one”of the judges dissenting, delivered the following opinion:
As I can not accord with the court in its decision in this cause, the constitution imposes on me the painful task of delivering my opinion separately, to bo entered on record.
On the first question stated by the court, I am of opinion that it does not appear from the face of the complainant’s certificate that it was illegally granted, but that, on account of the residence therein specified, he was entitled by law to a settlement and preemption of any unappropriated land he chose to locate with the commissioners.
That the reasons on which I found this opinion may be better understood, I shall concisely recite what I conceive to bo the substance of the law relative to this point.
The act of assembly, which ascertains who shall be entitled to claim settlement and pre-emption rights on the western waters: First. Allows to every person who, prior to the year 1778, had settled on any unappropriated land, a settlement right of 400 acres, to include the place on which he had thus settled. Secondly. This act also allows to each of those who, for greater safety, had settled together in that country in villages or townships, prior to the said year, a settlement right of the like quantity of any unappropriated land which they should choose to which no other person had, previously to such a choice being made, become entitled under this act.
The first of these classes are commonly styled actual settlers, and the second class villagers. To both these classes, under the general epithet of settlers, the act further goes on to allow pre-emptions of 1,000 acres, adjoining to their respective settlements. And then, as the act expresses it, “to prevent doubts concerning settlements,” or, in other words, to specify who were the real and bona fide settlers intended, it declares that no family shall be entitled to the allowance therein granted to settlers unless they had made a crop of corn in the western country, and resided there at least one year since the time of settlement. On the construction of this declaration the difference in opinion arises. The court considers *280the first clause of this declaration as evidently and necessarily referring to the second class of settlers only, who, as the act expresses it, “have for their greater safety settled themselves in villages or townships, under some agreement to divide -the same into town lots, and have, from present necessity, cultivated a -piece of ground adjoining thereto in common.” But it seems to me that the expressions “ town lots, and cultivated a piece of ground in common,” do not concern the present question, but were used for the collateral purpose of introducing that part of the enacting clause which immediately follows, which secures to the inhabitants of such villages or townships the occupancy thereof until the necessity which drove them thither should cease.
The incidental case being thus provided for, the enacting clause further goes on to grant a settlement right to such settler in a village or township, in consideration of their settlement, and not in consideration of their cultivating a piece of ground or raising a crop of corn.
I also remark that the word settlers is repeatedly and uniformly used throughout this act, to designate those to whom settlement rights were granted, or to be granted, and more especially that the preamble to the part of the act which relates to settlements specifies, in express terms, that they were to be granted, as a compensation for the risk and expense incurred, by those who had settled in the western country, and from the reason of the case, it -seems to me very absurd to suppose that the legislature contemplated a compensation to -tillers of the ground more than to those who followed other occupations equally beneficial to their fellow settlers.
I further -remark that cultivating a piece of ground and raising a crop of corn are not synonymous expressions, and it seems to me that giving the explanatory clause an allusion to what is not even previously expressed in the act, is making it increase the doubts it was intended to prevent. But it also seems to me to be essential to the design of a declaratory or explanatory law, or clause of a law, that it should be taken literally, and in the full extent of the expressions it contains, and never to mean more or less than is therein expressed. Therefore, I am of opinion, that both the alternative clauses of the declaration now-under consideration, do -equally refer to both classes of settlers, and that nothing can justify the restricting of one clause to a villager and the other -to the actual settlors, but-express, and unequivocal words inserted *281in this declaration. I am confirmed in this ¡opinion by the consideration that this act, so far as it relates to this question, evidently partakes of the nature of a grant, and, therefore, that every clause respecting the grant, which will admit two constructions, ought to be taken in that sense, which is most against the interest of the commonwealth, the grantor, and most for -the interest of the claimants who are the grantee^; and so this declaratory clause was taken by the court of commissioners, as is evident from a great number of cases on its records; and I might further observe that, as the court of commissioners have thus indiscriminately applied both clauses of this declaration to both classes of settlers, it seems to me that a regard to the beneficial .influence-of uniformity in decision, forbids this court now to adopt a contrary construction, when the express and unequivocal words of the declaration does not render it indispensable.
