Sims Leffee versus Irvine

Sims Leffee versus Irvine. . Error from the Circuit Court for the PennfylvaniaDiftrieh An ejectment being inilituted in the inferio¡ Court, by the Lef-fee of Sims vs. Irvine, the Jury found a hecial' verdidt, upon which judgment was rendered for the Plaintiff, by confent, and this writ of error was brought to fettle the title. The parts of the fpecial ver'didt material to the points in controverfy were, in fubftance, as follows. Plaintiff’s Tit,le. “ The Jury find that the premifes in difpute was called Mon-tour’s Iiland, fituated in the river Ohio, on the fouth-eaft fide, within the original limits of the Virginia charter, granted in 1609, and within the limits of the territonal diftridt in difpute between Virginia and Pennfylvania, for fever al years prior to the 23c*. ■ of'Sept. 1780, when thpfe ftates entered into the following con:pad! relative to their boundaries, as it is iufeited in the Journals of the general Affembly of Pennfylvania 5 and af-terwards..ratified by a law palled the iff. of April, 1784. 2 vol. p. 207, Dallas’s Edit. ' ■ “ Refoived,.That although the conditions annexed by the legiilature of Virginia, to the ratification oí the boundary line agreed to by the com milfioners of Pennfylvania .and Virginia, on the thirty-firft day of Augujl, 1779, may tend to countenance fome unwarrantable claims, which may be made under the ftate of Virginia^ in confequence of pretended purthafes, or fettlements pending the controverfy, yet this ftate, determining to give to the world the molt unequivocal proof of their de-fire to promote peace and harmony with a lifter {fate, fo necef-fary du'ring this great conteft againft the common enemy, do agree to the conditions prouofed by the ftate of Virginia, in their rcfolves of the 23d of June laftto wit, ’ “ That “ That the agreement made on the thirty-firft day of Até-, £ufli 1779-1 between James Madifon and Robert Andrews, Com-miifiouers’ for the commonwealth of Virginia, and George Bryan, John Ewing, and David .Rittenhoufe, Commiflioners for the commonwealth'of Pennfylvania, be ratified-and finally confirmed; to wit, That the line commonly called Mafon’s and Dixon's line, be extended due weft five degrees of longitudé, to be computed from the river Delawarefor the foutherrt boundary of Pennfylvania j and that a meridian line drawn from the weftern extremity thereof to the northern limits of the faid ftatcs refpe&ively, be the weftern boundary of Pcnnfylvanid for ever. On condition, that the private property and rights of all perfons acquired under, founded on, or recognized by the' laws of either country, previous to the date hereof, be faved and confirmed to them, although they fhould be found to. fail within the other, an! that in the dacificn of djfputes thereoh, preference (hall be given to the elder or prior right, which ever of the faid dates the fame (hall have been acquired under, fuch per-fbns paying, to the (fate within whofe boundary their lands (half be included,. the fameptirchafe or confideration money, which would have been due from them to the ftate under which they claimed the right ;• and where any fuch purchafe or confiderationi money hath, ifince the declaration- of American independence, been received by.either ftate for lands, which, according to the before recited agreement* ihafl fall within'the territory of the other^ the fame lhalí be reciprocally refunded apd repaid 5. and that the inhabitants of the difpuled territory, now ceded to the ftate of Pennfylvania, (hall not, be fore the firft day of December in the prefent year, be &bje£f to the payment of any tax, nor at any time to the payment of arrears.of taxes or impontions iiereto.-forc laid by either ftate.” “ And we do hereby accept and fully ratify the faid recited Condition, and the boundary-line formed thereupon.” “ Rejilvid,. That the prefident and council of this ftate be,-■ and they are herebyempowered toaopoint two commiflionerson the part of this ftate, in conjunction with commiflioners to be appointed by the Sate ofi Virginia,to extend the line commonly carcd f-i. fan’s and Dixon’s line, five degrees of longitude from pjelav:are river, and from the weftern termination of the line fo extended, to run and mark, as foon as may be,a meridian Rne to the Ohio liver, the remainder of that line tobe runas íb->n a? the prefident and council, taking into their confideration the difpefitiori cf the Indians, (hall think it prudent. And the prefident and council arc hereby authorized to give to the faid commiflioners fuch inflruCtians in the premifes as they /ball think fit.” h I he Jüry find that William Douglas was a field officer in the femes of the king of Great-Britain, in a regiment railed in the colony of New-Jerfey, Who continued in fervicé du ing the war between France and Great-Britain, which terminated in 1763 ; and that the faid king gave to him, his heirs and af-figns by proclamation, a right to 500o acres of wafte and unappropriated lands in America; the part of the proclamation relating to the gift being exprcflld in thefe words : tc And whereas we are defifems upon all occaficns, to teflify our royal fenfe and approbation of the corduéf: and bravery “ of the officers and foldiers of our‘ armies, and to reward the ** h>me, we do hereby comn'and and empower our governors “ of our faid three’new-colonies, and other our governors of K our feveral provinces on the comment of North-America, t.o grant, without fee, or reward to f:ch reduced officers as “ haying ferved in N orth - America, during the late war, and ^ are aéfuallv rehdmg there, and fh:U peifonally apply for the “ farnej the following quantities of land, fubjedt,- at the expiration of ten yaars, to the fame quit-rents as other lands are u fubjeél: to in the province wi'hin which tney are granted, as- “ alfó fubjeif to the fame conditions of cultivation and improve-⅞ ment: v¡z. - “To every perfpn having the rank of a field officer,'5000 acres. To every captain, 3000 acres., To every fubalt.ern ór ftaff officer, aooo reres. u To every rion-commi lion officer, aco acres. « “ To eyeiy private, 50 acres. “ We ⅛, like wife, authorize and require the governors and “ commanders in chief of nil our faid colonies upon the.continent of North-Jmcrica, to ¿-rant the like quantities of land, “ aitd upon the fame conditions, to- fuch reduced officers of our <⅛ navy of like rank, as ferved on board o.ur. fl>ips of tvar in K North■ America, at the times of the reduction cf Douifov.r-g, '‘.and Quebec in the late war, who fnalh perfor.ally apply to. “ our reipecBve governors, for fuch grants." ' “ The Jury find that the faid W. Douglas, fora valuablecon-fideratiozj affigned on the 17th. of January 1779, to Charles Sims, and his heirs, all his right aiid title to the faid bounty of 50CO acres of land; that C. Sims was born in Virginia, before the year 1760; that he was an inhabitant thereof, fince his birth; that he is the leilor of the Plaintiff and a citizen of Virginia;, that William Irvine, the Defendant below, is a citizen and inha-b tt-jlit of Pennfylvania ; and that the lands mentioned in the declaration exceed tire value of 3000 dollars.” The Jury find, in heec verba, a law of Virginia enabled in May 1779, entitled” An Aft,for adjufting and fettling the title§ “ of.claimers to unpatented lands, under the prefent, and former “ government, previous to the eftabliihment of the Common- “ wealth’s Land-Office;” the material parts of which law are exprefled in the following terms: “ An AB for adiufling and fettling the-titles of claimers, to un-patented lands under the prefent and former Government,previous to the ejlablijhmentof the Commonwealth’s Land-Office. “ I. WHEREAS the various and vague claims to unpa-£C tented lands under' the former'and prefent Government, “ previous to the eftabliihment of the Commonwealth-s'Land-Office, may produce tedious and infinite litigation and dif- “ putes, and in the mean time purchafers would be difcourag- “ ed from taking up lands upon the'terms lately prefcribed by “ law, whereby the fund tp. be raifed in aid of the taxes for “ difcharging the public debt, would be in á great meafure “ fruftrated; and it is juft and neceffary, as well for the peace “ of individuals-as for the public weal, that fpme certain rules “ ihbuld be eftabliihed for fettfing and determining the rights “to fuch lands, and fixing, the principies upon which legal “ and juft claimers ihatl be entitled to fue out grants; to the “ end that fubCquent purchafers and adventurers may be en- “ ábied to proceed with greater certainty and fafetv: Be it en- “ aBed by the General Affembly, that all furveys of wafte and “ unappropriated land made upon any of the weftern waters be- “ fore the firft day of ‘January-, in the year 1778, and upon “ any of the eaftern waters at any time before the end of this “ prefent feffion of Afiembly, by any county- furveyor corri- “ miffioned by the 'máfters of- William and Mary college, aft- “ ino in conformity to the laws and rules of government then “ in force, and founded either upon charter, importation rights “ duly proved and certified according to the ancient ufage, as “ far as relates to indented fervants, and other perfons not be- “ ing'convifte, upon treafury rights for money paid the Re- “ céiver General duly authenticated upon entries on the wef- “ tern waters, regulaily made before the 26th day of OBober, “ in the year 17(13, or on the eaftern waters at' arty time before “ ¿he end of this prefent feffion of the Afiembly, with the fur- “ veycr of the county for trafts of land not exceeding fourhun- “ cred acres,' according to itft of Aflemblv upon any order of Council, or entry in the Council books, and made.during “ the’ time in which it {hall appear either from the original or “■ any fubfequent order, enti y, or proceedings in the Council “ books, that fuch-order or entry-remained in force, the terms “ of which have been complied with, or the time for perform- “ ing the fame unexpired, or upon .any warrant from the Go- “ vernor for the time' being for military fervice, in virtue of “ any proclamation either from the king of Great Britain or any former Governor of Virginia, fhall be, and are hereby “declared good and valid; but that all furveys of wafté and “ unpatented lands made by any other pcrfon, or upon any “ other pretence whatfoever, fhall ber and are hereby declared “ null and void, provided that all officers ortbldiers. their heirs “ or affigns, claiming under the late Governor JDn.-widdia’s “ pioclamation of a bounty in lands to the ft fit Virginia regi- “ ment, and having returned to the SecretaryVÜffice, fur- “ veys made by virtue of a fpecial comfniffion from the Prefi- “ dent and Mailers of William and Mary college, fhaii be en- “ titled to grants thereupon on payment of the common office “ fees; that .all officers and foldiers, their heirs and affigns un- “ der proclamation warrants for military fervice, having locat- “ ed lands by aitual furveys made under any fuch fpeci.d corn- “ million, fhall have the benefit of their faid locations, by tak- “ ing out warrants upon fuch rights, re-furveying.fuch 1 .nds “ according to law, and thereafter proceeding according to the “ rules and regulations of the Land-Office. All and every “ perfon or perfons, his, her, or their heirs or affigns, claiming “ lands upon any of the before recited rights, and under fur- “ veys made as herein before mentioned, againft which no ca- “ veaf fhall have been legally entered, fhall upon the plats and- “ certificates of fuch furveys being returned into the Land-Of- “ fice, together with the rights, entry,' order, warrant or authentic copy thereof upon which they,were refpeitively “ founded, be entitled toa grant or grants for the fame in man-“nerand form herein after direited, II. PROVIDED, that fuch furveys and rights bereturn- “ ed to the faid office within twelve months next after the end of this prefect feffion of Aflembly, otherwife they (hail be “ and are hereby declared forfeited and void. All perfons, “ their heirs or affigns, claiming lands under the charter and “ ancient cuftom of Virginia, upon importation rights as “ before limited, duly proved, and certified in any court of re- “ cord before the palling of this ait; thofe claiming under “ treafury^ rights for money paid the Receiver General duly “authenticated, or under proclamation-warrants for military “ fervice, and not having located and fixed flush lands by aituul “ furveys as herein before mentioned, fhall be admitted to “ warrants, entries, and grants for the fame, in manner direited “ by the ait of Aflembly entitled An a£t for ejlablijhing a “ Land-Office^ and afeertaining the terms and manner of grant ~ “ ing wajle arid unappropriated lands, upon producing to the “Regifter of the Land-Office the proper certificates, proofs, “ or warjjánts, as the cafe may be, foi their refpcdfive rights “ within the like fpsc3 of twelve months after the end of this “ pref.-nt feffion of AITembly, and not aftérwards. All certi-í‘ ficatesof hnportation rights proved before any court of record “ according to the ancient cuflon., and before the end of this *c-prefent feffion of AÍTembly, are hereby declared good and “ valid: And all other claims for importation rights not fq f‘ proved, íhall be null and void; and where-any perfon before the end of this prefent feffion of AÍTembly, hath made a re- •“ guiar entry according to a£t of AÍTembly, with the coun-L'- ty.furveyor for any trait of land not exceeding four hundred “ acres, upon any of the eaftern waters, which hath not been “ furveyed or fcufeited, according to the laws and rules of go- “ vernment in force at the time of making fuch entry, theiur-r “ veyor of the county where fuch land lies, íhall after adyer- “ tifing legal notice thereof,- proceed to furvey the fame ac-tc co-dingly, and íhall deliver to the proprietor a plat and-certificate of fu vcy thereof within three months; and if fuch “ perfon íhall fi.il 1 to attend at the time and place fo appointed “ for making fuch furvey, with chain carriers and a perfon to “ mark the lines, or íhall fail to deliver fuch plat and pertifi- “ cate into the Land Office, according to the rules and regulations of the. fame, together • with the Auditors certificate “ of the Treafurer’s receipt for th; compofition money herein “ after mentioned, and pay the office feet, he or íhe íhall for- “ feichis'or her right ^nd title; but upon performance of thefe “ -requifitions, íhall be entitled to a grant for fuch tra<S of land as in other cafes. “ III. AND he it enacted, that all orders of Council or en- “ tries for land in the Council books, except fo far as fuch or- “ ders or entries rtipedfively have been carried into execution “ by atftual furveys in manner herein before mentioned, íhall “ be, and they are hereby declared void and of no effeiR; and “ except alfo a certain order of Council íor a tra¿l of funken “ grounds, commonly called the Difma! Swatnp, in the fouth- “ eaftern part of this commonwealth, contiguous to the Aorth- “ Carolina line, which faid order of Council with the proceed-u ings thereon and the claim derived from it, íhall hereafter be “laid before -the General.