ficates, and discharging the arrears due to the army." The words of which are as follows," Whereas it is the intent and meaning of the said act, and of the act hereby revived and put in force, that the first enterer of the vacant and unappropriated lands, if specially located, therein described, shall have preference to all others, in surveying and obtaining grants for the same, when such entries have been made. And, whereas, divers persons have repaired to the parts lying out of the inhabited parts of this state, and have caused the same to be surveyed in virtue of entries made subsequent to the entrics for the same lands, and plats of such surveys to be returned to the secretaries office, have, or are about to obtain grants for the same to the prejudice of the first entries. For remedy whereof, Sec. 1. that every first enterer of any tract of land specially located, lying in the western parts of this state, out of the inhabited parts thereof, shall be allowed the term of two years to have the same surveyed; and that all grants and surveys of land lying in the parts aforesaid, heretofore or hereafter to be made or obtained within the said two years by any person upon land previously or first entered by any other person, shall be, and the same are hereby declared, to be void and utterly of no effect." It will be recollected that the operative words used void and of no effect are the same as in the 9th section of the act of 1777; their effect must be the same, as there was then no Court of Equity. The effect of a Grant, must of necessity, havo been tried in Ejectment, and so it must be now, for the Legislature have discovered no other disposition. The time for surveying has been prolonged from the passage of that Act, to the present moment, and therefore, no objection can arise upon that ground.

The Act of 1787, c. 23, Ird. 625, is a general law, intended by its caption to operate in the Eastern part of the State of North Carolina; but its provision has no legal limits. It is entitled An Act to amend the several Acts of Assembly heretofore passed for giving further time to surveyors within the different counties to make their surveys and return plats thereof to the Secretary's office," &c. "Whereas, by misconstruction of the several laws respecting entering and surveying lands in this State, impositions No. XIV.

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have been attempted on the original entérer of the said lands, for remedy whereof, Scc. 1, provides the same remedy with the Act of 1786, except limitation of time in making surveys, and declares Grants obtained upon younger entries void and of no effect; with the following proviso, "that nothing herein contained shall be sonstrued to prevent any person making a subsequent entry on any land, from surveying and obtaining a Grant as the Law directs for all such surplus land as shall remain after the enterer or enterers of such land, hath surveyed his, her, or their entry or entries as aforesaid."

I will now proceed to examine the objections to this mode of trial, the consequences of changing the practice, and lastly, the British authorities.

It has been objected that this method of trial in Ejectment, is incompetent to afford relief; that different Juries will hold different opinions respecting the law arising in each case, so that dècisions will be uncertain and fluctuating. This objection, if it has any weight, proves too much; it is one of which every case is susceptible. No Jury cause can exist without points of Law, as well as fact. In cases of fraud, a Jury can enquire incidentally of all matters. In the view of the Legislature, as expressed in the Acts of 1786-7, the obtaining of an elder Grant to the prejudice of an elder entry, is bottomed on fraud. In Equity, there must be a trial of an issue of fact; so that the consequences of the trial will be the same, as at Law: The Court have only the power to state their opinion of the Law in either Court.

The weight of this question is certainly great, as it respects the practice. For twelve years past, we find the practice as it now stands. Many cases are now depending in this Court, and if the principle of turning a suitor round to the Court of Equity should obtain, great injustice might be done. They have applied to this Court, under an established practice for justice; and now to turn them out of Court with great and accumulated costs on their shoulders, would be contrary to every idea of law and right. It would be too much for the court to say now, that the practice

* Only ten years.

as existing, was wrong in its commencement. If wrong, nothing less than legislative authority can change it; communis error facit jus.

Mr. Haywood then read 2 Rep. 50, 54. 10 Rep. 109. 2 T. Rep. 515. 1 T. Rep. 602; from a full view of which, it appeared that the validity of the Grants of the King, could be enquired into incidentally in Ejectment.

The case put by Mr. Dickerson, is where two Entries are made, and a Grant obtained by the person holding the younger entry; the elder enterer then removes his claim. If, says he, the doctrine we advocate, be correct, the Grant obtained is void, because it was obtained by the prejudice of an older enterer, and though the elder entry is removed, the Grant having been obtained in fraud was void, and nothing can restore its validity.

The elder enterer having removed his claim, cannot claim the land from which it was removed, nor can the younger enterer claim upon his Grant, as being void; the land would be vacant, and the younger enterer remediless, as he could not remove by the Laws of North Carolina, after obtaining a grant.

