
    The Commonwealth versus Jacob Sheafe.
    Of the right of British subjects to hold and to convey lands under the treaty ol 1794. — [By that treaty British subjects who then held lands in the Unitea States, were to, and did continue to hold, according to the nature and tenure of their respective estates and titles therein. — En.l
    This suit was upon an information in the nature of an inquest of office, founded on the statute of 1791, c. 13. The information was prosecuted in the county of York, to entitle the commonwealth to a certain messuage and lands situate in the town of York, of which the defendant was the tenant.
    * In the information, the solicitor-general alleged that [ * 442 j one James O’Neil, an alien, purchased the tenements in fee ; that, in consequence of his alienage, the commonwealth was entitled to them ; and that the defendant unlawfully held them.
    The defendant pleaded not guilty, and put himself on the country. The issue was joined for the commonwealth, and trial was had thereon before Thatcher, J., at Alfred, in the county of York, November term, 1808; when a verdict was found for the defendant, subject to the opinion of the court upon the facts reported by the judge. From his report it appeared that O’Neil purchased the premises of Abigail and Moses Lyman, by their deed duly executed, acknowledged, and recorded, before the treaty of November, 1794, between the United States and Great Britain, commonly called Jay’s treaty ; that the said O’Neil, at the time of the execution and delivery of the said deed, was an alien to the said commonwealth, and to the United States, and continued so to be until his death ; and that, after that treaty, he mortgaged the premises in fee simple to the defendant, to secure a debt due from him to the said Sheafe. O’Neil died, and afterwards, and before the filing of this information, the defendant entered by judgment of law for condition broken.
    The cause was argued at Boston, March term, 1809, by Bidwell, attorney-general, and Davis, solicitor-general, for the commonwealth, and C. Paine for the defendant.
    The defence was rested on two grounds: 1. That an inquest of office could not be had to entitle the commonwealth to lands purchased by an alien, after he had conveyed his estate in them either absolutely, or on condition, if the condition was broken ; and, 2. That by the treaty of 1794, O’Neil was protected in his purchase, so that a conveyance by him in fee to a citizen of the United States vsould pass the estate to such citizen, who could lawfully hold the same against the commonwealth.
    
      [*443 ] *The court observed that the judge had stated in his report, that O’Neil was an alien, but that he had not stated that he owed allegiance to the king of Great Britain, as one of his subjects ; that the treaty relied upon by the defendant’s counsel could not protect any alien, who was not a British subject; and that they could not presume him to be a British subject because he xvas an alien.
    As this circumstance had been overlooked at the trial, the defendant’s counsel proposed to the counsel for the government to consent that the judge might amend his report, by inserting as a fact, that O’Neil was a British subject. This was declined, the solicitor-general stating that although he was satisfied that O’Neil was born wfithin the allegiance of the king of Great Britain, yet he had been informed that he afterwards became a naturalized subject of the king of Denmark, by taking what is called a Burgher’s Brief in one of the Danish islands in the West Indies.
    
   The court,

therefore, that the merits of the case on all the points might be before them, set aside the verdict for the defendant, and ordered a new trial, that a jury might inquire into and settle the fact, as to the allegiance of O’Neil.

At a second trial, had at the sittings after the last term at York, the jury found that O’Neil was a British subject, no evidence being produced that he had been naturalized as was supposed. After the verdict, the cause was continued nisi; and now, at this term,

The Court, without giving any opinion on the first ground of defence, were satisfied that the solicitor-general could take nothing for the commonwealth, as the second ground of defence was sufficient to protect the defendant in holding the premises against the commonwealth.

By the ninth article of the treaty of 1794, it was agreed that British subjects, who then held lands within the United States, and American citizens, who then held lands within the British dominions, should continue to hold them, according to the [*444 ] nature and tenure of their respective estates*and titles therein; and might grant, sell or devise, the same to whom they please, in like manner as if they were natives. It is stated that O ’Neil was a British subject, and held the premises in fee within the meaning of that article, when the treaty was made and ratified ; and that afterwards he granted and sold the same to the defendant in fee, to secure the payment of a sum of money ; and that the defendant lawfully entered for condition broken. Under the article cited, his title cannot now be questioned by the commonwealth.

After this opinion was given, the solicitor-general entered a nolle prosequi.  