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MEMORANDUM.

DIED.

IED, on Monday, the 25th of February, in the city of Washington, William Pinkney, in the fifty-eighth year of his age. He was one of the board of commissioners for settling the claims under the British treaty of 1794, and had represented the government of this country, as its minister plenipotentiary, successively, at the courts of London, Naples, and St. Petersburgh, with dignity and ability; he had held, with the highest reputation, the office of Attorney-General of the United States; and at the time of his death was a senator in Congress from his native state of Maryland, and a distinguished ornament of this bar. His funeral took place on the ensuing Wednesday, in the forenoon, under the direction of the senate, and was attended with all those public solemnities and that reverential sorrow due to his exalted talents and station.

To extraordinary natural endowments, Mr. Pinkney added deep and various knowledge in his profession. A long course of study and practice had familiarized his mind with the science of the law, in every department; and his attainments in the auxiliary branches of learning, essential to the jurist and advocate, were of the most profound and elegant character. For many years he was the acknowledged leader at the head of the bar of his native state; and during the last ten years of his life-the principal period of his attendance in this court— he enjoyed the reputation of having been rarely equalled, and perhaps never excelled, in eloquence and the power of reasoning upon legal subjects. His mind was acute and subtle; rapid in its conceptions, and singularly felicitous in the exposition of the truths it was employed in investigating. Mr. Pinkney had the command of the greatest variety of the most beautiful and peculiarly appropriate diction, and the faculty of adorning and illustrating the dryest and most intricate discussions. His favorite mode of reasoning was from the analogies of the law; and whilst he delighted his auditory by his powers of amplification and rhetorical ornament, he instructed the court by tracing up the technical rules and positive institutions of jurisprudence to their historical source and first principles. He was profoundly versed in the ancient learning of the common law; its technical peculiarities and feudal origin, its subtle distinction and artificial logic, were familiar to his early studies, and enabled him to expound, with admirable force and perspicuity, the rules of real property. To this, and his other legal attainments, he superadded, at a later period of life, an extensive acquaintance with the theory and administration of public law.

In the various questions of constitutional law which have been recently discussed in this high tribunal, it may be said, it is hoped, without irreverence, that Mr. Pinkney's learning and

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powers of investigation have very much contributed to enlighten and fix its judgments. In the discussion of that class of causes especially, which, to use his own expressions, presented the proud spectacle of a peaceful judicial re"view of the conflicting sovereign claims of "the government of the Union and of the "particular states, by this more than Amphictyonic council," his arguments were characterized by a fervor, earnestness, gravity, eloquence, and force of reasoning, which convinced all who heard him that he delivered his own sentiments as a statesman and a citizen, and was not merely solicitous to discharge his duty as an advocate. He exerted an intellectual vigor proportioned to the magnitude of the occasion. He saw in it a pledge of the immortality of the Union; of a perpetuity of "national strength and glory, increasing and brightening with age; of concord at home, "and reputation abroad." And in his argument on the constitutionality of the charter of the Bank of the United States, he stated, that "the consideration which the question involved "imparted to it a peculiar character of import"ance; and this tribunal, distinguished as it is for all that can give to judicature a title to reverence, is in deliberating and adjudicating upon it, in the exercise of its most exalted, its most awful functions. The legislative fac"ulties of the government of the Union, for the prosperity of the Union, are in the lists against the imputed sovereignty of a particu'lar state; and you are the judges of the lists; "not, indeed, upon the romantic and chivalrous principles of tilts and tournaments, but upon the sacred principles of the constitution. "In whatever direction you look, you cannot but perceive the solemnity, the majesty of such an occasion. In whatever quarter you approach the subject you cannot but feel that it demands from you the firm and steady exer'tions of all those high qualities which the universal voice ascribes to those who have 'devoted themselves to the ministry of this "holy sanctuary."

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That intense application to his professional and public labors, for which Mr. Pinkney was so remarkably distinguished, continued to animate his exertions to the last moments of his life; and as he held up a high standard of excellence in this honorable career, he pursued it with unabated diligence and ardor, and still continued to speak as from the impulse of youthful ambition. His example was therefore of the greatest utility in exciting the emulation of the profession. But it is as an enlightened dedefender of the national constitution against the attacks which have been made upon it under the pretext of asserting the claims of state sovereignty, that his loss is most to be lamented by the public. It is known to his friends that he was, a short time before his death, engaged

Mr. Chief Justice MARSHALL replied in the following words:

in the investigations preparatory to making a memory of the deceased, I request the court to great effort in the senate upon this interesting allow this day for the uninterrupted indulgence subject. The loss of such a commentary upon of our feelings, and for that purpose now to the constitution, by one who had so profound- adjourn. ly meditated its principles, may be regarded as a public calamity. It is also to be regretted that the great fame of his eloquence must rest mainly in tradition; as it is believed that no perfect memorials of his most splendid efforts in the senate or at the bar have been preserved, and it is obviously impossible to form any adequate notions of the powers of an advocate from the sketches of the arguments of counsel contained in the books of reports.