On the second question I agree with the court in .opinion that, if it appears on the tace of the complainant’s certificate, it was granted contrary to law, this court ought to declare it void, if it also appears that the defendant had, .in any manner, a prior claim thereto under the law.
The law and the reason of the case would then make it necessary for the court to declare the certificate void, or what is the same in effect, -to give -preference to the-eldest .legal claim. .
But it does not seem to me that either law, justice or public utility require that the defendant, McConnell, who had not specifically appropriated the land, when it was granted by .the court of commissioners to the .complainant, should be allowed to, contest the validity of the grant, either by virtue of a general vested right, which he then had to locate vacant land, or by virtue of any location or survey which he -has since made on the land. Certain I am he could not, under such ,a general right, have, with propriety, -been admitted to contest the -complainant’s grant before the court of commissioners, as the defendant could mot -then have shown any special injury he would have suffered thereby, -much less should he be permitted to contest it .after it has received confirmation from the commonwealth by whose agents it was granted. I am of opinion that it can be of no consequence to determine whether the court of -commissioners made this grant in .a -ministerial or judicial capacity, or whether the court acted under a limited or general jurisdiction. ■ It might, however, be observed, •that that court,-in ,deciding on .settlement.and pre-emption rights, *282were to be governed by such rules and px-inciples of law and equity as wore applicable, and ought to have been observed had that business been brought before the ordinary courts of law and equity (without any exceptions, only those which related to the summary mode in which that court was required to proceed), which was a power as unlimited as could have been given to any court by a free government, and gives the decisions and adjudications of the commissioners on settlement and pre-emption rights, all the validity and solemnity which the decisions of a court of the most general original jurisdiction only could possibly have, Therefore, it seems to me that, on general principles only, such proceedings of the court of commissioners can, with propriety, be revised or corrected.
But in this cause, at least, it seems to me to be sufficient, that it appears on the records of the court of commissioners, not yet falsified or annulled, that a grant was made to them by the complainant, and of consequence that the land described in the grant was thereby appropriated.
Locators of every description are equally confined by law to lands unappropriated, by others at the time of making their locations. And it seems to me that this is the condition to which they are subjected by justice and public utility, as well as by law. For otherwise, the commonwealth, by the ignorance of its agents would, without rendering an equivalent, derive large sums of money from her citizens who had been guilty of no crime, to subject them to such forfeitures, and it can not be that public utility will be promoted by a doctrine contrary to the general apprehension of claimants to land in this country, and which is not authorized by the existing decisions of any of its courts, and what is of higher consideration, which will authorize numberless contests fox-land not heretofore thought of.
On the third question, I so far agree in opinion with the court, that he who comes into a court of justice must make it appear he has done what is equitable before he can receive equity. Bxxt I differ very materially from the court in the application of this principle.
It is also a px-inciple of law, equally well established, that fraud shall not be imputed until it is proven to have been practiced. In this case no fraud is charged or proven against the complainant in obtaining his cex-tificate. If then, it were so, that he was not entitled by law to. a settlement right, it will only follow that his . *283claim was made and granted under an innocent mistake of the law, or the fault ought solely be imputed to the commonwealth and her agents, the commissioners, to whose decision, as it evidently appears from the face of the certificate, the complainant fairly submitted the merits of his claim, when he obtained from them this grant, and the complainant having proceeded thereon to do, and the commonwealth to receive what the law required to confirm it: I am of opinion that the complainant has complied with all the equity arising, or the case could demand, and that he ought to hold this land under the grant which he has thus confirmed against the commonwealth, and of consequence against the defendants and every other individual of the commonwealth who has not, under the law, previously acquired a special claim thereto.
Hughes for complainant.- -By the decree complained of, the court have directed the complainant’s bill to be dismissed, and in assigning their reasons they have-given an opinion on three points:On the whole, inasmuch as it appears to me that the certificate of the complainant is the oldest, that it has been legally obtained, and the proceedings thereon, so far as concerns his settlement, have also been legal, I am of opinion that the decree of the court should have been in his favor. Caleb 'Wallace.