-AÍTembly for their further order “ therein. No claim to land within this commonwealth foe “ military'fervice founded upon, the king of Great Britain’s “ proclamation, íhall thereafrer be allowed, except a warrant “ for the fame íhall have been obtained from the Governor of “ Virginia, during the former government as before mention- ^ ed; or where fuch fervice was performed by an inhabitant “ of Virginia, or in fome regiment or corps actually raifed in “ the fame; in either of which cafes the claimant making, due “ proof in any court of record,- and producing a certificate “ thereof to 'the Regifter of the Land Office within the faid “ time of twelve months, (hall be admitted to a Warrant, entry, “ and grant for the fame, in the manner herein before menti- “ oned; but nothing herein contained fhall be cpnftrued or ex- “ tend to give any perfon a title to laud for fervice performed “ in any company or detachment of militia.” The jury find in hcec yerba, another law of Virginia enacted alfo in May, I'Jl'Cj, entitled “ An A6t for eftablifhing a Land “■ Office and afcertaining the terms and manner of granting “ wafte and unappropriated lands;” the material parts of which law are exprefled in the following terms: “ Se¿?. 3. And be it enabled that upon application of any per- « fon, their heirs or affigns,- having title to Wafte or unappropriated lands, either by military rights, or treafury rights, and “ lodging in the Land Office a certificate thereof, the Regi- “ fter of the faid office fhall grant to fuch perfon, or perfons, a “ printed warrant under his hand and the feal of his office, fpe.ci- “ fyingthe quantity of land and the right upon.which it is due, ⅛ autho-ifing any furveyor duly qualified according to law, to & lay off and furvey the, fame, and fhall regularly enter and re~ “ cord in the books of his office,' all fuch certificates and the “warrants iffued thereupon,-which warrants fhall be always ⅜ good and valid until executed by a&ual furvey, or exchang- * ed in the manner hereinafter direffied, tic.”. « Ibid. Any perfon holding a land warrant upon any of the “ before mentioned rights, may have the fame executed in one * or more furv.eys, and iri fuch cafe, or where the lands nn “ which any warrant is located fhall be unfufficient to fátisfy “ fuch warrant, the party may have the warrant exchanged by “ the Regifter of the Land Office for others of the fame a- * mount in the whole; but divididas beftmay anfwer the pur- « pofes of. the party, of intitle him to fi much land elfewhere * as will make good the deficiency, &c.” “ Ibid. Every perfon having a land warrant, founded on ** any of the before mentioned rights, and being defirous of “ locating the fame, on any particular wafte and unappropriat- « cd lands, ftiall lodge fuch warrant with the chief furveyor of “ the County, wherein the faid lands or the greater part of them .« lie, who fhall give a receipt for the fame, if required. The “ party fhall direeft the location thereof fo fpeciaily and precife- * lyy -as that others may be enabled with certainty to locate ££ other warrants on the adjacent rcfiduum ; which location “ ihail bear date the day on which it ihall be made, and ihall í£ be entered, by the Surveyor, in a book, to be kept for that “ purpofe, in which' there ihall.be left no blank leaves or fpaces st between the different entries, &c.”’ “ Ibid. No entry or location of land ihall be admitted « within the county and limits of the Cherokee Indians, or on “ the North-weft fide of the Ohio river, or in the lands re- ££ fervcd by aft of Affembly for any particular nation or tribe ££ of Indians, cr on the lands granted by law, to Richard Hen- «. derfon & Co. or in that traft of country referved by refolu-t£ tio'n of .the General Affembly, for the benefit of the troops “ fer-vinsr in the prefent war, and bounded by, &c. until thefur- ‘‘ thcr order of the General Affembly, See.” ' li íbid.' All perfons, as Well foreigners as others, ihall :c have right to affign or transfer warrants or certificates offur- ££ véy for landsjand any foreigner purchafing warrants for lands ‘5 may locate and have the lame furveyed, .and after return- “ ing a certificate of fúrvey to the .Land Office, ihall be allow-£i ed ihe term of 18 months, either to become a citizen, or to ££ transfer hi's right in fuch certificate of furvey to fome citizen “ of this, or any other of the United States of .America.'* . The Jury find in htsc verba another law of Virginia, enafted in- Oftober 1779,. entitled t£ An aft for explaining and amend-. ££ ing an aft entitled an aft for adjuft'ing and fettling the titles of “ claimers to unpatented lands under the prefent and former go- ££ vernment, previous to .the eftabliihment of the Common- ££ wealth’s Land-Office.” The law is expreffed in the follow- “ ing terms: “ 1: BE it enabled by the General Affembly, That whereas doubts nave- arifen concerning the manner of proving rights, for military fervice, under the proclamation of the King of Great Britain, in the year one thou’fand feven hundred and fixfy-three, whereby -great hands may be committed: Be it declared and enabled, that no perfon, his heirs or affigns, other than tbofe who had obtained warrants under theformer government, ihall hereafter be admitted to any warrant for fuch military fervice, únlefs he, ihe, or they, produce to the Register of the Land Office, within eight months after the' paffingof this aft, a proper certificate of proof made before fome court of record within the commonwealth, by'tbe oath of .the party claiming, nr'other fatisfaftory evidence that fuch party was bona fide an inhabitant of this commonwealth, at the time of paffing the faid recited aft, or thrt the perfon having .performed fuch military fervice, was an officer or foldierin fome regiment or corps [other than militia) aftually raffed'in Virginia before the date Of the fa:d proclamation, a;..d had continued to ferve until the feme was diiban'ded, had been difcharged on account of wounds or bodily infirmity, or had died in the fervice, diftinguiihing particularly in what regiment or corps fuch fervice had.been performed, difcharge granted,-or death happened, and that the party had never before obtained a warrant or certificate for iuch military fervice : Provided, that nothing in this aft ihall be conftruied in any manner to afteft, change, or alter the title of any perfon under a warrant heretofore iffued. “ III And whereas the time Unfitted in the before recited aft to the commiffioners for adjufting and fettling the claims to unpatented lands within.their refpeftive .diftrifts may be too ihort forthat purpofe: Be it further enadied, that, all the powers given to the faid co.mmiflioners by the faid recited aft, ihall be continued and remain, in force, for and during the further term of two months, from and after the expiration of the time prefcribed by the faid aft, and ho longer. And where it ihall •appear to the faid commiffioners that any perfon, being an inhabitant of their refpeftive diftrifts, and entitled to the preemption of Certain lands, in confideration of an aftual fettle-: ment, is unable to advance the fum required for the payment of the ftate .prices previous to the ifluing of a .warrant for fur-yeying fuch land, the faid commiffioners {hall certify the fame to the Regifter of the Latid. Office, who ihall thereupon ifiue fuch pre-emption warrant to the party entitled thereto, upon twelve months credit for the purchafe money, at the ftate price, from the date of the warrant. The Faid Regifter ihall keep án exaft account of all fuch warrants ifiued upoti credit} and fhali not tíTue grants upon furveys.made thereupon, until certificates are produced to him from the Auditors of public accounts of the payment of the piirchafe money réfpeftivély.due thereon into, the .freafury j and if the fame ihall not be paid within the faicl. term, the warrant, fiirvey, and title founded thereon,ihall be void and thereafter tiny other perfon may obtain, a warrant, entryj and grant, for fuch lánd,- in the fame manner as for any other1 wafte and Unappropriated land : Provided., that nothing here-, iin contained ihall be conftruéd to extend to any perfon claiming right to the pre-emption of any land for having .built ah houfe or hut, dr made any improvements thereon, other thati an aftual fettlemént as defcribed in the faid recited a£t. .No certificateof right to land for áftuai fettlement.or of pre-emption right ihall hereafter be granted by the faid commiffioners, unlefs the perfon entitled thereto hath .taken the oath of fidelity to this commonwealth, or ihall take iuch oath before the faid coin-miffionejs, which they are hereby empowered and directed to tender _and adminifter $ except only in the particular cafe of the inhabitants of the territory in difpute between this copimon* wealth, and that of Pennsylvania, who fhali be entitled to certificates upon taking the oath of fidelity to the United States of America. “ III. And be it further enaSled, that all perlons, their heirs or affigns, claiming lands by virtue of any order of Council, upon any of the eaftern waters, under adlual furveys made by the furveyor of «the county in which the land lay, may upon the plats and certificates of fuch purveyors being returned into the Land Office, together with the Auditor’s certificate of the Treafurer’s receipt for the compofition money of thirteen fhillings and four pence per hundred acres due thereon, obtain grants for the fame according to the rules and regulations of the faid office ; notwithftanding fuch furveys or claims have not been laid before the Court of Appeals. And all other claims for lands upon furveys made by á county furveyor, duly qualified, under any order of Council, fhall by the refpedtive chimers be laid before the Court of Appeals, at their next fitting, which (hall proceed thereupon in the manner directed by the before recited a£t. Any perfon claiming right to land furveyed for another before the eftaolifhment of the commonwealth’s Land Office, may enter a caveat and proceed thereupon in the fame manner as is directed by the a<ft of Affembly for eftablifhing the faid office, and upon recovering judgment, fhall be entitled to r grant upon the fame terms, and under the fame conditions, ru.es, and regulations, as are preferibed by the faid a£t rn the cafe of judgments upon other caveats, upon producing to the Regifter a certificate from the Auditors of the Treafurer’s receipt for the compofition money of thirteen fhillings and four pence per hundred acres due thereon.” “ The jury find that the Court of the County of- Prince William, in Virginia, ifliied a C. rtificate in favor of the faid Charles Sims, in the words following: : “ Prince William C©urt the ¿¡¡.th day of April, 1780.” Charles Sims, gent, produced to the Court'a commilfion from Francis Bernard, Efq. formerly Governor of the Province of New-Jerfey, with the feal of that province affixed, and dated the.15th day of Marih 1759, appointing William Douglafs Major of a regiment of Foot, to be raifed in the Province of New-Jerfey, whereof the honourable Peter Schuyler was Colonel. He alfo produced the affidavit of the Reverend David Griffith, taken before William Ramfay, Efq. a Juftice of the peace for the County of Fairfax, the firft day of this inftant, that William Douglafs, commonly called Major Douglafs, who formerly refided on Staten If and, did actually ferve as an Officer, in the corps of Provincials raifed by the Province of New-Jerfey, in the late war between Great Britain and France-, and a certain George Beardmor, in open Court, upon his oath faith, that be ferved as.a foldier a campaign with the faid Douglafs, in the late war of Great Britain with France, and hath reafon to believe the faid Doug-lafs ferved the time for which the faid Regiment was r'aifed. The faid Charles Sims likewife produced to the Court an alignment,indurfed on the back of f.io Comr.'iilion, dated the l6th day of January 1779, figned William Douglafs, in thefe Words, ⅝ In confideratiou ot the fum of £. 100, current .money as well as for other good caufes of coniideralion ; I William Douglafs, of the ftate of Neva-Jerfey, do make over, af-fign, transfer, and convey unto Charles Sims, of the ftate of Virginia, all my right, title and intereft, tothelandsywhichlam entitled to, by virtue of the within con<><-iffion under the King of Great Britain, and his proclamation iffued in the year 1763. 