
    SEVIER & ANDERSON’S LESSEE vs HILL.
    
      Carthage,
    
    
      April 1809.
    
      Ejectment, Plea, not guilty, and issue.
    The plaintiff claimed under a grant for 32000 and acres of land, calling to begin at marked trees, thence north 1025 chains to the north east corner of a tract of land granted to Stokeley Donelson, for 25060 acres &c. and this last tract of Donelson’s, calls to adjoin another in his name, of 60400 acres, which begins where the Kentucky, late the Virginia line, crosses cumberland river agreeably to the annexed figure.
    
      
      
    
    In what cases the validity of the grants of the State can be enquired into.
    The defendent claimed by possession only. The grant under which the plaintiff claimed, issued in the year 1795. It was proved that Gordon, the surveyor of the tract, marked corners on the Kentucky line in the year 1798, but the distances to those corners were greater than called for in the grants to Donelson and Sevier. That tract of 32,000 acres part of which is now in contest, lay within the middle district. It was surveyed by a person who stated himself a deputy surveyor of the middle district.
    
      Haywood for the defendent,
    objected to the reading this grant in evidence, until it should be proved that Gordon who signed his name as deputy, was actually a deputy. If he was not a deputy, he contended the grant was void, under the 9th section of the act of November 1777 c. 1.
    Whiteside, e contra,
    
    said there was no precedent of such an objection. That it would be impossible for any person to know whether he had a title, if this principle and similar ones were adopted. He proceeded at length on the ground of innocence.
    
      Haywood, in reply.
    The statute appointed the surveyor or who was bound to give bond and security for the performance of his duties ; and it would be unjust for any person to act as a deputy without showing proper authority, The secretary was bound to give credit to the person appointed, and no other.
    The state might have been deceived in issuing a grant, upon the certificate of a survey by a person not authorized, and for this deception the grant may be void. It is probable there never was a case of this kind in court, so that the objection could not have arisen. The survey is signed by George Gordon D. S. for Stockly Donelson, D. S. A deputy cannot make a deputy. But the fact is, that Donelson never was a deputy of the surveyor of the middle District.
    
      Overton J. The question is important in its consequences, and he did not feel prepared at present to give any opinion—let the grant be read, and if thought proper, it may be examined hereafter.
    
      Campbell J. The examination may proceed and the grant be read, but he was inclined to think the objection was supportable.
    
      Humphreys J. The objection is improper. He took it to be a rule of law, that the regularity of proceedings previous to issuing a grant, was not inquirable into between two individuals. We have been taught to believe that the officers of North Carolina observed very little regularity in issuing grants. If permitted in one case, it must be in others, endless confusion will arise, and the estate of individuals & families disturbed and overturned. This may as well take place fifty or one hundred years, hence as now. The law certainly never could intend, that all requisites antecedent to the emanation of a grant should be proved. The state was the proper judge of that. For instance ; the law requires that the land should be measured by chain carriers, in a particular manner. Suppose it were now proved that the mode prescribed by law, was not complied with. Is the grant to be void ? He thought not. The state had a right to confide in whom it pleased in making surveys. It Donelson or Gordon could be trusted in one District, they might in another.
    
      Several witnesses who lived within the bounds of the bounds of the 32000 acre grant, under which the plaintiff claimed, were produced. Mr. Huddleston one of those witnesses, had an ejectment in court, in which his own claim, and the grant for the 32000 acres were in contest—none of these witnesses claim under the defendant, Hill, nor did he claim under any of them.
    
      Per Curiam. The witnesses are competent. They may feel concerned in the question depending before them, but not in the event of this suit. How far their situation may effect their credit, is with the Jury. It was also determined by the court that evidence of what Gordon, the surveyor said, could not be received, and particularly to vary the grant.
    Haywood. We shall show by records from N. Carolina, that the recitals in the grant are false. We wish to show by those records, that instead of ten pounds being paid, as stated in the grant, that this grant actually issued on county, or fifty shilling warrants; and besides that those warrants had previously passed into grants. We do not contend, but that a grant is prima facie good, and it lies on the defendent to show that it is bad. The labouring oar is with us. If we cannot show this grant is void for misrecitals or fraud, every species of fraud will be patronised. Suppose military warrants were granted within John Armstrong’s bounds, or vice versa, such grants would surely be void, as not being authorized by law. It is my wish to show, if permitted by the court, that all the warrants referred to in the plaintiff’s patent, were previously granted. This grant is founded on Carter’s Warrants, and the court cannot err in permitting the evidence offered, because they are numbered in numerical series ; and thus it can be easily discovered whether those warrants had passed into grants previous to the emanation of the plaintiff’s grant. 
    
