
    Dunlap vs. Smith, Secretary.
    
    To authorize the issuance of a certificate under the 9th resolution of the legislature of 1831, proof must be made by the applicant, 1. That no duplicate warrant has issued; 2. That the warrant on which the grant was founded, was valid; 3. That it had never been adjudicated by any previous board, and that no other grant had issued thereon.
    In 1832 the legislature of the state of Tennessee passed a resolution in these words: “Whereas the secretary of state of North Carolina has certified that the grants numbered and dated as herein after mentioned, are fairly recorded in the books of his office; that he has searched the files of his office for the warrants on which they are founded, and has not been able to find the same: And has also certified that said warrants may have been lost or by some means destroyed,” &c. The resolution here slates .the number of the grants and their respecthe dates, and proceeds as follows: “Therefore, resolved by the general assembly of the state of Tennessee, that the secretary of state as commissioner of land claims, . .......... . . , receive on me lor adjudication the aforesaid grants, and also grant No. 133 for 600 acres, dated the 4th of January 1793; and if it shall be satisfactorily made appear to said commissioner, that the lands called for in said grants lie south of French Broad and Holston, and west of Big Pigeon rivers, where grants issued by the state of North Carolina cannot hold lands, said commissioner shall issue certificates therefor to the person or persons respectively, who shall appear entitled thereto, without requiring copies of the warrants upon which said grants issued, to be filed; and where the secretary of state of North Carolina shall have issued a certified copy of the warrants and of the grants that have issued thereon, and the lands shall be made appear to lie in the aforesaid section of country, he shall issue certificates to the person or persons who shall appear to be entitled to the same, and shall also issue to the grantee or grantees, or to the persons claiming under them, a certificate for the unsatisfied balance of any warrant upon which the last above grants are founded. Provided, however, that in neither of the foregoing cases shall a certificate issue where the same shall have heretofore issued; and provided also, that before any certificate shall issue, the secretary of state shall be satisfied from evidence laid before him, that the grant has properly issued upon a good and valid warrant, which has been lost or mislaid, and that no grant has issued upon the same.”
    The plaintiff in error produced and laid before the secretary, grant No. 453, dated 29th July 1793, being one of the grants enumerated in said resolution, for 400 acres of land at the confluence of Tennessee and Plolston rivers, together with the certificate of the secretary of state of North Carolina, stating that said grant is fairly recorded in the books of his office, and that he had carefully searched for the warrant upon which it was founded, and that he was not able to find the same, but that the same may have been lost or by some means destroyed; and also a copy of the resolution aforesaid, and demanded a certificate warrant for the land mentioned in the grant. The secretary refused to issue such a certificate; and thereupon the applicant filed his petition in the circuit court of Davidson county for a mandamus, and a rule nisi having been granted, the secretary appeared and made the following return:
    