After pronouncing the said decree, two of the attorneys having given the following certificate, that there was error in the same, agreeably to the rule of court, to-wit:
“ We do certify, that we believe there is error in the decree of the court in this cause, because the court have given their opinion that the services enumerated in the complainant’s certificate did not entitle him to a settlement and pre-emption, and that they have a right to declare it to be void. And we are of this opinion because we think:
“First. That the services stated in the certificate did bylaw entitle the complainant to his settlement and pre-emption.
“ Secondly. That the certificate of the commissioners ought to be considered as final and conclusive.
“ Thirdly. That the points on which the court have determined the cause are not put in issue by the bill and answer.
“The court directed the cause to be reheard on the errors assigned, at the May term ensuing, at which time the argument came on.11 First. That the services, as stated in the complainant’s-certificate, did not entitle him, -under the law, to a settlement and preemption. “ Second'. That as it appears On the face of .the certificate itself, that it was .granted illegally, the court have a right to declare it void. “ Third. That if they have not such,a right in the general, they have 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.” In the certificate upon which this rehearing was granted, we certify that we believe there is error in the decree. First. Because we think that the services stated in the certificate did, by law, entitle the complainant to his settlement and preemption. Second. That the certificate of the commissioners ought to be considered as final and conclusive. Third. T-hat the points on which the court have determined the cause are not put in issue by the bill and answer. The legislature of Virginia, by their act of .1779 -Chan. (Rev. page 92), have .allowed to every person who, prior to'the first day .of January, in the year 1778, had settled on any -waste or unappropriated land, 400 acres to include his settlement. And .to every person who, before that time, had settled in a township or village, 400 acres adjacent to such township or village, etc. And to each the pre-emption of 1,000 .acres to adjoin their settlements. And to prevent doubts-they have declared that no family-should be entitled to the allowance granted to settlers by the -said act, .unless they had made.a crop -of corn, or resided there at least one year from the time of their settlement. Upon the construction of this clause the question must .depend. I shall first endeavor to explain the meaning of this clause from the words themselves, and the order in which they are arranged. Second. From the circumstances and reason .of the case inquire what was the intention of the legislature; and, Third. Expound it by legal rules of construction. First. By the two antecedent clauses provision is made.for the two .classes of .settlers. To tbe first, 400 acres is given to. include their settlement. To the second, 400. acres in consideration of their settlement adjacent or convenient to their village or township, and by the clause which has caused the difference of opinion, and which relates to the two antecedent clauses before mentioned, families arc declared not to be entitled to the allowance granted to settlers, without distinction between the different classes of settlers, until, besides their settlements, they have done one of two things, that is, made a crop:of corn in thetcountry, or-resided there one year from the time of their settlement. According to the rules of syntax, and what is moref to the purpose, according to common acceptation, the two parts of the explanatory clause evidently relate equally to the two classes of settlers; and, if they did not, from the manner in which the words are arranged, the raising corn would be necessary to complete the title of the actual settler, the residence of a year to complete that of the villager. That the cotemporaneous construction applies to both, I shall hereafter show ; that such construction is now entertained, I am justified in saying from the opinion of one of your honors in this cause. The court say this explanatory clause refers to the two classes of settlers, by expressions peculiarly adapted to their respective situations, making the raising a crop of corn in the country by the villager, who had been engaged in the cultivation 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 the criterion of his. This opinion not only declares the raising a crop of corn to be the necessary criterion of the villager’s merit, but that twelve months’ residence is also necessary to perfect the claim of the actual settler. This idea I find is taken up from these words: “ And, whereas, several families, for their greater safety,” etc., “ under same agreement, etc., and have, from present necessity, cultivated a piece of ground adjoining thereto in common.” But these words are, in my opinion, a strong