were so understood at the time this location was made. 94*] *It is, however, contended, that in the extensive wilderness offered for sale, accuracy of description was not to be expected, and the point of union between a creek and river might well be mistaken for the forks of a creek. This would not be very probable in any case, but is totally inadmissible in this, because names of places which they were generally understood to possess have been used by the person locating for Mr. Mason, and as there are no other controlling boundaries referred to, they must be understood as designating the water courses which were commonly described by those names, and which any person inclined to locate the adjacent residuum would necessarily suppose to have been referred to by them. But if the location of October explains without removing that of April, then the original entry might, without such explanation, have been there surveyed, and could not have been properly surveyed four miles above the west fork. This would scarcely have been attempted. Indeed the counsel for the appellee, in admitting that an entry made on the land in controversy, subsequent to Mason's entry, but before his survey, would have been good, seems to have disclosed an opinion that the original entry did not comprehend the land in question, and that not the entry, but the survey, is to be relied on as the foundation of his title. To the court it appears perfectly clear, that the entry of the 27th of October was a removal, and not an explanation, of that of the 29th of April. It has not been contended that the removal of the 8,400 acre entry has also removed that of 8,300 acres. The title of Mason, then, if good, must be shown to be so by establishing that a survey without an entry is a sufficient foundation for title. With a view to discover whether this question has been settled in Kentucky, all the adju95*] dications contained in the book of reports furnished by the counsel for the plaintiff in error have been examined. It is not perceived either that the question has been directly determined, or that any principles have been settled which govern it. This case, then, is of the first impression. The act of the Virginia legislature must be expounded according to the opinion this court may entertain of its import, without deriving any aid from the decisions of the state tri bunals. In 1779, Virginia opened a land office for the sale of an extensive, unsettled, and almost unexplored country, the motives for which are stated in the preamble of the statute to have been "to encourage the migration of foreigners, promote population, increase the annual revenue, and create a fund for discharging the pub lic debt." Any person whatever might become a purchaser of any portion of these lands by paying into the treasury of the commonwealth the purchase money required by law. By doing so he became entitled to a warrant authorizing any surveyor to lay off for him, in one or more surveys, the quantity of land purchased. It was apparently contemplated by the law that the number of purchasers would immediately become very considerable. The condition of these purchasers in this stage of the contract ought to be distinctly understood. They had acquired a right each to appropriate to himself so much of the vacant land belonging to the commonwealth as he had purchased, but no right either in common or severalty, to the whole or any particular part of the country, until such right should be acquired by further measures. This was at the same time the situation of a great number of persons, and a prior was in no respect more eligibly circumstanced than a subsequent purchaser, except in the single case of both applying precisely at the same time, for the purpose of appropriating each to himself the same land. Had the purchaser of the first warrant been negligent enough to hold it up until the whole land was appropriated, the title of every subsequent purchaser would have been good against him, and he would have been without remedy. The original purchase [*96 of a warrant, then, creating only a general claim which gave of itself only in a single case priority of right to the prior purchaser, it became indispensably necessary to prescribe a mode by which this general title should be satisfied by the appropriation of a particular tract of land. This mode seems to have been prescribed by that part of the act which says, that "every person having a land warrant, and being desirous of locating the same on any particular waste and unappropriated lands, shall lodge such warrant with the surveyor of the county wherein the lands or the greater part of them lie." "The party shall direct the location thereof so specially and precisely that others may be enabled, with certainty, to locate other warrants on the adjacent residuum; which location shall bear date the day on which it shall be made, and shall be entered by the surveyor in a book to be kept for that purpose." This mode of appropriation pointed out by the law as that which must be used by any person desirous of locating a warrant on any particular waste and unappropriated land, requires that the location shall be given to the surveyor with the warrant, in order to be entered in a book kept for that purpose, which is denominated the book of entries. the