      “ The defendant by his attorney comes and defends, &c. and for cause shows, that he admits the resolution of the general assembly, and the certificate of the secretary of North Carolina, filed with the petition, and the application on behalf of the petitioner for a certificate upon the grant No. 453, which grant was registered in Blount county; but this defendant believed that he had no authority to issue a certificate, unless some evidence was adduced to show that the grant had properly issued upon a good and valid warrant, which had been lost or mislaid. The resolution places this claim upon the basis of all others, and to be adjudicated agreeably'to the-general provisions of the law. It was necessary for this defendant to enquire for the entry and warrant upon which this grant issued, to know the number of the entry or warrant, or have some means of referring to the particular warrant, otherwise he could not be satisfied that there ever was a warrant. The grant may have issued fraudulently, without a warrant, or upon a warrant already granted; or, as many warrants were located and granted after Tennessee had the right to perfect the titles, it may have been adjudicated as if no grant had issued, and land may have been granted by the state of Tennessee-. If the grant in question issued upon a good and valid warrant, it must be on file in the secretary’s office in North Carolina, as the records have been preserved, or some memorandum exists there with the plat and certificate-showing the number and description of the warrant. To-presume from the production of the grant alone, that it issued upon a good and valid warrant, this defendant be-neves he has no right to do, as the grant m question was for land lying south of French Broad and Iiolston, and west of Big Pigeon rivers, and as a grant or appropriation of land was for every purpose wholly null and void by the laws of North Carolina, and would not be received in evidence in a court of law or equity. The fifth section of the act of 1778, chap. 3, declares that all entries of land within the boundaries in said act specified, shall be utterly void, and of no force or effect. The act of 1783, chap. 3, sec. 6, declares the entries and grants utterly void, and the cession act of 1789 denies their validity. The compact with North Carolina rejects them. The courts of North Carolina, in Avery vs. Strother, (1 Conference Rep. 434,) decide such grants void; and the supreme court of the United States also, in the case of Preston vs. Browder, (1 Wheaton’s Rep. 115,) and in that of Dan forth vs. Thomas, (Wheaton’s Rep. 155.)
    “ This defendant further respectfully states to this honorable court, that the act of Congress of 1818, ch. 33, and the acts of Tennessee of 1806, 1807, 1819, 1824, ch. 19, 1825, ch. 77, require that there should be evidence of the goodness and validity of a warrant; and this defendant has not been able to adjudicate this claim, because no evidence whatever has been adduced to show that there was a good and valid warrant, or any valid claim whatever, which North Carolina, the United States or Tennessee were bound to satisfy. This defendant did not believe that he was authorized to presume a valid warrant existed, merely from the production of a grant which did not appropriate land, and when the very matter submitted for his decision by the legislature was, whether the grant had issued upon a good and valid warrant.
    “The foregoing reasons are shown for cause why a mandamus should not issue, and he submits their validity to this honorable court.
    “ This defendant, in addition, at the request of the petitioner, answers that it is wholly out of his power to state whether the claim of petitioner has ever been adjudicated or not, as no evidence exists in his office, to his knowledge; and none has been produced to show upon what warrant the grant issued. And he has no means to ascertain what was the number or description of the warrant.”
    Upon argument of the rule for a peremptory mandamus in this case, the same was discharged by the circuit court, from which decision the petitioner praye.d an appeal in the nature of a writ of error to this court.
    
      Writ. E. Jlnderson, for plaintiff in error.
    On the twenty-seventh of September, 1832, the legislature passed a resolution directing the Secretary of State to adjudicate certain claims for certificates, founded on certain grants mentioned by their numbers and dates, and the secretary is directed upon being satisfied that tire lands granted lay south of French Broad and Holston, &c. to issue certificates, “without requiring copies of the warrants upon which said grants issued to be filed: provided no certificates had heretofore issued; and provided he is satisfied that said grants were founded on good and valid warrants, which have been lost or mislaid, and that no other grants have issued on the same.”
    The question arising upon this resolution is, what is the grade and quantum of evidence, upon which the secretary should be satisfied upon the several points which he is to .adjudicate? Does this resolution submit the claims to adjudication upon the same principles whiqh have heretofore been laid down by the several general laws on the subject of land claims, or upon a different principle? By the acts of 1806, sec. 45, 1807, sec. 12, 1819, sec. 42, the legislature specified the kind and grade of evidence which was to govern the commissioners in adjudicating the validity of the claim, and deciding whether the claim had been previously granted. That eyidence was certain books, and abstracts from books of records, which are mentioned in said sections. The several acts of 1821, 1825, and 1829, direct that the commissioner shall be governed by the rules and regulations of the act of 1819. The 39th section of the act of 1819, in connection with the foregoing, provides that the commissioners shall require “the best evidence the nature of each case will ad-mitió establish such facts as are necessary to be proved, according to the rules of law and evidence.” In ordinary cases the process of adjudicating under these laws was simple: when a claim was filed, the commissioner was directed to look to certain books and abstracts which would show whether there had been an original warrant for the grant; if no warrant was found, there was an end to the investigation, the claim was rejected; but if a warrant was found, then he referred to the same records to see if any other grant had issued on that same warrant; if there had, there was an end to the enquiry; if there had not, then the evidence was sufficient to pass the claim. But is the process the same in adjudicating under the foregoing resolution? Here is a case presented to the legislature, in which they are told the original warrants are lost and cannot be found after diligent search, and that they are probably destroyed; upon this representation they pass a resolution directing the secretary to adjudge the case without requiring a copy of the warrant: it seems evident by this, that they expressly intended to dispense with that grade and kind of evidence which was required by the forty-second section of the act of 1819, and the sections of the acts of 1806-7, which have been referred to. The production of the copy of a warrant, or showing it upon the books and abstracts referred to in these sections; and the showing from these same books and abstracts, that the same warrant has not been previously granted, was the best evidence of these facts according to the rules of law and evidence, as required by the 39th section of the act of 1819.
    