To this reasoning I oppose the authorities of the Acts of North Carolina, April 1784, c. 14. sec. 7. October 1784, c. 19. sec. 6. 1786, c. 20, s. 7. Ird. 483, 540, and 590. Removals are only authorised where lands have been previously entered.

It is certainly more convenient to try the validity of grants, at Law, than in Equity:-the first is more expeditious and less expensive.

Before dismissing this subject, it is worthy of remark, that the Laws of this State, since it acquired the power of perfecting titles from North Carolina, have carefully preserved the preference of older entries against an elder grant upon a younger entry. Act of 1807, sec. 4, 34, 37 and 38. Upon the principal ground, then, the Laws of North Carolina and Tennessee are consistent, and give validity to the younger grant upon an older entry; declaring the elder grant vid and of no effect, which by the course of practice in England, must be enquired of in this court; and not in Equity, where no power exists to proceed as in the petty bag-our court proceeding by bill only.

Stuart for defendant, enforced the arguments used by Mr. Grundy, and to show that the practice in North Carolina under these statutes, was as contended for, he cited in addition to those before offered 1 Hey. 358. 9. 107. Conformably to the principles of pleading, the grounds upon which it is intended, to avoid a deed or grant ought to be shewn in pleading, and not given in evidence, 5 Co. 119 Whildales case. 7 Ba. Ab. Tit. Void and Voidable.

Whiteside for plaintiff, expatiated at large upon the grounds taken by Mr. Haywood. The practice we now contend for has existed since the year 1796. The question is, whether the jury shall have spread before them, the whole legal title, or not-The cases that had been read by his colleague shewed clearly that the vali. dity of grants might be enquired of in ejectment. As to the poli cy of the present practice, there is no doubt, that it is attended with far less trouble, 'expense and delay, than in equity. Besides, the same rule in property, must prevail in equity, though the remedy is different.

The Court of Chancery in England, proceeding by bill, have no power to repeal grants: as between individuals, they can in that court, compel a person holding the legal title, to convey to the person holding an equitable claim to the same property. But should a grantee, apply to a court of equity here, for a conveyance of a better title, an issue must be made up, and tried by a jury; therefore the effect would be the same-it has been urged, that there is no certainty in the decision of juries; so far as my information extends, juries are as often right as courts-A court of equity, as it is termed in our law, or chancery in England, can do nothing more than a court of law. In some of the states where there is no court of equity they manage business of this kind, as well as if there was such a court.* If a person goes to a court of equity here, he cannot get out again under three years.

The legislature of North Carolina, contemplated an entry, as giving a legal, and'not an equitable right, otherwise the 9th section of the act of 1777 would be nugatory, for there was not, at that time, any court of equity.

Vide 4 Dall. 448.

The reason of the law, in requiring two plats to be returned to the secretary's office, was, that one plat might be filed for the purpose of enabling the secretary to avoid issuing a second grant, for the same piece of land. The act of 1777 Sec. 3, authorised the entering of vacant land. That act, as well as thosé passed subse. quent, had no other idea, but that the first enterer would obtain an indefeasable right. Caveats were provided for cases of occupancy. By the act of 1783 S. 19, surveyors are directed to recite the date of the entry, and warrant. This certainly was requir ed in order that it might appear from the grant, who had the oldest entry, of different clainants, and consequently the best title, for the legislature certainly designed that an entry should give a legal right, by providing in so careful a manner against injuries arising from obtaining grants upon younger entries. The judges will now admit an entry to be given in evidence in North Carolina, though it was not the case formerly, which is evincive of the correctness of our practice. Haywood J. in 1 Hey. 497 referring to this point, says "were this res integra, I should be of opinion, that such evidence as is now offered ought to be received," and the case in 2 Hey. 98 establishes the principle, that the courts in N. Carolina do receive such evidence.

Where a statute declares an act or deed void, it can be shown in a court of law. The cases referred to, by my colleague de

monstrate this position.

An entry is matter of record, of which all persons are bound to take notice; and can come into view in ejectment, without pleading, as well as the grant. It is true, as stated by the court in the case of Crocket's Lessee vs. White, that an entry without a grant, cannot be received in evidence, being an inchoate legal right, it may be removed. But an entry is subject by our law, to taxes, to execution, may descend, and may be alienated. Having so many legal attributes, it cannot be otherwise, than considered as a legal, and not an equitable right, to all intents and purposes. An enterer cannot be viewed in the light of a cestuy que trust; therefore the cases in Term Reports do not apply. In that case there is a confidence between cestuy que trust, and the trustec; here there is none.