argument in favor of a contrary construction. The intent of the legislature evidently expressed, was not only that the settlers should have an allowance for the charge and risk they had incurred, but that the property so acquired should be secured to them. To the actual settler they give 400 acres, to include his settlement. But to the villager, compelled for greater safety, etc., they give 400 acres adjacent, in consideration of settlement, with the addition of reserving 640 acres, in common, as their present settlement. So far there is only this difference between the settlers: The first became entitled to his own settlement, the other to remain in his village, and to locate an equal quantity, to which no other person had, by that act, the right of pre-emption. In order to support this construction the words “raising a crop ” must be clearly more applicable to a villager than an actual settler. This is not the case, the words “ cultivated a piece of ground in common,” are introduced in the preamble to show the necessity of reserving 640 acres of land, and dó not prove that a villager was more likely to make corn in the country than an actual settler. On the contrary the reverse of the’proposition is true. Among men, associated together in' villages or towns, a division of labor takes place by which all can be supported with the greatest convenience to all. By this division of labor, it must have happened in the station, that the common crop of corn was raised by some of the settlers, while others hunted, and others were' employed as mechanics; but the actual settler must have raised his own crop of corn. Besides, the words will not, taken strictly, apply to the case of the settler who assisted to make the common crop, for it requires that each settler shall have made a crop of corn in the country, and not in the common field adjacent to the village. I have been told, and do believe, that the clause of residence was introduced to save the claims of some of the first adventurers, who had never made corn, and that a year’s residence was thought a sufficient evidence of a permanency of settlement, which was all the legislature had in contemplation to provide for. Again, the court say, 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. But, if it is doubtful, the intention of the legislature is to be sought for, and this brings me to the second point. Second. The intention of the legislature, from the circumstances and reason of the case: The intention, say the authorities, is to be discovered from a consideration of the old law. The mischief and the remedy. , ' And the law is to be so construed as to suppress the mischief, and advance the remedy. 1 Black. Com. 87. In this case the settlers had settled themselves upon the western waters without legal authority. The mischief: Their not having been able to acquire titles, or rather having no allowance for the charge and risk they had been at, and that the property so acquired had not been secured to them. The remedy: Securing to such settlers the property so acquired. It is the duty of the court so to construe this clause as to extend the benefit of the law to every description of settler, and that was evidently the intention of the legislature. Third. I contend that, according to legal rules of construction, the two parts of the explanatory clause apply equally to the two descriptions of settlors. An explanatory clause of a law is certainly to have the same effect as a law explanatory of a former law. Statutes of explanation shall be construed only according to the words, and not with any equity of intendment (19 Yin. Abr. tit. Stat. p. 517; Ca. 62; 1 IDurnf. 728, 778), and can not be extended beyond the words. The express words of the law are, that no family shall be entitled to the allowance granted to settlers by this act, unless they have made a crop of corn, or resided, etc. And it is only by intendment that these words can be said to refer to the two classes by expressions peculiarly adapted to their respective situations. If a particular thing be given or limited by the preceding parts of a statute, it shall not be altered-by any subsequent general words. 4 Bac. 645; Ca. 17. If the meaning of a statute be doubtful, the consequences are to be considered. 4 Bac. 652; Ca. 94; 19 Yin. Abr. tit. Stat. p. 520; Ca. 93. Cotemporaneous exposition shall be taken. 4 Bac. 648; Ca. 40 ; G-ilb. Rep. 246. I consider the decisions of the commissioners as the contemporaneous exposition. That the commissioners granted certificates for actual settlements, for settling or improving the land, and either making corn, or residing one year, and certificates for village rights for settling and residing a year, or settling and making corn, for residence only, or making corn only. I refer the court to the commissioners’ book to prove. But if it was doubtful whether the services enumei’ated in Kenton’s certificate did by law entitle him to a settlement and preemption; it is a question which can not now be inquired into, because it has been judicially determined by a court, from whose decisions there is now no appeal, and' over which this court neither has or ever had a controlling power. The commissioners in determining on the right of a party to a certificate, acted judicially. The difference between a judicial' and ministerial act is this; a judicial act is- performed by a person having power to hear and determine. A ministerial act, by a person acting in obedience to the commands of another. 