This evidence ought to go to the Jury.
The different acts respecting removals, have been correctly adverted to, though he could not accord with the construction of those acts by the defendant’s counsel. The language of the acts is general, and not confined to any species of claim. Taking all the acts together, it seemed to him, that county entries might be removed, in case of being lost by better claims, to any part of the state, except within the military bounds, and the lands reserved to the use of the Indians by the act of 1783. The 7th Secton of the act of 1786 c. 20, according to his view of the subject, was opposed to the argument on the part of the defendant.
This section declares, that all the surveys already made for removed warrants, in John Armstrong’s office, shall be good. It will be recollected that two different laws had passed in April & October 1784, authorising removals generally. The making of the law of 1786, implies that a doubt had existed, whether the right of removal allowed by those laws, extended to John Armstong’s claims. This section of the act of 1786 puts the question, as to those claims out of doubt. Now had the two first mentioned laws been passed with a view to John Armstrong’s claims exclusively, it is scarcely probable the Legislature would have found it necessary, to pass a law in the year 1786 declaring the right of removal, as extending to those claims. The second condition of the session act 1789 c. 8, provides for the perfection of all claims; and makes no alteration in the law respecting removals. Nor does the argument drawn from the second section of the act of April 1778, seem to be tenable. This section provides as to county entries, that in cases where lands may be
The absurdity insisted on by the defendant’s counsel, in permitting removed county warrants, does not occur with the same force with which it was urged. When we consider when these acts passed respecting removals, John Armstrong’s office was shut: All entries had been made, that were intended ; and as removals were not matter of right, but of grace, there was no injustice in permitting removals of county claims, within those bounds, more than to any other place. A removed warrant could not affect any claim previously entered in John Armstrong’s, or any other office. In authorizing removals, the state did not violate any rights previously acquired ; and as to the price paid the state for county, and John Armstrong's claims, it was the same, after John Armstrong's office opened.
The next point to be considered is, whether this court, sitting as a court of common law, can receive the evidence now offered. As between individuals, it occurs to me strongly, that the consideration, on which a grant issued from the state, cannot at least in a court of law, be inquired into, if it can in a court of equity, of which much doubt may be rationally entertained. It is however true, as stated by the defendant’s counsel, that nearly all the instances in the English books, of avoiding or considering a grant from the king void, occurred in a court of law. But on examination, we shall find that many of the principles attached to the king’s grants, do not apply here, for reasons, many of which will not be
This case lies within a much narrower compass, than is supposed by the defendant's counsel in their argument. Here is a state grant, which states the receipt of ten pounds per hundred acres. In a court of law, we cannot proof to falsify this receipt ; and in a court of equity, the defendant could not be permitted to call the plaintiff’s grant in question, without some legal claim, or title. This is a different question from permitting an older entry, with a younger grant, to contend in a court of law. That position had been acted, under, and acquiesced in ; and he had no disposition to be dissatisfied with that practice. The evidence offered cannot be received.
to the jury, observed, there appeared to be a difference of opinion with the court, as to the law. Agreeably to the principles of our government, it is the province of the jury to decide the law as well as the fact, and the jury will act accordingly in this case. The grant is not legal, there being no law to authorize the consolidation of warrants except one which applied to swamp lands in the lower part of North-Carolina. It was decided in the case of Lytle’s Lessee vs. Barfield, that a warrant could not be divided. The grant is not valid, and the jury are the proper judges whether it is so or not. If in obtaining a grant, an individual does not pursue the requisites of the law, it would be useless.
stated to the jury it was the province of the court to declare to the jury, what the law was, and in civil cases particularly, should receive it as delivered; in their application of it, to facts, of which, they were the exclusive judges. In this case it appears there was not any marked lines, nor corners at
It is the province of the court declare the law, and of the jury to find the facts.—The court is to give its opinion of the law, and it was prudent in the jury to pay attention to that opinion ; but they might find contrary to the directions of the court ; and the only control the court has is to grant a new trial.
Mistrial.
(b).
By 4 Am. law Jour. p.1.
(c.).
In the case of Polk vs. Wendel and alias in the S. C. U. S. the court proceeded on the same principles, but say that there are two grounds, on which the validity of a grant may be examined, or inquired into, viz. want of property in the grantor, in the thing granted, and secondly want of authority in the officers of government, to execute the grant.