or suggestion of the grantee, the particulars of such suggestion, as in Legats' case. 3d, Such as contain a specifiation alone. 4th, Where the grounds or consideration of the grant is the kings own affirmation, and not the suggestion of the grantee.

From a view of all the books, it seems to be the better opinion, that the grant in the first case is indefeasible, if not against law, 10 Co. Legats' case 7 Ba. Ab. 602. 3.

In the second and third, if there be any falsity in the suggestion, as expressed in the grant, the grant shall be void, though the clause of ex certa scientia be inserted, 10 Co. 112.

The fourth case stands upon the same footing with the first, p. 5 Bac. 602, &c. Vin. Ab. tit. Prerogative, 100; and cases referred to in this, and several other divisions.

As to the cases, in which grants shall be repealed on account of their being void, as being in deception of the King, or against Law, the books are equally plentiful of confused cases. The language of the books in many cases confounds the distinction between void and voidable. It however may be collected, that grants either absolutely void or voidable may be cancelled by Sci. Fa. A se. cond grant for the same thing is void, yet Sci. Fa. lies. Jenk. Cent. 236 pl. 13. 17 Vin. 116 pl. 13.

Where a patent is granted to the prejudice of a subject, the King is of right to permit him to use his name, in getting the pat ent repealed by Sci. Fa. 2 Vent. 344; and this right extends as well to the second, as first patentee 2. T Rep. 550 arguendo. 17 Vin. 121. Jenk Cent. 126 pl. 56. That no Sci. fa. lies except the record of enrollment, or office found, be of the court from which the Sci. fa. issues. Bac, Tit. Sci. fa.C.3. Vernon 281. Upon the last principle, a bill in Chancery was sustained, the record being of the Dut chy Court of Lancaster, and upon the ground of fraud. To this Bill it was objected in support of a plea, that there never had been such acase, and that the proper remedy was by Sci. fa, in chancery. But the chancellor overruled the plea upon the ground that it was proper to set aside a Grant by English Bill for fraud.

In Bac. Ab. Tit. Void and Voidable, we find the law treated of, on this subject, with more precision and method than in any other book. 7 Bac, 64 B. Acts may be void in several degrees, accord

ing to the particular circumstances of the case, therefore the com, piler considers, 1st. Acts which are absolutely void to all purposes. 2d. Acts void to some purposes only. 3d. Acts void as to some persons only. 4th. Acts void by operations of law, &c, 5th. Acts voidable only. 6th. How voidable, may be made good. 7th. How they may be avoided; and 8th. By whom avoided.

Under the 3d division the compiler says, that no act can make a thing which is void, good, p. 68, and in the 7th division above, he adopts the principle contained in Whildale's case, 5 Co. 119, cited by Mr. Stuart for the defendant-That where an Act of Parliament says, that a deed shall be void, it is intended that it shall be shown by pleading, 3 Burr. 1804. 1 H. Bl. 75. In a note to this case in Bacon, the learned editor has these remarks. "It is not because the Deed may be avoided by special pleading, that it is therefore voidable ; but being only voidable, the party is bound to disclose that matter in his plea which shall avoid it, for prima faciæ it is good; it passeth an interest; it is capable of confirmation; its validity therefore, shall not be questioned without giving the other party an opportunity of supporting it in his replication." page 68.*

Under the 8th division as above, the same author says, "of a void act or deed, any stranger may take advantage, but not of a voidable one, p. 68; again in page 67, under the 5th division, he says, "Though the statute of Westminster, 2, 13 Ed. 1. c. 1. says, finis ipso jure sit nullus, yet it is not void against the party, or his issue, or him in reversion," but may have remedy to avoid it, "and the words of the statute, sit nullus, are construed to mean, that it is as good as void, in respect to the defeasableness of it." So in the same page, in relation to the statute of additions, the language used is "clearly void and of no effect." Yet it shall not be absolutely void.

So far as the meaning of the cases has been collected from the books, the following positions may be assumed. 1st. That agreeably to the principles of the Common Law, all deeds made by persons competent to their execution, which take their rise in fraud,

6 East. Rep. 101 to 104, to the same effect.

are absolutely void, against all persons affected by them, but good as to other purposes; the party making such a deed is bound by it, and can only avoid it by pleading. Such fraud can be given in evidence. under the general issue, 10 Co. 109. and 2 Co. 50. cited at the Bar, where the false suggestion and misrepresentation of the grantees were fraudulent. Though the rights of prerogative in many cases will go further than the doctrine of fraud between individuals will warrant, in making a deed absolutely void, and equally warrants the giving such matter in evidence as in cases of fraud. 2d. Whenever a deed originates in some common vice or immorality, being against the policy of the law, as gaming and usury, and a statute declares it void, or is void, ex turpi causa, as in the case of Collins vs. Blantern, Wilson's Reports, it is absolutely so, and may be given in evidence collaterally. In cases where assumpsit lies, the matter of avoidance may be received in evidence under the general issue, Doug. 741. Though such immorality must be pleaded where the deed is made the ground of an action, being one of those cases, in the language of Ch. Baron Gilbert, "in which both public and private statutes ought to be pleaded, and then it is where they make void any solemnities; for in this case the construction of the law is, not that the solemn contracts shall be deemed perfect nullities, but that they are voidable by the parties prejudiced by such contracts, and one reason of this construction ariseth from the rule of expounding all statutes, that quisquis potest renunciare juri pro se introducto." Gilb. Law Evid. 42. 3.