'Given under my hand and feal, this l6tbi oay of January 1779.” The faid Charles Sims made oa;h that he believed the faid William Dougtajs, who rAade the before affignment, is the fame perlón whom ibi Reverend David Griffith mentions in his affidavit, and that the faid aftignment was made to him for a valuable connderatioi ,and that he has never before made any claim nor' received ar.y lands in confequence of the before mentioned affignment; and the fame is oidered to be certified : And the Cou: c doth further certify that the faid Charles Sims is, and hath always been from-the time of his birth, an inhabitant of this ftate. Teje, Robert Gkaham, Clk. Court. * The within is a copy taken from one of the vouchers,upon which a miljtary warrant, . No, 915, ifilled to Charles Sims, the 7th day of Jjpril, 1780. ' Wm, Price, Re. L. Off- July ¿ift, 1796, . . . “The Jury find, that the Regifter of the Virginia Land Office, on the 8th of May, 1780, iflued to the faid Charles Sims, affignee.of the faid William Douglafs, one military warrant, in th.e ufual form; thát the faid Charles Sims delivered the warrant on the 30th of May, 1780, to the Surveyor of Yohágany county (within which Montour’s ifiand lay) in Virginia, and directed it.to be entered and located on feveraf parcels oft land, of which Montour’s ifiand afbrefaid was one ; that'.the faid Surveyor did pn the fame day and year laft mentioned, enter' and write in his book, kept by him as Surveyor, the faid wa, - rant on the faid parcels of land, and indorfed the faid entry and location, on the faid original warrant; and that the faid two feveral papers (or minutes) refer to and mean one and the fame warrant, though the . warrant is dated on the 8th of May, 1780, and the record in the Regifter of the Land Office is under date of 7thof Jpril, 1780- The tc The-Jury find that the governor of Virginia tranfmitted in the year 1784, á juft and true lift of the entries of land made under the authority of Virginia in the difputed territory, to the Executive of Pennfylvania, which lift, among others, contained the following item, in relation to- the military warrant of the faid C.' Sims: . “ 30 May 1788. Charles Sims, Military, 5000. Racoon.” “ 30 M y 1780. Cnarles Sims, Military warrant 3000. Racoon” “ The Jury find that the faid lift of entries, included the faid entry and location of the íeflbr óf the Plaintiff’s, and was tranf-niitted to 1 the Land Office of Pennfylvania., in the faid year 1784.J and that upon the faid entry of the leftbr of .the Plaintiff with' ícfpeft to ¿002 . acres on Racoon creek, a furvey was made, and a'patent, dated 6ch January,'1795, had been iffued-under the authority of P ennfylvanial “ The Jury find, in hac verba, another law of Virginia, enabled on the 20th.. of June, 1780, at a-feflión which commenced on'the lit. of May preceding, entitled, “ An aft for giving further time to obtain-warrants upon certificates.for pre- “ empuon rights;, and-returning certain furveys-to the Land “ Office, and for other purpofes;”, the material parts of which law, are exp re fled in the following .terms: “ Wberohs the ti ne fix id by an aft entitled An aki for ad- “ jujling and fettling 'the titles, of cláimers to unpatented lands “ under the prefnt and former governments, previous. to. the “ eJlabUJhment of the Commonwealth's Land Office, for furvey-ing and' returning furveys to the Land Office upon entries “. made with thefurveyor of a county, before the t.wenty-fixtb “ day of June, one thaufand feveri hundred and feventy-nine,. “ for lands lying upon the eaftern waters, and. for returning w the plats' of legal; furveys made upon the weftern waters, un- “ der the former government, and exchanging military warrants “ granted'under the’royal proclariiation of one thoufand feveri “ hundred and fixty-three, and not yet executed, will fhortly ⅛ expire, and many perfons be thereby deprived of the benefit “ of fuch warrants and 'furveys: Be it therefore enaSied, that ⅛ all perfons having fuch warrants,' ih ill be allowed until the' ‘c firft- day of July one tbóufan'd feven hundred and eighty one, “ to-exchange fuch warrants j and that the like time (ball be al- ■ “ lowed for returning fuch furveys to the Land Officé, to fuch ¿c who were entitled to land for' military fervice, fór which cer- “ -tificates have not yet been obtained. “■ IV. And be it further enaSied, that the further time of a eighteen months be given to all 'perforis who may obtain cer- '“ tificates'from the faid commifiioners for pre-emptions on their * obtaining wat rants from the Regifter of the Land Office to t( 'enter the fame with the furveypr of the refpedive counties in u which their claims were adjufted: Provided that the court of cou-miffioners for the diftridl of the counties of Monongalia, Tobogania, and Ohio, do not ufe or exercife any jurifdidcion i refp ¿ting claims to lands within the territory in difpute between theftates of Virginia and Pennfylvania north of Ma- “ 'fan’s and Dixon’s line, until fuch difpute ihall be finally ad- “ jufted and fettled. “V. And be it further enaSied, that all furveys upon entries, M the execution of all warrants, and the iffuing of patents for u lands within the faid territory ihall alfo be fufpended until the “ faid difpute ihall have been finally adjufted and fettled; but that fuch fufpenfion ihall not be conftrued in any manner to “ injure or affedbthe title of any perfon claiming fuch lands. ic And whereas the bubnefs of fuch commiffioners for fettling “ the claims of unpatented lands, will be much leffened in the “ counties of Monongalia, and Yohogánia, and Ohio, (Ac.” “ VII. And whereas fome doubts have arifen upon the conJ ftrudfion of the a¿ts, direéting the granting warrants for land due for military fervice under the King of Great Britain’s proclamation in the year one thoufand feven hundred and fixty-three : It is hereby declared that no officer, his heirs, executors, adminiftrators, or affigns, ihall be entitled to a warrant of furvey for any other or greater quantity of land than was due to him, her, or them, in. virtue of the higheft commiffion or rank in which fuch officer had ferved, nor in virtue of more than one fuch commiffion for fervices in different regiments or corps, nor-ihall any non-commiffioned officer or foldier be en- . titled to a bounty for land under the faid proclamation, for his fervice in more than one regiment or corps.” “ VIII. And it is further declared, that the Regifter ihall. not iffue to any.perfon or perfons whatever, his or their h.eirs or affigns, a grant for land for more than one fervice, as.above . defcribed, nor to thofe who have received warrants for fervices fince OSiober, one thoufand feven hundred and fixty-three, not-Withftanding a warrant or warrants may have been heretofore iffucd, and the land furVeyed, unlefs the claimant ihall within fix months from the end of this prefent feffion of Affembly, produce to the faid Regifter the Auditor’s certificate for the payment of the ftate price of forty ^pounds per hundred, for the quantity of land in fuch warrant or warrants j and if fuch money is not fo paid, that then the faid warrants or furveys ihall he td all'intents and purpofes void j and that the Regif-ter may be able'to comply with this law, he is'hereby dire¿ted to make out, and keep an alphabetical lift of all military warrants iffued under the former as well as the prefent govern-rrient; in cafe of ary .affignmenf, making therein the name of the affignor; and the feveral furveyors with whom military warrants obtained under the former government, have been lodged or located, are. diredted to tianfmit to the Régifter in the month of November next, or beforp that time, a lift of all fuch wanaifts.” The jury fiad a variety of o'ders iffued by the late Supreme Executive Council of Pennj'yharia; and of proceedings entered into by the Board of property, to relation to runnlng the boundary, and to the lift of Virginia claims and entries on lands within the difputed territory, &c. a variety of patents iffiied by Virginia, for iflands in the Ohio; fundry treaties with the Indians, and celfions made by them., pártieularly at Fort Stanwix on the 5th of November, 1768, and on the 30th of O£lober% 1784; and they-find the (Jonfticution and Laws of Virginia, refpedting the tight of purchafing lands occupitd by the Incfi-ans; but whici findings it does not fee-m ncceffuiy to fet forth more particularly. “ This Jmy find, that Prejly Nevil and .Matthew Ritchie, two deputy fuivcyors, recei vea from the Surveyor .General a lift of entries made under the authority of Virginia; which faid lift included the entry for tV.e land iii the declaration mentioned ; that their commi .Eon was dated the 4th of April, 1785, appointing them deputy furveyors, of all that part of JVajhingtan county, lyi-itr within the fpecified boundaries; and that on the' 13th of April 1787, they furveyed Montour's iflancf, and re-tic ned the furvey in hese verba, into the Surveyor General’s bffice fometime in March .1788; the return of the furvey fpt-r ting forth, th.it it was made for Charles Sims, affignee of TViU Ham Douglas, and under the Virginia warrant, entry and location. . ' . “ The Jury find, that before the year 1779, the.Indian tribes, in cbnfLquéncc of hoftilities between them and the United States, retired to the north-weft lide of the Ohio river, having' abandoned and relinquished all the lands, except on the north-weft fide of the faid Ohio river; anil that by various treaties fin'ce made with the, United States .of America, the boundary line of their hunting, grounds is very diftant from the north-weft. fide of the Ohio l iver aforefaid. “ 7 he Jury find, that according to the practice of Virginia, no money was required to be paid fincé the paffing the faid aci, entitled “ An Aft for giving further time to obtain warrants “ upon certificates for pre-emption rights, end returning cer- “ t:iin furveys into the Land-Office, and for other purpofes,” by the holder of a militaiy warrant for lands, except where more than ‘one warrant is iflued for the fame fervice. “.The Jury find, that the Defendant William Irvine had actual notice of the claim of the lefior of the Plaintiff, lor.'X'time before the 25th .of December, 1783, which was before the feid Defendant made any payment oí money to-Pennfylvania, whofe firit and only payment was of the fum of / 283 13 6, ori. the j8th of April, 1787.” ■ • II. Defendant’s Title. . “ The Jury find a law of Pennfylvania, enadted the 24th of September, 1783, entitled ct An Adt to grant the right oí pre- “ emption to an ifland known by the name of Montour's Ifland “ in the Ohio fiver, to Brigadier General William Irvine which law is expreffi-d in the following terms: , “ Sject. I. 'WHEREAS Brigadier General William Tr-***vine, during his feparate command at Piiijburgh, hath ren- “ dered eifential fervice to this ftate, particularly the frontier “ fettlements thereqf: In confideratiori whereof, “ Sect. II. Beit enabled, and it is hereby enabled by the “ Reprefentatives of the Freemen of the Commonwealth of Penn- “ fylvania in General Affembly met, and by the authority of the “fame, Thát the ifland, fituated in the Ohio rivrr, below “ Pittjburgh', .known by the name of Montour's ifland, and “ every part thereof, be, and .the fame is hereby, granted un- “ to the faid William Irvine in fee, to have and to hold the “ fame unto him, his heirs and affigns, for ever; fubjedt to “ fuch purchafe money as a future houfe of Ailembly may diredt. ■ Sect. III. -And be it further enabled by the authority “ a fore faid, That the Supreme Executive Council be, and “ they hereby are, empowered to diredt the Surveyor Gene- “ ral of this ftate, at the proper coil and charge .of the faid “ William Irvine, to lay qut the faid ifland, and caufe it to be “ returned into the office for confirmation» “ Sect. IV. Provided always, That nothing in this adt “ ihall be taken or deemed to bar any perfon or perfons, their “ heirs or afligns, who may have obtained any. juft or lawful • “ right to the faid ifland, or any part thcredf, before the paf- • “ fing of this adt. The jury find another law of. Pennfylvania, enadted o;n the 8th of April, 1785, entitled “ An Act to provide further regú- “ lations whereby to fecure fair and equal proceedings in the Land Office, and in the fur veying lands;” which adt contains-a fedtion in théfe words: • “ SEC. I. Whereas the-time for opening the Land-Office of this ftatej for the lands contained within the pu-chafe lately made by the fcominonwealtb, of the Indian natives, of all the refidueof wafte lands within the charter bounds of Pennfylva-nia, as the fame have been adjufted between this-ftate and the ffate ojf Virginia, is fixed to be from and after the firil day of May next, when it is probable that numerous applications will be made to the faid Land-Office at the faid time, for lands within the bounds of the faid late purchafe,' and the officers of the Land-Office muft neceffarily be obliged to give preference to fome perfons, before others whofe applications-may be made equally early, and thereby great diffatisfadlion mult arife, unlefs fome provifion be made by law to regulate the fame.” &c. “ The Jury find, that "the Defendant on the 19th of April, 1787, having previoufly returned a furvey into the office of the Surveyor General of P ennfylv'ania^ of the lands in the declaration mentioned,.obtained .a patent for the fame, in due form, dated the 19th of April, 1787. ■ “ The jury -find another law of Pennfylvahia enadted the -aótft of March 1785, entitled w An adt for the limitation of actions to be brought for the inheritance or po ib-ilion of real property;, or upon penal aits of Affembly;” which law contains the following fedtion: “ SEC. V. And be it further enaSled by the authority afore-faid, That no perfon or perfons that now hath or have any claim to the poffeffion of any lands; tenements or hereditaments, of the-pre-emption thereof, from the commonwealth, founded upoti any prior warrant, whereon no furvey hath been made, or.iii confequence of any prior fettlement, improvement or occupation, without other title, ihall hereafter enter or bring ahy adtiori for the recovery thereof, unlefs he, file or .they, or his, her or,their anceftors or predeceffors, have had the quiet and peaceable pofleffi-onofthé fame within Even yeárs next before fuch entry, or brings ing fuch adtion: Provided always, That if any perfon or perfons fd claiming as aforefaid hath been forced or driven away from his, her or their pc-ffeffions-, by the favages, or by the terror of them, or any other perfons, or by any other means, except by the judicial authority of the .Hate, hath quitted the fame, during the late war, then fuch perfon or perfons, and -his, her or their heir of heirs, ihall or may, n.otwithftariding the faid feven years be expired, bring his, heT or their adtion, or make his, her or their entry, within five years from the palling of this adt.” “And the jury.find the leafe, entry and oufter; in the declaration- mentioned. And if upon the .whole matter, See.” After En affignment of the general errors, in nullo eft-erratum pleaded, and iffue joined, the caufe was argued by Lewis, E. Tilghman, and Dallas, for the Plaintiff ¡¡n error ; and by Lee, Ingerfill, and Ravsle, for the Defendant:. The former Contended that the title of the Leffor of the Plaintiff'was defedtive both in law' tmd equity; but admitting that.it was an equitable title, they infilled that the remedy was in equitv, and not at law." I. The title of the LeiTor of the Plaintiff is defective, becaufe, ift. The fpecial verdift does not find, that William Douglas was entitled to the bounty under the proclamation of 1763-, as being an officer within the defcription, and complying with the conditions of the gift. Tobe entitled, he muft have been a reduced officer—he muft have ferved during the-war of i7.63~--ihe fer-v-ice muft have been in America—he muft have been refident there—and he muft have made a perfonal application for the benefit of the bounty. Not one of thefe requifites is clearly ’ftated in the verdifl, and fome of them aré entirely omitted. The rule, with refpedtto fpecial verdiffs, is, that they muft find-faffs," not the evidence of fadls ; and no implication, however pregnant, will be .allowed. In Trover, for inftance, the jury muft find anaiftual converfion, finding a demand and a refufal, though thefe are evidence of a converfion, will not be fufficient. Here, fome of the fiadts are found, but not all of them ; and fet-ting forth the proclamation, in hac verba, will not cure Ae par-' tial finding. . 