      The resolution requires the secretary to decide upon , . ^ . , J , , i-. the same points, to wit, that there was a good and valid warrant, and that it had not been granted; but it expressly dispenses with, and requires the secretary to dispense with this best evidence which had been required by those sections in former acts which have been quoted. If. asked what rule is to guide the secretary after dispensing with the kind of evidence required by former laws, I would say the next best evidence the nature of each case would admit, (after that which is expressly dispensed with,) according to the rules of law and evidence. Starkie, a celebrated writer on the law of evidence, vol. 1, part 3, page 389, states the rule to be, that “the best attainable evidence shall be adduced to prove every disputed fact;” and the doctrine is plainly laid down by him, that the rule does not exclude evidence or decide against its sufficiency, except it appear from the very nature of the transaction that there is better evidence of the fact which is withheld, which withholding of the better grade of evidence raises a presumption against the truth of that which is offered. The rules of law and evidence therefore, are to require the best evidence of a fact that is in the power of the party in each case; and this seems to have been in the mind of the Legislature from the language employed in the 39th section of the act of 1819, where they say, “the best evidence the nature of each case will admit,” &c. It will be seen by examining a page or two of the same author at the same place, that a party is not required to produce all or the greatest quantity of evidence in his power; it is only the best kind of evidence that is in his power. The secretary will have no difficulty in regard to the first proviso -to the resolution; his record will show whether any other certificates were issued on these grounds.
    The evidence offered to the secretary, that these grants issued upon good and valid warrants, is the proof of the fact that they were issued by the proper officers entrusted by the government to do that act, who are directed by law not to issue them without a warrant, and sworn to do tli'eir duty faithfully and honestly. Now the production of a copy of the warrant would be better evidence than this just mentioned; but that being out of the claimant’s power",- and expressly dispensed with in the resolution, the only remaining question is, whether the issuance of the grants be evidence of the former existence of warrants and the best in the claimant’s power, according to the rules of law and evidence. The law of evidence in general, does not lay down any rule as to the quantum or sufficiency of proof, that must always be left to the integrity and good sense of those who have to decide.. But it is necessary to adduce some uprima facie”'evidence, in the language of Starkie, (see 1 vol. part 3, page 398-9, 400,) which becomes- conclusive, if not rebutted. See page 453-4, same book'.
    It is a rule of the law of evidence, that every act done officially by a public officer, is presumed to be correct; or to be more explicit, where the law entrusts a sworn officer to do an act upon the existence, , or happening of any fact, when the act is done by' the officer, the- law presumes the existence of that previous fact. Jac. Law Die. vol. 5, page 280-: 4 part Starkie, 1248-9, note r.
    For instance, the law requires a sheriff to advertise before he .sells property on execution; if he make the sale, the law presumes from the act of selling, that the advertisement was made; so that if the sheriff was ever indicted for selling without advertising, although he would hold the affirmative, he would not be required to prove that he had advertised, but this would be presumed until the negative was proved, and the onus of proving the negative would be thrown upon his accuser, contrary to a common rule, that he who holds the affirmative must make the proof. 4 part oí Starkie, 1248-9, note r.
    So if a jury are sworn to try a cause and find a verdict, it will always be presumed that there was evidence before them to authorize that verdict, until the contrary is proved; or if a radgment be given by a court m any case, it is always presumed that there was proper grounds laid tor the judgment, such as the law required, because the judge was sworn to administer the law. See 3 Starkie,- part 4, p. 1215 to 1248. The law presumes a surveyor has made a survey when he returns his plat and certificate, because he is a sworn officer and required to do so. 2 Tenn. Rep. 284, 303-4, 421. And when the grant issues by the proper officers, the law presumes that every fact previously existed, which was by law required to authorize the issuance of a grant. 2 Tenn. Rep. 154. Without this presumption, there-could exist no confidence by the community towards the public officers; nor could there be any security in the right of property. Beside the presumption arising from the issuance of these grants on the principles above stated, there is another rule of the law of evidence, which is universal in its application and powerful in its influence. I mean the rules relating to the lapse of time in all tribunals.
