The legislature designed by their acts of 1777, and subsequent acts, to make an entry a legal right. A bond gives a right, but it cannot be sold on execution; it is therefore not a legal or vested right, and this goes great length in ascertaining the difference between the two cases.

The first interpretation of the land law in North Carolina was erroneous; the judges latterly being better informed, have dis played more intelligence. We are told, that our decisions will be overhauled by the federal court.* This is an independent court, over the decisions of which, the federal court has no controul. There is a case in 3 Dall. 425 in which it was determined, by the supreme court of the United States, that a complete legal right, might exist without a grant, upon a survey alone. Here we do not contend that an entry co nmunicates a complete legal right, but after the emanation of a grant makes a part of one.

The interests of justice, so imperiously demand that the prac tice should remain as it is, that I cannot better conclude this argument, than in the language of Mr.Justice M'Kean. "Itisessential, "to private justice, and to public peace, and order, that the rules of property, as well as of other subjects of society, should be * settled and promulged. Wretched indeed is the condition of that people, where the law is either uncertain or unknown." 2 Dall. 98.

Grundy for defendant, concluded the argument, by a full and complete development of the principles stated in the opening of

the case.

Campbell J. Previous to the year 1796, or 1797, it seemed to be the understanding of the bar, that the remedy in such a case as the present, was in equity alone; but in a decision which took place at Jonesborough about that time, it was determined such evidence as is now offered might be received in ejectment. In several cases which occurred afterwards the propriety of the decision was questioned; for some time past, until lately, the question seemed to be

* Vide 4. Dall. 358 where the Circuit court of the U. States decided dif ferently from the decisions of the State Court.

at rest. I am perfectly willing it should remain so, though I am in clined to think that I did not concur in it at Jonesborough.*

Let the evidence go to the Jury.

Overton J. The case has been argued at great length, and with much ability on both sides; and if in the opinion now to be offered error should exist, it must be imputed to the want of mental power to perceive amidst so great a mass of legal matter, and argument, on which side the correct principle lies. As the greater part of the argument arises from the English authorities respecting the grants of the king, it seems important that they should be considered in the first place. In no branch of the law of England do we find greater confusion, obscurity, and apparent contradiction, than in the numerous writings of Lord Coke and others, on this subject. The great variety of nice and obscure distinctions, taken in these cases where the kings prerogative was concerned, shows the minds of the judges in England, were in an almost constant state of struggle, between a sense of common justice, and the peculiar rights of the crown. Jenkins in the preface to his reports, when enumerating the abuses of the law, does not omit, "the too great nicety with which the kings patents are construed," and in the case of Alter Wood, respecting the kings grants, so elaborately reported 1 Co. 40 and afterwards brought before the twelve judges in the Exequer, Jenk. Cent. 251 p. 42, it is said "there is a hard case, where the king is not deceived in the consideration, nor in the essence of the estate, and where the king has no perjudice, but the prejudice is to the patentee, the kings patent ought not to be avoided. This grant is good in the case of a common person. Principis benificium decet esse mansurum. It is for the kings honour to maintain his patents, and it is a dishonour to him to avoid them, by too nice and subtle constructions. And freqently it is to the grievous loss of the patentee." I might adopt the language of Mr. Justice Ashhust in delivering the opinion of the court of K. B. in the case of the King vs Amery 2 T. Rep. 568 cited at the bar. "It would be needless to go through all the cases which have been cited at the bar, in which there is a great deal of confu

*The case alluded to was Rupel's Representatives vs Blair. Sept. Term, 1798

sion and contradiction; and therefore, though we have considered them, we think it better to state the authorities on which we rely, and which seem to us to have the strongest reason on their side.” But as the case has consumed much time in its discussion, and is considered important, I will briefly notice some of the books. A patent or grant by the state to a citizen must be considered in the view of an ordinary contract between two individuals. 3 Cranch Rep 1 to 70 by the supreme court of the U. States,* 2 Dall 320 per Patterson J. The assumption of this principle seems to be warranted not only, by the opinion of the supreme court of the U. States, but by the nature of our Republican institutions.

It is the aggregate body of the people, who make a grant, thro' the medium of their public functionaries, the governor and secretary; and no reason can be perceived, why other principles of law should be attached to such a contract, than those which would result from a similiar one between citizen and citizen. In the latter, the contract is between one man and another; in the former between a number of individuals on one part, and a single individual on the other. The law is believed to be the same in both and so far as the authorities produced, accord with this proposition they are conceived to be law here. otherwise not. With this impression a succinct view of the cases will be taken.