2 Durnf. 396. The common definition is, that every act is judicial, where the party doing it exercises his judgment upon it. But Lord Mansfield-, 3 Burr, 1262, says it is too large, and that a judicial act is supposed to be done' pendente lite, of some kind or other. Lord Mansfield does-not confine the definition to the judgment of a court, in which there is in the literal sense, an actor and reus, but to the lis pendens of some kind or other. Indeed, here is the actor, reus, and judex. The law gave right to the party, and appointed the commissioners to give judgment on it. A sheriff acts judicially in determining the election of knights of the shire, coroners and venderors or' determining the qualifications of the voters. 1 Black. Com. 343. So a coroner concerning treasure trove. 1 Black. Com. 349: These authorities show what was meant by pendente lite, of some kind or other. These offices are partly ministerial, and partly judicial, such is the office of a sheriff in one case, on a writ of admeasurement of pasture, a writ of redisseissin, of inquiry of waste and a nativo habendo (4 Bacon, 445)-, in which cases it is said the writ is a commission to the sheriff, and he becomes a judge by virtue thereof in the cause. 4 Bac. 449. A constable sometimes acts judicially. 2 Durnf. 406. If the commissioners acted ministerially at all, it was in issuing the certificate, after having by an adjudication determined the right against the commonwealth, and in that case it is the ministerial act of their clerk, and unless the issuing judicial process from all courts is a ministerial act of the court, the issuing of certificates was not so in the commissioners. The certificate is only the copy of the adjudication of the commissioners, necessary to the party, and directed to be given to him by the law, and it is the legal effect of that adjudication which is in question. The commissioners shall deliver to every person to whom they shall adjudge lands for settlement a certificate, etc. Chan. Rev. 93. From the law it is evident judicial authority was given to the commissioners. The first object was to ascertain and determine the right against the commonwealth, that the land left unappropriated might be sold. A secondary object was to secure the different claimants from the expense and inconvenience of future litigation. “The said commissioners shall have power to hear and determine all titles, etc., to. which no other person hath a legal title.” Chan. Rev. 93. A power to hear and determine must vest judicial authority. “If they shall fail to meet after adjournment, no matter before them shall be discontinued.” Chan. Rev. 93. And in the succeeding lines they are constituted a court of record, they are directed to appoint a clerk, the sheriff was directed to attend them, and they were invested with power to punish con-tempts. “ The said commissioners shall deliver to every person to whom they shall adjudge lands for settlement a certificate,” etc. Chan. Rev. 93. There was no mode, except by an application in one instance to the genei-al court, by which the decisions of the commissioners could be revised. And no court h'as now jurisdiction to revise them. It would not be considered in England, as within the general superintending controlling power of the court of king’s bench, because the proceedings were not according to the course of the common law. Cowp. 524-5. I am authorized to say that the commissioners had a peculiar jurisdiction to hear and determine the rights of claimants against the commonwealth for settlement, etc. It is a settled principle that where any matter belongs to the jurisdiction of one court so peculiarly, that other courts can only take cognizance of the same subject indirectly and incidentally, the latter are bound by the decision of the former, and must give credit to it. Bull. N. P. 244, 247; 2 P. Wms. 287; Dough 560; Cowp. 315, 322; 2 Burr, 1009; 4 Co. 29 a; 2 Wils. 118, 127; 7 Co. 41 b; Carth. 225; Hard. Ca. 11, 12, 18; Stra. 960, 691; 2 Black. 977, 1176; 1 Yes. 333. Such is the present case, no court either of law or equity could either grant a certificate, or reverse the decisions of the commissioners, nor could a certiorari or a prohibition lay from any court. The jurisdiction of the ecclesiastical court in England is a case in point. First. Of the effects of their sentences in granting administrations and probates of wills. They are conclusive evidence. 1 Salic. 