legislature never contemplated a survey as It is apparent throughout the whole act, that being in itself an appropriation of land, or sup posed that one would be ever made, if not founded on a previous entry. found in various parts of the law will be seSome few of the many passages which are lected to evince this position. of any warrant on treasury rights, except preThe surveyor is forbidden to admit the entry emption warrants, in his books before the first day of May next succeeding the passage of the But the prohibition does not extend to a survey, and yet this would have been equally necessary if land could have been appropri ated by a survey without a previous location. act. It is declared that no entry or loca- [*97 tion shall be admitted for certain lands which are described in the act, and intended to be reserved: but there is no declaration that they shall not be surveyed. This omission mani. fests an opinion that they could not be appro- | since the property was vested by a distinct priated by survey alone. clause. In prescribing the duty of a surveyor, the law enjoins him to proceed with all practicable dispatch to survey all lands entered in his office; and many rules are given to regulate the surveying of entries; but there is not a syllable in the act which contemplates or makes a single provision for surveys not founded on a prior entry made in the book of entries. The mode of appropriation, then, which the law designates has not been pursued; but it is contended that another course has been adopted which equally produces all the objects designed to be effected by the location in the book of entries, and which, therefore, ought to be received as a sufficient substitute for an entry. The legislature of Virginia, when bringing her lands into the market, had undoubtedly a right to prescribe the terms on which she would sell, and the mode to be pursued by purchasers for the purpose of particularizing the general title acquired by obtaining a land warrant. The court is by no means satisfied of its power to substitute any equivalent act for that required by the law. The case of Blackwell v. Harper, reported in 2 Atkyns, 93, has been cited to show the authority of a court to dispense with part of a statute directing the mode of proceeding to be observed by a person who claims title under such statute. That case arose under an act of parliament which directs that "any person who shall invent, or design, engrave, &c. any historical or other print or prints, shall have the sole right and liberty of printing and reprinting the same for the term of fourteen years, to commence from the day of the first publishing thereof, which shall be truly engraved with the name of the proprietor on each plate, and printed on 98*] every such print or prints." The plaintiff had engraved certain medicinal plants, a work deemed within the act, and had brought a bill to establish her right to the sole property in them, and to restrain the defendant from copying and engraving them, upon the penal. ties within the act of parliament. It was objected that the day of publication from which the term was to commence had not been engraved, and so the act had not been complied with, and, consequently, the property had not vested. Lord Hardwicke was of opinion that the property vested, although the day of publication was not engraved, and that the words directing the day of publication to be engraved on each print were only necessary to make the penalties incur, not to give the title. "Here," said his lordship, "the clause which vests the property is distinct." This opinion, however, was given with great doubt, and only an injunction was granted without costs, and without an order for an account. The case of Blackwell v. Harper has, at the bar, been denied to be law. However this may be, it is certainly essentially variant from that before the court. The opinion of Lord Hardwicke was not that where any circumstance was required by a statute in order to vest a title, other equivalent acts might be received as a substitute; but that the particular statute on which the case depended, did not require the omitted circumstance, By a reference to the words themselves, it will be perceived that the expression of the act of parliament is such as might perhaps warrant this opinion. The property is completely vested before the direction concerning the date of the publication is given, and Lord Hardwicke supposes it to be a question on which judges would differ whether the subsequent words were merely directory or descriptive. A perfect property in the specific thing was supposed by that judge to have been given by other words, and on that idea his decree is declared to have been formed. *But in the case under consideration [*99 no property in the specific thing is supposed to have been given by other words. No title to it is created by any other part of the act. The purchase of the land warrant gave a power to appropriate, but was no appropriation, and the mode pointed out by the legislature would seem to the court to be that which can alone give title to the particular lands. But if this opinion should even be too strict, if an act entirely equivalent to an entry could be received as a substitute for one, a survey does not appear to be such an act, nor does it