7 Bac. Abr.p. 6. pi. 5. p. 7. (new edit.) It is particularly important, that» perfonal application of the Donee-ihould have been found, fince the inducements of the government in making the gift in that form, -independent of an acknowledgment for paft fervices, evidently arofe from the policy of enfuring the fettlement of military men on an expofed frontier; and a defire to prevent-frauds a»d‘fpeculation. 2d* If the fpecial verdiift does not find the fails, which were indifpenfibl'e to entitle William Douglas to the bounty of the proclamation, it follows, of-courfe, that nothing palled by the affignment of his right to Charles Sims. It is true, that" William Douglas had a juft claim to the bounty, and might be con-fidered as having a right to it, even before a perfonal applica- ' tion-; but without a perfonal application he-could never reduce it to pofleffion and enjoyment himfelfimor fell and transfer it fo, another. An affignment is not a fubftituti'on of one perfon for another, but a-transfer.-of fomething from the affignor to the affignee. • ■ • 3d. The affignment from W. Douglas to C. Sim's was made on the 16th of “January 1779, before any law was .enacted isi Virginia, in relation to claims and rights of this defcription;. and, therefore, its validity and operation muft depend upon the terms and conditions of the proclamation, unlefs it íha!l be found that the Legiflature of the ftate afterwards altered "and. improved, the condition of the affignee: this, therefore, • mult be*inveftigated. 4th. .The firft ait of the Virginia Legiflature upon the fiub-jeít, palled in May 1779, ufes the terms “ All perfons^ their heirs or affigns” claiming lands under proclamation warrants for military fervice, ihall be admitted to grants for the fame aS in other cafes: but whether the claim was by the Donee, or his affignee, the provifion (if at all applicable to the bounty of the proclamation of 1763) can only be.expounded to embrace claims that were fairly veiled by the Donee’s making perfonal application, and proving a conformity to the other conditions of the gift. This part of the law, however, has a variety of other cafes upón which it mu ft attach, and which were unqueftiona-bly of an affignable nature. It cannot, therefore, be regarded as creating or recognizing an affignable quality in the bounty of the proclamation, which the proclamation itfelf does not create, or fupport; and, if no affignment could take place, under ■the proclamation, unlefs there had been a previous perfonal application by the Donee, the word, “ heirs and affigns” coupled in the law with the Donee, muff be conftruéd to refer to cafes, in which the Donee has duly obtained warrants and furveys.- But the material feítion, (fee. 3.) in'the a<ft of May 1779? provides that no proclamation claim to lands (hall hereafter be allowed except in' the following cafes: ift. Where a warrant had- been obtained during the former government; Or 2d. where the military fervice was performed by an inhabitant of Virginia ; or 3d. where the military fervice was performed in fome Virginia corps: And, ineither cafe, the claimant muft make due proof in a Court of record, and produce a certificate of it to the Regifter of the Land-Office within 12 months. Now, it-is manifeft ‘that the cafe of the Leflbr of the Plaintiff is not within any of thefe provifions: A warrant had not been obtained for PV. Douglas’s bounty under the old government} William Douglas had never been an inhabitant of Virginia; nor were his military fervices performed in any Virginia corps. ' William Douglas himfelf, therefore, would not have been entitled under the law; and fo far, likewife, the claim of his affignee can.only be maintained upon-his title. ' By the revolution, Virginia within the boundaries of the ftate, acquired all the territorial rights, with greater powers, than the King of Gr.eaf Britain previouily poffeffed : The King was bound by his gift, and could neither defeat, or modify, the rights of the Donee; hut ViYginia, with the eftablifhment of her independence and fovereignty, became the abfolute proprietor of the unappropriated foil ;■ and was at liberty to impofe conditions, to give the law, in relation'to antecedent,inchoate, gratuities and grants of the B.ritijh monarch. In- the exercife of this authority, flie opened her'Land-Qffice to claims forol.d military fervices, upon the reafonable ftipuhation, that a warrant ihould already have iffued, or that the- fervices ihould have been performed by a ■perfon-rnhabiting the. ftate; or in a corps belonging to it.' 5th. But by the preceding law, it is evident, that two things are ambiguouily expreiled:—It is not clearly defined, who is meant by the claimant in the 3d fe&ion; and it is not afcertain-ed to what period the inhabitancy, of the perfon performing the military fervices, refers,—to the time of the fervice, or to. the time of the claim. Hence arofe the neceility of introducing the law of Oélober, 1779, which was palled (as its title declares, and great refpedt has been paid to a title in conftruing.an ambiguous law, Hob. 232.) “ for explaining and amending” the a£t that has juft been examined; and the. doubts, that had ari-fen, are recited in the preamble to the firft fgdlion,—cc doubts concerning the manner of proving rights for military fervice, under the proclamation of the king of Great Britain in the year 1763, whereby great frauds may be committed.” The fii ft enacting words are “ that no perfon, his heirs, or affigns, other than thofe who had obtained warrants under the former government, ihail be hereafter admitted to any warrant .for fuch military fervice, un'lefs he, Are, or they produce, See. a proper certificate of proof, &c. by the 02th of the party claiming, or other fatisfadlory evidence,” ift, That fuch party was bona fide an inhabitant of Virginia, at the time of palling the preceding law {May 1779) or 2d, That the perfon having performed the military fervice was in a Virginia corps before the date of the Proclamation, and continued in.it till the corps was diibanded, or he was difeharged or died. Nowlin order to a fair underftanding and expofition of the law, it ihould be remembered, that it contains no repealing claufe or expreffon; and, confe-quently, the two laws, being in pari materia-, mull be fo con-ftrued as to be rendered, ccnfiftent and operative in all their parts. 1 Bl. C. 82. Under this impreflion, the atft of October, X779, is evidently a reftraining, and not an enlarging, ftatute. By the a<ft cf May the donee, claiming under the Proclamation, muft have been an inhabitant of Virginia, or have ferved in a Virginia .corps ; and thé adl of Offober, 1779,with-out impairing or altering' that requifite, in the cafe of the do-nee himfelf, only fixing the period of his inhabitancy to the palling of the former a¿t, fuperadds that in the cafe of an af-fignment, the alfignee, or claimant,, muft likewife have been an inhabitant of Virginia. ■ William Douglafs would not, it ⅛ clear, be entitled under either law; and is it not extravagant to infift, that the alfignee ihail take, when the aflignor is excluded ? When the aft of OSiober, 1779, fpeaks of « the party claiming,” it muft, indeed, intend a party who can legally clajm, but it by no means deferibes who ihail be a legal claimant: And wbext it fpeaks of “fuch party,” the reference (which is not always to the next immediate antecedent. 18 Vin. Abr. Ha.rd. 77.) mull, in order to preferve the fenfe of the context, be applied to the donee, or to the heirs and affigns of a donee, duly entitled, according to the reqriifltes of the Proclamation and law. Befides, the fame fedtion provides for ptoof being made- “ that the party had never before obtained a warrant or certi-a ficate for fuch military fervice;”' which mud be applied to the party performing the fervice, fince it would not furely be enough to prove that an afftgnee had not, though the aflignor might have before obtained a warrant. And it maybe observed, 'by the bye, that the fpecial verdidl does not find .the fail, that no warrant had iffued on Douglass claim, before the war.rant which iffued to the i-.ff>r of ¡¡he Plaintiff. 6th. In addition to the exceptions'already Stated, another ob-.jedtion arifes upon the Virginia law,.enadted the 20th of June, 1780; which provides, that only one warrant ihall iffue to .'one perfon, founded on claims for.military fervice; nor ihall even one warrant iffue, unlefs the claimant .ihall within fix’ months Corn the end of the feifion, in wnich the law was en-siled, prove a payment of £.40 per hundred for the quantity of land ⅛ the warrant. This payment is not found by the Special verdidl, nor has it ever, in fait,- been made either to Virginia, or to- Pennfylvania, acquiring all the rights of Virginia tinder the c'ompadl; but in aid of this defedl, the verdidl finds, that it was not the pradtice of Virginia to require the money to be paid by the holder of a military warrant for lands, except'where-more than one warrant' iffued for che fame fervice. ’ This finding, however, that the money was not required to be paid in Virginia, cannot prove, that it was not due and payable to Peiinfylvania ; and a mere pradtice of Office in one State (which could not have been a pradtice of, a long, continuance when the compact took effedt) is not fuf-ficient tó.controul the plain provifions of a law, or to affedt the rights'of another Státe. Whatever, therefore, might previously have been the pretentions of the Leffor of the Plaintiff, his non-compliance with thefripulated payment, is an abandonment, or forfeiture of- his claim. .7th. But Montour's Iftand lay within the diftridt of country occupied-by the Indians; and, therefore, it could not be the fub-jedt of location, for fatifying a private claim to lands. The Proclamation of J 763, the Conilitution and Laws of Virginia, and the Laws of Pennfylvania, all concur on this point. It is true, the fpecial verdiñ finds, that before the year 1779» Indian tribes had retired to the North-weft fide of the Obioy having abandoned and relinquiihed all the land, except on the North-weft fide of the river, and that by various treaties, fince-made with the United States, the boundary line of their hunting grounds is very diftanf from the North-weft fide : but, it is to be remembered, that it is alfo found by the fpecial verdict, that the retreat of the Indian tribes was, “ in confequence of “ hoftil'ities between them and the United States.” A retreat, •under fuch circumftances is neither a dereliction, nor a ceffion. Acquifitions of territory, in confequence \>f hoftilities, do not pafs in full fovereignty ; the transfer is not complete unlefs confirmed by the treaty of peace ; and even if it was an ac-quifition in war, it was a national acquifition, and enured to the ufe- of ,the United States. It appears, however, that the abandonment of the lands was owing to the neceffities of war, and not with a view to a direliCtion; for, afterwards, at the treaty at Fort Stanwix, in the year 1784, this very property is ceded by the Indians, and the ceffion is .made to Pennfylvánia, not to Virginia. There may be an appropriation (which, .it is faid, is the effeCt of a warrant and furvey) of an equitable eftate ; but, in the prefent cafe, the entry of the Surveyor, in the year 1787, . was the entry of the Public Officer, not of the ¾-gent of the Leffor of the Plaintiff-; it did not conftitute an aCtual poffeífion ; and could not be effectual for any other purpofe, than creating an appropriation of an equitable, or executory, eftate. • 8th. Though the treaty, or compacft, between Virginia and Pennfylvánia, ought to be held facred, it cannot be fo conftru-ed as to change the pre-exifting ftate of property ; rendering that perféift which was before imperfeCt, and'making valid what was before void. The compaCt fecures private property of every défcrjption ; but it does not convert claims into rights, nor equitable rights into legal eftates. The-rights confirmed are thofe which would have been good againft Virginia \ complete rights are confirmed, without any a£t to be done by the party ; dnd incomplete rights are confirmed in the pfecife fituation, in which they were, at the date of the compaCt, to be rendered complete according to the law of the State, acquiring the juriidiction and . fovereignty. It muft be conceded, that the warrants granted by Virginia on lands, which proved to belong to Pennfylvánia, were ipfo faiio void ; though it was reafdnabl'e and juft to recognize them on a fettlement of the territorial controverfy. Reafon and juftice do not require, however, that fuch a recognition fhould be conftrued into a confirmation of the title (Co. Lift. 295■) giving to the 00m-pa& ⅛6 operation of a patent, without exprefs words t<s produce that effeft. Nor can the State be regarded asatruftee under the compaft, for the ufe of the Leffor of the Plaintiff; for, ihe had granted the pre-emption right to the Defendant ; and the Defendant, in'a Court of Equity, would have been regarded as the Truftee, jf any truft could be raifed by implication. What, then, were the circumftances of the parties at the date of the compaft, and afterwards? So eaily as the year 1783, the Defendant had prociired an aftual fut vey of the pre-mifes ; and, according to the adverb: doftrine, was thereupon in poffsffiion, But the leffor'of the Plaintiff’never attempted to procure a furvey till the year 1787; (which cquld not diveft the Defendant’s previous p.offeffion, and-he refted limply on his Virginia, warrant and entry; though a furvey was furely’re-qudite, if not to locate the land (inafmuch as naming thé illand might, in that refpeft, be deemed a fufficient -defignadon)' at leaft to afcertain the quantity. It is to be confidered, indeed, that in the very lift of entries in-the Land Office, 'tranfmitted-by the executive of Virginia to the executive of Pennfylvania, there is no fpecific mention of a location on Montour’s illand 5 and though the fpecial verdict finds that Nevil and .Ritchie received a lift oí* Virginia entries, including an entry for the lands in the declaration mentioned; the lift is not fet forth in bác verba; and the entry, for aught that appears, may have-been made fubfequent to the compaft, or it may be in favor of the Defendant, B.efides, there was a general .prohibition as to liirvey.ing ¡Hands in the Ohio-, % Vol. Pennf Laws, p. 317.7! 