290 ; 1 Ld. Raym. 262; 1 Strange, 481, 763; 2 Chan. Ca. 178; 2 Yern. 8, 76 ; 1 P. Wms. 12, 388, 548; 1 Yes. 287; 1 Atk. 630. Perhaps, in some of these cases, which are concerning probates, the court will find that it has been doubted whether a probate granted in common form, being scarcely a judicial act, is conclusive. The reason of this is, that within thirty years it might be called in question in the ecclesiastical court, and therefore is not final, and not because it is a ministerial act. But I believe it will bo found to be considered as conclusive evidence until reversed. Second. The sentences of [admiralty courts. 2 Ld. Raym. 893; Carth. 32; Cowp. 315; Dough 560. I will now inquire whether the law (Chan. Rev. 93), having declared upon a trial upon a summons that the judgment should be final, it can from thence be concluded, that the other adjudications of the commissioners shall not be so. And this brings me to the secondary intention of the law. To secure the different claimants from the expense and inconvenience of future litigation. Suppose two persons obtained certificates for the same land, either under the same kind of rights or under different ones, the court would have to determine between the parties, and would do so without impugning the certificates. As if both were actual settlers, the first was entitled. But if on application of the second, the commissioners not being informed that the settler claimed the same land they had before granted, issued a second certificate, although the question of right between the parties might have been determined by the commissioners, not being so, it is left to the courts to say what passed by the certificate. So that in the first case, the commissioners determine the right of the party to claim land of the commonwealth, and this I contend, from the nature of the case, is final. And in the second where two claim the same land, the said commissioners were authorized on a summons to determine finally between them, whoso claim against the commonwealth was the best. But it is contended, that chancery will not lend her aid, even if the certificate is final, where the complainant has been guilty of fraud, but leave him to make the best' of his title at law. To this I answer, Kenton has been guilty of no fraud, and unless the court refuse relief in all cases against the eldest grant, they will afford it to Kenton. JEx equo et bono, he ought to prevail; the special tribunal appointed to inquire into his claim, has adjudged it to be good, and he has not fraudulently, as the defendant has done, attempted to get other land than that adjudged to him. Nicholas for the defendants. It has been contended that the decisions of the commissioners like the sentences of the ecclesiastical courts are final, and can not be examined into in the courts before whom the question is brought incidentally and collaterally. Admitting, for the sake of argument, that the doctrine is as contended for, it does not apply here unless it shall be determined that our supreme court had no cognizance of any of these cases, either under their general jurisdiction, or under the powers given by any of the acts as to caveats, etc. And even then it will only apply where a party goes into chancery to attack such a right, .for there is a distinction between the party himself applying to a court of chancery to enforce such a sentence, and the application of another to declare it void; even in the general, there is a difference made between cases where the party is plaintiff or defendant. The authority goes no farther than to prove (which I do not admit it does) that the court has no power to decide on the legality of the settlement certified in the certificate, but leaves the court to decide on the fact of the settlement or improvement. Therefore, though the certificate says b? made an improvement, etc., yet unless he can prove it to be on the land claimed, it will not avail him, and the opposite party may contest the fact of the improvement, though not the legality of the certificate. The authorities say collusion may be given in evidence to avoid the sentence. Here it will be matter of doubt what will be sufficient evidence of fraud; aDd whether the obtaining a certificate for a service not enumerated in the land law is not so. In Briscoe’s case, the obtaining a second certificate for a second service, although that was a legal service, was considered as fraudulent; by the same reason, obtaining one without any legal service must be so too. The cases of pre-emptions for improving, carry strong marks of fraud with them, because none of the certificates mention, that those improvements were made for them by others; this proves one of two things, either that the commissioners were deceived by false testimony; or, that knowing the law did not sanction such claims as were proved, they stated in their certificates such as the law did allow, although it was not such as were proved; if either of these was the case, it would amount to collusion, sufficient to set aside the certificates. In all contests about land, the question is, which of the parties has the superior equity; upon the trial