    All civilized governments fix a period of time after which investigations are to end. Why is this? It is because time is the destroyer of all human testimony, as well as the destroyer of all human things; and that reason and policy on that account forbid that a person should be called on for the proof of the facts on which his rights depend, after that proof has been subject to the destroying influence of time for a long period. In the emphatic language of some authors in such.cases, time becomes the witness to prove facts; or from lapse of time facts will be presumed from other facts being made to appear. Thus, from the fact being made to appear that a man has been in possession of land for thirty years, it will be presumed that land was granted to him. See the able opinion of our Supreme Court, delivered by Judge Crabb in the case of Hanes vs. Peck’s lessee, Martin and Yerger’s Rep. 228. A bond will be presumed to be paid, a mortgage will be presumed to be redeemed, in twenty years; and a deed or will, discovered . ’ , J m a place where such papers would be likely to be kept, if they be thirty years old, will, from their age and the place in which they have been preserved so long, he presumed to he genuine, and read in courts as ancient deeds, without any proof of their execution. See 4th part of Starkie’s Evidence, 1693: 4 Term Rep. 707, Colthrop vs. Gough: 6 Binn. Rep. 435, Spollen vs. Brond: 3 John. Ch. Rep. 283, Jackson vs. Leroway. By such cases it is seen what a powerful witness time becomes of facts that occurred a longtime ago. If a citizen could hold an estate under a will executed thirty years ago, and would be excused from any proof on account of the lapse of time, from the presumption that time had cut off the proof which might have existed, it would seem to be a different rule of evidence which would require a claimant, who has a grant properly issued, near forty years ago, by sworn officers of government, to prove that he had a warrant which authorized these sworn officers to issue it. The supposition of an attempt by the claimant at this time to make any positive proof of the existence of a warrant, will prove the good sense of the rules of the law of evidence, of which I have been treating. Keep in view that there are no records of such warrants, and that record proof has been dispensed with, and that a claimant has set about getting positive proof by parol, that such warrant did exist, before any positive proof could be produced, these things would have to concur, viz. that some man yet living had seen the warrant in a given case, and that that man had known that the grant in question had issued on that warrant, .which would require a very uncommon memory to recollect, and then the claimant would have to know and remember that this individual did, at the issuance of the grant, know these facts, and then he would have to know where to find the witness. No sensible legislature would offer to do justice to a citizen on these conditions. This would be no better than mocking him with professions of doing him justice, without the intention; for there would not be one case in ten thousand where such proof could be had: indeed, it could not happen in any case whatever. When the legislature positively dispensed with the copy of the warrant, and required the secretary to be satisfied that there had been a valid warrant, what proof did they contemplate he should have? Surely not the proof of a witness who would swear he had seen it as above spoken of. This would have been too ridiculous an expectation to contemplate for a moment. If it be the law of evidence, that the act of an officer furnishes evidence of its own correctness; that it is to be presumed to be correct, and that this presumption becomes conclusive if the contrary be not proved; and if it be the law of evidence that after the lapse of thirty years, a party is not expected to make the same proof of facts, which would be required of him if the investigation were more recent, I have proved that the evidence is sufficient in this case to satisfy the secretary that these were good warrants. Is there enough to satisfy him that those warrants had not been twice granted? How is it to appear that they had not been previously granted, unless they could be found? Surely not by record evidence, for the record will never decide that point until the warrant or copies, are produced; and their production is dispensed with expressly, on the ground that they are lost. Then it is expected the secretary is to be satisfied of that fact by some other means than a resort to the record. How is this to appear? As Starkie says, by the best attainable evidence. If the claimant were to get every grant that ever issued, and lay them before the secretary, he could not tell whether any of them issued upon the same warrant upon which the grant he is to adjudicate issued, unless the warrant itself could be produced. But then the legislature have notified us that it is lost, and not to be produced. Then this evidence is not in the party’s power, is not “ attainable.” What then? ^ie party t° lose his right because this best evidence is not attainable? Surely not. The legislature knew this evidence was not attainable; yet they tell the secretary to adjudicate. Why tell him to adjudicate, unless inferior evidence on the point was supposed to he sufficient? What then is the inferior evidence which is attainable, which is to answer in this case? This is to be answered by asking ourselves, how it could happen that two grants should issue on one and the same warrant? The law requires the secretary to file and preserve the warrant when the grant issues upon it. How could it get out of his office for a second survey to be made upon it? The same rules of law which I have commented on, will not permit the presumption that the secretary would send it out a second time to a surveyor, or that he would issue a second grant without