    
      
      Whiteside e contra.
    The defendant has not shown any title in himself, & the court will not permit a mere naked possessor, to examine the grounds of the plaintiff’s title. There is no law or practice, which would authorise a defendant standing in such a situation, to contend against a title. The law of England respecting misrecitals, relates to false suggestions of the person procuring a grant. On the face of this grant there is not one statement, which is from the information of the grantee. The grant either expresses the words of the state, founded on its own knowledge, or the survey of one of its officers, It therefore results that the grantee cannot be prejudiced by such misrecitals. Carter’s, or any of the county warrants, might be surveyed any where within John Armstrong's bounds, in the eastern, western, or middle District. Such has been the practice and many thousand grants have been procured on those warrants, for lands lying within the limits, originally allotted for John Armstrong’s warrants by the acts, of 1763 c. 2 and April 1784 c. 14. It has long since been made a question whether such surveys and grants were good, and decided that they were. Whatever might be the effect of these arguments, he could not pretend to say, but he felt well assured that the defendant ought to acquire an interest from the state before he would be permitted to contend.
    
      Haywood in reply.
    
    It is said, an attempt of this kind never was made. I do not know what has been attempted, nor do I know that such a case as this ever occured before, to give rise to such an attempt. But it is believed whether attempted or not, the ground taken is a legal one, and the possessor can as well contend without, as with a title. Let those opposed to me, show there is a distinction. If our acts on the subject of appropriating vacant lands, or the common law is to govern, he could show that the plaintiff’s grant was void. Perhaps there never was such a case as this. It is certain no instance of a more flagitious fraud ever did occur. Instead of 32000 acres, which the grant calls for, there are within the bounds of the claim 69000 acres granted ; and all this too, on warrants previously granted. Confident in the principles of law and justice, I shall boldly contend, for their rights. If there be false suggestions in a grant, they will render it void, and it is of no consequence from what quarter the suggestions come. This I can prove from principles of the common law, & decisions, the authority of which is unquestionable. If this were the case of an individual, he might be relieved on the ground of fraud and deception ; or acting under a wrong impression. Surely thy state ought not to stand in any worse situation. Suppose the secretary was authorised to issue a grant for 25000 acres from the warrants, and from the courses and distances he grants 69000. Having acted under a wrong impression he was deceived and the grant is void. The Governor and Secretary were only attornies or agents for the state. They had no authority by law to grant more than the amount of the warrants ; nor any authority to grant on satisfied warrants, at all. Suppose one man gives a letter of attorney to sell 1000 acres, out of a tract of 10,000 acres ; and instead of 1000 he sells 2000 acres. The execution is void in toto. The excess cannot be seperated. Precisely similar is the situation of the secretary and Governor, They are nothing more than the attornies in fact of the state ; and so long as they conform to the law, which is their letter of attorney, their acts are good, but not otherwise.
    
