
    The Commonwealth against Cochran.
    
      Philadelphia, Thursday, January 11th.
    The act of 19th February 1801, which authorizes tlie receiver general to give certificates of credit to cettam peisons, whose lands fell within York^to beNeW used in taking out new warrants, operates, so far as respects those warrants, as a repeahof all former laws requiring a settlement previous to the issuing of a warrant.
    IN this case, Hemphill moved for a rule upon the defendant, the secretary of the land-office, to shew cause why a mandamus should not be awarded, commanding him to prepare and deliver patents to Jonathan Smith, for various tracts of land for which warrants had been issued in favour of Peter Wikoff and fonathan Bayard Smith, under a law . , , / , , , , - passed the 19tn February 1801; and which warrants had ^een regu^ar^y transferred to the said Jonathan Smith.
    
    The motion was founded upon the following facts, part - , . . , , . , , , or which were exhibited m a statement prepared by the counsel on both sides, and part appeared by official documents.
    
      Jonathan Bayard Smith, Peter Wikoff and others, took up lands under warrants from the commonwealth of Pennsylvania in the year 1785. Upon ascertaining the north boundary line of the state, it was found that they fell within the state of New York; and upon the representation of this circumstance to the legislature, they passed a law on the 19th February 1801, in the following terms: “ That the “ board of property, upon application for that purpose by “ Jonathan Bayard Smith, and Peter Wikoff, and others also, “ whose lands fell within the state of New York on running “ the north boundary line between this state and the said “ state of New York, shall ascertain the amount of the pay- “ ment made by them for the lands as aforesaid, and shall “ certify the same to the receiver-general, who shall there- •“ upon deliver a certificate or certificates of such sum, with “ interest thereon from the time of the payment, to the said' “ Jonathan Bayard Smith and Peter Wikoff, and others as “ aforesaid, and enter a credit in his book for the same, “ which may be transferred to any person, and passed as “ credit, either in taking out new warrants in ant “ PART OP THE STATE WHERE LAND MAY BE POUND, Or in “ payment of arrears of former grants.” 4 St. Laws 673. Upon the first application by Smith and Wikoff to the board of property to carry this lav/ into effect, instead of making up the account and certifying to the receiver-general, the board directed the deputy surveyor to ascertain what parts of the tracts were situatedinNew Tork and Pennsylvania respectively, and to''make return; but in August 1804, without taking notice of any such return, they directed the account to be stated by the receiver-general, by which a balance of 4411. 4s. appeared to be due to Wikoff \ and 9731.13s. to Smith; and for these sums credits were entered on his books, and certificates issued, with which new warrants were taken out on the 6th of September 1804, and executed upon lands in M'-Kean county &c. within the hew purchase. The surveys were returned into the land-office, and accepted; but at the time the warrants were executed, and up to the present time, no settlement had been made nor grain raised, nor did any person reside, on the lands on which they were laid; and therefore the officers of the land-office refused to grant patents. It was admitted that David Meade and others, under a similar law passed the 9th of March 1796, had obtained warrants and patents for lands in precisely the same circumstances as those of Smith and Wikoff; and by consent the affidavit of J. B. Smith was read, stating that all the land, but about twenty . acres of one tract and fifty of another, had been found to be within the state of New Tork, and that he had released all his right &c. in the lands to the state of Pennsylvania.
    
    
      .Franklin
    
    (attorney general) said that he appeared at the instance of the board of property, who desired the opinion of the court, and would acquiesce in it; and although at some future time he might contend, that a case of this kind was pot proper for a mandamus, yet from a desire of the board to possess a judicial opinion upon the question, he did not at ' present oppose the rule upon that ground. One objection to the patents, is, that Smith and Wikoff were entitled to credit for only that part of the land which fell within the state of New Tork; and therefore the return of the deputy surveyor under the first order of the board, was a preliminary to any credit at all. But the main objection is, that by the act of 22d April 1794, 3 St. Laws 581, the land-office was prohibited from issuing warrants for lands within the new purchase, “ except in favour of persons claiming the same by “ virtue of some settlement and improvement being made “ thereon;” and by a supplement to that act, passed the 22d September 1794, 3 St. Laws 636, the office was prohibited from receiving applications for any lands within the commonwealth, except for such lands whereon a settlement had been, or should be thereafter made, gram raised, and a person or persons residing. As the warrants in this case were laid upon unsettled lands, they come precisely within the interdiction of those laws, and therefore they are not entitled to confirmation by patent. The law of 1801 was passed while the interdiction was in full force; and unless it operated as a repeal in a certain degree of the laws of 1794, there is no ground for the motion. It did not operate as a repeal for various reasons. It contains no terms which relieve the warrants issued under its authority, from restrictions imposed by other laws; and as it was passed at the solicitation of parties who must have known of these restrictions, an exemption from them if desired, would have been asked. If it operated as a repeal of any, it did of all restrictive laws; and then it would have been in the power of the parties to lay their warrants on land west of the Alleghany river, free from any condition of settlement, which would be in direct violation of the act of 3d April 1792, 3 St. Laws 209. It would also, if treated as a repeal, give the parties a bounty greatly beyond their merit, instead of an indemnity which alone was intended. Between the date of their first warrants, and those in question, the purchase money of lands had been reduced from 30/. to Si. the hundred acres; and this was itself a sufficient advantage, without coupling with it an exemption from all the conditions upon which other citizens must purchase. From these circumstances it must result, that the legislature intended only, that the holders of these credits, if they preferred taking warrants instead of paying arrears on former grants, should take them precisely on the same terms on which they were granted to other citizens, conformably to the existing laws of the commonwealth. The act is a private act in relation to a particular privilege, and is therefore to be interpreted literally. Threadneedle v. Lyman 
      
