no description of the land whatever; not even specifying the county where situate.

To this objection it may be answered, that it is a fact, which will appear from the reports of cases decided in the courts of Tennessee, that the books containing entries for land in the counties of Sullivan and Washington have been lost or destroyed. It is also a fact that the original of the transcript under consideration was directed, by a statute of Tennessee, to be procured and deposited in the commissioner's office; and copies therefrom, certified by the clerk, are declared to be evidence in the courts of that state; but a conclusive answer is furnished by an examination of the bill of exceptions; it was not objected to in the court below.

evidence.

The copy of the warrant, in this case, corresponds with these regulations, and was properly received, nor was it objected to in the court below.

The practice in the courts of Tennessee, of attaching a prior entry to a junior grant, to overreach an elder grant in an action of ejectment, was brought into the view of, and recognized by, this court, in the case of Polk v. Hill et al.; it is, therefore, not now to be departed from."

The location in this case, upon the face of the warrant, appears to be sufficiently certain to be sustained, if the objects called for are identified by the testimony, or unless the calls would equally well suit more than one place. These were questions properly submitted to the The same answers may also be given to the jury; there was, therefore, no error in the objection taken to the copy of the warrant. charge and instruction given on this point. Under the laws of North Carolina for appro-Nor was there error in the residue of the inpriating the vacant lands, an entry is made struction. It is a general principle to presume with the entry-taker before a warrant issues; that public officers act correctly until the con486*] the warrant describes the land speci- trary be shown. It must, therefore, be prefied in the entry; the special or locative calls sumed that the officer, when he surveyed for appropriation of the land can be seen and M'Dowell's entry, in Reed's name, had suffiexamined as well from a view of the warrant cient evidence produced to *satisfy [*487 as from the entry. In consequence of various him that Reed was the owner of it, and this frauds respecting warrants, they were by law presumption is increased by the act of another to be submitted to a board of commissioners, officer in issuing the grant; these circumstances and if decided to be valid, the original was de- furnished prima facie evidence, at least, that posited with the commissioner, and copies, he was the owner. certified by the clerk, were to be received in 142

Judgment affirmed

Wheat. 1.

[NOTE I.]

Extract from the Preface to Bibb's Reports of Cases in the Court of Appeals of Kentucky.

at the intersection of the diagonals. Thus (the quantity being expressed), when the particular cabin is ascertained, the location is reduced to mathematical certainty, appropri ate to one precise identical tract. This is one example, among many, of which you will read in these reports.

"The rules of landed property in Kentucky scription is sufficient to give identity, or inare, in an eminent degree, the creatures of the dividuality to the location, various rules have court-a species of judicial legislation. The been established, whereby entries, apparently disputes between claimants under the laws of admitting of diversity of figures, have been Virginia have grown, principally, out of two helped, and rendered identical by construcrequisitions in the statute of 1779. The one tion. A location, "to include his cabin," in requiring of those claiming rights of settle- matters of fact, admits of divers surveys, each ment, or of pre-emption, to obtain certificates of which may inclose the cabin, and yet have from the commissioners appointed for that not an acre in common. If. the locator could purpose, mentioning the cause of the claim, take any one of these circumjacent tracts, as the number of acres, and "describing, as near whim or fancy may direct, it is evident that, as may be, the particular location;"" the other, until this choice was made known by some act requiring the holders of land warrants to lodge posterior to his entry, others could not know them with the surveyor, and in a book to be the adjacent residuum, nor appropriate it with kept for that purpose, to "direct the location certainty. But as matter of law, the courts thereof so specially and precisely as that have established as a rule, in such cases, that others may be enabled, with certainty, to lo- the survey shall be in a square, with lines cate warrants on the adjacent residuum.' The due north or south, each and west, the cabin text was short and novel; the commentary was left to the direction of the judges. The ancient depositories of the law gave but little light to guide the exercise of this discretion. The rules for construction of deeds gave some aid; but this was far short of what was wanted. For a time, unfettered by precedent, undirected by rule, each decision was but factmultiplication of facts gave precedents, and precedents have grown into doctrine. The 490] statute requires, first, a description *of the particular tract, specially and precisely; that is to say, that the description shall apply, certainly, to one identical tract, and not uncertainly, or equally to two, or divers. Next, that this description shall enable others to find and know the identical tract intended. The statute intends the entry in the surveyor's book to be notice to all persons of the appropriation. The question arising out of the entry is, does it contain that description which was sufficient to operate as notice of an appropriation of a particular tract? This question is analyzed into the identity and notoriety of the objects referred to in the location. That is to say, the entry must contain proper allusion and reference to known and certain objects, which shall serve as indices to the particular tract of land intended to be appropriated.

