*276At the October term, in the year 1794, the following decree was pronounced:
By the Court.On considering this cause, three questions arise :
Firstly. Whether the services as stated in the complainant’s certificate entitled him, under the law, to a settlement and preemption; if not:
Secondly. Whether, as it appears on the face of the certificate itself, that it was granted illegally, this court has not a right to declare the certificate void in case of a contest with any other person holding a legal certificate.
Thirdly. If this court would not have a right to do so in the general, would it not be their duty to do so in this case, where the person claiming under the illegal certificate is complainant, and is demanding from the defendant, who has a legal right, land to which the complainant, from his own showing, has no claim built on any legal foundation.
As to the first question, the court, after examining the law, finds that there are two descriptions of persons only to whom the legislature has given the right of settlement and pre-emption. The first are the actual settlers, who at any time before the first day of January, 1778, had really and bona fide settled themselves or their families, or at his, her, or their charge had settled others, upon any waste or unappropriated lands on the western waters, to which no other person had any legal right or claim; to each and every family so settled the legislature has given 400 acres of land, to include the settlement.
The second are the villagers, who, for their greater safety, had settled themselves in villages and townships, under some agreement between them of laying off the same into town lots, to be divided among them, and had from necessity cultivated a piece of ground adjoining thereto in common.
To every such family the legislature, in consideration of their settlement, allowed the like quantity of land as was allowed to the actual settlers, adjacent or convenient to their respective village or town, and to which no other person had any right of preemption. The law then goes on to give the pre-emption of 1,000 acres to each kind of settler on the same terms and conditions, and to prevent dpubts concerning settlements the law declares that no family shall be entitled to the allowance granted to settlers unless they have made a crop of corn in the country, or resided in it at least one year since the time of their settlement.
*277Now, as there are only two descriptions of persons to whom the legislature has given the right of settlement and pre-emption, to-wit: the actual settler and villager, the explanatory clause evidently refers to those two only, by expressions peculiarly adapted to their respective situations, making the raising a crop of corn in the country by the villager, who bad been engaged in the cultiva-. tion of a piece of ground in common with his brother villagers the criterion of his merit, and one year’s residence, at -least, of the actual settler, from the time of his settlement, as the criterion of his. That residence alone can give no right, is plain from .this consideration: that the claim of a settler in -consideration of settlement must include his settlement, and the claim of a villager can only.be for raising a crop of corn in the country; one or the other of which -being indispensably necessary under -the law to entitle a person to a settlement and pre-emption, excludes altogether the idea of .a person’s being entitled for improving, residence, or any other services but those expressly mentioned in the law.
Therefore, the court is of opinion that the service, as stated in the commissioners’ certificate, can -not, -under the law, .entitle the complainant to a settlement and pre-emption.
Secondly. "Whether, as it .appears bn the face -of the certificate itself, -that it was granted illegally, -this co.ur-t has not a right to .declare the -certificate void in case of a contest with any person holding a legal certificate.
It appears from the law-and the nature of the case that the .court of commissioners was a court of special and limited jurisdiction ; if so, then it is a principle in law that whenever a court .of special and limited jurisdiction exceeds its powers, -and appears to have done so on the face of their proceedings, that a judgment given by them in such a case may be set aside at ,any-subsequent time.
Therefore, a certificate which, on the face of it, .appears to have been given for servioos which the law did not authorize a certificate to be granted for, must be void ; because the -commissioners, by their own showing, hav.e exceeded their jurisdiction, and as far as they have done so their judgment'can never-be opposed to a legal-right, as then the commissioners had -no jurisdiction to grant a certificate but in the cases specified in the law; and as in the present-case it appears on the face of the certificate that the commissioners have exceeded their jurisdiction in granting a certificate of a right of settlement and pre-emption for services not enumerated -in the ,law.
*278The court is of opinion that it has a right to declare such illegal certificate void in case of a contest with any person holding a legal certificate. ' But,
Thirdly. Admitting that this court had not a right in the general to declare such illegal certificate void when contending with a legal one, has it not a right, and is it not their duty to do so in this case, where the person claiming under the illegal certificate is complainant, and is demanding, from a man having a legal right, the land to which, from his own showing, he has no claim built on any legal foundation.
The court, upon examining the authorities cited upon this head, find that chancery frequently makes a great distinción in her determinations, according to the situation of the person to be affected by her decisions, and an objection is often held to be sufficient to prevent a plaintiff from getting a decree, which would not be sufficient to found a decree upon against a defendant. In consequence of this principle in equity, it has frequently been determined that, notwithstanding the judgment of a court having competent jurisdiction was so far out of the reach of a court of chancery as to j>re-vent her from interfering to set aside that judgment upon a suit brought for that purpose; yet, if application was made to enforce that judgment, chancery would not aid it by its decree without examining into the foundation and equity of the judgment, and if, upon examination, it was found to have been obtained either illegally or unjustly, would altogether refuse her assistance to enforce such judgment.
If, then, these certificates, when illegally granted, could not be set aside by a suit in chancery brought for that purpose, yet, upon a suit brought to enforce one of them obtained contrary to law, and to the prejudice of a man having a real claim under the law, chancery will refuse to enforce and give her sanction to a certificate both illegally and unjustly obtained. Inasmuch, therefore, as the complainant’s certificate was illegally obtained from the commissioners, as appears upon the face of it, and the court should not in the general have a right to declare such illegal certificate to be void when contending with a legal one, yet, in the present case, where the person claiming under the illegal one is complainant, and is demanding from the defendant, who has a legal right, land to which, from the complainant’s own showing, he has no claim built on any legal foundation. This court, agreeably to the principles above stated, conceive it to be their duty not only to re*279fuse their aid to the complainant, but to pronounce his certificate void, so far, at least, as respects the present contest.
It is, therefore, considered by the court that the complainant’s bill be dismissed, and that the complainant pay to the defendants their costs in this behalf expended, etc.