a survey; he might as well forge the grant. The presumption of law is against the supposition that an officer will do wrong, but suppose that he will do right. It might be supposed or presumed that some one might get out the warrant surreptitiously, and obtain the second grant upon it. There are two principles of the law of evidence against this supposition; first, it is supposing a culpable negligence of the officer, against the presumption of law; and secondly, it is laid down in 6 Jac. Law Die. p. 280, for which he refers to Coke upon Littleton, 232, 273, that a wrong should never be presumed in any person. We should never act judicially upon the supposition that any human being had done wrong, or committed a crime, until there is some proof of the fact. See 3 Starkie, part 4, p. 1248-9. Now it may be known to us, that such abuses have happened in fact; it may be notorious that such abuses have happened in fact, in this very office in North Carolina; yet this cannot alter the rule of law and evidence: nor does it impeach the propriety of these rules, nor authorize us to depart from them in cases where we have no evidence that such abuse had been practised. Judges are often compelled to decide cases 'according to the settled rules of law, under the belief and conviction that in the particular case injustice may be done. In this particular case, however, I am not aware of any grounds to suspect the honesty of the claims. The issuance of these grants by the proper sworn officers, is not only prima facie evidence, according to the rules of law and evidence, that they issued on good and valid warrants, but it is also prima facie evidence that no other grant ever has issued upon them; and this prima facie evidence I have shown ‘becomes conclusive, if not contradicted by proof.
    If the production of legal evidence that grants properly issued by the proper authorities, be sufficient proof under this resolution to authorize the conclusion that they were founded on good and valid warrants, as well as that those warrants were never granted before, the enquiry may suggest itself, why the legislature did not grant the warrants themselves peremptorily, having this evidence before them, instead of refering the claims to the adjudication of the secretary? This inquiry is susceptible of a very plain and satisfactory answer. The legislature very rarely undertake to adjudicate upon the rights of the citizen, and they should never do it; they are not qualified from their situation to adjudicate, and in fact it is against the fundamental principles of our government for them to adjudicate. It is one of the vital principles of republican government to keep the legislative and judicial powers completely separated. I think it would be a violation of the spirit of our constitution and government, for the legislature to adjudicate upon any citizen’s rights, if they had all the means and facilities of forming a correct judgment that any other tribunal could have, which, however, we well know is not the fact.
    But if this were not a correct principle, and therefore a sufficient objection to their undertaking to adjudicate the claim, there is a further good reason why they should not. It will be remarked, that notwithstanding I have considered the proof of tbé legal issuance of the grants as sufficient to pass the claim, yet I have constantly treated it as prima facie evidence only, which may be rebutted. Notwithstanding this prima facie evidence may have been before the Legislature, how could they tell but that the secretary in his examination might meet with satisfactory rebutting evidence? It might appear from an examination of the record in his possession, that certificates had issued on these same grants; or he might by possibility find that other grants had issued on the same warrants that these issued on. ■ The Legislature could not be prepared upon the passage of this resolution, to determine on"all these points; it was not practicable for them to examine the secretary’s office, to see if this information could be obtained; therefore it was .highly necessary and proper, on this account alone, if there had been no other reason, to refer the subject to the adjudication of an officer in whom they could confide, to examine the subject carefully and deliberately. But it was wholly unnecessary to have annexed the proviso; and it was supererogation to annex the proviso, for the very term adjudicate, used in the resolution, implied all that is expressed in the proviso. I take it for granted, that if the proviso were wholly omitted, the secretary would not have issued certificates on these grants, if in his examinations he had discovered, either that certificates had previously issued, or that there never had been a valid warrant, or that if there had, that other grants had issued upon them. The proviso no doubt was annexed from a hypercritical caution of members, whose minds were fearful of some injury to the public. It seems the lower house of the assembly, upon a fuller consideration of the subject, and a better understanding of it, passed .a resolution rescinding the proviso, to remove any difficulty it might produce in the mind of the secretary; but this resolution, in the bustle and hurry of a last day’s session in the Senate, when members had not time for reflection and understanding, was rejected. In my conception, however, the case is in no way altered by the annexing or rejecting the proviso. Whether it be there or not there, I think the care and the duty of the secretary upon it are precisely the same.
    