"The identity of the tract being ascertained, the inquiry is, whether the description was, at the date of the location, with the surveyor, sufficient to enable others to find and know it.

*"This branch of the subject has [*491 called forth many decisions, and embraces the doctrine of notoriety, so frequently recurring in questions upon conflicting claims.

For

"This rule is, that the location must contain such expressions and allusions to objects, natural or artificial, as would enable others, using reasonable diligence of inquiry, to ascer tain the particular tract intended to be appropriated. A reference to obscure objects, known to the locator only, without proper directions for finding them, could not satisfy the requisitions of the statute, although the figure of the land could be precisely described, if the beginning could be ascertained. such reference to obscure objects, although it might enable the locator himself to appropri ate the adjacent residuum, would not enable others to do it. This required reference to known objects, by their known appellations, or other distinguishing characteristics, is essential to every geographical description, and ex-is founded in the very constitution of language, as the medium of communicating the ideas of one man to another. The geographer must draw his equator, and establish and make 1. LL. V. Chan. Rev. 93; 1 Litt. E. L. K. 402 known his first meridian, before he can dehan. Rev. 95; 1 Litt. 410.

Identity is absolutely necessary in the investigation of every question of meum et tuum. The propriety of making identity one subject of inquiry in testing entries needs no planation. But in deciding upon what de

scribe, intelligibly, the relative positions of the

different parts of the earth, and of the coun- tended appropriation. Neither will the proof tries he describes. The surveyor must have that the particular conflicting claimant had his first positions, from whence to take his knowledge of the appropriation intended sufbearings and distances, his latitude and de- fice to help out an entry into a contro- [*493 parture. In language, the sign and the thing versy with him, as is adjudged in several cases, signified by articulate sounds must be agreed and, as I think, very properly. 1st. That upon, and mutually made known, before men would be to make the entry valid as to some, can converse intelligibly one with another. and invalid as to others, as is more fully exThe substances must be pointed out, and the plained in Craig v. Pelham, Pr. Dec. 286-7. names repeated, before the child, or the for- 2d. That would be to test the entry, not by the eigner, understands what we mean by land, record, but by matters out of the scope of the water, and cabin. There is no natural connec- record. 3d. It would put men's estates upon tion between words and the ideas they are in- a tenure too slender and uncertain, without any tended to stand for, otherwise there would be sufficient safeguard against the perjury or misbut one language among all men. But sounds, takes of a solitary witness; whereas, evidence of as the representatives of ideas, are of mere ar- notoriety being an appeal to general underbitrary imposition; therefore, language is prop- standing and knowledge of the people of the erly defined a system of articulate sounds, neighborhood, is capable of being rebutted and significant by compact.' This compact is es- disapproved, if untrue, by calling upon other tablished by common consent, use, and custom, men who had equal opportunities of informain every country. It is this established use, cus- tion on the subject. 4th. To admit proof that tom, and common consent, which makes names, a particular person understood the entry, would words, and terms, mark and signify particular be to test the signification and propriety of the ideas. All men, therefore, who speak intelli- language of the entry, not by the standard of 492*] gibly *to others, must use words which general use and common acceptation, but by stand for ideas, and employ those words ac- the particular ideas of two individuals. cording to their common use and acceptation "Notoriety must have been co-existent with in the language of the country. A man who the entry. The location, when made, if valid is would use three to signify eight would deceive to stand for notice of appropriation from that his hearers. He who would speak to others of time. Words conveying to others no precise substances and objects by sounds never before idea of appropriation, at the time used, because used to signify those things, without any ex- they were not conformable to objects then in planation to make known his meaning, would existence; or, because the names and terms em be guilty of an abuse of language, by uttering ployed had not then been annexed, in common empty sounds, and nothing else. From known use and understanding of the neighborhood, to ideas, the mind may be conducted to the any individual object, being signs withknowledge of things new, and before unknown. out anything signified, cannot, without abuse But from things unknown to attempt to describe things more unknown, so far from helping us to knowledge, serves only the more to perplex and bewilder the mind. A locator using words which stand for ideas in his own mind, but which do not convey the same ideas, or no certain ideas, to the mind of others, has not complied with the requisitions of the statShould he allude to a water-course only by a name unheard of by others, and arbitrarily imposed by himself, he does not write intelligibly to others. So, 'to include a tree in a forest, whereon he has marked the initials of his name,' may identify the land in his own mind, but does not communicate to others a competent idea of the intended appropriation. Locators must have reference to objects known to others by their usual names, or by terms in common use and acceptation, describe and make known the objects intended.

