mission in the case of Otis v. Bacon; that a destination to Barnstable is satisfied by an arrival in Hyannis Bay. We have looked into the record in that case, and find that it will support no such inference. It is true that Mud-hole, the place at which the vessel had arrived in that case, is in Hyannis Bay. But the question of fact did not arise, for the collector had acquiesced in the termination of the voyage there, by actually granting a permit to land. And the grant of the permit was expressly made a ground, in the state court, of the instruction to the jury. Now, it is not indispensable to the termination of the voyage that the vessel should arrive at the terminus ad quem she was destined. It may as well be produced by stranding, by stress of weather, or by any other cause inducing her to enter another port, honestly, with a view to terminate her voyage. But if a vessel, not actually arriving at her port of destination, excites an honest suspicion in the mind of the collector, that her demand of a permit was merely colourable, we are of opinion that this can neither be held to be an actual, or admitted termination of the voyage, so as to preclude the right of detention, Had the destination in this case been generally to Barnstable, or the town of Barnstable, there may have been some colour of ground for arguing that her arrival at Hyannis was the termination of her voyage; but as the destination was expressly to Barnstable or Bass river, within the county of c7 Cranch, 589. 1817. Otis V. Walter. 1817. Otis V. Walter. Barnstable, her arrival at one or the other of those places was indispensable to the termination of her voyage, supposing her really, in fact, to have had no ulterior destination. But a destination may be colourable, and intended only to mask an ulterior and illegal destination; and hence, we are of opinion that, unless the fact be conceded by some such unequivocal act as was done by the collector in the case of Otis v. Bacon, it is a question which ought to be left in the instruction of the court open to the jury. And that if any positive instruction on the subject had been given to the jury in this cause, it ought to have been in favour of the defendant, as the arrival in Hyannis Bay would not have been deemed a legal termination of the voyage, either on a policy of insurance, a charterparty, bottomry bond, or any other maritime contract. A majority of the court are therefore of opinion, that the court of Massachusetts erred in this case. and that the judgment ought to be reversed. Mr. Justice STORY did not sit in this cause. Judgment reversed. 1817. M'Iver (LOCAL LAW.) M'IVER et al., Lessees, v. RAGAN et al. Where the plaintiffs in ejectment claimed under a grant from the state of North Carolina, comprehending the lands for which the suit was brought, and the defendants claimed under a junior patent, and a possession of seven years, which, by the statutes of that state and Tenessee, constitutes a bar to the action, if the possession be under colour of title: To repel this defence, the plaintiffs proved that no corner or course of the grant, under which they claimed, was marked, except the beginning corner; that the beginning and nearly the whole land, and all the corners, except one, were within the Cherokee Indian boundary, not having been ceded to the United States, until the year 1806, within seven years from which time the suit was brought; but the land in the defendant's possession, and for which the suit was brought, did not lie within the Indian boundary: It was held that, notwithstanding the laws of the United States prohibited all persons from surveying or marking any lands within the Indian territory, and the plaintiffs could not, therefore, survey the land granted to them, the defendants were entitled to hold the part possessed by them for the period of seven years under colour of title. V. Ragan. ERROR to the circuit court for the district of West Tenessee. The plaintiffs in error brought an ejectment in that court for 5,000 acres of land, in possession of the defendant, Ragan, and on the trial gave in evidence a grant from the State of North Carolina, of 40,000 acres, comprehending the lands for which the suit was instituted. The defendants claimed, under a junior patent to Mabane, and a possession of seven years held by Ragan, which, by the statutes of North Carolina and 1817. M'Iver V. Ragan. Tenessee, constitutes a bar to the action, if the pos. session be under colour of title. To repel this defence, the plaintiffs proved that no corner or course of the grant, under which they claimed, was marked, except the beginning corner. That the beginning, and nearly the whole land, and all the corners, except one, were within the Indian boundary, being part of the lands reserved by treaty for the Cherokee Indians. These lands were not ceded to the United States, until the year 1806, within seven years from which time this suit was instituted. But the land, in possession of the defendant, Ragan, and for which this ejectment was brought, did not lie within the Indian boundary. The laws of the United States prohibited all persons from surveying or marking any lands within the country reserved by treaty for the Indians. Upon this testimony, the counsel for the plaintiffs requested the court to instruct the jury, that "the act of limitations would not run against the plaintiffs for any part of the said tract, although such part should be out of the Indian boundary, until the Indian title was extinguished to that part of the tract which includes the beginning corner, and the lines running from it, so as to enable them to survey their land, and prove the defendant to be within their grant." But the judge instructed the jury that, "although the Indian boundary included the beginning corner, and part of the lines of the said tract, yet, if the defendants had actual possession of part of the said tract, not so included within the said Indian boundary, and retained possession thereof for seven years, without any suit being commenced, the plaintiff would thereby be barred from a recovery." To this opinion the plaintiffs, by their counsel, excepted. The jury found a verdict for the defendants, on which a judgment was rendered, and the cause was brought before this court by writ of error. Mr. Swann and Mr. Campbell, for the plaintiffs in error and in ejectment. 1. Statutes of limitations, all over the world, except certain cases of a peculiar nature from their operation; and the impediment in this case is analogous to the exceptions expressly provided. The case of civil war interrupting all the proceedings in courts of justice is not stronger than the present; the omission in the statute ought therefore to be supplied by judicial equity. 2. The act of the 30th of March, 1802, ch. 13. sec. 5., prohibits the surveying, or attempting to survey, or designating any of the boundaries, &c., of lands within the Indian territory, under severe penalties; and the party could not have obtained a passport from the officers authorized to grant it by the 3d section of the act, in order to survey lands, but merely to go into the Indian country for any lawful purpose. 3. The record does not regularly deduce the defendant's title. There is no presumption raised, that Ragan continued his possession under Mabane, and without it, that possession would not be under colour of title, according to the statutes of limitation of North Carolina and Tennessee, and the decision 1817. M'Iver V. Ragan. Feb. 6th |