of this issue (where settlement and pre-emption claims are in dispute) a certificate becomes essential to the title of the party; therefore, the lawfulness of the certificate is as much the proper subject of the trial as any other incidental fact material to the issue. And, therefore, from this principle the lawfulness of the certificate may be inquired into; and notwithstanding it is laid down, that upon such inquiry the court will not, if any sentence of a court of peculiar jurisdiction is offered in proof, suffer any point asserted bjr the sentence to be controverted ; yet it must be understood with this restriction, that the thing or point so asserted in that sentence, is within the jurisdiction of the court giving the sentence; for it is a well established principle of law, that no regard is due or to be paid to the certificate of a court as to a matter out of its jurisdiction. 7 Go. 41 b, 43 b; Garth. 225; Hard. Ca.. 18; Harg. Law Tr. 456 note, 457; Salk. 290; Plowd. 281-2; 1 Sid. 359 ;' 1 Lev. 235 ; 2 Black. 979 ; Harg. Law Tr. 462, 473 ; 2 Yern. 8, 77; 1 P. Wms. 12, 267, 289, 388; 2 P. Wms. 286; Ld. Baym. 892. Therefore, where the certificate is of a matter being done by the party, of which the law did not give them cognizance, and for which the law made no allowance to the party performing it, their certificate is a dead letter, as being of a thing not within their jurisdiction, and therefore may be disputed as well upon the •matter of fact, as upon the matter of law contained in such certificate. But beyond all question, if the certificate on the face of it is illegal, as having been given for what the law did not allow one, such certificate may be rejected altogether upon the question between the parties, who has the superior equity to a piece of land under the law. The case of Bunting v. Lepingwell, 4 Co. 29 a, has been cited. The reasoning of Lord Coke in that case does not apply here. There the spiritual court not only had cognizance of the matter, but by their constitution was to decide on it according to the law of holy church; and the court of common law had no authority to control them when acting within their jurisdiction; therefore, having complete jurisdiction of the matter they had decided on, their judgment should be conclusive evidence to all other courts. But it does not follow that it would have been so, if they had exceeded their jurisdiction. The case of 2 Wils. 118, 127, contradicts the doctrine, because the sentence there was not allowed'to be conclusive evidence; but the matter was sent for further trial by the bishop’s certificate. It is immaterial what the mode of trial was, it is sufficient that it was to be subject to another. Lord Bathurst, indeed, says he does not know whether the bishop can certify contrary to the sentence; but it would have been nugatory to have referred it to him, if he was absolutely bound to certify conformably to the sentence. Kinn’s case from 7 Co. 41 b, from the reason given, does not apply here, because there the sentence if improper or unjust could be reversed by application to a superior spiritual court; here it must be reversed in this way, and in this court, or not at all; so that this case, considering this application as being to the only court, which could inquire into the merits of the former determination, is an authority in favor of the revision, as it shows that all such sentences ought to be re-examined somewhere. The same case, page 43 b, shows expressly that a sentence on a matter out of the jurisdiction ought to have no weight. In Carthn 235. The suit in the spiritual court was against .one under whom the plaintiffjclaimed ; therefore, he might be considered as a privy to the judgment; its being declared to be evidence only while unrepealed, brings it within the observations made in Kinn’s case. But it is said “ against all matters precedent, this sentence was conclusive,” which necessarily must have been examined into by the court in giving their sentence; this will exclude all decisions not adversary, and of consequence those certificates where there was no dispute. Hard. Oa. 11, 12, and Strange, 960, are strong authorities, that it must be an adversary suit, for it must not only be determined, but it must be the point in issue, for where it was only incidentally determined, no regard was paid to it. In Hard. 18, and 2 Strange, 691, Da Gosto v. Villa Beal. The sentence was allowed to be conclusive. First. Because it was obtained in a principal cause. Second. Because in a matter whereof the spiritual court had proper jurisdiction. 2 Black. 977, and the cases cited in it rather prove it ought not to be conclusive where there was no notice or party; because he argues in that case, that there was sufficient notice, and by implication admits, it would not have been binding, if there had not been that notice. 2 Black. 