questions of Law arise upon the Entry, which must go with the facts to the Jury, by the present practice; the Jury will determine them, as they think proper, without any adequate relief. This is subversive of the first, most natural, and important principles of Law, and reason; ad questionem juris non respondent juratores ; ad questionem facti non respondent judices, are maxims of the Common Law.

Dickerson on the same side. The practice for several years past, has been, to leave the Entry with all the evidence respecting its locality, and points of Law arising on it, to the Jury. The consequences are known to every gentleman of the Bar-tediousness, and covert introduction of a mass of irrelevant testimony, corresponding with the ordinary prejudices of Juries, such as their strong predilection for old Entries, though perfectly vague, for old Settlers, and unreasonable allowances for the unexplored situation of the country in relation to the specialities of Entries. Beside these strong prejudices, with which we have to contend, it is impossible to get a jury above all exception-some of them, or their friends have cases of their own, to lead them astray.

Much expense would be saved by going into a Court of Chancery where the relief would be final, and conclusive, which cannot be the casc in a Court of Law.

By the principles of Law, nothing but the legal title or Grant, can be given in evidence, 5 East 133-9, in notes. What was said yesterday by the Court in the case of Crocket's Lessce vs. White, goes the whole length of deciding this question, in principle. The Court determined in that, an Entry without a Grant could not be received in evidence-If an Entry cannot be received in evidence where there is no Grant, it surely cannot, where there is one. It makes no part of the legal title, in either case. An Entry, or Location, gives a person holding a warrant a preference in procuring a Title to all others. This preference might have been lost, or abandoned. Under the authority of the Laws of North Carolina, which gave rise to these claims, a certain time was given for surveying Entries-If not done within that time, they were lost, unless the Assembly had prolonged the time. Entries may be abandoned, by removing, and making an entry at another place. An

Entry makes no part of the legal title; if it did, the Grant would recite it in the face of it, which never has been the case.

Beside,

a Grant without an Entry, would be void under such a supposition, and this has been determined otherwise. Since the practice of referring every thing to the Jury, in a Trial of Ejectment, there has always been a dissention both on the Bench, and at the Bar; the question never has been at rest. The North Carolina practice rests on the same Statutes, and the Judges there, in a variety of decisions, expressly reject the Entry, or any matter prior to the emanation of the Grant, 1 Hey. 135. 318, 358, 456.

Either the Courts in North Carolina, or here, are wrong, for their practice in this respect, is diametrically opposite.

In Virginia, Kentucky, and every other State, where there is a Court of Chancery, the practice is different from ours.

It is scarcely possible, that the Federal Court will follow our practice; in justice to citizens of other States they cannot do it, for though the Courts of this State, may be content with a practice which submits Law, as well as fact, to the determination of a Jury, citizens of other States will not agree that their rights shall be launched into a sea of uncertainty, without compass or rudder. In 1 Hey. 359, Judge Williams says, "When a Grant once issues "for a tract of vacant Land, it becomes the only evidence of Title, ❝and we cannot afterwards look further back than the Grant; we "must presume all antecedent proceedings to have been regular, "otherwise we should introduce the practice of invalidating "Grants by parol testimony."

Haywood in reply, after stating the case, observed, that it was his intention to show that the eldest Grant was void when obtained upon a younger Entry, to the prejudice of an older one, that it was absolutely void by the Statute which can be shown in a Court of Law. In England, the Court of Equity had no jurisdiction of the Grants of the King, either those that were void, or voidable only.

The law side of the Court of Chancery, and other Courts proceeding according to the principles of the Common Law, have exclusively exercised jurisdiction in relation to the grants of the King, either void or voidable. The Chancellor, sitting in his ordi

hary legal Court, is alone competent to repeal a Grant of the King. 3 Bl. Com. 47. 261. In that Court the proceeding is by Sci. Fa.; and from the judgment of the Chancellor, a Writ of Error lies to the King's Bench. He admitted, that recourse was seldom had to this Court to repeal a Grant by Sci. Fa. as stated, when he has been imposed upon by false suggestions, or misrepresentations. The Court of Chancery in England, proceeding by English Bill, as it is termed, has no jurisdiction in cases of this kind. In this, as well as other States, a Chancery Court has but one mode of proceeding by English Bill, as it is termed in the Books. They have no power to proceed as they do on the petty bag or law side of the Court of Chancery in England, in repealing Grants. If therefore, we recur to the English Authorities, it will clearly appear, that none but a Court of Law in this country, can act upon a void Grant. There is no method to repeal a Grant.

The cases in the English Books, which go to show that nothing but the legal title can be given in evidence in Ejectment, I admit, but shall contend that the Entry is part of this legal title.

The cases referred to, in Heywood, were once considered the Law, in North Carolina, though the whole Bench, nor Bar were ever satisfied with it. Since those decisions the Law has been considered otherwise, as will appear by the case in 2 Hey. 98.