The following proceedings of the court and bar took place upon the occasion of Mr. Pinkney's decease:

Feb. 26. On the meeting of the court, this morning, Mr. Harper rose, and addressed the judges thus:

"On the part of the bar, may it please your Honors, I am about to address a request to the court, which I am sure will accord with its feelings, and I hope will not be considered as inconsistent with its duty.

"A great man has fallen in Israel.' The bar has lost one of its brightest ornaments; the court one of its ablest and most enlightened advisers.

"When such men fall, it seems fit that some expression of public regret should attend them to the tomb. It cannot be useful or pleasing to them, but it tends to increase the effect of their example to those who survive, and to soothe the sorrow of their afflicted relatives.

Nowhere can such a tribute more properly be paid to the memory of our departed brother than here; where the pre-eminent talents and acquirements by which he adorned our profession have been so often displayed; and he has taken so large a part in fixing those great legal and constitutional land marks by the establishment of which this court has conferred the most solid and extensive benefits on the nation.

"To express our deep sense of this great public and private loss, and as the most appropriate tribute now in our power to offer to the 380

"I am very confident that I may say in the name of all my brethern, that we participate We all lament the death of Mr. Pinkney, as a sincerely in the sentiments expressed at the bar. loss to the profession generally, and especially to that part of it which is assembled in this

room. We lament it, too, as a loss to our country. We most readily assent to the motion which has been made, and shall direct an adjournment till to-morrow at twelve."

The following entry was directed to be made on the minutes of the court:

"The court being informed that Mr. Pinkney, a gentleman of this bar, highly distinguished for his learning and talents, departed this life last night in this city, the judges have determined, as a mark of their profound respect for his character, and sincere grief for his loss, to wear crape on the left arm for the residue of the term; and to adjourn for the purpose of paying the last tribute to his remains, by attending them from the place of his death."

After the adjournment of the court, the members of the bar assembled in the court-room; Mr. Clay was called to the chair, and Mr. Winder appointed secretary.

On motion of Mr. Harper, seconded by Mr. Webster, it was unanimously resolved, that the members of this bar, as a mark of their regret for the memory of their deceased brother, the Hon. William Pinkney, and of their deep sense of the loss which the public and the profession have sustained in his death, will attend his funeral in a body, and wear a crape on the left arm during the present term.

On motion of Mr. Wheaton, seconded by Mr. D. B. Ogden, it was unanimously resolved, that the proceedings of this meeting be signed by the chairman and secretary, and published in the National Intelligencer.

The meeting then adjourned.

H. CLAY, Chairman. W. H. WINDER, Secretary.

Wheat. 7.

DECISI

REPORTS OF THE DECISIONS

OF THE

Supreme Court of the United States.

FEBRUARY TERM, 1822.

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A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute allegal title; until the consummation of the title by a grant, the person who acquires an equity holds a right, subject to examination.

Where the register of the land-office of Virginia, had, by mistake, given a warrant for military services in the continental line, on a certificate authorizing a warrant for services in the state line, and in recording it, pursued the certificate, and not the warrant, it was held that this court could not support a prior entry and survey, on a warrant thus issued by mistake, against a senior patent. Where the plaintiffs seek to set aside the legal title, because they have the superior equity, it is consistent with the principles of the court to rebut this equity by any circumstances which may impair it; and the legal title cannot be made to yield to an equity founded on the mistake of a minis

terial officer.

THIS

2*]

HIS cause was argued and determined at the last term, but omitted to be reported.

