit, &c. and that the said William Putting was not seised in fee of the said lands at the time, &c. and therefore he prayed that a writ of seizure might issue, &c.
    Issue being joined thereupon, the defendant proved a transcript of the registry of the consistory court of the diocese of Hereford, in England, so far as related to the marriage of John Gittoes with Elizabeth Bennet, and that the same was a true transcript, and according to custom, of the register of the parish of Whitborne, and by which it appeared that John Gittoes (the son of William Gittoes) was baptized the 18th December, 1688 ; that a daughter of John and Elizabeth Gittoes was baptized in June, 1714, and John their son was baptized in 1716, (and died in June, 1729) and Richard their son, in 1719, (who died without issue before his father) and William their son, the 26th oí .May, 1725, and Edmund their son, in October, 1729 ; that John Gatehouse died January 30, 1770. It was further proved by the defendant, by depositions taken by consent, and' from the transcript of similar registers, that Edward Gittoes, a son of John and Elizabeth 
      
      Gittoes, died without will or issue, and seised of lands in America, and that the father died in January, 1770, leaving William Gittoes his son and heir.
    It was admitted that the patentee, his ancestors and descendants, have been known as well by the surname of JGatehouse, as Gittoes. The defendant then produced original agreements between him and the several persons therein named, tenants in possession of the premises, by which they agreed to pay rent to the defendant for several parcels of land, part of the premises in question.
    The defendant further proved, that several of the tenants on the said patent paid rent to Leonard M. Guttings that the defendant became entitled to his interest, and that the above tenants, in February, 1794, by writing and by parol, acknowledged themselves the tenants of the defendant.
    This cause was argued at the last August term, by Woodworth, attorney-general, for the people, and Van Vechten for the defendant.
    
      The Attorney-General.
    
    The traverser, in this case; is bound to prove two things ; 1. That John Gatehouse died leaving an heir, and, 2. That by descent or mesne conveyance from the heir, the title has vested in him. It is admitted by the case, that the patentee died leaving William Gatehouse his son and heir; but the defendant has wholly failed in proving any title in himself. A mere stranger cannot interpose a traverse against the people; nor is a bare possessory right sufficient for that purpose. In traverses given by statute, which have taken place of the ancient mode of proceeding in England, by petition of right, the party traversing is considered as the plaintiff 5 and must, therefore, make out his own title, as well as impeach that of his sovereign, on which he may have a judgment quod manus regis amoveantur. In the case of The Queen v. Mason,
      
       it was decided, that the party who sues a monstrans de droit, is a plaintiff, and may be nonsuit, and that; he cannot take advantage of a want of title in the crown, or of the title of a stranger, so that if he fails in making out a title in himself, a judgment is given quod nil capiat per breve. .Both Blackstone and Buller are decidedly of opinion, that the traverser must be considered as a plaintiff. And if the traverser allege an insufficient title, the attorney-general may demur.
    
    From the case, it is evident, that the present traverser thought it requisite to show a title in himself, for he has alleged it in his plea; and if it be necessary for him to allege a title, it is equally necessary that such title should, be proved. In England, when an office is found for the king, he is thereby put in possession without the trouble of a formal entry. If the people, then, after an office, found, are to be considered in possession without an entry, it becomes essential for the party traversing to show a title, and not a mere possessory right. All that the present party has proved, is a possession for a few years.
    
      Van Vechten, contra.
    The only point in controversy is, whether the traverser is bound to prove a title in himself,, The claim of the people rests on the ground that the patentee died without making any devise or disposition of his property, and without heirs; and it will be sufficient for the traverser co disprove the facts on which the right of the people is founded ; for if he shows that the patentee died seised, and devised his estate, or left an heir, then the claim on the part of the people must wholly fail. Buller
      
       mentions two kinds of offices, one for intituling, and the other for instruction or information. In the former the crown is in possession by virtue of the inquisition. This was by the common law ; and the office which gave a seisin or possession to the king, could not fee traversed; but only where it entitled him to an action, and it became necessary to bring a scire facias. The present cannot be considered as an inquisition that vests the possession in the people, for the statute of this state requires a -writ of seisin to be issued, in case judgment should be given for the people. From Sir George Reynell's case, "t appears, that there have been various mid contradictory authorities and opinions on this subject. It is true, Blackstone and Buller lay it down generally, ' that the traverser of an inquisition is to be considered as a party plaintiff; but the case of Regina v. Mason seems loosely and inaccurately reported, and the editor of Bacon
      
       regards it as an anomalous proceeding. In the case of the Bankers, Lord Somers states the true distinction, that where the subject comes to recover any thing from the king, he is to sue by petition, and appears as plaintiff, but when upon an office found, the subject comes to traverse the king’s title, or to show his own right, he is in the nature of a defendant; and he says expressly, that in the proceeding by monstrans de droit, where the subject inter-pleads with the king, he is to be considered as a defendant. The traverser,' in fact, pleads and acts as a defendant, and the attorney-general as plaintiff. In the case of Rex v. Roberts,
      