13. (Daü, Edit.) and the furvey of Nevil and Ritchie, was, in fa£t, un~ authorifed by their commiffion, which circumfcribes their dif-trift to limits,.not including Montour’s illand. The commif--fion authorifes them to furvey in a Diftrift formed of a part of Wajhington County: now, Montour’s illand lay,originally, within Wejlmorela'nd County; .it lies at prefent within Alle-ghaney County; but it never was at any time included in lVajhington County, x Vol. Pennf. Laws, 874. (Dali. Edit.) 2 Vo.l, Pennf. Laws. 595. If, then, the furvey itftlf is not lawful, it cannot be brought in aid'of the title of the leffor of .the Plaintiff. ‘ 9th-. It.only- remains, on the queftion of title, to ffiew, that the Pennfylvania aft of limitations, is a bar to the claim of the 'leffor of-the Plaintiff: The-aft was paffed on the 26th of March, 1,785; and it declares, “ that no perfon having a claim to lands, ot to the prs-emptión thereo.f, founded upon any prior warrant whereon no furvey hath been made, &c. (hall .hereafter ente.r, or bring any adlion for the recovery thereof, unlefs he, or his anceftors, or predeceffors, had the quiet and peaceable poffeflion within feven years before fuch entry, or bringing fuch adlion.” The prefent cafe, it is infilled, is plainly defcribed in the law; and the right of Pennfylvania to legif-late, in relation to all the lands within her territorial boundary, cannot be- denied on general principles, and is not impaired by the terms, or meaning, of her compadt with Virginia. II. From this review, it was conlcuded, that the title of the Leffor of the Plaintiff was defedlive both in law and equity; .but admitting, that it was an equitable title, the' Counfel for the Defendant urged, that the remédy was in equity, and not at law. The title of the Leffor of the Plaintiff refts on the Virginia warrant, and entry, coupled with the P ennfylvania-. furvey no patent has been iffued by either State; and the compadt between them, though it gave a right to have the title completed; did not ipfo faBo complete it. On this flatement, therefore, it is contended, that the legal eftate has not yet been veiled in the Leffor of the Plaintiff; and thata court of equity is alone competent to fupply the defedt of the conveyance. It is true, that in Pennfylvania, where no Municipal Court of equity exifts, neceflity has compelled the judges to apply a legal remedy in .every inflarice of an equitable title; but the fame neceflity does not occur in a cafe before the federal tribunals, which have an equitable, as well as a legal, jurifdidlion;' and the adt of Con-grefs, that adopts the laws of the feveral States, as rules of de-cifion, does not adopt their forms of adlion, nor their modes of proceeding. I Vol.p. 74. f 34. (Swift’s Edit?) A contradi made in • Pennfylvania may furniih a fubjedlfof litigation in any Country upon earth; and though the law o\Pennfylvania would be regarded in expounding the contradi, wherever the litigation took place, the remedies of that place, and not the judicial remedies of Pennfylvania, would be applied to inveftigate and enforce it. If it is only an equitabletitle, will the legal procefs of an e-jedlmerit afford a plain, adequate, and compleat remedy?, x vil. Laws of Cong.-p. 95- f 16. (Swiff s edit.) Ejedlment is merely a poffeffory adlion: a judgment in favor of the Leflbr of the Plaintiff will not cure the defedl in his title. But a Court of equity could decree the Defendant to convey to the Plaintiff; the only rettiedy that can be compleat. It will be faid, however, that a warrant and furvey confti-tute a legal title in Pennfylvania: but the pofition is incorredlly taken, by confounding the nature of the eftate, with the ne-ceflity which compels the ufe of a legal remedy, for effectuating juftice. The application of-a legal remedy to protedi an equitable eftate, ftill leaves the eftate an equitable one. The principle applies to a variety of cafes, as well as to the present. . Thus, where an eftate is held limply by articles of agreement, covenanting to convey, the widow of the covenantee ihall be endowed by the law of Pennfylvania: where the Truftee fells the eftate for a valuable conlideration, without notice of thé . truft, the grantee ihall hold it: And, generally, where there is an equitable eftate, it ihall defeend like a legal eftate. 2 Dali. Rep. 205. Bu^ never was it conceived, that a legal eftate, and an equitable eftate, were fynonitnous terms in Pennfylvania; or that a warrant and furvey came within the former defeription. ■ ■ A warrant was merely a direction from theProprietary, authórifing a furvey of the lands fpecified. . It contained no words of grant; andafter the furvey was made and returned, a patent became eifential, not only to the title of the Patentee, but to declare and fecure the proprietary purchafe money, quit-rents, refervations of mines &c. Till the patent' iflued, the terms of the bargain were not fettled ; nor had the proprietary parted with the fee : And is it juft or legal to contend, that the proprietary could never evidt a warrantee, who refufed to pay the price'of the lands, and to enter into the ufual ftipulations ©f the patent; or that the legal eftate could exift in two'.perfons, the.proprietary and the warrantee, at the fame time ? The practice of Pennfylvania, in the application of legal remedies to equitable rights, has given rife, perhaps, to a feeming.confufion of ideas and expreffions, in the decifi'ons that have occurred cn the fubjedt; but it does not appear in the report of FothergilP s.Leffee vs. Stoker, 1 Dali. Rep. 6. whether the Defendant’s was a legal or an equitable title; and in M-Curdy vs. Potts ct al. 2 Dali. Rep. 98. it is probable that the •words “legal pojfeffion’'’ were inadvertantly ufed by the Judge, or the Reporter, inftead of the words “lawful poffeffton” fince the cafe naturally points at the latter; and a poffeffion may, certainly be lawful, without beinjg legal. Upon the whole, if. was infilled, that the Lefior of the Plaintiff- had no right that could in la\v or equity diveft the poiTeffion of the Defendant,' wjhofe title was cornpleat in all its parts—f a Legillative grant, carried into lieffe£t by a regular furvey and patent. The Counfel for théLeffor of the Plaintiff-, anfweréd the objections-to his title, and. to his remedy, under, the .following general confiderations : lit. His rights before the compádi between Virginia and Pennfylvania: 2d. The true conftruction- of that compaCt': 3c5. The right of the Lelfor of the Plaintiff to be relieved'in the prefent form of aCtion. . Í. The right,of the Leffor of the Plaintiff before the.com-padl between Virginia and Pennfylvahia, is, undoubtedly, founded on tire previous right of William Douglas, under the Proclamation of 1763; bin the right of William. Douglas is no longer queftionablé, ijnce the fpecial. verdidt exprefsly .finds the fadt, that- “ by the Proclamation the King gave to him, bis heirs, and afligns, a right-to a bounty of 5000 acres of land.” When'it is found that ire-took by virtue of the. Proclamation, it follows that he had-complied vyith all the requifites; for, otherwife he could not fo have taken. It is agreed, that if a Jury coliedl the contents of a deed, and find them, and then find the deed, in hese verba, the Court muff regard the deed itfelr, and not the conftrudtion,; becaufe, the Jqry are-not td judge of the law ; and theviry circumftance of their finding the verdidl fpecially, fhews .that they difclaim judging of- the ■law, and fubmitit to the Court. Vaugh. 77. ^ut when a deed contains certain fadts, without which the party cannot tarce, the finding that he did take, and the.deed, th^t fhews he could not have taken exclufively of thofe fadts, is a,finding of the fa'dts themfelves. If upon an'infpedtion of. fine Proclamation, .it fhould appear to contain 'no words-implying a grant, or to be' infuffic.iemly expreffed in that refpedt, it is a matter of law on which the Court will judge though always with -a favourable countenance to fu.pport the irerdidí Hob, 54. 2. Burr. 700. But the terms of the grant are unequivocal ; the power of the Crown to make the grant was incontrovertible; the deferiptian of theperfons to receive it, is comprehenfive and plain; and the finding of the Jury fettles the right of the Leffor of the Plaintiff. Having confidered the operation of,the Proclamation, con-nedted with the finding of the fpecial verdidl, to veil a right in William Douglas, the next ftep is to trace the coijrfe of the title from him to the .Leffor of the Plaintiff, under the fandlion of the laws of Virginia; which, even after the Revolution, fulfilled the intentions of the Royal donor,.with'-liberalityand juftiee. 'Wythe. Rep. 40.' Wajhington’s Rep. 230. For the general gift'of the Proclamation was not.reduced to fpecific-ap-propriation until the Royal authority had .teafed; and until Virginia, had ihe been unjuft, or even ungenerous, might have refufed a-compliance- .The firft and lecond laws.of Virginia,■ both enadled ireMay; 1779, before the Leffor of the Plaintiff' had taken our a- war-i<mt,-.ought to be confidered together. The.firft law, it is true, excludes Haims for military fervices; unlefs the fervjce was performed by an inhabitant of Virginia, or in zVirginiazox’pt; but .the fpecial verdidl dees not exclude the poffibility that Douglas was an inhabitant of Virginia, although it finds that the corps in which, he ferved was 'raifed in New-Jerfey. It is not neceffary, however, to refort to this hypothefis, lince the meaning of the inhabitancy here fpoken of, is expounded in the.fecond law, fo as to meet precisely the cafe .of the Plaintiff, But the firft law fubftantiates, at leaft, the affignability of military rights, inafmuch as the firft fedtion, after claffing, charter or importation rights, treafury rights, and military rights, ex-prefsly entitles the heirs and affigns of each clafs, to take out and locate warrants. The principle; runs throughout the law : The 5th feciion provides that officers, &c. or their affgnees ftiay locate their claims on wafte and unappropriated lands ; and the nth feiftion provides, that certain regulations ihall not extend “ to officers, foldiers, or their affgnees, claiming lands for military fervice.” ' Thefe paffages embrace all military rights} and whatever, may have.been the necelfity of a •perfonal application of the Donee, under the Proclamation of the Britifh Kina:, it is thus obvioully difpenfed with by the Legiíl ature of P'irginia. Under-an erroneous interpretation of the firft law, however, inhabitants of Virginia had paid their money, in numerous inftances, for what might be denominated foreign rights,— rights of perfons, who never inhabited the State, and never ferved in a corps belonging, to it. Difcovering the error, the Legiflature deemed it juft and politic to come to the aid of the purcháfers, being her own citizens ; and by the fecond law virtually ratified their purchafes. Without keeping this policy in .view, without admitting fuch claims, as the claim of the Leffor of the Plaintiff, fome words of the law of October, 1779, will be nugatory. A Virginian, ferving in a New-Jerfey .corps, or a citizen of New-Jerfey ferving in a Virginia corps, would have been entitled under t'hé preceding law; but a third defcription was to be favoured, the Virginia purchafers of military rights; and htr.ee the phrafeologv of “ he, Jhe, or they,” which cannot refer to the officers or foldiers,but to their ajftgns-. Soon after the law of October, 1779, was paffed, within the ■period of eight months, the Leffor of the Plaintiff obtained his warranty and entered it, with a-location on 'Montour's ifland, in the Regifter’s .office.- The warrant, .entry, and location, are all in conformity to the laws and practice of Virginia. The defcripti.on of. the ifland poffeffes fufficient certainty ; and it is found by the vevdidtto be on the north-weft fide of the Ohio, not within any prohibited diftritftof country. From the 20th of June 1780, .when the- law enaifted that all proceedings to execute warrants on the difputed territory, íhould be fufpended until the compact and csffion to Pennfylvania, it was irtipoffible •for the LeiTor of the Plaintiff to purfue any meafures for effectuating his title : but his rights werfe not impaired, nor was the warrant annihilated, becaufe itwas not executed and returned ; and the fubfequent furvey of 'Neville and Ritchie amount* ed to an entry and poffeffion on behalf of the LeiTor of the Plaintiff. There is,perhaps, no decifion in Virginia that places a warrant and location oh the footing of a legal title; but a .military warrant has always been deemed a good- equitable •right. Wythe’s Rep, 40, Wajhingtori’s Rep. 230. • It has been contended, however, that the pon-payment of £. 