it appears from the Plaintiff’s own shewing, that the title to the lauds was once out of the State and in Governor White. The State cannot resume this title at her pleasure, and pass it by grant to the lessor of the Plaintiff; nor has she pretended to do such an act 5 but in the grant she declares that the lands of Governor White had been confiscated, and the title to them vested in her by the confiscation. If this bo true, the State had a right to grant the lands to the lessor of the Plaintiff; but if not true, the State had no such right. The fact of confiscation is therefore necessary to be proved, before any validity can attach to this grant. The rule for a new trial must be made absolute.