seem to have been so considered by the legislature. From the circumstances under which the act for establishing the land office was passed, as well as from the expressions of that act, it is apparent that the entry was intended to give complete notice to other purchasers that the land located was already appropriated. The mode of giving this notice it was certainly proper to prescribe. By doing so, the numerous doubts and questions concerning the sufficiency of notice which would inevitably arise from leaving that important fact to the discretion of individuals, in the first instance, and then to the discretion of courts, to be exercised many years after all the lands should be located, would be in a considerable degree obviated. It was doubtless an important object to obviate them. The regulations, therefore, respecting entries are all calculated to make them as notorious as possible. Not so of surveys. The entries and surveys are to be kept in separate books. Why so if a survey amounted to an entry? The entry must be dated when made by the locator; but the time of recording a survey may appear or not at the discretion of the surveyor, and a subsequent survey may be recorded before one of prior date. There are to be no blanks in the book of entries, and this regulation is well calculated for the prevention of *frauds in the origin [*100 of titles. It does not apply to the book of surveys. The book of entries is open to the inspection of every person. The book of surveys cannot be looked into but at the discretion of the surveyor. If a prior entry be alleged, the person affected thereby has a right to demand a copy thereof; but no copy of a survey can be given to any other than the proprietor until twelve months after it shall have been made. From the whole act a legislative intention to make an entry, and an entry only, the foundation of title to any particular tract of land. is strongly to be inferred; and if even an equiva- | the land it comprehends, or an intention of carlent act could be received, a survey does not appear to be such an act. In this particular case it is true that complete notice was obtained by it, but titles must rest on general principles, and in the general a survey would not, without something more than the law requires, be notice. The law, therefore, cannot contemplate a survey as of equal operation with an entry. A question has been made at the bar, whether a caveat is in the nature of an equitable action, and on the supposition that it is of that nature, the counsel for the defendant in error has insisted that Wilson, having express notice of Mason's survey, was unable to acquire title to the land appropriated by that survey. This would be true if the survey gave to Mason any title either in law or equity. But if a survey without an entry was no appropriation; if it gave no title, then notice of the survey could not create a title. The doctrine of notice is well established. He who acquires a legal title, having notice of the prior equity of another, becomes a trustee for that other to the extent of his equity. But if he has no equity, then there is nothing for which the purchaser of the legal estate can be a trustee. A point in the case still remains which appears more doubtful, and concerning which very considerable difficulties have been felt. 101*] Although Mason's survey may give him no title, it is questioned whether Wilson can maintain a caveat against it. The caveat is a remedy given to prevent a patent from issuing in certain cases where the directions of the law have been violated to the injury of the commonwealth, or where some other person hath a better right. The case before the court is that of a better right. The terms in which this remedy is accorded to the person who would avail himself of it for the purpose of asserting his own title are, "or if any person shall obtain a survey of lands to which another hath by law a better right, the person having such better right may in like manner enter a caveat," &c. Considerable doubts were entertained whether the word "hath," in the description of the character by whom a caveat might be maintained did not absolutely require that the better right should exist at the time the survey should be obtained. This construction, to which some of the court were at first greatly inclined, would have involved considerable inconvenience, and would have defeated what is deemed the essential object for which the remedy was given. It has been already stated to be the opinion of the court, that a survey not founded on an entry is a void act, and constitutes no title whatever. Consequently, the land so surveyed remains vacant and liable to be appropriated by any person holding a land warrant. It is difficult to conceive that a remedy designed to enable an individual who has made his entry in conformity with the law, to prevent another from obtaining a grant for the land he has entered, should be withheld from any person whose entry entitles him to the land he has located. It is not less difficult to impute to the legislature an intention to protect a survey to which the law denies all power of appropriating rying such survey into grant, while another has legally appropriated to himself the land thus to be granted. It would be difficult to state a case to which