
    Bradstreet vs. Supervisors of the County of Oneida.
    NEW YORK,
    May, 1835.
    An alien frien'd is entitled, at common law, not only to take and hold real estate until office found, but to maintain an action for its recovery, in case of intrusion by an individual.
    The tender of the demimark inapplicable under our form of government, and vitiates a plea to which it is added.
    The demandant brought a writ of right for recovery of certain premises situate in the county of Oneida, and counted that she was seized in her demense as of fee within 25 years by taking the esplees, &c. The defendants put in two pleas : in the first they join the mise, by putting themselves upon the grand assize to determine which has the better right; arid then tender two dollars to the use of the people, that it may be inquired by the grand assize whether the demandant was seized, &c. The second plea is, that the demandant is an alien,- born in foreign parts, to wit, &c., and concludes with praying judgment wh ether she ought to have or maintain her action, &c. The demandant put in a general demurrer to each plea, assigning, as a special cause of demurrer to the first, that after joining the mise, the defendants prayed a recognition by the grand assize, <fcc. The defendants joined in demurrer.
    
      J. L. Tillinghast, for the demandant,
    J. T. B. Van Vechten, for the defendants.
   By the Court,

Savage, Ch. J.

The first plea is bad for the cause assigned. The tender of the demimark has no application to our practice, as was shown in Ten Eyck v. Water bury, 7 Cowen, 52. Our records ought not to be encumbered with such absurdities. The defendants might with equal propriety have claimed a trial by battle, and tendered their champión ; both were once the practice in England, but never in this state. There is indeed this difference: the trial by bat-tie has been abolished by statute; the demimark has not been so abolished, because it was totally inapplicable, under our form of government. In this case it has no fitness or propriety ; even in England it is not proper, unless the count alleges a seisin in the reign of some particular king, when theseisin was in fact in another king’s reign.

The demurrer to the second plea raises the question whether an alien friend can sustain a writ of right. By the record before us, the demandant is seized of the premises to which she makes claim; but it is said she cannot maintain an action for them, because she is an alien. One of the earliest cases to which we have been referred is found in 2 Dyer, 2, b, in the 6th year of Henry 8. An alien, living in France, brought a writ of debt in the common pleas. The defendant pleaded that the plaintiff was born out of the kingdom. It was held that he might maintain a personal action, if there be no war; but in real actions, the plea is good, for no alien can have land within the realm, unless he be a denizen. So in Co. Litt. 129, b. an alien friend may maintain personal actions, but he cannot maintain either real or mixed actions. The reason seems to be, that the maintenance of personal actions is necessary for the encouragement of commerce; not so as to real actions. These authorities are quoted with approbation in Viner's Abr. tit. Alien, G. H; Comyn's Dig. tit. Alien, C. 5; Bacon's Abr. tit. Alien, D. In Wells v. Williams, 1 Ld. Raym. 282, Treby, chief justice, says, “ An alien enemy, loho is here in protection, may sue his contract, but an alien enemy abiding in his own country cannot sue hereand Dyer, 2, b, and other books, ought to be so understood. In Jackson v. Lunn, 3 Johns. Cas. 120, Kent, justice, cites the doctrine of Calvin's case, 7 Co. 1, that the alienism of a demandant may be pleaded. The case of Clark v. Morey, 10 Johns. R. 69, did not raise this question; that was an action of assumpsit, and brought by an alien resident here. It was there stated that a lawful residence implies protection, and a capacity to sue and be sued. It is true, as is there stated, that much of the ancient rigor of th§ common law has been abated, but the law stiH remains as formerly, that without the aid of statutory provision, an alien may take real estate, but he can hold only until office found. Hence the necessity of provisions in treaties and statutes in their favor. It seems strange, that any person, who, by our laws, may take real estate, and hold it against all the world, except the government, should not be at liberty to prosecute for the recovery of possession. As the law seems to have been understood, an alien may defend, but he cannot prosecute, in an action touching the reality. 7 Cranch, 620. Chancellor Kent, 2 Kent, 61, says, According to Lord Coke, none but an alien merchant can have land at all, and he is restricted to a house, for the law gave him the privilege for habitation only, as necessary to trade.” Such was the strictness of the common law. Our statutes, it is well known, are quite favorable enough to aliens ; but the question before us rests upon the rights of an alien”at“the common law. There are very few cases in point, because most of those who are found reported, have respect to the statutes enabling aliens to take, hold and convey, real estates. -The case of M’Creery’s Lessee v. Allender, 4 Har. & M’Hen. 409 to 412, seems to have been decided entirely upon common law principles, in the court of appeals of Maryland. There, Chase, Ch. J., says that the title of an alien friend is good against every body but the state, and that his right and possession could not be divested but by office found, or some act done by the state to acquire possession ; and judgment was given for the plaintiff, who was an alien and a British subject. The case of Anslie v. Martin, 9 Mass R. 460, seems to proceed upon the assumption that the plea of alien friend is good in abatement; though in that case, and in every other the doctrine is broadly asserted, that an alien may take a freehold, and hold it until office found, and he is not accountable for the rents and profits previously received. If an alien may take and hold real estate against every person, he may do so because he has a right in the property, whbp the guaranty to him. It is his ais against other individuals ; if they attempt to turn him out, or dusturb his possion, he may defend himself, by virtue of the estate which he has. But suppose some person, by force or fraud, obtains possession; if the plea of alien friend is a bar, the intruder may enjoy the fruits of his improper conduct with impunity. The law cannot be so unjust. The judgment given by Ch. Justice Chase seems to be the legitimate conclusion, from the premises conceded in all the cases and in ah the books. If it is the property of the alien, against every body but the govern - ment, he has a right to the use of it; and if necessary to prosecute for it, surely the right to prosecute is necessarily consequent upon his right to its enjoyment. The pleas are therefore bad, and the demandant is entitled to judgment.

Leave to defendants to amend, on payment of costs.  