1176. This case makes an important declaration. The judgment of a superior court is final, but not of an inferior one. The reason why it was not allowed to controvert the judgments of the spiritual courts although inferior, was, because they had superior courts to correct their judgments, were governed by different laws, and had exclusive jurisdiction; but none of those reasons apply here, and then as an inferior court governed by the same laws, their sentence is not final. Cases of concurrent jurisdiction do not apply; because that is when they are on equality, here is an inferiority and dependence, which, and the privilege of review would be destroyed by admitting their sentence to be conclusive evidence. The case of Thomas v. Xetteridge, 1 Ves. 333, was so determined because the spiritual court had concurrent jurisdiction, and would decide the question according to the civil law; and, therefore, that court ought to do the same. But here there is no clashing of law; no other jurisdiction, and Kenton is complainant in this court; therefore, the case does not apply. _ The court will find none of' the cases apply to the present case, they have all been determined on particular circumstances and the situation of the law, and the jurisdictions, which here do not exist. The general court had certainly a concurrent jurisdiction or an' appellate one in some cases at least; and in all, if the instances named in the law, be considered as only put by way of example; they had it also from the want of negative words in the act; and chancery certainly retained its equitable jurisdiction if not expressly ousted. And this is not as strong an instance as the application of equitable principles to the statute of frauds, and relieving against cases expressly denied it by the statute. The arguments as to the point of fraud here are much stronger, for if they are right instead of having only one court for its detection there would be none. In Briscoe’s case the court either relieved, because they had jurisdiction to inquire into the certificate, or because the fraud of Briscoe gave the jurisdiction; if they had it they have it in all contests where a certificate is shown. If the jurisdiction was given by the fraud, which they would not have had independent of the fraud, the case will apply to all those, where the conscience of the party obtaining the certificate is affected, which must be the case, wherever -a man has obtained land without a legal foundation, to the exclusion of another, who had a legal claim. Having said so much on the general principle contended for, I will proceed to answer the other arguments used by the complainant’s counsel. It has been contended, that the certificates were granted to villagers in consideration of their settlement, I can not understand it so, surely the preamble applies equally to all parts of the enacting clause, and the part that applies here, is, that they settled under an agreement. An explanatory clause of the law, is a different thing from an explanatory law, but this clause is a proviso or a condition, and in order to understand it you must take it in the order it stands, without transposing the words. 1 Durnf. 645 ; Leach. 318, 340; And. 80 ; Salk. 612. In the construction of an act, it is so to be taken as to give effect to the whole. Cowp. 558, 559; 1 Black. Com. 87, 89. And the decree does give force and efficacy to the whole. Although the certificate is considered as a grant, the construction of it not to be strained. The grant of the king is taken most strongly in his favor, and a proviso, exception or condition is to be construed most favorably for the grantor. 3 Com. Dig. 456 ; Powell onPow. 10, 13; Powell on Cont. 396, 397; Cowp. 127, 191; Henry Black. 424, 426, 597, 656 ; Dough 734; 1 Durnf. 44, 51, 616. The manner in which the clause is worded is material, the words are in the negative. It is relied upon, that this certificate is not falsified or annulled, but nothing is necessary to be done to annul it, for wherever a court gives a judgment in a case without its jurisdiction it is a nullity. Cowp. 642, 647 ; Dougl. 676, 677; 4 Durnf. 192, 704. It is admitted, that if the commissioners had granted a certificate for a settlement and pre-emption for military service, that the certificate would have been void, and it would have been so, because not within their jurisdiction. Is it not equally so, if granted for any other service not within the law? Powell on Pow. 344, 347, 357, 358 ; 4 Durnf. 473, note. But it is said it was not necessary to state the nature of the service : Why did the law give directions to the commissioners, how to issue the certificate, unless it was intended the cause appearing on the face of the certificate should operate as a check and control ? If they have certified the cause, and that is not sufficient, the certificate must be void. Burr, 246, 247, 930,1312, 2102 ; 4 Durnf. 473, 479. It is not important for the complainant to urge that it was the opinion of the commissioners, and of the people at the time they sat, that either raising corn or residence would entitle a villager to his certificate, for if the construction is contrary to the act it can not prevail. Cowp. 183.