*Mr. Justice TODD delivered the opinion of the court:

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On the 29th of May, 1783, Seymour Powell, heir of Thomas Powell, obtained a military land warrant from the register's office in Virginia, No. 679, for 2,663 acres of land due in consideration of services for three years, as a lieutenant of the Virginia continental line, agreeably to a certificate from the governor and council, received into the land-office." A part of this warrant was entered in the military district reserved for the officers and soldiers of the Virginia continental line, on the 16th of June, 1795; and, on the 30th of October, 1796, 789 acres, part thereof was surveyed in the name of the said Seymour Powell, which survey was on the 1st of March, 1797, recorded in the office of the surveyor-general. On the 10th of July, 1800, Justus Miller purchased this land, and took an assignment of the entry and

NOTE.-Letters patent for conveying real estate may be set aside in equity, if obtained by fraud. Atty. Gen. v. Vernon, 1 Vern. 277; Jackson v. Lawton, 10 John. R. 25, 26; Jackson v. Hart, 12 John. R. 77; 2 Bl. Com. 348.

Where a patent for lands is granted by the general government, the court may go behind the patent, on allegations of fraud in the patentee in obtain

survey, and obtained a patent therefor in Feb ruary, 1808.

John Neville made an entry on the same land in May, 1806, on a military land warrant, for services in the Virginia continental line: and his heirs, the respondents, obtained a patent therefor on the 30th of April, 1807.

They have brought an ejectment against the heirs of Justus Miller, who having, as they say, the elder equitable, though the junior legal title, have filed this bill to enjoin proceedings at law, and compel Neville's heirs to convey the legal title to them.

In their answer, Neville's heirs assert that Thomas Powell never served in the Virginia continental *line, but that his service was [*3 performed in the state line, and that the certificate of the governor and council, on which the warrant was issued, was expressed to be given for services in the state line, so that the warrant issued fraudulently, or by mistake. They further insist, that as the officers of the state line could not enter their warrants in the district reserved for the continental line, the plaintiffs ought not to be permitted to avail themselves of a title founded in mistake, to defeat their legal title.

The testimony taken in the cause, shows that the records of the office of the executive council of Virginia have been examined, and that no certificate has ever been granted to Seymour Powell, as the heir of Thomas Powell, for services in the Virginia continental line, but that a certificate was granted to him for military services for three years in the state line.

In the land-office, too, records are to be preserved of all the warrants which issue, and of the certificates on which they issue. This office also has been searched, and no certificate is found of any military service rendered by Thomas Powell, in the Virginia continental line, nor is there on record any warrant for such service; but there is a certificate given to Seymour Powell, for his military service as a

ing the patent, and may examine into the equities of other persons entitled or claiming to be entitled to the patent, and may set aside the same if fraudulently obtained. Brush v. Ware, 15 Pet. 93; Boldly v. Taylor, 5 Cranch, 196; Polk v. Wendell, 5 Cranch, 93; 5 Wheat. 293; Hoffnagle v. Anderson, post, 213; 2 N. Y. Rev. St. 578, s. 12; The People v. Clark, 10 Barb. 120; N. Y. Code of Prac. s. 1957.

lieutenant in the state line; and a warrant on record for those services, bearing the same date and number with that on which the land now in controversy was entered.

There is no proof, and no reason to believe, that Thomas Powell ever performed any mili4*] tary service *in the Virginia line on continental establishment.

It is, then, apparent that the register of the land-office has, by mistake, given a warrant for military services in the continental line, on a certificate authorizing a warrant for service in the state line; and that, in recording it, he has pursued the certificate, and not the warrant.

The question is, can this court support a prior entry and survey, on a warrant thus issued by mistake, against a senior patent?

wise." When the office of Commissioner of War was put down, this duty devolved [*6 on the executive department, whose certificate was as obligatory on the register, as that of the Commissioner of War had been. The question of right, then, was tried before the executive council, and the register is a mere ministerial officer carrying the judgment of the executive into execution by issuing his warrant in pursuance of their certificate. This certificate is filed and preserved in the office as the document on which the warrant issued. It is as much a part of the record as the warrant itself.

A warrant and survey authorize the proprietor of them to demand the legal title, but do not, in themselves, constitute a legal title. Until the consummation of the title by a grant, the person who acquires an equity holds a right subject to examination. The validity of every document is then open to examination, whatever the law may be after the emanation of a patent.

It has been urged, on the part of the appellants, that the title of Thomas Powell, for services in the state line, is precisely to the same quantity of land as if those services had been rendered in the continental line; his claim on the state of Virginia is the same. That, had the warrant been properly issued, it might have If this be correct, and the objection to been satisfied in the district set apart for the the warrant delivered to Mr. Powell can be officers and soldiers of the state line, which dis- considered, he is shown, by the clearest testitrict is in the state of Kentucky, and can no mony, to be the holder of a warrant issued by longer be appropriated by the holders of war- mistake. As an officer in the state line, he rants for military services in the Virginia state was not entitled to a warrant which could apline. Thus the rights under Powell are sacri-propriate lands lying in the military district ficed, without any fault of his, in consequence north west of the Ohio. of a mistake committed by the register of the land-office. They say that they are purchasers, without notice, of a title apparently good, and ought not to be affected by the mistake of a public officer. They insist that in the hands of a purchaser, a warrant ought to be liable to no objection founded on circumstances anterior to its date.