ute.

of language and of truth, be made to ap ply to after-made objects or after-acquired names. 'A enters for 400 acres, to include his cabin.' At the time he had no cabin, and, therefore, his entry was null, appropriating no land. One year afterwards A builds a cabin. Ought he to be permitted to hold land around it by virtue of his entry before the fact? If so, A has had one year to make his choice of the country. To suffer him to hold by relation to the time of his entry would be a fraud upon intermediate purchasers. To suffer him to hold against after purchasers, would be: 1st. To make the same entry valid and invalid; good against some persons, and null as to others, of which enough has been said before. 2d. To refer his claim, not to the truth of the recorded entry, but to mere occupancy. 3d. To make an act not valid in the *beginning, grow valid [*494 and legal in the lapse, which is contrary to a "Notoriety is either absolute or relative. maxim in law. Quod ab initio non valet, in Absolute, as where the object is known so tractu temporis non convalescit." Noy's Max. generally that, according to the usual cour-9. In illustration of the maxim, Noy putteth tesies and intercourse among men, the pre- the case of A 'remainder limited to A, the son sumption is irresistible that anyone using or- of A. B having no such son, and afterwards a dinary inquiry might have been conducted to the place, as Lexington, Bryant's Station, the Lower Blue Licks, etc. Relative, as where the particular object is not actually known, but is ascertainable by reasonable diligence-as one mile east of the Lower Blue Licks, etc.

"As the record in the books of entries is to have the effect of general notice to all holders of warrants, the entry must contain apt reference to objects known to the generality of persons acquainted in the neighborhood of the in

son is born to him, whose name is A, during the particular estate,' the remainder is void, whether the entry alluded to objects not then existing, or employed names, or terms, not then standing for signs of the existing objects, or signs of ideas among the generality of those acquainted in the neighborhood, the reason is the same for denying validity to the entry by means of after notoriety. To test the entry by any other

1.-4 Coke, 61; 10 Coke, 62; Plowd. 344.

standard than the significancy, or insignifi-|identity and validity of entries would be recancy, of the words at its date, would produce ferred, not to one uniform standard expressed an inconsistancy and shifting of locations. Ob- in the face of each entry, but to perplexed and jects lose their old names, and acquire new different standards, according to the dates of the ones. Names of streams are transposed in the entries happening to conflict. Thus the date progress of time, and of the settlement of the of subsequent conflicting entry would make country. Upon the doctrine that after no- & part of a prior entry, and affect its validity toriety should apply to a previous entry, the 'or invalidity."

[NOTE II.]

ON THE PRACTICE IN PRIZE CAUSES.

SOME of the district courts of the United | standing interrogatories.

These usually

exclusive of the district

495*] tion in the first instance belongs) *great irregularities have crept into the practice in prize causes. The irregularities have been censured at the bar, and occasionally noticed, with expressions of regret, by the Supreme Court. It is hoped, therefore, that an attempt to sketch an outline of the regular practice of prize courts, in some of the more important particulars, may not be without use to the profession. This outEne will be principally copied from the rules of the British courts, which, as far as cases have arisen to which they could apply, have been recognized and enforced by the Supreme Court of the United States; and, for the most part, are conformable with the prize practice of France, and other European countries, as will appear by a reference to the laws and treaties quoted in the margin. The letter of Sir William Scott and Sir John Nicholl, to Mr. Jay, written in September, 1794, which is printed in the appendix to Chitty's Law of Nations (American edition), and Wheaton on Captures, afords, as far as it goes, a very satisfactory and luminous view of the subject. Something more in detail, however, may be desirable to those who are not familiar with the admiralty practice.