      It has been urged that this deception did not arise from any act of the grantee, and therefore he ought not to be affected by it. Can it vary the case, particularly as it respects the public interest, who brings about the deception ? the effect is the same, and it ought to be left to the Jury. Has not the state been defrauded ? Surely the court will not let a person avail himself of his own wrongs. This would not only be repugnant to a plain maxim of law, but to an obvious dictate of morality, of justice, and of sound policy.
    Every person ought to be interested in the detection of fraud—it is just, it is sound policy.
    It has been said in argument, that it has been frequently decided, that county, or 50 shilling warrants might have been surveyed and granted within John Armstrong’s bounds agreeably to the laws of N. Carolina. If it has been decided ever so often, I am bold to say, it was wrong. The position assumed is, that no grant on Carter’s or any other county warrant for land within the middle District, is valid under the laws of N. Carolina. A reference to the act of the Legislature will show this. The act of November 1777 c. 1 opened the county offices, the 9th Section declares that all grants not obtained agreeably to the provisions of that act, shall be void. This act was suspended by the act of June 1781 c. 7, and the act of April 1783 c. 2 revived the act of 1777 within the limits of the state, except such part as was within John Armstrong’s bounds. The act of 1777 s. 4, directs that each person shall take the oath of allegiance, and pay the consideration money before making the entry. The act of April 1778 c. 3, s. 2, provided, that if on survey, the quantity contained in the entry could not be had, the entry takers were required to refund, of the purchase money, in proportion to the land lost. This act respected county entries alone, and it was the intention of the Legislature that if an enterer should lose his land by older claims, the money should be refunded, and not that the claim might be removed. This was the law when the act of 1777 was revived by the act of 1783. The plantiff cliams under a grant, founded on removed county warrants.
    We will therefore examine the doctrine of removals, and see whether from the acts, it applies to county warrants. To me it appears evident that the acts of the legislature of North Carolina were never designed to authorize the removal of county warrants. Admitting for a moment that they did, the cession act repealed them, 1789 c. 3. The act of April 1784, c. 14, s. 7, is the first law respecting removals. This act manifestly contemplated John Armstrong’s claims alone, as will appear from the caption and general scope of the act. The act of October 1784 c. 19. s. 6, is the next in order on this subject. This section speaks of entries wade by virtue of a law commonly called the land law ; it authorizes the removal of such entries, when taken lost by better claims. What, I ask, was the commonly called the land law ? It was the different acts respecting John Armstrong’s office, or the western lands. It did not refer to the county claims at all.
    The next, and last act of North-Carolina on this subject is the act of 1786. c. 20 s. 7. This in express terms refers to John Armstrong’s claims. So that no doubt can exist on this section, whatever may take place as to the two previous acts.
    He admitted that the language of the two first acts, was general, and not confined to any species of claims ; but it was manifest from the caption of those acts, as well as the reason of things, that the legislature designed to confine removals, to John Armstrong’s claims. Particular limits were allotted for entering lands in John Armstrong’s office ; those lands were sold at ten pounds per hundred, and the county claims at 50 shillings per hundred. By the act of 1783 for opening John Armstrong’s office, the county offices were abolished within his limits. In this we see, a demonstration of the care of the legislature, in keeping those claims seperate and distinct. And we have no reason to believe that the legislature changed its disposition afterwards in this respect. It would be absurd to suppose that the legislature would permit 50 shilling warrants to be carried into the limits of the country where it sold land at ten pounds hundred. If this had been the case, there would have been but little land left to satisfy the ten pound claims.
    Until the year 1791, the legislature of North-Carolina always conceived that those who had entered lands in the county offices, and had lost them by better claims, were to be made whole, by the state refunding the purchase money. In that year the law was altered. All the laws respecting removals passed in the year 1784, and 1786. At this time John Armstrong’s office was shut, and no more claims could he entered in that office. The legislature, by shutting the office, supposed no doubt, that all the lands fit for cultivation within the bounds allotted, had been entered ; could it then be possible, that the legislature would authorize the removal of county claims within those limits ? There were county Claims sufficient to swallow up the whole of the lands within John Armstrong’s limits in a little time.—And if not enough then entered, there was nothing more to do than pay 50 shillings per hundred into the County entry taker’s office, for any county in North-Carolina, enter the lands that were previously entered or granted, and then remove the warrant within John Armstrong’s boundary ; to Holston, Tennessee, or Mississippi. But suppose that these statutes authorized the removal of county claims, still I insist that the act usually called the cession act, 1789. c. 3. s. 1. provides only for John Armstrong’s and military claims. This act contains the terms of a contract between North-Carolina and the United States ; and so far as these terms are repugnant to pre-existent laws of North-Carolina, those laws are thereby repealed. That removals were confined to western lands or John Armstrong’s. I rest on three grounds, 1st. As to county entries the money was to be refunded by the state when the land should be lost. 2dly. That the laws authorizing removals were made in relation to John Armstrong’s claims, and not those of counties, and 3rd if those acts do authorize the removal of county claims, they are repealed by the cession act. 1789, c. 3. s. 1.
    Though there may have been decisions, if the court perceive an error, it will correct it.
    It has been urged, that none but the state can avoid a grant. To refute this doctrine, I trust to reason, but I can prove it erroneous by authority. The 9th section of the act of 1777, is clear on this ground. Any grant says the act, that shall be obtained otherwise than agreeably to its provisions, shall be void. How it may be asked, is it to be void ? If void as to the state or any individual, it is so as to all. That act requires sworn chain carriers, and a surveyor. If this is not complied with, it is an evasion of the act, and the grant is void. Can a survey made by Gordon, Donelson, or other private individuals be good : They were not subject to the responsibility which the state designed. They had never given, the bond and security required by law. The acts of 1777 and 1783 forbid the emanation of grants for greater quantities, than 640 acres in the one case, and 5000 in the other. Here is a grant for 32,000 acres, and the grant is void on this ground. There never was an act which authorized the consolidation of warrants, except for swamp lands in the lower part of North-Carolina April 1784. c. 19. It was the policy of the law to discourage large grants, as excluding the poorer classes of men, from acquiring lands. And as the grant in this case is founded on county warrants, which could not exceed 640 acres, as there was no law to authorize a consolidation, the grant for 32,000 acres is in fraud of the provisions of law ; and consequently void by the 9th section of the act of 1777. By the principles of the common law, fraud vitiates every thing—Nothing is excepted from its deleterious qualities. Even the judgments and decisions of courts, may be avoided on this ground. Surely the court will permit the disclosure of the fraud which is alledged. If it will not, it will be for ever buried, and thus the court will become accessory to it. It is said, and generally believed, that fraudulent grants, have covered a considerable part of this country. Is there to be no relief? Justice would be outraged by such a course of procedure ; and its courts instead of affording redress to the injured and oppressed, would become an asylum, for fraud, wickedness and depravity. It is believed by those best acquainted with land claims, that grants have been fraudulently obtained for not less than five millions of acres ; as for instance ; fraudulent transfers ; fraudulent certificates of the service of soldiers ? upon forged transfers ; and on warrants previously satisfied, beside many grants without any warrant at all. Is there to be no relief, either for the state or real owner ? In this republican country, is it not much better that these frauds should be inquired into than that the rights and morals of men should be injured by their being buried. Let this be the case, and we should be oppressed with lordly owners of immense quantities unrighteously obtained. The poor, as well as the rich should at least have a fair & equal opportunity of obtaining justice. This never can be the case, where the cunning and fraudulent are suffered to keep that which they have obtained in evasion of the laws of their country.
    
