
    Columbia, November Term, 1812.
    Joseph Groves vs. Robert Gordon.
    Yakcies, for the Motion.
    
    Bowie, Contra.
    
    This was an action of trespass to try title, tried before Judge Smith, at Abbeville. The plaintiff produced a conveyance of the land in dispute from defendant, to one William Gordon, his son; and another conveyance from William Gordon to him, (the plaintiff.) Defendant then proved by the declarations of William Gordon, that he, William Gordon was an alien: on which his Honour non-suited the plaintiff.
    Motion to set aside the non-suit.
    The plain-tiffclaimed by a deed from defendant to W. G. defendant then proved by the declarations of W. G. that he was at the time of the conveyance an alien ¡ on which the plaintiff was non-suited. Non-suit set aside,
   Colcocic, J.

I cannot think the non-suit was proper. For in the first place, the alienage of William Gordon was not proved by the best evidence. It ma'y be true that William Gordon said, he was an alien, and yet in fact, he may not be an alien, and this was a question proper to submit to the jury. But in the second place, even if he were an alien, his estate would not be divested till office found. This is the rule in case of purchase, though not of descent. If an alien, purchase, although the king is entitled, yet the estate does not vest title.. office found; because untill office found, the alien is seised. 1 Com. Big. 115. As the titles are not , i , , . stated, I do not know whether this case comes sunder t}je act of 1807; but there is enough to con- . ° vince me that this non-suit ought to be set aside.

Brevard and Nott concurred.

Bay,» J. dissented.  