the principle, that a remedy should be so extended as to meet the mischief, would apply more forcibly than to this. If, however, the terms of the law had been [*102 explicit, those terms must have controlled the subject. But the expression of the act is not, if any person shall obtain a survey to which another at the time such survey may be obtained shall have by law a better right, the person having such better right may enter a caveat, &c. The words of the law are not thus express. They are, if any person shall obtain a survey of land to which another hath by law a better right. The word "hath," in its most strict and rigid sense, would refer neither to the time of making the survey, nor of entering the caveat, but to the present moment when the word is used, and would require that the better right should exist at the time of the passage of the act. This construction would be universally rejected as absurd, and all would expect the court to understand the words more liberally, and to expound them so as to give some effect to the legislative will. Some latitude of construction, then, must be used; some words additional to those used by the legislature must be understood, and this being apparent, the court perceive no sufficient motive for extending the remedy to rights existing when the survey shall be made, and denying it to those which are equally valid, and which exist when the caveat may be entered. The caveat entered by Wilson is, therefore, maintainable under the land law of Virginia, since his title had accrued when it was entered. The court is of opinion that the district court of Kentucky has erred in deciding that the defendant in error hath the better right, and that their judgment ought to be reversed and annulled. In pursuance of this opinion I am directed to deliver the following judgment. Judgment of the Court. "Whereupon, it is considered by the court that the plaintiff Wilson hath by law the better right to the land in controversy, and that the judgment of the court of the United States for the district of Kentucky be reversed and annulled; and that the register of the land office in Kentucky do issue a grant to the said Wilson upon his survey of 30,000 acres of land registered in the said office, according to the metes and bounds thereof, and that the said [*103 plaintiff do also recover his costs expended in this court, and in the said district court, all which is ordered to be certified to the said district court, and the said register of the land office accordingly." In the case of Mason v. Wilson, the judgment of the court was, "that the defendant Wilson hath by law the better right to the land in controversy, and that the judgment of the court of the United States for the district of Kentucky be reversed, and annulled; and that the said caveat be dismissed, and that the defendant Wilson recover his costs," &c.1 1. As to the necessity of giving notice in the form prescribed by law, vide Evan's Essay on Bills, 67, 68 69, 70, 71, and 2 H. Bl. 609. Nicholson v. Gouthit. UNITED STATES. SCHOONER PEGGY. | decree that said schooner with her cargo be restored to the claimant." A final condemnation in an inferior court of admiralty, where a right of appeal exists and has been claimed, is not a definitive condemnation within the meaning of the 4th article of the convention with France, signed September 30, 1800. The court is as much bound as the executive to take notice of a treaty, and will reverse the original decree of condemnation, (although it was correct when made) and decree restoration of the property under the treaty made since the original condemnation. Quara, as to the extent of the term high seas? ERROR to the circuit court for the District of Connecticut, on a question of prize. The facts found and stated by Judge Law, the district judge, were as follows: From this decree the attorney for the United States, in behalf of the United States and the commander, officers and crew of the Trumbull, appealed to the circuit court, in which Judge Cushing sat alone, as the district judge declined sitting in the cause, on account of the interest of his son who was one of the officers on board the Trumbull, at the time of capture, and who, if the schooner should be condemned, would be entitled to a share of the prize money. The circuit court, on the appeal, found the following facts, and gave the following opinion and decree: "That David Jewett, commander of [*105 "That the ship Trumbull, duly commis- the said public armed vessel, called the Trumsioned by the President of the United States, bull, being duly commissioned, and instructed with instructions to take any armed French by the President of the United States, as set vessel or vessels sailing under authority, or pre- forth in the said libel, did, on or about the 23d tence of authority, from the French republic, of April last, capture the said schooner Peggy, which shall be found within the jurisdictional after running her aground about pistol shot limits of the United States, or elsewhere on the from the shore, a few miles to the westward of high seas, &c. as set forth in said instructions; Port au Prince, called also Port Republican, on and said ship did, on the 24th day of April last, the coast of the island of Saint Domingo, and (April, 1800,) capture the schooner