      This course certainly will injure the fewest people ; for but a few have purchased under these fraudulent grants, but had some idea of it, and generally gave but a small consideration.
    To conclude, if I am permitted by the court, that instead of this grant issuing on 10 pound warrants, as it purports to have done on the face of it, it really issued on 50 shilling warrants. And admitting these were county warrants, that they had been previously granted.
    All this I can show, if the court permit the evidence to go to the Jury. Let us have it to say, what the imperious calls of conscience and justice require, that in Tennessee, the fraud on which a grant issued, was not privately buried and covered up, but laid bare, dissected and openly exposed in our courts. The honor and credit of our country require that it should be done. Does not the law of England support us in this course ? In 2 Bl. Com 348, the author observes, “ when it appears from the face of the grant, that the King is mistaken, or deceived, either in matter of fact, or matter of law, as in case of false suggestions, misinformation, or misrecital of former grants ; or if his own title to the thing granted be different from what he supposes ; or if the grant be informal ; or if he grant an estate contrary to the rules of law ; in any of these cases, the grant is absolutely void.”
    The same rules apply to the grants of the state. A court of law in this country, is the only court that can inquire whether a grant be void or not. In England, the validity of a grant, must be inquired of by a Jury.
    We do alledge a false suggestion, and the court surely will inquire whether it be the case or not.
    
      Whiteside e contra.
    
    This grant is not void, but if it was, the defendant, having no title, ought not to put us on the inquiry. In England, if the claims of two persons come in collision, they may be examined, but denied that the doctrine proceeded the length contended for. In England, the method of avoiding a grant, is for the government to permit an individual to use the name of the King. He asked if the defendant could come into court, without any title and use the King’s name ? Would this be allowed agreeably to the English law ? He conceived not. The passage read from 2 Blackstone 348, does not apply to the grant before the court. The book says, where it appears from the face of the grant, that the King is deceived by misrecital or false suggestions—Recitals are always the suggestions of the grantee, and the false suggestions mentioned, are those misrecitals.
    This is the form of a grant in England, except where it is made on the King’s mere motion, and contains no recital. None of the grants of the state of N. Carolina, contain recitals. Ours is in the usual form. The law in Blackstone is not therefore apposite. As to removals, he understood the question at rest. It was decided in the case of Dodson vs. Findley and Cocke ; and in the case of Jackson’s Lessee in Jefferson county, the doctrine was recognized.
    Suppose these were county warrants, the consideration from the State viz. L 2 10 shillings, was in value, more than the consideration for John Armstrong's lands, where L10 in certificates were given.
    These certificates might be bought at the time the lands were entered for 2s. in the pound. In the cession act, the Legislature made provision for every kind of claim. And North Carolina and Tennessee have admitted this construction, having acted according to it, in issuing grants. This construction was acquiesced in by congress, and even confirmed by its compact with this state. There is not any prohibition in any of the statutes of North Carolina against granting more than 5000 acres in one tract, and therefore the grant is not void for that reason.
    The Legislature of this state, has had the subject of large surveys on consolidated warrants, under its consideration. In the year 1806, a law was passed for clipping them. At the next session, the Legislature repealed this part of the land law: And will the court now undertake to say, that which the Legislature thought could not be done.
    