      J. S. Yerger and J. P. Clark, argued on the same side.
    
      F. B. Fogg, for defendant in error.
    I refer to the resolution of the Legislature filed with the record, and consider it as incorporated with this brief, without reciting any of its provisions; and also to the answer of the Secretary of State.
    The grants in question were all issued' by- the state • of North Carolina after the cession act. The State of North Garolina had parted with the right of soil,' and the right of jurisdiction, and claimed merely the right of perfecting titles, where entries had been made agreeably to law. Suppose grants issued upon entries made within the bounds set apart for the Cherokee Indians; would they not be utterly void? Would the grants themselves be any evidence for any person whatever? Where no incipiency of title exists previous to the emanation of a grant, the Governor and Secretary of State possess no authority to issue it. Where a sovereign State has relinquished its power to grant, or no law exists to support the validity of a grant, a paper writing purporting to be a grant, would be void. If the State has no title to the thing granted, or the officer has no authority to issue the grant, the grant is of no validity. 1 Wheaton: Preston vs. Browdon, 5 Wheaton, 293.
    It is true, that where all proceedings relative to securing an appropriation for land, are completed by a grant issued by the authority of the State, a compliance with these rules is presupposed. Every prerequisite is then supposed from the existence of the grant. But how does this rule apply? Not to a case where the State itself is to examine the foundation of a former grant, in order to authorize a new grant to issue for some defect . , . ° , , . „ , . m the other, but m cases where the grant is considered with a' view to the question how far it operated as an appropriation of land. Then you will presume that the public officer did his duty; then you will presume that the requisites pointed out by haw to secure the-regularity of grants, to protect the incipient rights of individuals, and to guard the State against imposition, were observed-The land is appropriated, and the government, and not the innocent grantee, must bear the consequences resulting from the irregularities committed by the officers of government prior to the emanation of the grant.-
    The cession act, the acts of Congress, the compact,, the acts of Tennessee, all speak of claims, the validity of which are to be examined into. They are to be good and valid in law, and to be decided upon by legal evidence, according to the laws of Tennessee and North Carolina in force on the 3d April, 1818. See act of Congress of that date. These acts are all in pari mate-ria, and'must be referred to in considering this resolution. That frauds had been committed in issuing grants and warrants, is a fact promulgated in the public laws of North Carolina, and is alluded' to m the compact, and for the detection of frauds, facilities were afforded by the State of North Carolina to the officers appointed to examine into them by Tennessee. It must be ever kept in view, that the State of Tennessee acts under a special authority for the satisfaction of valid claims against North Carolina, and'has the unlimited right of disposition of the lands.
    The resolution refers the grants for adjudication, that is to say, whether the grants issued upon good and valid claims which the United States or the State of Tennessee are bound to satisfy. The very matter to be decreed is, whether the prerequisites were complied with. The secretary is to be satisfied from evidence laid before him, that the grant has properly issued upon a good and valid warrant which has been lost or mislaid, and that no other grant has issued: What is required, and what is dispensed with? A copy of the warrant is dispensed with, but the secretary must be satisfied that a good and valid claim existed, according to all the previous laws, which are not, and could not have been repealed. The production of the grant only, or a copy of the grant with the secretary’s certificate as furnished, would not authorize the conclusion required by the resolution. The grant would be evidence as an appropriation of land, so as to authorize the prerequisites to be presumed for that purpose, but when a warrant or certificate is to be drawn because the grant was not an appropriation, it appears to me that other evidence is required as to the authority for its emanation.
    From length of time, you presume in favor of possession, in favor of a right enjoyed where presumption is in-accordance with the right; but where a grant issues for land not subject to appropriation, no presumption would arise from length of time that a good warrant existed. The presumption after a great length of time, would be, that the claimant was otherwise satisfied; and if he waits until the records are destroyed, and until all witnesses are dead that could prove the existence and validity of his claim, he may lose a bona fide claim, but it would not justify so extensive a presumption as would be required to issue certificates without any other evidence than the copy of the grant.
   Peck, J.

delivered the opinion of the court.