Peggy, aft- afterwards bring her into port, as set forth in er running her ashore a few miles to the west- the libel. That at the time of the capture of ward of Port au Prince, within the dominions the said schooner, there were ten persons aboard and territory of General Toussaint, and has her. That she was then armed with four carbrought her into port as set forth in the libel; riage guns, being four pounders, with four and it further appears, that all the facts con- swivel guns, six muskets, four pistols, four cuttained in the claim are true; whereupon this lasses, two axes, some boarding hatchets, tom104*] court *are of opinion, that as it appears ahawks, and handcuffs. That she was a tradthat the said schooner was solely upon a trad- ing French vessel of about a hundred tons, then ing voyage, and sailed under the permission laden with coffee, sugar, and other merchanof Toussaint, with dispatches from the French dise. That she had come from Bordeaux to government, under a convoy furnished by Port au Prince, where the claimant had taken Toussaint, with directions to touch at Leogane in said cargo, and from whence he sailed on or for supplies, and that the arms she had on about the said 23d day of April, with said board must be presumed to be only for self de- schooner and cargo, having dispatches from fence; neither does it appear she had ever made, General Toussaint for the French government. or attempted to make, any depredations, and That the said Buisson sailed from Port au that she was not such an armed vessel as was Prince as aforesaid with the permission and dimeant and intended by the laws of the United rection of General Toussaint to proceed to BorStates should be subject to capture and con- deaux; that said schooner so sailed from Port demnation; and that the situation she was in, au Prince under convoy of an armed vessel by at the time of capture, being aground within order of said Toussaint without a passport the territory and jurisdiction of Toussaint, she from Mr. Stevens, consul general of the United was not on the high seas, so as to be intended States at Saint Domingo, but that Buisson had to be within the instructions given to the commanders of American ships of war; therefore, should be obtained and sent him, which, howbeen promised by Toussaint's brother that one adjudge said schooner is not a lawful prize, and ever, was not done; that said schooner had 1. The material facts stated in the claim are, sailed from Bordeaux for Port au Prince with that the schooner was the property of citizens of fifteen men, besides eight passengers, (accordthe French republic; that she was permitted by Toussaint to receive on board the cargo which was ing to the roll of equipage,) armed with some on board at the time of capture; that she had dis guns, swivels and muskets; that said captain patches from Toussaint to France; that she sailed Buisson was without any commission as for a by his authority on the 23d of April, for France, navigated by 10 men, including Buisson, the claim vessel of war, and alleges that he was armed ant, and Gilibert, the commander, and having on only for self defence. That at the time of the board 4 small 3 pound carriage guns, solely for defense against piratical assaults, and being under said capture, the guns of said schooner were convoy of a tender, furnished by Toussaint. That loaded with canister shot, one of which being on the 23d of April she was run ashore, a few miles fired, the shot fell near the bow of the Trumto the westward of Port au Prince, within the dominion, jurisdiction and territory of General Tous bull; but the said Buisson declares that said saint, so that she was fast and tight aground; at gun was fired only as a signal to his convoy. which time, and in which situation, the boats and That the said Captain Buisson appeared to be crew of the Trumbull attacked and took possession of her, and got off her. That Toussaint then was in a disposition, and was prepared with force, and still is, on terms of amity, commerce and to resist the boats which were sent from the friendship with the United States, duly entered Trumbull to board him, a little *pre- [*106 into and ratified by treaty. That the schooner was on a lawful voyage for the sole purpose of trade: vious to the capture, in case of their attempɩand not commissioned, or in a condition to annoying it; and that the said schooner and cargo are or injure the trade or commerce of the United States. French property. "Upon these facts the Court is of opinion as | demned shall without delay be restored or paid follows, viz.: for." "However compassion may be moved in favour of the claimant by some circumstances; such as that he was charged with dispatches from General Toussaint, between whom and the United States there were some friendly arrangements respecting commerce; that he was not in a capacity of greatly annoying trade, from the fewness of his men; and his allegation that he was armed only in defence; yet as the court is bound by law, which makes no such distinctions; as armed French vessels are not protected by any treaty or convention; particularly not by the regulations between General Toussaint and the American consul; and as the said schooner Peggy was in a condition capable of annoying, and even of capturing single, unarmed