As soon as a vessel or other thing captured as prize arrives in our ports, notice should be given thereof by the captors to the district judge, or to the commissioners appointed by him, that the examinations of the captured crew, who are brought in. may be regularly taken in writing, upon oath, in answer to the 1-Aussitôt que la prise aura été amenée en quelques rades ou ports de notre royaume, le capitaine qui l'aura faite, s'il y est en personne, sinon celui qu'il en aura chargé, sera tenu de faire son rapport aux officiers de l'amirauté; de leur représenter et mettre entre les mains les papiers et prisonniers et de leur déclarer le jour et l'heure que le vaisseau aura été pris; en quel lieu ou à quelle hauteur; si le capitaine a fait refus d'amener es voiles, ou de faire voir sa commission ou son engé, s'il a attaqué ou s'il s'est défendu; quel pavillon il portait, et les autres circonstances de la prise et de son voyage. Ordonnance de la Marine, 1681, tit. 9, art. 21: Déclaration du 24 Juin 1773, art. 42. See also the Swedish Ordinance of 1715, art. 6. Coll. Mar. 168.

judge, and should contain sifting inquiries upon all points which can affect the question of prize. The standing interrogatories used in the English High Court of Admiralty (1 Rob. 381) have been drawn up with great care, precision and accuracy, and are an excellent model for other courts. They were generally adopted during the late war by the district judges in the principal states, with a few additions, and scarcely any variations. The examinations upon these interrogatories are rarely taken by the district judge in person, for in almost all the principal ports within his district he appoints standing commissioners for prize proceedings, upon whom this duty devolves.

It is also the duty of the prize-master to deliver up to the district judge all the papers and documents found on board, *and, at [*496 the same time, to make an affidavit that they are delivered up as taken, without fraud, addition, subduction, or embezzlement.'

In general, the master and principal officers, and some of the crew of the captured vessel, should be brought in for examination. This is a settled rule of the prize courts, and was, during the late war, enforced by the express instructions of the president. The examination must be confined to persons on board at the time of the capture, unless the special permission of the court is obtained for the examination of others. 6 Rob. 185, The Eliza and Katy; 4 Rob. 43, 57, The Henrick and Maria." In order to guard as much as possible against frauds *and misstatements from after [*497

2. Thus, in a treaty of amity and commerce between Charles VIII., King of France and Henry VII.. of England, concluded at Boulogne, the 24th of May, 1497, and which may be considered as evidence of the prize practice of Europe at that period, is contained the following article: "Simili quoque juramento solemniter præstando promittent, quod de qualibet præda, captura, manubiis, sive spoliis, adducent duos aut tres viros in capto navi præcipuum locum obtinentes, ut magistrum, submagistrum, patronum, aut hujusmodi conditionis quos Admiraldo, Vice-Admiraldo, aut eorum officiariis exhibebunt, ut per eosdem, aut eorum alterum, debite examinetur ubi super quibus, et qualiter, navis sive bona capta sint; nec facient autfieri permittent aliquas prædarum, spoliorum,

It is upon the ship's papers, and depositions thus taken and transmitted, that the cause is, in the first instance, to be heard and tried. Rob. 1, The Vigilantia.1 This is not a mere *matter of practice or form; it is of the [*499 very essence of the administration of prize law; and it is a great mistake to admit the common law notions, in respect to evidence, to prevail in proceedings which have no analogy to those at common law. In some few of the district courts it was not unusual, during the late war, to allow the witnesses to be examined, orally, at the bar of the court long after their preparatory examinations had been taken, and full opportunities had been given to enable the parties to shape any new defense, or explain away any asserted facts. This was, unquestionably, a great irregularity, and, in many instances, must have been attended with great public mischiefs. By the law of prize, the evidence to acquit or condemn must, in the first instance, come from the papers and crew of the captured

contrivances, the examinations should take | proper District Court, together with all the ship's place as soon as possible after the arrival of the papers, which have not been already lodged by vessel, and the witnesses are not allowed to have the captors in the registry of the court. communications with, or to be instructed by, counsel. The captors should also introduce all their witnesses in succession; for if the commissioners have taken the depositions of some of the crew, and transmitted them to the judge, they will not be at liberty. without a special order, to examine others who are afterwards brought by the captors before them. 2 Rob. 243, The Speculation. On the other hand, an equal strictness is held over the conduct of the claimants. If they keep back any one of the captured crew for two or three days after the vessel comes into port, and then offer him, together with papers in his possession, the commissioners will be justified in not examining him. 1 Rob. 331. And see 4 Rob. 381, The William and Mary. The ship's papers and other documents, found on board, which are not 498*] *delivered up to the district judge, or the commissioners, before, or at the time of, the examinations, will not be admitted as evidence. Ibid. Although the examinations are to be on stand-vessel. The captors are not, unless under pecuing interrogatories, without the instructions of counsel, yet the witnesses are produced in the presence of the agents of the parties, before the commissioners, whose duty it is to superintend the regularity of the proceedings, and protect the witnesses from surprise or misrepresentation. When the deposition is taken, each sheet is afterwards read over to the witness, and separately signed by him. 5 Rob. 286, The Apollo. And the commissioners should be careful that the various answers are taken fully and perfectly, so as to meet the stress of every question, and should not suffer the witness to evade a sifting inquiry, by vague and obscure statements. If the witness refuse to answer at all, or to answer fully, the commissioners are to certify the fact to the court, and, in addition to the other penal consequences to the owners of the ship and cargo from a suppression of evidence, he will be liable to close imprisonment for the contempt. The witnesses should be examined separately, and not in presence of each other, so as to prevent any fraudulent concert between them.