In the compact with North Carolina, Tennessee has given a pledge that she will issue no grant unless founded on a bona fide claim, and all such as shall issue otherwise are declared void. 1804, ch. 14. This act is the foundation of the authority in Tennessee to grant the vacant territory in satisfying the claims of those to whom North Carolina had issued warrants. This trust on the part of Tennessee, it is hoped, has not been violated; many claimants were citizens of other States; our own citizens were not to be preferred to those; and it may safely be said, that all the acts authorizing adjudications have been passed in good faith, and though abuses may sometimes have crept in, still it has not been the fault of the laws providing for adjudication. They are to be viewed as one whole; and taken together, evince much care in their provisions that frauds shall not be practised. When boards of commissioners have been appointed, or as in the present case, where the duty by act or resolution has been assigned to some officer, he becomes a judge; forms suitable rules for the attainment of truth where the law has not already given them, and when he has made a grant of a warrant or claim, the State cannot question its validity. Dillon’s case. 2 Tenn". R. Though by the provisions of some of the acts, a refusal to. grant a just claim author-ised an appeal to the courts, yet where this was not given, the-mandamus has been resorted to, to supply its place.

This being a brief view of the authority and practice under it, we are brought to consider the resolution of the last session, which gives rise to the case before us.

The preamble" assumes the fact to be, that the grants specified by numbers and dates have honestly issued, and that the warrants have been mislaid or lost. Then follows an authority to the Secretary of State, as commissioner, to receive on file for adjudication said grants; he is first to enquire if the land designated in them lay south of French Broad and Holston rivers, in the section of country where grants issued by North Carolina cannot hold the land; he is secondly, to enquire if any duplicate has issued; he is thirdly, to enquire from evidence laid before him, whether the grant properly issued upon a good and valid warrant, whether the warrant is mislaid, and^that no other grant has issued upon thecsame.

With these duties of the Secretary before us, let us enquire what is the point controverted between the applicant and officer. We have it in the answer of the latter: that to be enabled to perform the duties assigned him, he expects proofs that no duplicate has issued; that the warrant on which the grant was founded was good and valid; that it had been mislaid; that it had never been adjudicated by any previous board, and that no other grant had issued thereon, and that this evidence, in the language of the proviso to the resolution, “should be laid before him,” in other words that the proof to make out a case for the granting the warrant, was to come from the applicant.

When we examine the resolution, it is impossible to come to a different conclusion from that held by the officer; for however simple the matters of enquiry may appear in the first member of the resolution, still in its conclusion, out of caution, proof at least prima facie, that this is an unsatisfied claim, is required, and certainly re-required of him holding the affirmative under the resolution.

Suppose the warrant lost; still the grant will show the number of it; or at least it is presumable, in the language of the respondent, that some memorandum will be preserved and point to it. If that be so, then it may be traced if again appropriated; and this argument gains strength the moment it is shown that the warrant is not on file, for it has become part of the history of the land titles in this country, that many warrants had been improperly taken from the office in North Carolina, and applied a second and third time in procuring grants.

But if withdrawn simply, and not a second time granted by North Carolina, then it may be it has been adjudicated and granted by Tennessee. Getting the number, therefore, which it is presumable can be had in North Carolina, will afford a clue by which it may be traced here. So that the whole results in this, that the best proof in the power of the party must be adduced. If no proof can be produced, and proper means have been used to get it, and the evidence of that fact be laid before the commissioner, then he will judge of it, and act accordingly.

But taking; the resolution altogether, and construing it . , , , , ., , ° . ^ with the rules laid down m other previous acts on the same subject, it is unreasonable we should control the secretary. To control him would be to act capriciously, and disregard the caution the legislature thought proper to throw around the subject.

Judgment affirmed.  