These two classes, with that attached to the rights of prerogative, are believed to comprise nearly all the cases to be found in the English Books, in which evidence was permitted to be given of the invalidity of Deeds, by matter dehors, without pleading such matter agreeably to Whildale's case, 5 Co. 119. Matter appearing on the face, or on some public record, seems to be governed by a different principle. The intention of pleading is, that, agreeably to the forms of law, each party, by seeing what is intended to be litigated on record, may come prepared with testimony to investigate the point, and not be taken by surprise. This purpose is sufficiently attained in the cases from 3 T. Rep. 603. 7 T. Rep.

506: The first respects the registration of deeds for annuities : The second respects the registration of bills of sale for ships. In the first case the deed itself would show whether it were valid or void, p. 610. In the second, the question arose under the general issue of non assumpsit, upon an Act of Parliament, respecting the registration of ships, providing that every transfer of a ship, otherwise than by bill of sale, in which should be recited, a copy of the registry, should be void. A bill of sale was produced, which did not recite the registry, the Court were of opinion that the transfer was absolutely void, and not merely voidable. A comparison of the bill of sale with the record of the registry which was open to all, would enable the purchaser to be apprised whether the transfer was void or not. This he must be supposed to know without pleading.

Where patents for new inventions come into view, and when the question relates to the falsity or truth of the specification, fraud mingles itself with the transaction, 1 T. Rep. 602, but the main ground upon which evidence is admitted as to the patent, in this, as well as all other cases of a similar nature, is not for the absolute avoidance of the patent. Buller I. in p. 607, observes that "whenever the patentee brings an action on his patent, if the novelty or effect of the invention be disputed, he must show in what his invention consists, and that he produced the effect proposed by the patent in the manner specified. Slight evidence of this, on his part is sufficient; and it is then incumbent on the defendant to falsify the specification." The evidence in these cases is necessarily involved in the issue, and must be produced by the plaintiff in making out his case. He must prove that the effect, proposed by the invention can be produced, and that the defendant has infringed the exclusive right communicated by the patent. If the plaintiff fail in the first, it is usual for the books to say, that his patent is void, and so it is as to the defendant, though the plaintiff may make the necessary proof in another case. This case does not apply to the one now before the Court: nor do the cases of quo warranto in 2 T. Rep. 515 and 561, in which the matter is brought before the Court by special pleading.

Having thus taken a short and imperfect view of the authorities, I have only to observe, that the case before the Court, does not fall within the meaning or principle of those wherein the King is said to be deceived in his grant, 2 T. Rep. 363.

With the help of these lights, we shall proceed to the examination of the Statute Law, and by a view and comparison of both, endeavour to obtain a result, so far as respects the statutes of North Carolina, and not those of this State, which do not now come before us.

In the construction of these acts, it seems to me that the rule insisted on, by the plaintiff's counsel, is correct. They should be construed pari materia, and to the authorities produced, may be added those collected in Ba. Ab. Tit. Statute 1. Divisions 2, 3, 4 and 5. But I cannot accord with the proposition, that expressions used in one Statute, must necessarily bear the same meaning, in all cases, and under all circumstances, in a subsequent act. This, no doubt, is one of the rules of construction, Bac. I. 1. It is safe to recur to it, and follow the rules, where evident violence is not done to the context of the Statute, and plain meaning of the Legislature, to be collected from their act or acts, and circumstances under which the Statute was passed.

In order to comprehend the subject before the Court, with greater and more satisfactory precision, it will be necessary to take a view of some of the most prominent features of the differ

ent acts.

The Land Law seems susceptible of four principal divisions. 1st. In relation to county claims, or fifty shillings warrants. 2d. Military, including officers and soldiers county lands in civil" rights, or those given to the surveyor of military lands and his deputies; Pre-emptions in consideration of settlements; Rights of the chain carriers, and markers attending the commissioners, their guard, hunters, surveyors, chain carriers, and markers attending the commissioners, in laying off the lands for the officers and soldiers, and adjustment of pre-emptions and attendant claims; and rights of Evans' Battalion.

3d. Lands sold for certificates at 10%. per hundred, or John Armstrong's warrants.