       it was expressly decided, that the traverser of an inquisition, in a case of lunacy, was to be considered as a defendant; and it was observed, that it would be absurd to construe the liberty of traversing the inquisition to give a power of delaying the crown, which would be the case, if the party were considered as having the common right of a plaintiff. The cases cited by the attorney-general were those in which the crown was in. possession by the inquisition, and where the judgment is quod manus regis amoveantur ; but in the present case the judgment must be, that the defendant be no longer disturbed or molested. By the English statutes, the escheator is supposed to have seised the lands into the hands of the king, and the party is allowed to come in and traverse the inquisition, so as to remove the hands of the king, who is deemed to be in possession. By our statute a writ of seisin is expressly required, in case judgment is given for the people. If the present defendant should clearly prove that there had been no escheat in the present case, yet, according to the doctrine contended for by the attorney-general, judgment must be given against him, and the tenants be turned out of possession by a writ of seisin. This, however, is a wrong which our statute was meant to prevent or remedy, and to put the case precisely on the' same ground as an action of ejectment, where the plaintiff must prove a title, and if the defendant can show that the plaintiff has no title, judgment will be given for the defendant. The traverser, it is true, has alleged in his plea that by sundry devises and mesne conveyances, he has become entitled to the land. This was proper, in order to show that he did not come as a mere stranger to traverse the inquisition; but it is not necessary that he should prove a title in himself. It is enough, that he is a person aggrieved, and if he can show that the people have no right or title, he ought no longer to be molested by the prosecution of a groundless claim.
    
      
       3 Black. Com. 260. Buller's N.P. 215. 10 Viner, Escheat, (L. 24.)
      
    
    
      
       2 Salk.447
    
    
      
      
        Dyer, 238.
    
    
      
       3 Black Com. 260.
    
    
      
      
        Nisi Prius, 215.
    
    
      
      
         Laws of N. Y. vol. 1. 316.
    
    
      
      
        9 Co. 95, 96.
    
    
      
       5 Bac. Ab. by Gwill. 574.
    
    
      
       11 State Trials, 154.
    
    
      
       Strange, 1208, Vaugh. 62. Coke’s Ent. 404, Tremain, 628, 652.
    
   Kent, Ch. J,

now delivered the opinion of the court.. The inquisition taken in this case, in pursuance of the act concerning escheats, (Laws N. Y. vol. 1. 310.) states, that John Gatehouse died seised in fee of the premises, without making a will, and without leaving any heir capable of inheriting the same. This allegation is denied in the plea of traverse put in by the defendantj and, from the facts stated in the case, it is sufficiently proved, that Gatehouse did leave a lawful heir, capable of inheriting the land, to wit, his son William. But the defendant has not shown a title derived from the heir, but merely that he was in possession of the premises by his tenants, in the year 1794, He has destroyed the title of the state, as founded upon the supposed escheat, but he has shown no title in himself beyond his actual possession. The question then arising upon the case is, whether it be sufficient for the defendant to impeach the title set up by the state, without setting forth his own. Many of the authorities say, that in traversing an inquisition in favour of the king, in pursuance of the statutes of 36 Edw. III. c. 13. and 2 & 3 Edw. VI. c. 8. the party traversing is considered in the character of a plaintiff, and is bound to make out affirmatively a good title in himself. (The Queen v. Mason, 2 Salk. 447. 3 Black. Com. 260. Buller’s N. P. 215. Vaugh. 64.) These cases are, however, met and opposed by opinions which lay down a contrary-doctrine, and one which appears to me to be more rational, and more agreeable to the forms and course of pleading. In the argument of Lord Keeper Somers, in the case of the Bankers,-in the exchequer, (11 St. Tri. 154.) he observed, that where an office is found in favour of the king, under the statute of Edw. III. the subject might come in and interplead, either by denying the title found for the king, or by showing his own right, and that in such case he was to be considered in the light of a defendant. The same observation is made by the last editor of Bacon, (vol. 5. 574.) The party appears upon the record in the character of a defendant. He shows his right in the form of a plea, and if he may be nonsuited, as the case in Salkeld adjudged, the proceeding is quite anomalous. The case of The King v. Roberts, (Str. 1208.) is one of the latest that we have upon this question. The court of king’s bench there resolved, that the traverser of an inquisition, finding him a lunatic, was to be considered as a defendant opposing the title of the crown, without setting up any title in himself. The point cannot, therefore, be considered as altogether settled in the English law, although it must be admitted that the weight, of the authorities is on the side of the prerogative. But our statute contains provisions different from those in the English statutes, and I think it will authorise us to consider the party traversing as sustaining the character, and entitled to the privileges of a defendant, and that' it will therefore be sufficient for him to destroy the title set up by the state. The statute is altogether silent as to the judgment to be rendered in favour of the party ; but if the judgment be in favour of the people, the sheriff is required by writ to seize the lands into his own hands. The like writ is also to issue if no traverse be taken, and when the state shall have disposed of the lands, the sheriff is to deliver possession to the purchaser. The office or inquisition mentioned in the act seems, therefore, to be one which does not ope»rate like the inquest of office mentioned in thq statute of Edw. III. of “ a seizure into the king's hands.” The writ of seizure necessarily implies that possession had not previously vested in the state. The English statutes contain no such provision, but they consider the inquisition as of itself vesting the seisin in the escheator, and such no doubt is the ordinary operation of an inquest of office in behalf of the state. (The People v. Brown, November Term, 1803.) We are, therefore, of opinion, that under our statute we may consider the party traversing as a defendant in possession, and consequently entitled to protect himself by showing the inquisition to be untrue.

Spencer, J. having been concerned, when attorney-general, as counsel for the people, declined giving any opinion.

Judgment for the defendant. 
      
      
        Gwillim.
      
     
      
       1 Caines, 416.
      
     