5*] *There is great force in these arguments; and, if the military district had remained a part of Virginia until Mr. Powell's warrant was entered, they would, perhaps, be unanswerable. But, in 1784, this district, with all the territory claimed by Virginia north-west of the Ohio, was ceded to the United States, with a reservation in favor of the legal bounties of the Virginia troops on continental establishment only. There is no reservation whatever in favor of the bounties in land, to the state troops. Provision for them was made elsewhere.

As the plaintiffs are endeavoring to set aside the legal title, because they have the superior equity, we think it consistent with the principles of the court to rebut this equity by any circumstance which may impair it.

*The case is a hard one on the part of [*7 the plaintiffs; and they may have strong claims on the liberality and justice of the United States, or of Virginia; but we do not think the legal title can be made to yield to an equity founded in the mistake of a ministerial officer. Decree affirmed, each party paying his own costs.

Cited 7 Wheat. 218; 6 Pet. 676; 12 Pet. 299; 15 Pet. 106; 3 How. 665; 1 McLean, 535.

[LOCAL LAW.]

NEWSOM v. PRYOR'S LESSEE.

Where plats are returned and grants made, withan actual survey, the rule of construction Hicting claims of different parties, is, that the most which has been adopted, in order to settle the conmaterial, and most certain calls shall control those which are less material and less certain.

After this cession, no title could be acquired under Virginia, which was not included within the reservations. The same principle was asserted by this court in the case of Polk's Lessee v. Wendell, and is, we think, too clear to be controverted. The great difficulty in this case consists in the admission of any testimony what-out ever, which calls into question the validity of a warrant issued by the officer to whom that duty is assigned by law. In examining this question, the distinction between an act which is judicial, and one which is merely ministerial, must be regarded. The register of the landoffice is not at liberty to examine testimony, and to exercise his own judgment respecting the right of an applicant for a military land warrant. He was originally directed to grant warrants to the officers or soldiers "producing to him a certificate of their claims respectively from the Commissioner of War, and not other

1.-5 Wheat. Rep. 293.

A call for a natural object, as a river, a known stream, a spring, or even a marked line, shall con

trol both course and distance.

a

There is no distinction between a call to stop at

river, and a call to cross a river.

Where a grant was made for 5,000 acres of land lying on both sides of the two main forks of Duck River, beginning, &c., and running thence west 894 poles, to a white oak, thence south 894 poles to a stake, thence north 894 poles to the bepoles, to a stake crossing the river, thence east 894 ginning, crossing the south fork;" it was held, that it must be surveyed so as to extend the second line of the grant such a distance on the course called for as would cross Duck River to the opposite bank.

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Mr. Chief Justice MARSHALL delivered the opinion of the court;

This is a writ of error to a judgment given in the Circuit Court for the District of West Tennessee, in an ejectment brought by the defendants in error against the present plaintiff. The plaintiffs in the court below claimed under the elder patent, to the validity of which there was no objection. Of consequence, the only question in the cause was, whether the lines of their grant comprehended the land in contest. The grant was made for 5,000 acres of land, "lying on both sides of the two main forks of Duck River, beginning, &c., and running thence west 894 poles, to a white oak tree; south, 894 poles, to a stake crossing the river; thence east, 894, poles to a stake; thence north, 894 poles, to the beginning, crossing the south fork."

It is apparent that a survey was not made in fact, but that, after marking a beginning corner, the surveyor made out and returned a plat, which he supposed would comprehend the land intended to be acquired. It is now too late to question the validity of grants made on such plats and certificates of survey. From the extraordinary circumstances of the country, they were frequent, and, in consequence of those circumstances, have received the sanc9*] tion of *courts. An immense number of titles, believed to be perfectly secure, depend upon the maintenance of such grants. The extent of the mischief which would result from unsettling the principle, cannot be preceived; and is certainly too great now to be encountered. The patent, therefore, must be considered as if the survey had been actually made.