40 per hundred acres, either to Virginia or Pemifylvania, within the ftipulated period • of fix months, amounts to an abandonment or forfeiture of all the pre-exifting rights of the "Leffor of the Plaintiff. But the fpecial verdidt finds a ufage direftly oppofed to this cónftruftion ; and ufage is a fafe ex-pofitor of the law. The fraud intended to be guarded againft was the iffuing of two warrants for one claim ; and the Court will not prefume that more than one had iifued upon.the pre-. fent claim, in which cafe the f. 40 was never required, or ex-.afted, for a warrant founded on military fervices. But it is impóflible to confider the'provifion as applying.to lands in this predicament for the following reafons : ift. Before the’ expiration of the fix months which the law, paffed on the 20 th of June, 1780, (2 Vol. St. L, 208. Dali. Edit.) allowed, the lands, and the right to the price, were ceded by Virginia to Pennfylvanla, to wit—on the 23d of June, 1789. From the time of her Ceffion Virginia had no right to the price ; and Pennfylvanla never fixed a time for paying it, nor impofed a penalty ■ for a ne-gleft, or refufal. If, then, the performance of a cohdition becomes impoftible by the aft of the party, he ihall never himfelf take.advantage of the failure. Doug. 659. 2d. By fufpending the powers of the CommifFioners, in relation to the execution of warrants, within the difputed territory, thofe lands were virtually- excepted from the general provifion of the aft. It is harfh, indeed, to fubjeft a man to a penalty for not .paying for lands, which he could neither locate, nor poffefs. If the forfeiture does not apply, the refult is, that the money, if payable at all, muft be paid, before a patent can be obtained'. Virginia thought the warrant ftill - in force, for, it was certified in the. lift tranfmitted by her Executive; and Pennfylvania. has, alfo, manifefted-her opinion on the fubjeft, by iffuing a patent for the lands located on Racoon creek, under circumftances exaftly fimilari It is here proper to add, -that, although the law was. paffed during- a feffion, which commenced on the ift of May 1780, it was not, in faft, enacted till the 2'oth of June 1780; fo that it can have no effeft to invalidate the warrant ancj location, which were made by the Leiibr of the Plaintiff on the 8tb, and 30th of May, refpedtively, The relation of laws to the firft day of the feflion of the Legiflature, is a legal fidtion, which will never be allowed to work an injury. Comb. 431. 2 Mod. 3 ro. But it is another objection', that Montour's Ifland lay within the country which belonged to the Indians; and could not), therefore, be the fubjedt of a lawful location tinder a private1 warrant. Without confefllng the aboriginal title of the ln-dian tribes, it is enough for the lefior of the Plaintiff to alledge, upon the finding of the fpecial verdidt,, that before the year 1779, they had abandoned and relinquiflied all the lands except on the north-weft fide of the Ohio; and that in purfuattce of treaties, they have fince receded very diftantly from that boundary. Lands may be acquired by conqueft; and a relinquiihment, in confeq'uence of hoftilities, is tantamount to conqueft. 2 Bl.C. 9. The lands are, likewife, found to have been within the charter boundaries of Virginia ; fo that as far as royal jurifdidtion, and Indian furrender, are involved, the fove-reignty and property of that ftate were complete. It is faid, however, that after this dérelidlibri, pofteffion fhouid have been taken; and here toe the fpecial verdidt meets the objedtion, by finding that the lam.s mentioned in the declaration were included in the bounds of Tohagany County. It is not honorable .to the charadter, nor confident with the pradtice, of Pennsylvania^ to urgethe treaty at Fort Stanwix in the year 1784, as a proof that the Indian title had riot been previoufly extmguiiheu. Rather, let it be laid, that ihe pur-ebafed tranquility from the l-ndians, for the benefit of all, who held lands within their hunting grounds; and, that the deed en» ured .to; their, ufe, foi their refpedlive proportions, and to her ufc only for- the rejiduum,' Béfides, the Virginia rights were original charges on the land, which ihe was bound fo fupport and defend; and the fuccefs of her operations, whether by treat|y or by,arms, could never abridge or deftroy them. It does not now lie with her to difputethe right of Virginia, even if ufurped; for; {he is eftopped.by her own act.- II. This leads toa fecond general confideration,——what is the .true cpnftriidtion of the Corno act between- Virginia-aná.Pennfylvania ? The compadt was ratified by the former she 25ÍÍ of June- 178Ó; by the latter on the 23d of September ijSOj. when ic-'hecainc mutually obligatory, and neither State, could afterwards difable hcrfelf from, complying with its terms. On the contrary, indeed, each party .was bound to the other, and to the individuals concerned, that every necejf-{ary aft ihould be performed to effeftuate the objefts of the agreement and ceffion. That no private right, antecedently acquired, ihould be diminifhed or deftroyed,- was exprefsly contemplated; and with that view, the lift of entries in the Land Office of Virginia, was tranfmitted by the executive of that ftate to the executive of Pennfylvania-, with that vi«w the lift was communicated to the Land Officers and furveyors of Pennfylvania$ with that view all the precautions were taken, ■which appear in- the records of the executive council, and of the board of property; and'with that view Neville and Ritchie purveyed and returned a draft of the ifland in favor of thelefl'or of the Plaintiff. Previoufly, however, to the Virginia lift of warrantees, though after the Compaft, the legiflature of Penn-fylvanja, by a law, enafted the 24-th September, 1783, had granted the pre-emption of Montour’s Ifland to the Defendant; but in doing this, it muft have been remembered, that the pre-mifes lay within -the difputed territory; and, therefore, with a laudable caution, a provifo was inferred, “ that nothing in the “ aft ihall be taken or deemed to bar any perfon, or pérfons, ■( their heirs or affigns, who may have obtained any juft or “ lawful right to the Lid ifland, or any part thereof, before the “ paffing of the aft.” a Vol, 150. fi 4. {Dali. Edit.) It is faid, that the lift tranfmitted by the Governor of Virginia does hot fpecify the location of Montour’s Ifland; but’it is found-that the lift on which Neville.and Ritchie made their furvey for the leffor of the Plaintiff^ did comprife the lands mentioned in the declaration; and the Defendant had full notice of the Virginia claim, before he paid any part of his purchafe money. . reaving, then, precisely afeertained the fpot by the location, (and in the prefent cafe, a furvey was unneceffary, either to identify the ifland, or to afeertain the quantity of land it contained) the Leffor of the Plaintiff required a right under Virginia} which wanted no other form or aft than the ratification of the cbrhpaft, to make it complete. That ratification is-accordingly given on the exprefs-condition “¿hat the privatepro- “ petty and rights of all perfons acquired uhder, founded on, or “ recognized by, the laws of either country, previous to the dace “ hereof, be faved and confirmed to them, although they ihall be “ found to fall within the other.” The right of the Leffor of the Plantiff, it is repeated, was acquired under, founded ón, and "recognized by the laws of Virginia , and that right is not only faved, but confirmed by a covenant or law of Pennfiylvania. That a new warrant was not neceffary after the ceffion, is proved bv theproceedings on the Virginia location upon Racoon creek; and there is no magic in the defcription of a patent, which may no£ be fupplied by fomethirig equivalent; as, in the. prefent cafe, by a folemn compañ. The property of the ifland originally belonged to one or ether of the ftates ;—>one of them grants it to the Leilbr of the Plaintiff; and the other confirms the grant what form of conveyance can be more effectual and conclufive ? Co. Li'it. 295. b. (i.J Ibid. 301. b. Ih. 302. a. 2 Dali. Rep. 98. ,Tn this view of the fubject, it is eafy to difpofe of othef objections that the Defendant’s counfel have fuggefted: Thus, the a<St of limitations (2 Vol. 282. Dali, edit.') rebates only to Pennfylvania warrants, or improvement rights; whereas the Leffor of the Plaintiff claim's entirely under a Virginia warrant. Again: the refervation and exception of iflands in the Ohio from applications for warrants and furveys, can only operate where the ¡.Hands belong to Pe?mfyhania-, they are referved and excepted from applications under a particular feCtion of the-law, but not from applications founded on a prévious lien ; and there is a faving of the Defendants pre-emption right, which is' virtually, and by reference to the provifo in his grant, a faving of the right of the Leffor of the Plaintiff. With refpeCt to the title of the Defendant, (though the Lef-for.of the Plaintiff muñ fucceed upon the ftrength of his own, title, and not by the weaknefs of his antagonift’s) it may be permitted generally to obferve, that it is.founded 'on a grant male out of the ufual courfe; that it is made fubjeCt to all previous rights ; that the patent was taken out with exprefs notice of the Virginia right: and that, under fuch circumftances, if the Leffor of the Plaintiff-has a good title, the-'ÍDefendant’s patent muft be merely void. III. But it remains to confider the right of the Leffor of the Plaintiff to be relieved in the prefent form of aCtio,n : And it is furely extraordinary, after his fuit has actually been difmiiTedin equity, becaufe his remedy in Pennfylvania was at law, that he fhould now be told, that he muft fail at law, becaufe his remedy is in equity—doomed to be forever fufpended between the two jurifdi&ons, like Mahomet’s coffin between heaven and earth ! But the title of the Leffor of the Plaintiff is a legal title; and even if it were only an equitable title, the remedy by ejeCtment is the only one in Pennfylvania. The 34th feCtion of the judicial a£t (1 Vol. 74. Swift's edit.) adopts the laws of the fcveral ftates, as rules of decifion in trials at common law: Now, as in England the'laws are defined to be general cuftoms, local cuftoms, and aits of Parliament; I Bl. C. 63. fo in P ennjylvania,the laws muft be defined to be the common law, as modified by pradtice, and adls of the General Affembly. If, therefore, a plain, adequate, and complete remedy can be had at law, according to the laws of Pennfylva-nia, the Leffor of the Plaintiff is not entitled to .refort to a Court of Equity. Such a remedy can be had, to the extent of the prefent demand. A Plaintiff may -(confidently with the principles of law) frame his demand for the whole, or for a part, of his right: He may claim a portion of it, as poffeffion of the eftate, at law; and, if he thinks it neceffary, he may refort to equity for a conveyance1} or an .injundlion, to fortify and fecure his poffeffion. The Leffor of the Plaintiff afferts a legal right of poffeffion-; and an adlion of ejedlment is a poffeffory remedy. 3 Bl. C. 205. 180. x Burr. It is immaterial, how minute his intereft is, if it is a legal intereft ; Run. 9. and it may eafil-y be ihewn that the title is a legal title in Pennjylvania, againft the ftate, and againft all claimers under the ftate. By the charter of Pennjylvania, the fyftem of feudal tenures was recognized ; and lands were held in foccage, fo that feizen was a technical principle originally incorporated into <the tenure of our eftates ; but what conftitutes a feizen, is, perhaps, ftill as uncertain., as it was formerly thought to be by Lord Mansfield, who fays in a general definition, that “ feizen isa technical term, to denote the completion of that inveftiture, by which the tenant was admitted into the tenure; and without which, no freehold could be conftituted or pafs.” 1 Burr• 60. 107. To effedluate this feizen.. íhorter and eafier modes by deeds executed, acknowledged and recorded, were, foon adopted in P cnnfylvaniapúmi feoffments at common law, or conveyances under the llatute of ufes: i Pol. Penn. Laws, p.iii. J. 5. {Dali. edit.). laid, in appendix. p. 27. 8. And though thefe modes alone are adopted. by pofitive ftatutes, long ufage has given the fame force and effedl to other evidences of title;—as a warrant and furve.y;—-a contradi to*purchafe lands, and payment, or tender, of tile con-fideration ;—which give a legal eftate, and produce all the con-fequences of a feoffment'; namely, dower, tenancy by-the cur-tefy, forfeiture, efcheat &c. 2 Dali. Rep. 98. But the title of the Leffor of fhe Plaintiff’, though it fprung from the Proclamation, and though it is'fortified by the ufage of Pennjylvania will be found, on ftill higher ground, to be a legal title : •it-emanates from the Legiflature, and therefore -from the Commonwealth ; it is, emphatically, a Law, and, therefore, fuperior to any mere Executive exemplification: it is a public covenant; it muft be conftrued as a patent from the fovereign; and wbere-ever two conftrudHons arife on any inftrument of grant or con* firmation, that which gives effecft to it íliall' prevail. 9 13r‘ a. 10 Co. 67.b. 9 Co. 27. b.b Co. 6. a. From this mode of granting, it is, alfo, to be remarked, a le-gai'title only can be derived; for, where a title of an equitable natures arifes, it muft be fupported by an exprefs, or implied, truftin the grantor; and in relation to a fovereitm, or to a corporation, the ftrift rules of the common law will not allow either to ftand in the predicament of a truftee. 