to make the patent voidable on account of a mistake, so far as it might affect an elder special enterer. Without such a regulation, they conceived the party was remediless: and so he was, under their statutes, and the common law, which alone they had in view. When an act is intended for the benefit of an individual, to force it upon him, is contrary to the universally received opinions of law. Gilb. L. E. 43. 1. Bl. Rep. 192.

From the best view, I am able to take of the act of 1786, it appears to me, that the legislature designed that such a grant as is now under consideration, should be voidable and not void. Com. Dig. tit. Parliament, R. 10. 11 12. p. 256. If merely voidable, it remains good until avoided in a due course of law by pleading.

The ground upon which all the books proceed in permitting evidence to be collaterally given, to avoid the solemnities of a deed, is that it is absolutely void (and not voidable, which always supposes pleading to do it) either as to all persons, or those affected by it. Vide Dyer, 149 a. note (80) Leonard vs. Bacon. Cro. Eliz 233 Gooch's cas e, 5. Rep. 60. Fermor's case, 3 Rep. 786. Dyer, 295 b. pl. 16. Hob. 72. 166. Ch. Rep. 131. Shepp. Touchstone, 66. Bethel vs Stanhope, Cro. Eliz.-810. Lex. Prac.

293.

In giving this opinion, I might stop here, but as it has been long agitated, and has excited much interest, some indulgence will be allowed, in the expression of such ideas, as have occurred in relation to the proceedings of a court of equity on this subject, and the argument ab inconvenienti, so extensively adverted to at the bar, by the counsel on both sides. In North Carolina, 1798. c. 7, they erected a court of patents as it was usually termed and directed a Sci. fa. to issue in behalf of the state, to repeal grants upon the ground of fraud. It is understood that no process ever issued from this court, and as I have heard, the judges conceived they had no power to act under it constitutionally at least, so far as respected innocent purchasers. Be that as it may, the enaction of this law, furnishes strong ground to conclude, that the legislature, conceived, there was no law in force, authorising such a proceeding in behalf of the state. No other idea, as it respects this subject, can be collected from it. The act did not profess to afford

relief to individuals, As to them, it has not been understood to be the practice in N. Carolina, or any other of the U. States, to use the name of the government, in obtaining redress by procuring a repeal of patents. The ordinary principles of the civil law has been esteemed adequate to all purposes. In England the mode of proceeding by Sci. fa to repeal patents of the king, originated in the exclusive rights of prerogative; and upon it was ingrafted permission to the subject, to use the King's name, in repealing a grant by which he might be affected.-Having a grant from the King, or standing in such a situation, as to be affected, he partook of the rights of prerogative; but even then, it appears that this mode of proceeding to obtain relief, was not confined to the law side of the Court of Chancery, 1. Ver. 277 to 282.

But as we do not find in N. Carolina, nor any other State where they have a court of equity, that the method of Sci. fa. in the name of the state, has been adopted, we may fairly conclude that it is not applicable. Even in England, it is an exercise of the highest power on the part of the government, and given to the Ld. Chancellor alone, 4. Int. 88. For a state to repeal her own grant, otherwise than upon the principles authorising a citizen to obtain relief, is a position which cannot be admitted.

To cancel grants, without evident necessity (which cannot cccur if they, themselves, do their duty) would at all times, excite disagreeable sensations, in a government like ours, formed, and resting on public confidence.

It has been strenuously insisted, that, as no other than a Law Court, took cognizance of grants, with a view to their abrogation" or setting them aside, so none but a court of law can here.

The case cited from Vernon, shows that in all cases of fraud, the Chancellor, by English bill will afford relief, by setting the patent aside, though he will not proceed to its cancellation. Nor in fact is this necessary.

Equity, it is said, can do no more than a Court of Law. This is not admitted, for a Court of Equity can by Statute (1801, c. 6. s. 48) devest a title without conveyance, act in rem as well as personam, (1787, c. 22. Ird. 624. 1801, c. 6. s. 4) and can decrce a deed, patent, or conveyance, to be set aside, and held for naught.

In fine, the Court of Equity, which was revived in 1782, c. H. Ird. 432, has given to it all the powers incident to such a Court, with the additional powers since conferred.

A Court of Law can only act negatively, agreeably to their forms of proceeding in cases of this kind.

They may say, that the patent shall have no effect in the trial before them. It is however, still alive, upon which another action may be commenced, as in the present instance, and at last,

after much litigation, vexation, and expense, it is admitted, that recurrence must be had to the Court of Equity, for the purpose of setting it aside, or devesting the title, to quiet the party.*

But a Court of Equity can do more. They may do that, which a Court of Law, have it not in their power to attain at all times— They can preserve legal principles, as respects real property, unbroken-in fact, from annihilation, by keeping law and fact distinct from each other, it being a maxim as ancient as the law itself, "to questions of law, the Court shall answer, to questions of fact, the Jury shall answer." In Equity, the Court direct issuest for a jury, simply of fact, (vide Barnard, Rep. 90. Roberts on Fraud, 273) unmixed with legal principles, upon which alone the Court decide. There the Jury ascertain the facts, or special calls of the entry, as names, and locality of creeks, springs, &c. and then the Court construe the entry, which is matter of law.