In construing our own Statutes, we have nothing to do with the Reports of cases in other States, on points arising on Statutes peculiar to themselves., In the admission of these decisions, great care ought in all cases to be used. The case in Sneed's Reports does not apply here. The case in 3 Dall. adopts the principle established by the cases read from Term Reports, which is not disputed. The act of North Carolina in the year 1798, 67, for establishing a Court to try Patents, proves that the Court of Equity, had no such power as is contended for here, else why pass the Act? The Act of North Carolina and Tennessee usually termed the compact law, passed by both States in the year 1804, adopts all the entry laws, and laws of North Carolina respecting lands. Those, before the Act of Cessions, (1789) were in force, as being the laws of the Mother State, and expressly adopted in the Cession to Congress. Those on the subject of land since that time, were adopted

by the compact in 1804. Hence then the Act of 1798 for repealing Patents, is in force here.

The second ground, which it is necessary to examine is, that by the Statute law of this Country, a Grant obtained upon a younger entry, to the prejudice of an older entry, is void as against such older entry. In order to ascertain whether this be the law, we must consider all the laws passed by the North Carolina before the Cession Act, relative to the appropriation of lands, with those passed since, relative to the appropriation of lands of this Country, over which she retained a power; together with the Acts of this State on the same subject, inpari materia; this should be construed together, and where we meet with the same expressions in different Acts on the same subject, they must bear the same meaning. 5 Com. Dg. Tit. Parliament R. 16, 17. Doug. 30. The first Act passed by North Carolina, respecting the disposition of her vacant lands, was in November, 1777, C. 1. Iredell 292, at a time when there was not any Court of Equity in the State. The 9th, Sect. of that Act, page 294, is in these words "that every " right, title, claim, interest, or property, by any person or persons "set up, or pretended, to any of the before mentioned lands which "shall not be obtained in manner by this Act directed, or by pur"chase or inheritance, from some person or persons becoming "proprietors by virtue thereof, or which shall be obtained in fraud, elusion, or evasion, of the provisions and restictions thereof, shall "be deemed, and are hereby declared utterly void." This Act in express terms contemplated void Grants, and how could such Grants be avoided? not in a Court of Equity, for there was none of necessity then in a Court of law. The effect should be attained in a trial by Ejectment. Let us attend to the provisions of subse quent Acts on this subject. In April 1779, 67 Sec. 6. Ind. 368, it is enacted that where it shall happen that the bounds of two or more entrics join or intersect each other, the Surveyor shall, and he is hereby required, to survey such entries in turn, the eldest being first surveyed, provided such entry be not caveated; but when that shall be the case, it shall not be lawful for the Surveyor to survey, either of the entries, &c. until the determination of the Caveat. The Legislature designed by this clause to enable the first enterer

to get his Grant first. The 7th Sec. directs, that all surveys shall be returned within twelve months in order that Grants may issue. Suppose the Surveyor should not survey in the order pointed out by law, and the younger enterer should get his Grant first, would there be no remedy there surely would. And this remedy must have been in ejectment, there being no other mode. The Act, 1783, C. 2 S. 19 and 20, Ind. 448 is next to be adverted to; the 19 Sec. has these words, "whereas many disputes may arise from the Surveyor's giving preference to warrants of a younger date, and not certifying in the return of survey, the date of the entry, and number of the warrant, under which the same is surveyed,by means whereof Grants have in many instances issued on such returns, contrary to the true intent and meaning of the said Acts, for prevention, &c. the entry takers are directed, to deliver to the Surveyers periodically the warrants upon the several entries not disputed; the Surveyors shall proceed to survey according to number, and date, and shall make return of plats within twelve months, with a view to the eminating of Grants, under the penalty of fifty pounds. The same ideas occur on this section as on that of the 6th. Sec. of the Act of 1779. If the Surveyor does not do his duty, and the younger enterer should get his Grant, how is the elder enterer to be relieved? doubtless in the same manner as contemplated by that section in ejectment. The 3d and 4th, Sec. of the Act concerning the lands of the officers and soldiers 1783, 3d. Ind. 450, shows, that if no objection is made at the time of the location, it shall be good and valid, notwithstanding another person may afterwards set up a claim. We have the eldest location, and how are we to avail ourselves of it, otherwise than in the manner contemplated by the acts of 1777 and 1779. We have no ground to authorise us to believe the Legislature designed any other method, than that contemplated by those acts. But the act of 1786, C. 20. Ind. 589, if well considered, puts this question completely out of dispute. It is "an Act to prevent the obtaining of grants for lands lying in the western parts of this state, to the prejudice of first enterers, and entered in the office lately established for receiving entries of claims of such lands, by an act, entitled an act for opening the land office for the redemption of specie, and other certi