In consequence of returning plats where no actual surveys had been made, and where the country had been very imperfectly explored, the description contained in the patent often varies materially from the actual appearances of the land intended to be acquired. Natural objects are called for in places where they are not to be found; and the same objects are found where the surveyor did not suppose them to be. In a country of a tolerably regular surface, no considerable inconvenience will

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NOTE. See note to McIver's Lessee v. Walker, 9 Cranch, 173.

Course and distance yield to monuments, or natural objects, in determining boundaries of land. McIvor v. Walker, 4 Wheat. 444; Cleveland v. Smith. 2 Story, C. C. 278; Chinoweth v. Haskall, 3 Pet. 92; Barclay v. Howell, 6 Pet. 198; Wakefield v. Ross, 5 Mas. 16; Robinson v. Moore, 4 McLean, 279; McPherson v. Foster, 4 Wash. C. C. 45; Cleavland v. Smith, 2 Story, C.C. 278; Granger v. Swart, 1 Woolv. 88; White v. Williams, 48 N. Y. 344; Belden v. Seymour, 8 Conn. 19; 8 Conn. 304; Chatham v. Branard, 11 Conn. 60; Higley v. Bidwell, 9 Conn. 447; Howe v. Bass, 2 Mass. 380; Pernam v. Wead. 6 Mass. 131; Gerrish v. Bearce, 11 Mass. 193; Aiken v. Sanford, 5 Mass. 494; Davis v. Rainsford, 17 Mass. 207; Mayhew

result from this circumstance. The course and distance of the patent will satisfy the person claiming under it, and seldom interfere with the rights of others. But in a country where we find considerable water-courses and mountains there must be more difficulty. The surveyor calls for some known object, but totally miscalculates its courses, distances, or both, from some given point which he has made the beginning of his survey; and there is a variance in the different calls of his survey, and of the patent founded on it. As in this case, the second line is to run south 894 poles, to a stake, crossing the river. This distance will not reach the river; and must be continued to 1,222 polesto cross the river. The distance must be dis, regarded, and this line so extended *as to [*10 cross the river, or the distance must control the call for crossing the river. These difficulties have occurred frequently, and must be expected to occur frequently where grants are made without an actual survey. Some general rule of construction must be adopted; and that rule must be observed, or the conflicting claims of individuals must remain forever uncertain.

The courts of Tennessee, and all other courts by whom causes of this description have been decided, have adopted the same principle, and have adhered to it. It is, that the most material and most certain calls shall control those which are less material and less certain. A call for a natural object, as a river, a known stream, a spring, or even a marked tree, shall control both course and distance. These decisions are founded on two considerations. Generally speaking, it is the particular intention of the purchaser to acquire the land lying on the stream called for, as being more valuable than other land; and, in every case where a natural object is mentioned, it designates the land surveyed had there been an actual survey, much more certainly than course and distance can designate it. In this case, for example, the surveyor says that he has run south 894 poles, to a stake crossing the river. Now, it is much more probable that he should err in the distance, than in the fact of crossing the river. The conclusion, therefore, had an actual survey been made, would be, that the line did cross the river.

The general effect of this principle undoubtedly is, that the purchaser acquires more land than is expressed *in his grant, and more [*11 than he has paid for. Where this has been thought an object worthy of legislative attention, provision has been made for it. Courts cannot now shake a principle so long settled, and so generally acknowledged.

v. Norton, 17 Pick. 357; Frost v. Spaulding, 19 Pick. 445; Dawes v.Prentice, 16 Pick. 435; Flagg v. Thurston, 13 Pick. 145.

If there be nothing to control the course and distance, the line is run by the needle.

Jackson v. Staats, 2 John. Cas. 350; Trammell v. Nelson, 2 Harr. & McH. 4; Penam v. Wead, 6 Mass. 131; Howe v. Bass, 2 Mass. 380; 4 Kent's Comm.466; Higley v. Bidwell, 9 Conn. 447; Benedict v.Gaylord, 11 Mass. 335; Doe v. Porter, 3 Atk. 18, 57; White v. Gay, 9 N. H. R. 126; Melvor v. Walker, 9 Cranch, 173; Preston v. Bawmar, 6 Wheat. 580; Colclough v. Richardson, 1 McCord, 167; Welch v. Philips, 1 McCord, 215; Brooks v. Tyler, 2 Vt. 318; Clark v. Wethey, 19 Wend. 320; Wyckoff v. Stephenson. 14 Ohio, 13, 15, 17; Schultz v. Young, 3 Ired. N. C. 385.

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