      
      Haywood, said, he would, with the permission of the court read an authority, which would prove that a person in possession without title, might except to the legality of a claim set up against him. He then read Legates case 10 Co, 112. The contest in that case, was by a person who had not any title.
    
      
      
         See the case of Polk vs. Wendel & others. In Carter's office, the entries and warrants were not in numerical series, and hence the invalidity of the claim cannot be ascertained on that ground ; and as the entry books in that office have been lost, there is no other evidence of record but the files of Warrants, in the secretary’s office of N. Carolina.
    
   Campbell J.

This evidence ought to go to the Jury.

Overton J.

The different acts respecting removals, have been correctly adverted to, though he could not accord with the construction of those acts by the defendant’s counsel. The language of the acts is general, and not confined to any species of claim. Taking all the acts together, it seemed to him, that county entries might be removed, in case of being lost by better claims, to any part of the state, except within the military bounds, and the lands reserved to the use of the Indians by the act of 1783. The 7th Secton of the act of 1786 c. 20, according to his view of the subject, was opposed to the argument on the part of the defendant.

This section declares, that all the surveys already made for removed warrants, in John Armstrong’s office, shall be good. It will be recollected that two different laws had passed in April & October 1784, authorising removals generally. The making of the law of 1786, implies that a doubt had existed, whether the right of removal allowed by those laws, extended to John Armstong’s claims. This section of the act of 1786 puts the question, as to those claims out of doubt. Now had the two first mentioned laws been passed with a view to John Armstrong’s claims exclusively, it is scarcely probable the Legislature would have found it necessary, to pass a law in the year 1786 declaring the right of removal, as extending to those claims. The second condition of the session act 1789 c. 8, provides for the perfection of all claims; and makes no alteration in the law respecting removals. Nor does the argument drawn from the second section of the act of April 1778, seem to be tenable. This section provides as to county entries, that in cases where lands may be lost by older claims, the purchase money shall be refunded. The acts of April 1784 c. 14 s. 7 and Oct. 1784, c. 19 s. 6, in general language, provide, that all claims may be removed. These acts either intended to repeal the second section of the act of 1778, or were intended as a cumulative remedy. The result is the same, as to the question before the court. It is however probable, the latter was intended by the Legislature. When we add to these considerations, the practice of the state of North Carolina in issuing grants on removed county warrants, and the acquiescence of the United States after the cession act, but little doubt can remain of the intention of the legislature.

The absurdity insisted on by the defendant’s counsel, in permitting removed county warrants, does not occur with the same force with which it was urged. When we consider when these acts passed respecting removals, John Armstrong’s office was shut: All entries had been made, that were intended ; and as removals were not matter of right, but of grace, there was no injustice in permitting removals of county claims, within those bounds, more than to any other place. A removed warrant could not affect any claim previously entered in John Armstrong’s, or any other office. In authorizing removals, the state did not violate any rights previously acquired ; and as to the price paid the state for county, and John Armstrong's claims, it was the same, after John Armstrong's office opened.

