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. *7215. 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 *8the 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.