As soon as the examinations are completed, they are to be sealed up and directed to the mercium, aut bonorum, per eos capiendorum divisiones, partitiones, traditiones, permutationes, alienationesve, pri usquam se viros captos, bona et merces, integre Dominis, Admiraldo, Vice-Admiraldo, aut eorum vices gerentibus repræsentaverint; qui de illis disponi, si æquum putabunt, permittent, alias nihil hujusmodi permissuri. Coll. Mar. 95. De toutes les prises qui se feront en mer, soit par nos sujets, aut autres tenans nostre party, et tant sous ombre et couleur de la guerre qu'autrement, les prisonniers ou pour le moins deux ou trois des plus apparents d'iceux seront amenés à terre, devers nostre dit Amiral, ou son Vice-Amiral, ou Lieutenant, pour, au plustost que faire se pourra, estre par lui examines et ouys, avant qu'aucune chose des dites prises soit descendue; afin de savoir le pays delà où ils seront, à qui appartiennent les navires et biens d'icus. pour si la prise se trouve avoir esté bien faite, telle la déclarer, si non et ou elle se trouverait mal faite, la restituer à qui elle appartiendra, etc. Ordonnance de 1584, art. 33; Ord. de 1400, art. 4, de 1543, art. 20; Déclaration du premier Février 1650, art. 9. Les officers de l'amirauté entendront sur le fait de la prise, le maitre ou commandant du vaisseau pris, même quelques officiers et matelots du vaisseau preneur, s'il

liar circumstances, entitled to adduce any extrinsic testimony. It is, therefore, of the last importance to preserve the most rigid exactness as to the admission of evidence, since temptations would otherwise be held out to the captured crew to defeat the just rights of the captors by subsequent contrivances, explanations, and frauds. There can be no honest reason why the whole truth should not be told by the captured persons at the first examination; and if they then prevaricate, or suppress important facts, it must be from motives which would materially impair the credibility of their subsequent statements. Where the justice of the case requires the admission of new evidence, that may always be obtained, except where, by the rules of law, or the misconduct of the parties, the right to further proof has been forfeited. But whether such further proof be necessary or admissible can never be ascertained until the cause has been fully heard upon the facts, and the law arising out of the facts already in evidence. And in the Supreme Court, during the whole of the late war, no further proof was ever 'admitted until the cause had been first heard upon the original evidence, although various est besoin. Ordonnance de la Marine, 1681, 9, art. 24. Si le vaisseau est amené sans prisonniers, charte-parties ni connaissements, les officiers, soldats et équipages de celui qui l'aura pris, seront séparément examinés sur les circonstances de la prise, et pourquoi le navire a été amené sans prisonniers, et seront, le vaisseau et les marchandises visités par experts pour connoitre, s'il se peut, sur qui la prise aura été faite. Ib. art. 25.

1. Il est ordonné, etc., que pleine et entiére fol sera ajoutée aux dépositions des capitaines, matelots et officiers des vaisseaux pris, s'il n'y a contre eux aucun reproche valable proposé par les récla mateurs, ou quelque preuve de subornation et de seduction. Réglement du 26 Octobre, 1692. Veut que dans aucun cas, les piéces qui pourraient être rapportées, aprés la prise des bâtimens, puissent faire aucune foi, ni être d'aucune utilite, tant aux propriétaires desdits bâtimens qu'à ceux des mar chandises qui pourraient avoir été chargées: Voulant qu'en tout occasions l'on n'ait égard qu'aux seules piéces trouvées abord. Reglement du 26 Juillet, 1778. See also the Swedish Ordinance of 1715, art. 7. Coll. Mar. 169.