2 Bac. Abr. ir. tit. “ Corporation” ($th edit.) Gilb. T. Ufes and trufls. 5. V)Q, Founding this rights of the LefTor of the Plaintiff on legal principles, there is no pretence for conftdering the Defendant as his truftee, under a patent afterwards obtained, and which is merely void. ■ But words of grant ufed in the Legiflative a£i of a Republican Government, furh as the compact, muft always be conftrued to pafs the legal eftate, unlefs a truftee is exprefsly appointed. The procliynation aifoeontains a provifton, prohibiting any grant nr jntrchaie of Jands occupied by the Indians, See the Annual Regifter fos ⅜/¾*. Ellswoih. C. I- The rulé is.-'thal “ filch” applies to the laft.an-tecedénf, untáis the prills t/i’ the patfage requires a different conftruc- ' tlQU- 1 * Ellsworth, X. J. The finding of the Juiy is that the'lands became dexenet ; ,and j,c,is no,:na.tter.from what oAfe. It ⅛ true, that the caufe was originally inftituted on the. equity fide of the Court, but owing to fome objection on account of the citizen-fhip of the parties, as well as to an opinion, that a legal remedy \ya-y applicable to an equitable title in the BUI was d’fmiílbd. [MAJORITY — The Chief Justice,] The Chief Justice, on the laft day of the term, delivered the opinion of the court as follows: Fllsworth Chief JuJlice., Itappears that William Doug-lafs, for fervices rendered, acquired under the King’s Proclamation of 1763, a right to 5000 acres 6f unappropriated land in America; which right he affigned to Charles Sims, the leffor of the Plaintiff below. ' And although by the terms of the proclamation, the perfondl application of Douglafs was fequifite to obtain a land warrant on the faid right, yet the laws of Virginia, paffed fubfequent to her independence, difpenfed with fuch perfonal application, and made a warrant iffuable to the affignee, Sims, he being ari inhabitant of that ftate on the 3d of May, .1779. A warrant he accordingly' obtained, and the fame duly located on Montour’s Ifland, the land in queftion; which his warrant was more than fufRcient to cover, and which, from its defcription as an ifland, was perfedtly aparted and dif-tinguiflied from all other land. BJ which means Sims acquired to the faid ifland a complete equitable title, and one which needed only a patent of confirmation to render it a complete /¡?- gal title. A confirmation of this equitable title, as effedlual as that of any patent could have been, was afterwards comprifed in the compatft between Virginia and Pennfylvania, and in the ratification of the'lame by the legiflative a¿t of the latter* The terms therein of “ referve and confirmation” of the “ rights” which had been previoufly acquired under Virginia, in the territory thereby reiinquifhed-to Pennfylvania, mutt, from the nature of the traníafticn, be expounded favorably for thofe rights, and fo that titles, before fubjlantialh good, fnould not after a change of ju'rifdidtion, be defeated or quell tened for ■'formal defects. It further appears, that Sims, fince the fatd compact and ratification, has, without any laches that would prejudice his claim, obtained a legal furvey of the- faid land under Pennfyl-vania : In which fíate, payment, or as in this cafe confiderati-on pafled, and a furvey though unaccompanied by apátent, give a legal right of entry, which is fuificient in ejedlment. Why they have been adjudged to give fuch right, whether from a defeat of Chancery powers, or for other reafons of policy or juftice,- is not now material. The right once having become an ejlablijhed legal right, and having incorporated itfelf as fuch, with property and tenures* it remains a legal right notwithstanding ány new diftfibution of judicial powers, and mull be regarded by the common law. courts of the United States, in Pennfyívania-i as a rule of decifion. The Judgment of the Circuit Court affirmed. Iredell, JuJlice. Though I concur with the other Judges of the Court in affirming the Judgment of the Circuit Court, yet as I differ from them in the reafons for affirmance, I think it proper to ftáte.my opinion particularly. In-order to do this with the greater diftindinefs, it is neceflary that I fhould obferve upon the nature of this title according to my ideas of it, from .its origin to what may be deemed its con-fummatión,atleaílforthe purpofeof maintaining this ejedlment. My obfervations, therefore, will be under the following heads of inquiry: IÍI. Whether it- fufficiently appears that William Douglas Was entitled to a military right, fuch as it was, under the Proclamation of 1763. 2d. Whether the right of Douglás, in cafe he was fo entitled, was -affignablej under the Royal Government, or fince. 3d. Whether the Lefiur of the Plaintiff in the ejedlment, had a title, arid if any* of what nature it was, under the laws of Virginia. ⅜⅛. Whether he-had any title, fubfequent to the compadl; . Nnder the laws of- Pennfylvania. 5th. Whether if he had a title, it was fuch as was fuificient to maintain this ejedtment. The firft queflion is, 1. Whether it fufficiently appears that William Douglas was entitled to á military right, fuch as it was,, under the Proclamation of 1763? Though the finding be not altogether fo correct as it might have been, yet I think it may be fairly inferred that William Douglas had all the requifites to entitle him to a military right under that Proclamation, efpecially as the Jury havefaid generally that the King gave to him the-right in queftion by that Proclamation, which could not have been in fadtirue had any of the requifites been wanting, and though a general finding ineonfiftent with a particular one cannot ftand, yet I am of opinion a particular finding confiftent with'a general one may. The next queftion is, fi. Whether the right of Douglas was affignable under the Royal Government, or fince ? The grant was general to all who were the objects of it, and requited only evidence of proper fervice, and the ufual fteps towards obtaining a grant under any of the then Provinces.- The Royal faith was pledged, that in fuch a cafe a grant ihould iffue. It was immaterial, at that time, in what province the grant was obtained, as all belonged equally to the Crown-The grant was for meritorious fer-vices already performed,.and therefore it was an intereft, though in feme degree indefinite in its nature, fanctioned by every principle of moral obligation, and fuch as the party entitled m ighr, on the moft folemn principles of public juftice, confidently demand. Upon a large fcale, the Crown was certainly a truftee for all thofe perfons to whom its faith was pledged ; and, therefore,fo far as no particular prerogative of the Crown interfered, it was rational to confider it in the light of any other truft. It has been doubtful whether the Crqwn-could in any cafe be a truftee, fo as to be the obj.edt of any municipal decifion, but the law could never prefume (however the f:.£t may be) that the Grown would not faithfully perform any truft belonging to it. The only difference between that and a private truft, is, that the latter is clearly enforcible by a Court of Equity ; the former perhaps muftbe left to the confcience of the Crown itfelf. But this maxes no difference in the nature of the intereft. If this had been a private truft, it would at leafthave amounted to what in Equity is called a polfibility, and it has been long fettled that apoffi-bility is affignable in Equity for a valuable confideration. I fee no reafon why that principle cannot apply here. The neceffity of a perfonal application was undoubtedly indifpenfible under the Royal government; but the two things are, in my «pinion, perfeiftly compatible. Suppofe fuch -an affignment had been made, a perfonal application was ftill neceffary, and very probably for the judicious r'eafons afligned at the Bar; but after the grant, obtained on Rich perfonal application, if the intereft had been fairly affigned before, the affignee would have been entitled to a conveyance. If none had been made, which would have been an acknowledgment of the fairnefs of .the ■tranfaftion,-Chancery only could have been applied to, to compel a conveyance. The affignor or his heir would then have had to anfwer on oaitb, and an examination of all particulars might •have been made, after which, if the Court had entertained the leaft doubt of the fairnefs of the tranfadtion, they would not have ¡ordered a conveyance. This would be a fufficient guard againft fraud. Bdtthe affignment previous to an actual grant might have been neceffary even to fave an officer from ftarving. How hard would have been his condition, if he could have niade no immediate ufe of a bounty of. the Crown, exprefsly intended as .a provifion for him, but which circumftances might present his receiving for years ? Thus the cafe ftood, as I conceive, under the Royal government. By the Revolation, the circumftances of it were, in ■fomeidegree, changed, but not foas, in my opinion, materially to alter the nature of the title in this refpedt. The duty of the Crown, ftubftantially, devolved on-the feveral States, who became poffeffed of the territory formerly belonging wholly to the Crown; but as it might be an unreafonable thing to burden any one State with the whole of thefe provifions, fome modification of the title mighf be expedted fo as to prevent this injury. This, however, does not feem to afford any reafon why it Ihould not remain an affignable intereft, fubjedt to the reftridtion I mentioned before, in cafe a peí fonal application was ftill .infifted upon, which it was undoubtedly optional in the States to require, or not. I-.therefore am of opinion,- that the intereft ftill remained affignable, fubjedt only to fuch regulations as each .State might think ptoper to require. The next fubjedt of enquiry is, gd. Whether the Leffor of the Plaintiff in the ejedtmenthad a title; and if.any, of what nature it was, under the laws of Virginia ? I confefs I have had great difficulty in conftruing the two Virginia a its,, of May, and Ofiober, 1779., and if the latter adt had admitted of ■filch a conftrudtion that I could, without ab-furdity or manifeftinjufticehave confined the words “or affigns” in that adt, to mean only the heirs or affigns of thofe fpecially named in the former, I fttould undoubtedly have preferred that Conftrudtion ; becaufe in the bit adt of May, 1779, th^ Virginia Legtftature exprefsly defignated the objedts, for whom they meant to provide; and whatever I might think of that provi-. fio-i (though I asm far from thinking it an unj.ufl one) I fhould deem it unwarranted to extend it to any others by conflruélion of a fubfequent law, without plain words of ejftenfion, unlefs there was an irreiiflible implication to authorife it. Such an implication, I think, exifts here. The firft aél Specifies the various objeéts of its provifion , xfl. Thofe who had obtained a Warrant from the Governor of Virginia, under the former government, ^d. Where the fervice- v/as performed by an5 inhabitant of ' Virginia. 3d. Where the fervice was performed in fome regiment or corps aélualiy raifed in Virginia, The aél of October, 1779, introduces a new provifion for fome perfons or other, viz. a refide'nce in Virginia at thepajjingof the former aff (the 3 i of May. 1779,) but they txprefsly except from the. operation of -this provilion thofe who had obtained, warrants under t’rte former government, and thofe who had. performed, military fervice in fome regiment or corps a&ually raifed in Virginia, and had ferve-d under the circumflances particularly defcribed in the aél. They alfo except perfons who had obtained a tide under any, former warrant. They dor.pt, however, except in any manner one defcription pf p.erfors, who were provided for in the former law, viz. per fops who were inhabitants of Virginia, and had performed military fervice in fome other than a Virginia. regiment or corps,- unlefs they or fome. iperfons' claiming under them had. prevtouily obtained a warrant for it. “But the sctuffoids no indication from which wehavea right to infer, that tlje L.egifl,ature meant to repeal .any of the proviiions in the former law 5 and if they did not, then upon the conflruélion of the Council, for the Plaintiff in Error, the provifion, as to the perfons Í have lafl mentioned, in plain, En-giiih would llar.d thus : “We are willing to reward, the. fer- “ vices of any of the inhabitants of our own particular fíate, “ wnen under the Royal government, by giving full effeél to “..the Royal proclamation, by which the iaith of the former ■“ government was' pledged,provided the perfon, his-heirs, or “' aJfigVs->a Vnally rejided. in Virginia on the 3 d of May-, 1779. “ But if fuch perfon moved out of this State before that day, or “ died and left heirs or afiigns, who either never refideá.in Vir- “ ginia, or did not aélúally refide thereon the aufpi.cious 3d of .“ May, V]1$,he,Jhe,or ihry,jkall receive nothingfor fuch fer- “ vice.'’ -Such á provifion would undoubtedly be highly red¡-cwl 'us, for- the grpnt under the proclamation v/as for fervicss actually paji, fcrvices of a highly meritorious nature, the rifqtie ef life,-and .lacriSce of private e;ife,by entering into; the army at a critical period, for the defence of their count!y ; and to fuch perfons certainly no-.additional merit could-attach by a refidence in Virginia on the 3d of May, 1779. I therefore am compelled, upon principles of refpedt to the Legiflature, to abandon this conftrudtion; and then there remains no other but to fuppofe, that they, meant to provide by'implication for a hew defcription of perfons (though under negative, informal, andin-r correct words,) vi?, perfons who had fairly pbtained titles under any military grant, though not of the fpecial defcription before enumerated, if fuch perfon, his heirs, or affigns, a&ually refided in Virginia on the 3d of May 1779* Willing, in ihort, to confirm all fair purchafes made by permanent, not occafional, refidents in Virginia, (of which the refidence at that time íhould be a teft) when they might innocently have fuppofed, either that Virginia was bound to provide for all military rights prefented, or would be difpofed'upon a large and liberal fcale to do fo, and had thus laid out their money from a kind of indefinite confidence in the future conduit of their own Legiflature: And the word “ hereafter” that has been commented upon (in the 3d feition. of the a£t of the 3d. of May, 1779,) and the exprefs faving ¡9 the ait of Q.Slober, 1779,of all titles under warrants formerly ifiuedj independent of the faving of titles under warrants from the former government, feem ftrongly to favour this conftruition. By conftruing the ait in this manner, though .fome difficulties yet remain., they are, in my opinion, fewer than upon the- other conftruition ; and as they are more confiftent with equity, j-uftice, and common fenfe, I deem it my duty as a Judge, tofupport the conftruition which will tolerate thefe, in preference to one which is attended with greater difficulties, ■and accompanied with abfurdi'ty and injnftice: efpecially, as that conftruition wUl make both aits ■ confiftent in their nnain objeits, and. the other (without any indication from the apparent meaning of the Legiflature) would amount to an exprefs repeal- of an important provifion; and nearly in effeSl revoke a grant aSiually made, which, if within the competence of a Legiflature, is undoubtedly one of the mod odious, aits of its power,, and which nothing but abfolute neceffity íhould force us to. fay they intended. The title, therefore, fo far, under the laws of Virginia, I think was a veiled right. But it Teems to me ntfw matinal to en-quire, whether the title under the laws of Virginia was complete or incomplete. It is admitted, that a patent was regularly neceffary to complete the title, even had a furvey been made, and it is at lead doubtful whether a warrant and furvey would bave given any legal right of ’poffeffion at all. But in this cafe, .it is contended, a furvey was not neceffary, for two rea-fons: 1. Becaufe the location of an iflandwas certain, and-the whole ill and would not exceed the quantity he was entitled to. a. Bccaufe no money was to have been paid upon it.. ,Th.efo reafons do not fatis'fy me that a furvey was unnéceflary. A fur-vey I eonfider in all inftanees to be highly ufeful, in order that it may be officially afeertained, and officially known, not only what land in particular is taken up, but alfo its exaát quantity, fo far as it is material to fpe.cify it, for the information of the public, from whom the grant is to be obtained, as well as that of any individual who may have interfering claims or pretep-fions, The private knowledge of a. few particular perfons who. may know the fpot thoroughly, is by no means equal to the authentic information which an adtual furvey, a regular report, and a corredt record, can Convey; and the inftanees are fo very few, where exadt information can otherwife be obtained, that there is no occafton for the fake of tbofe to make an exception : It would do no good, and might lead to endlefs difficulties. I think, therefore, the neceffity of a furvey ought tobe deemed general and indiipenfible, and Aere being none in this cafe previous to the compadf made with Pennfylvania, the title fo far was incomplete. ' But I admit, bad a furvey been unnéceflary, and had fuch’fteps been taken in Virginia- as would, of courfe, have intitle.d the Defendant in error to a patent,then the com-pa-t and the adt of confirmation in confequence might have been deemed a complete and perfect affuiance of it,'and as effedtual as if,a patent had been adtualiy granted before the compadt un-, 'der the laws of Virginia, With refpect to the payment of ¿-40. it ⅛ cléar tome, that as that was meant as .full purchafe money for land, to which. ;the perfon .who entered had no right before, it never can.apply to a cafe where'thc grant was for fervice already performed, unlefs the Legifhture had wanted both common-fenfe-and com,mon honefty. I have not hsfitáted a moment to rejedt that conitrudtion, the words in no manner requiring it, and eafily admitting of the conitrudtion given by th.e counfel for the De-, fendant in error. The finding in,this cafe, I think, fúffkiently cflabliíhes a re-linquifliment of ⅛ 'Indian title previous to-the year 1779, fo .as to authorize an entry and location in the river Ohio, at the' times, the entry and location on behalf .of the Defendant in error took place, without a violation of any duty .cither to a particular. State or to the United States. 1’ come,now to the ncxtffiead of inquiry, '4. Whether the Defendant in error had any title,' fübfc.quent to the compadt under the laws of Pennfylvania ? I do not eonfider that this compadt, and, the adt in confirmation of it, immediately converted all inchoate and imperfedt-riahts under Virginia into .abfclute and perfedt ones under .Pennfylvania, but that the intention `has, fucb as th~ tide was under J7irjinia, it Ihould fubftantiaily. be under Pennfylvania, zn.preterence to any younger right that might have been ob-tamed in any mann~r under P~iv~fylva~ii~. If the manner of proceeding on both fides was the fame, then the Yirginia claim-~nt had nothing to do, but to proceed under the laws of the latter, as if his origin~ tit1e,.1~ad been obtained from Pennfylvania. If tne m~flner of proceediu~ in both States had been difFerent, then I thould have fuppofed it would h~ve been propeI for Penn-fylvania to pals a new law adequate to this new cafe, that the faith of the State ~iiigI1~t have been duly obfe~ved. But I conceive under both States a furvey was indifpenfible, the fame reafons which I have urged on this fubj~, in confIdering th~ café of the l7irgiiüa right,applying equally to both States. The furvey that was-accordingly had under the St~ of Pe-nnfylvania I think was a valid one, notwithftandi~ng the oh~e&ion as to the bed of the river, for as the 1~w is general, (fuch at leaft it ep~ pears to me) that where two countries, or twq counties, border on a navigable river, the middle of the bed of the river is me Dounuary line, I iee notning in tnis ca4~ to prove It CU ex- ception, and ~onfeiiquentIy the furvey appenr~ to have been thade by the proper .a.uthority. With rcgard to. the obje~ion that in the gth finding it is ifated, that the Governor of [7irg~r~ic~ ftanlrnitted in F7b4 a jujt and t~u~ lilt ot entries made under the authority of T~irgi~ia in the diIputed territory, in whkh lIft the~ iffand in queffion is not comprehended,. ~nd therefr're the .verdi& impliedly excludes it, I anfwer., iff,. If the Go.. verhO~ had or had not tranfrnitted a perfeá~ lilt, this could not haVe deprived any party really entitled of Ihewing a~itle which t~ac~ been omitted, ttther de11gr~eOly (tho~igh t~at could not bc prefumed,but I ifare it as the~trongef~ cafe) or inadvertently, on the part of the (jovernor, where at !ealt an adverie ciaim~tnt un-. der Pe~nzfylvan~a was not prejudiced by. f~ich orniuilon, but had cady and tuffictent notice of tile prior riaht, ~etor~ he h~d corn- pleted his own. ~.. It tr~ay be a tr~ie Iift,,fo far as it goes, but not perfeót for want o~ a co~np1ete knowk~dge ot all particulars, some of which might have been ommitted to be ascertained in the usual and proper manner. The implication in this case cannot t~ave•tne elteçt cOntC}t~en for, ~ecau1e tne ~Ott~ flfldI~.Ig refers to that lift, as including the c~t~y and location of the D~- tènd~nt in error,~aI)d the 4~t~ hnthng dec1ar~s, that two L)cputy Surveyors under the Surveyor General of .Penizfylvania did izi I78~ receive from th~ Sw~veyor, General's. office, a 110 of en-triCS made under the authority of Virginia, which lift included the entry for the land in th~ dec1aration~ mentioned. The Lurvey being in my opinion good, though it was mentioned. The Lurvey being in my opinion good though it was fequent to the grant to the Plaintiff in error, lhall be deemed to relate to tne time of taking out the warranty not only in confe-quence of the compact, which fecuréd all prior rights of Vir-giriia, and the adl in confirmation of it; but alfo on account of the exprefs faving of all prior rights in the grant to the Plaintiff in error by the commonwealth of Pennfylvani'a, who feerri to have guarded with folicitude againft any fuppofed breach of public faith, and therefore it is immaterial to enquire, what would have been the cafe had Pennsylvania exprefsly violated it. But where a Legiflatüre has conftitutional authority to pafs any law, I can conceive á mánifeft' diftinéli.on between right and pawér j between the obligation on the part of the Le-giflature, upon principles of morality, to give effedt to a folemn cpmpadl, and their, in faSt, making a law in violation of it, which it is the duty of the Courts to obey. The Legiflatüre is re-ftridted indeed in this particular by the conflitution of the United States’, and a treaty of the United States is, by its own authority, de fado, as well as morally, binding, while it continues in force, becaufe it fiiall be the fupreme law of the land. But until this conflitution vdid pafs, Í fhould doubt very much, whether if the Leg-iflature had adlually ■ violated the compact, the Court could here fet up the compact againft .the law, upon Í>rinciples which I have ftated at large in my argument on the ubjeél of the Britijh debts, and to which Í beg leave to refer, as it is now publifhing in Mr. ¡Dallas's Reports. I fay this Only incidehtally, on account of obfervations on this fübjeét at the bar, in which I by río means ácquiefce. The warrant and furvey being thus by me deemed complete ¿nd unexceptionable; under the Commonwealth of Pennfylva-itidy the only remaining enquiry ⅛, 5¿ Whether if the Defendant ih error had a title, it was fu&i as was fiifficiettt to maintain this ejedtment ? Two obje£tiotts are ftated under this head. t. That the title, ftich as it is, is only an equitable, not a legal one* and therefore Will not maintain an ejedlment. 2, That it is not brought within proper tíme, but is barred by the Statute of limitations. As to the firft obje<ftion,did this title ftand merely, as an equitable one, I fhould ftrongly incline againft it, if not deem it altogether infufficient. It is of infinite moment, in tnf opinion, that principles of law and equity fhotild nOt be confounded, otherwife inextricable confufion will&rife, neither will be properly underftood; and iiríleád of both being adminiftered with ufeful guards; which the policy of each fyftem has devifed againft abufe, an heterogeneous rnafs of principles,' not intended to af-fort with each other, will be blended together; and the fubftance of juftice will foon follow the forms calculated to fecure jt. 1 totally rejeft all the modern cafes introduced by Lord Mansfield, and fupported by fpm.e other Judges, but lately, wifely, as! conceive, difcountenanced by,the prefent Court of King’s Bench, of taking notice of a. Cefiui que trujl. at all in any other right than as holding in'fadi poffeffion, with the concurrence of the legal Truftee. So far, confiftent .with legal principles, a Court may go, but riot, as I conceive, oneftep further, and that' it violates the moft important principles of the common law to.confider a Cefiui que trujl as having an iota of. legal right againft the Truftee himfelf. Whatever excufe a Court may' have for doing this, when the want of a Court of equity may urge them to procure fubftantial juftice, by a deviation from leT gal ftriftnefs as to form, I Ihould hpfitate long, before I ihould deem myfeíf- warranted in aflenting to fuch a pradtice,. when both powers are. veiled in the very fame Court, but each has different modes of proceeding preferibed to it. But 1 think we are relieved from any dilemma of this kind', by ftrong and unequivocal declarations of highly refpedtable gentlemen .of long experience in this State, that a warrant and furvey, .where .no money remained to be paid, and a patént was only to afeertai’n that all previous réquifites had been complied With, has beert' Uniformly, deemed a legal title, as oppofed to an equitable one j and has all the confequeflces [as fuch, even as to Dower, which affords a ftrong prefumption in favor of the fuppofed legal titlej for it has been.fó long held (though J think erroneouily at .firft) that there ihould be no Dower of a truft eftate, that perhaps no Judge would be warranted iq a Court of Chancery id allowing if. Whether this opinion was originally right or not* yet haying-been the ground of many titles, it would be. improper in the Court td ihak'e id . I am not certain^ alibi but it may - properly be confidered; that the proprietor under a warrant and fiirvey ^according to long ufagej is at leaft in the nature of a tenant at .will to the public, and as fuch has a right Of pof-íeffion againft ¿11 others, except forrie perfon having a better right, claiming under the public; which better right does not, for the reafóns I have given; exift in this cafe; in the Plaintiff in error. This .point; however, I merely-intimate, it not béitig neceffary to deliver an opinion upon it. ' -Another circumftance has occurred to me; which 1- fuggeft With-diffidence, as it was net fpoketi to at the bar, that though the.cbmpaift and Confirming a£l did not render a furvey Unne-ceflary; yet when a furvey was made; i,t being a right derived from cdmpadf alone, the title ought to ftand on that ground alone, arid ridt defend on a patent; which imports a grant by the * State, at its own'difcretion, of property of its own, and feems to imply that tjie State is the fole agent in the conveyance of the title. With refpeift to the obje&ion from the ftatute of limitations, it is fufficient to fay, that that a<ft, in my mind, clearly contemplates other objeits, and neither in its letter, or fpirít, is to ba. applied to' this new and peculiar cafe; but admitting that it did, the fa<fts in this cafe do not come within the provisions of at, there appearing to have been no fuch laches as the acft contemplated to prevent-. The CfliEF Justice obferved, at the conclufion of the opinion <;f the Court, that judge Iredem. (whrift; indiipojicion prevented his at-» ;endance) concurred in the refult, but for reafons, in fome respects, different from thofe which had been afligned. As I have fince Viren favored with a copy of Judge Irebell’s notes, I fitouid think the icport of the cafe impeifsct without puliHihing tlum; Ant. p. 256,