The next point to be considered is, whether this court, sitting as a court of common law, can receive the evidence now offered. As between individuals, it occurs to me strongly, that the consideration, on which a grant issued from the state, cannot at least in a court of law, be inquired into, if it can in a court of equity, of which much doubt may be rationally entertained. It is however true, as stated by the defendant’s counsel, that nearly all the instances in the English books, of avoiding or considering a grant from the king void, occurred in a court of law. But on examination, we shall find that many of the principles attached to the king’s grants, do not apply here, for reasons, many of which will not be noticed at this time. In the opinion given in the case of Vincent’s Lessee vs. Conrad they were adverted to at length. There is certainly much apparent contradiction in the cases respecting the king’s grants, to say the least of it, as will be found by consulting Viner’s and Bacon’s Abridgments, title prerogative of the king. One sensible distinction however, may be perceived, that there are two kinds of grants in England, assertive, and suggestive. The first does not contain any recital. The latter always does ; and it has been adjudged there, that the consideration is not inquirable into in the first case, 12 Mod. 78 King vs. Kemp. 17 Vin. Ab. 151 MC. in N. The grant before the court, is of the first kind, and does not contain any recitals of the suggestion of the grantee. It is not however to be understood, but that the state might avoid its own grants on scire facias, as against a person committing a fraud. Individuals ought not to be permitted to bring in question the consideration on which a grant issued, or whether it were regularly obtained, or not. The state has issued a grant which does not contain any recitals, so as to put all men on an inquiry as to the truth of it. Such a principle would be repugnant to the ordinary principles of contracts. And beside, would open a flood of inconveniences that would be intolerable. The mode of acquiring land titles is already complex, and if the legality or regularity of issuing grants, could be made subjects of inquiry in all cases, there would be no end of confusion and distress Lagates case, 10 Co. 112, turned on the point of misrecital, and therefore it would seem, does not apply to the case before the court. It was conformable to the provisions of the laws of North-Carolina, that a grant might issue for lands at this place, upon county claims, and that is all this court has to look to in a contest between two individuals. Whether a person having possession without any kind of claim is competent to institute an inquiry into the plaintiff’s grant, I will not undertake to say. If it were legal to make this inquiry, it would seem that he would not, because the evidence offered is of an equitable nature, and he had no that it was not competent to any bare possessor of land, to call into question, any title good on the face of it.

Humphrey's J.

This case lies within a much narrower compass, than is supposed by the defendant's counsel in their argument. Here is a state grant, which states the receipt of ten pounds per hundred acres. In a court of law, we cannot proof to falsify this receipt ; and in a court of equity, the defendant could not be permitted to call the plaintiff’s grant in question, without some legal claim, or title. This is a different question from permitting an older entry, with a younger grant, to contend in a court of law. That position had been acted, under, and acquiesced in ; and he had no disposition to be dissatisfied with that practice. The evidence offered cannot be received.

Campbell J.

to the jury, observed, there appeared to be a difference of opinion with the court, as to the law. Agreeably to the principles of our government, it is the province of the jury to decide the law as well as the fact, and the jury will act accordingly in this case. The grant is not legal, there being no law to authorize the consolidation of warrants except one which applied to swamp lands in the lower part of North-Carolina. It was decided in the case of Lytle’s Lessee vs. Barfield, that a warrant could not be divided. The grant is not valid, and the jury are the proper judges whether it is so or not. If in obtaining a grant, an individual does not pursue the requisites of the law, it would be useless.

Overton J.

stated to the jury it was the province of the court to declare to the jury, what the law was, and in civil cases particularly, should receive it as delivered; in their application of it, to facts, of which, they were the exclusive judges. In this case it appears there was not any marked lines, nor corners at the time of the survey. Taking this view of the subject alone, the claim of the plaintiff would be invalid. But it will not be so if the potential existence of these lines and corners can be reduced to a certainty by something that is certain. In this case the plaintiff’s claim has reference mediately to the spot where the state line crosses Cumberland river, which is a certain and notorious place. That is, the tract of Stokely Donelson for 60,400, calls for that spot, Donelson’s 25,060 acre tract calls for the north east corner of his first tract, and the plaintiff’s claim for the north east corner of Donelson’s last tract, proceeding from west to east ; thus it would seem, that the north east corner of the plaintiff’s claim, is ascertainable. At the time this survey was made, it was lawful in running cut lands to make some allowance for the roughness of the ground ; the jury may now make the same reasonable allowance, as was then customary, and fix the boundary of the land accordingly. The jury ought however, to be clearly satisfied that the defendant would fall within the plaintiff's claim ; if not they ought to find for the defendant, and he should hold his possession.

Humphrey's J.

It is the province of the court declare the law, and of the jury to find the facts.—The court is to give its opinion of the law, and it was prudent in the jury to pay attention to that opinion ; but they might find contrary to the directions of the court ; and the only control the court has is to grant a new trial.

Mistrial. 
      
       By 4 Am. law Jour. p.1.
     
      
       In the case of Polk vs. Wendel and alias in the S. C. U. S. the court proceeded on the same principles, but say that there are two grounds, on which the validity of a grant may be examined, or inquired into, viz. want of property in the grantor, in the thing granted, and secondly want of authority in the officers of government, to execute the grant.
     