      . The proceedings in the case of David Meade are of no authority; they are held by the present board of property to have been in violation of law.
    
      Hemphill and Ingersoll
    
    for the rule, argued in answer to the first objection, that the board of property had no authority to direct a survey, the legislature having settled the fact that the lands fell within New Tork, and having assigned to the board nothing but the ministerial duty of calculating the amount of the payment for them. But if any thing was wanting to shew the state of the land, it was to be found in the affidavit of Mr. Smith. In answer to the principal objection, they contended that the practice under the law for the relief of David Meade and others, was of great weight, because it was known to the legislature when they passed a similar law in 1801; and if a change had been intended in the practice, there would have been a change in the law. On the language of the law, however, standing by itself, there can be no doubt. It contains no reference to prior laws, but is a direct authority to the individuals named, to take out warrants immediately for lands in any part of the state; and is therefore a repeal of all laws which prohibited warrants from being taken out, except after settlement and improvement made. It opens the land-office as to these parties, in the same manner as if the laws of 1794 had not passed. They are certainly to comply with all conditions imposed' upon purchasers in the district where the warrants are executed; that is? if the warrants had been laid west of the Alleghany, they must have been followed by settlement; but purchasers to the eastward of that river are under no such obligation. The' construction given by the bo-ird of property defeats the design of the law. The law authorizes warrants, which we agree to take upon the conditions on which warrants are always issued. The board say we must perform conditions before we get them. The law gives us interest to the date of the credit, but no longer, because we may use the credit at once to take out warrants. The board would compel us to sacrifice the use of the credit, for as many years as would be necessary to make a settlement and improvement, or to transfer it at a reduced price to persons who had already made them. The legislature have in fact confirmed our construction by an act passed the 1st April 1805, 7 St. Laws 210, which directs the payment of certificates under the act of 1801, out of the public treasury, and then for the future prescribes the condition of settlement and cultivation, which it did not while the certificates were not equal to cash. This law is a clear authority for the former practice of the board of property.
    
      
       2 Mod. 57.
      
    
   Tjxghman C. j.

after stating the case, delivered the court’s opinion as follows.

The objection to the patents is founded on the act “ to “ prevent the receiving any more applications, or issuing any “ more warrants, except in certain cases, for land within the “ commonwealth,” passed 22d April 1794, and a supplement thereto, passed 22d September 1794. These acts forbade the issuing of warrants or receiving applications for lands on which no settlement and improvement had been made; and it is contended, that as the warrants in question were laid on unsettled lands, their execution was illegal, and ought not to be confirmed by patents. It appears to us that this objection is not well founded. Upon a fair construction of the act of 19th February 1801, the persons in whose favour that law was made, had a right to take out warrants for their own use for vacant lands in any part of the state; and they were to pay the price, and comply with all the conditions imposed on the purchasers of land in that part of the state, where the lands lay. If they lay west of the Alleghany river, they would, have to comply with the terms of settlement and’improvement required by law to complete a title in that quarter; b if east of that river, nothing but the usual price in money was required. To give the act of 19th February 1801,- any Other construction, would be to deprive the persons intend-e.cí to be compensated, of a very material benefit, I mean the benefit of taking out warrants for themselves. They would have been obliged to sell their warrants to settlers, which would have very much reduced their value, or to speak more properly, they might have transferred to settlers their credit on the books of the receiver-general; but would have had no right to take out warrants themselves, unless they either purchased the right of settlers, or seated themselves on the lands intended to be taken up. This never could have been the intent of an act, by which it was designed to make a liberal compensation to persons who had paid money to the state through a mistake of its own officers. The compensation was liberal, because it included interest to the time of issuing the certificates. No interest was allowed on those certificates, because it was supposed that the holders might immediately use them as cash, by taking out new warrants. The opinion of this court is that the act of 19th February 1801, operated as a repeal of all former acts', requiring a settlement previous to the issuing of a warrant, so far as concerned warrants to be issued in favour of those persons who obtained credit in the books of the receiver-general in the manner above mentioned. They therefore allow the motion.

Rule granted.  