trading vessels, unattended with convoy; the court cannot avoid being of opinion that she falls within the description, and general designs, of the expression of the law, an armed French vessel. On the 30th of September, 1800, this convention was signed by the respective plenipotentiaries of the two nations at Paris. On the 18th of February, 1801, it was ratified by the President of the United States, with the advice and consent of the senate, excepting the 2d article, and with a limitation of the duration of the convention to the term of eight years. On the 31st of July, 1801, the ratifications were exchanged at Paris, with a proviso that the expunging of the 2d article should be considered as a renunciation of the respective pretensions which were the object of that article. *This proviso being considered by [*108 the president as requiring a renewal of the assent of the senate, he sent it to them for their advice. They returned it with a resolve that they considered the convention as fully ratified. Whereupon, On the 21st of December, 1801, it was promulged by a proclamation of the president. The controversy turned principally upon two points: "2d. That she was captured on the high seas; the argument taken by the claimant's counsel, from the extent of national jurisdiction on sea 1st. Whether the capture could be consid coasts bordering on the country, not applying ered as made on the high seas, according to the to this case so as to acquit the said schooner; import of that term, as used in the act of conthe sea coast of Saint Domingo not being neu-gress of July 9th, 1798, vol. 4, p. 163. tral; not made so by any treaty or convention; but to be considered as hostile, upon our present plan of laws of defence with respect to France; as much so as any part of the coast of France, as far as regards French armed vessels. "The Court is, therefore, of opinion, that the said schooner Peggy and cargo are lawful prize: "It is therefore considered, decreed and adjudged by this court, that the decree of the district court respecting the same, as far as regards their acquittal, be, and the same is hereby reversed; and that the said schooner, 107*] *with her apparel, guns and appurtenances, and the goods and effects which were found on board of her at the time of capture, and brought into port as aforesaid, be, and the same are hereby condemned as forfeited to the use of the United States, and of the officers and men of the said armed vessel called the Trumbull, one-half thereof to the United States, the other half to the officers and men, to be divided according to law; the said schooner Peggy being of inferior force to the said armed vessel called the Trumbull." This sentence and decree were pronounced on the 23d day of September, 1800. During the present term, and before the court gave judgment upon this writ of error, viz., on the 21st of December, 1801, the convention with France was finally ratified by the president; the fourth article of which convention has these words: "Property captured, and not yet definitely condemned, or which may be captured before the exchange of ratifications, (contraband goods destined to an enemy's port excepted,) shall be mutually restored." "This article shall take effect from the date of the signature of the present convention. And if, from the date of the said signature, any property shall be condemned contrary to the intent of the said convention, before the knowledge of this stipulation shall be obtained; the property so con 2d. Whether, by the sentence of condemna. tion by the circuit court, on the 23d of September, 1800, the schooner Peggy could be considered as definitely condemned, within the meaning of the 4th article of the convention with France, signed at Paris, on the 30th of September, 1800. The writ of error was dated on the 2d of October, 1800. Griswold and Bayard, for the captors. The Chief Justice delivered the opinion of the court. In this case the court is of opinion that the schooner Peggy is within the provisions of the treaty entered into with France, and ought to be restored. This vessel is not considered as be ing definitely condemned. The argument at the bar which contends that because the sentence of the circuit court is denominated a final sentence, therefore its condemnation is definitive in the sense in which that term is used in the treaty, is not deemed a correct argument. A decree or sentence must be interlocutory or final in the court which pronounces it, and receives its appellation from its determin-[*109 ing the power of that particular court over the subject to which it applies, or being only an intermediate order subject to the future control of the same court. The last decree of an inferior court is final in relation to the power of that court, but not in relation to the property itself, unless it be acquiesced under. The terms used in the treaty seem to apply to the actual condition of the property, and to dired a restoration of that which is still in con troversy between the parties. On any other construction, the word definitive would be rendered useless and inoperative. Vessels are seldom if ever condemned but by a final sentence case, I am unable to report the very ingenious ar 1. I regret that not having the notes of this guments of the learned counsel. |