In England the kings grants are repealed, or cancelled by the chancellor; on the law side of the court of chancery, by sci. fa. 3 Bl. 47. 261, and Lord Coke in 4th inst. 88 has given us three cases in which it is ordinarily done. First when the king grants the same thing to different persons, the first patentee shall have sci. fa. to repeal the second. Second, where the king doth grant a thing upon a false suggestion, he, prorogativa regis may repeal his own grant Taird, When the king doth grant any thing which by law he cannot grant, he jure regis and for the advancement of justice and right, may have a Sci, fa to repeal his own letters patent; and the judgment is, that the letters patent, and enrollment, shall be cancelled, vacated, annulled and held for naught. It is competent for this court to cancel letters patent. The most emin

*Same case reported in 4 Dall 398.

ent English lawyers, particularly those learned and eminent com-. mon place compilers, Comyns, Bacon, and Viner, have considered the different decisions in their courts, as resulting from the rights of prerogative, which is defined to be that " law in case of the king which is law in no case of the subject" 5 Bac. 486 tit. Prerog. Lond. ed. 1807; and, in page 552, we find a great variety of authorities collected under the head," of the difference in the rules oflaw as directing the Kings property, otherwise than that of a subject" of the granting of Fairs, Markets, Corporations, &c. they are referable to the 3d division of Lord Coke in 4th. Inst. 88, and to that division in Bac. Ab. to be found under tit. Prerog. F. 1. Though the principles attached to this division of prerog. (where the King acts for the public and not his own interest) are too frequently confounded with those incident to the 2d division; yet in many respects there are strong marks of discrimination to be found in the books. So much inclined were the Judges in ancient times, to lean towards prerogative,that they borrowed, under the appearance of analogy, principles, from other divisions of the law, and even then made distinctions, too fine for the touch. Bacon in his division of the rights of prerogative proceeds-" of Grants arising from his interest," "of things of a new invention," "of the construction of the King's Grants and letters Patent, as to their being good or void; and herein of the Kings being de. ceived in his Grant"-Under this head which is clearly referrable to the 2d division of Lord Coke in 4 Inst. we find " as the King's Grants proceed chiefly from his own bounty, and his letters patent are Records of a high nature, they ought to be construed most favourably for the king, contrary to the grants of common persons," &c. and accordingly in a great variety of cases established upon subtle distinctions, we find the King's Grants declared void on account of his having been deceived in his Grant. The book then proceeds to enumerate some of the cases, and point out some rules for ascertaining when the King might be said to be deceived in his Grants. To point them all out with their contradictions, either real or apparent, would be a difficult task. All these rules however,have arisen from cases concerning the King's own interest, No. XIII.

and with a view to his prerogative, where the law in many instances is different from that which would govern the contracts of individuals, as has been shown, and may be further seen in 10 Co, 113b. 11, Co. 87 A. In the first of which, it is admitted that a common person cannot avoid his Grant, made upon false suggestions, as the King can jure regis. Under the same second division of Lord Coke, we find that if by misinformation, or false suggestion respecting his Estate, the King is deceived as to the legality of his Grant in part, it shall be void for the whole, but otherwise as to a common person 1. Co. 36. 10 Co. 113b. 3. T. R 537. 17. Vin. 80.

Out of this heterogenous mass of matter furnished by the English decisions, respecting the King's Patents, Mr. Justice Grose, in the case of the King vs. Pasmore, 3. T. Rep. 249, has extracted a rule which seems to be the only judicious one, as concerns false suggestions in patents. He adopts the reasoning in the cases of the earl of Rutland, 8 Co. 55, and the King vs. Kemp, 12 Mod. 78; "if the King be deceived by the suggestion of the Grantee, then the grant is void, but if the facts suggested by the Grantee be true, though the king be mistaken in his inference of law, the grant shall not be avoided," 17 Vin. 100, and authorities there referred to. The same reasoning is in one place admitted in Legats' case, 10 Co. 109.

All patents of the King, state the consideration or grounds of the grant. And where made upon information or suggestion of the Grantee, such information or suggestion is stated, as appears by the cases and precedents in all the books; such is the case in 10 Co. 109. 3 T. Rep. 199. King vs Pasmore, and all the precedents of patents which I have been able to find. The consideration, or information,it were natural to suppose,would have been expressed on the face of the grant, when it is expressly laid down, that if the false suggestion makes no part of the consideration, it shall not avoid the grant, 6 Co. 55.7 Bac. 602. Grants may be considered in four distinct points of view, as appears from the books. 1st, Those made ex cer ascientia, mero motu et gratia speciali, or cf his certain knowledge, own accord, and special grace. 2d, Such as contain this clause. with a clause of quaequidem, or specification of the grounds, or consideration of the grant, and if upon the information