In this manner, decisions will be uniform, and the law, or uniformity of principle, be saved to its proper judicature-the Court, whose constitutional and legal duty it is to expound the law, and the Jury to find the fact. Law is a standing, inflexible rule. Dif

* "The law delights in certainty and quiet, because without these there can be no liberty." 4 Dall. App. viii. per Dickinson, J. of the Court of Ap peals in Delaware, Sept. 1788.

† Vide 1 Bro. Ch. Cu. 99. Rob. on Fraud, 444-5.

Judge Wilson, adopting the opinion of lord Hardwicke, observes in the 24 vol. of his lectures on law, p. 371, &c. "that it is of the greatest consequence to the law, that the powers of the Judges and Juries be kept distinct; that the Judges determine the law, and that the Jury determine the fact; unless it be in cases where law and fact are inseparably connected, when Juries must act on both-and conclusively so in criminal cases.

ferent juries from different parts of the country, unacquainted with law, and the business of the courts, with different impres sions, will think, and decide differently. Law, or the inflexibility of principle, and sameness of rule, is lost:Witness, the many mistrials, and different verdicts, in the same land cause. Independent of this, great delay and expense, occur on the law side, owing to the introduction of a mass of irrelevant testimony. The attornies, and parties, not knowing on which point their cause will turn with the jury-nay, with the Court too, for proceeding in this way, as we have done for a considerable time (which usually excites much interest in a neighbourhood) no principle can be said to be settled.

It has been remarked by one of the counsel for the plaintiff, that so far as his experience has extended, juries have as often been right in land causes, as the Court. This, to be sure, is not a very high compliment to our superior tribunals of justice: But having had twenty years experience at the bar, and on the bench, it has occurred to me, that the courts have seldom given any express opinion at all, upon the construction of entries. Until lately, in almost every case, the Courts left the construction to the jury, which by law, belonged to them. Upon this principle, it is sup posed, that as the jury had the whole case before them, they might decide it, as they thought proper. Is it not much better, for the public good, to have recourse, in the first instance, to a Court of Equity, where the matter can be finally decided at once, than after being harassed by several (as in this case) dilatory, vexatious and expensive ejectments-to go there then, when it may not be in the power of the Court, to do complete justice, between the parties, on account of the death of witnesses? It is urged, however, that a suit in Equity, in such a case would be much more expensive and dilatory, than at Law. Inattention to the practice on the equity side of the Court, alone, could have given rise,

• Washington J. when speaking of the powers of the Court and Jury, in relation to the assessment of damages, observes that "it belonged so peculiarly to the jury, that he could not allow himself to invade their province ; while he felt a determination to prevent on their part, any invasion of the judicial province of the Court." 4 Dall, 391.

to much, if any, additional expense, or delay. It is true, that the officers' fees are somewhat higher in Equity, but this, it is believed, is greatly outweighed by the number of unnecessary witnesses, attending in a Court of Law, which woukl not be the case in a Court of Equity, as each fact to be contested would be simple, and distinct.

If the cause is heard upon bill and answer, it stands for hearing at the second term, in the same manner with a suit at law, And if the plaintiff contests the answer by replication, in ordinary course, (if attended to) it is ready the term afterwards, and that is as soon as we find parties ready for trial, in a weighty land cause, where it is usual to find one or the other of the parties, under the necessity, or wishing to procrastinate.

In Equity, the facts being simple, stripped of legal principle, and not affording a hope of exciting the feelings of a jury, the parties would be much oftener ready for trial; and consequently as many suits, decided in equity, as at law; decided, did I say: none can be finally decided at law. Expedit reipublicæ ut sit finis liticem.

But if the case in Vernon could not authorise the interposition of a Court of Equity, the general and universally received principles governing that Court, would. Metf. 103. 4 Barton 17, 20. Lord Kaime's Prin, Eq. 404 to 408. 577.

In the last of these books, which is of great authority, we may collect this position: That wherever the dictates of abstract justice, or a sound conscience, demand redress, and the ordinary forms, or principles of law, cannot adequately afford it, then a Court of Equity will interpose, unless opposed by positive institutions, or public convenience.

But the most forcible argument against receiving this evidence yet remains. The uniform and unequivocally expressed opinions of the courts of North Carolina, where these statutes were made, and immediately acted on, are opposed to it.

Cotemporanea expositio est fortissima in lege.

As much reliance has been placed upon the opinion of Heywood J. as collected from his Reports, and the opinion of the whole Court, in 2 Hey. 98, in support of the admission of this testimony, and as it is a book of great authority and utility, I will take the