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ditors, or purchasers at sheriff's sale, may not relish, but the injustice and inconvenience of having the law otherwise understood must be manifest. A judgment creditor at a distance may have his lien taken from him, if a sale under a younger judgment, could dissolve it.

It will be said, what is a younger judgment creditor to do if the older is not pressed to a sale? must he lie by until the older presses? not at all. If he thinks that the land will bring more than the older judgment, he can proceed upon the younger, and purchase himself; or some one else purchasing, pay off the older judgment, which he will then have a right to do. For he succeeds to the place of the debtor against whom the judgment was. The same in the case of a mortgage. He has then the equity of redemption in him, and has a right to pay off the first mortgage, and hold the land discharged of the mortgage. The whole error lies in the not considering as it ought to be that a sale by the law is a sale by the debtor himself: and he can make title only of what interest remains in him; and this is what interest remains after paying off all encumbrances prior.

The case of a mortgage is precisely the same with that of a judgment creditor except as to the necessity of holding an inquisition to condemn the lands; and the kind of writ, the levari facias which by the act of assembly is directed to issue. The point therefore having been decided in the supreme court, in the case of a mortgage, did decide the principle that a sale under a younger judgment, could not affect the lien of an older one.

2 Smith's Laws, 127.

Plumstead's lessee v. Rudibach, Westmoreland. The defendant offered to prove that his father, Christepher Rudibach, settled on these lands before the Indian purchase, in consequence of a military permit from Colonel Boquet which he alleged was lost by the casualty of office; but that his uninterrupted possession since his death would be presumptive evidence thereof, and that he had made considerable improvements thereon. Defendant had obtained a warrant for the land, December, 1784.

The evidence was excepted to and overruled.

I disaprove both of the decision and the reasons of the

court.

Lessee of Sherer v. Mc'Farland, Westmoreland.

I disapprove of this decision and the reasons.

Drinker's lessee v. Hunter: Northumberland; I disap

prove.

Buchannan's lessee v. Mc'Clure: Northumberland, 1808. My dissent appears, 1 Bin. 385. And totis viribus, I continue of the same mind.

Benoni Dawson v. William Laughlin; 2 Smith, 207. A recovery cannot be had on a mere settlement without a survey. I say it can shall not one regain by law, the possession of his house or improved ground, without a survey? Lessee of Samuel Ewalt v. Martha Highlands; Allegha 2 Smith's Laws, 208.

ny.

I was of counsel in this case for Ewalt, and I am constrained to say the report of the facts is not correct. And here I take the liberty of observing that no report of any judge can import absolute verity. It is not a record, though I have heard a judge affect to call it so. What a judge notes upon his paper, is not read to the counsel in the cause. They have no opportunity of taking, nor have any right, to take exception to the statement at the time. It is a matter with the judge himself and is his own memorandum, with which a party in the cause has nothing to do. The report in the case of the lessee was defective, and it is erroneous in

this, that the nonsuit would appear to have been suffered on the merits, where, in consequence of a conveyance being overruled, as not competent to be given in evidence, and this on a technical objection, the date of it being after the demise laid in the declaration. Yet it was under the idea that a nonsuit was suffered on the merits, that it went before the board of property, and this from the report of the judge. It was a rule with the board that on a verdict, or nonsuit, the granting a patent should depend. And on this principle the heirs of Highland obtained the patent which though not conclusive, has always such weight, on a settlement right, that it becomes up hill to contend against it in a court of law.

Lessee of Robert Morris v. William Neighman, 1779. This involved some principles under the act of 3 April, 1792. 1; whether, a warrantee forfeits his right under the warrant by not making a settlement on the lands within two years.

2; Whether, if a forfeiture be incurred, the defendant might not enter, and the condition being broken, take advantage thereof.

As to the necessity of making a settlement within two years, there was an exception in the act; "the being by force of arms of the enemies of the United States prevented from making such actual settlement, &c."

An Indian war did prevent until a certain period. What was that period? The court say the war continued in fact until the treaty was concluded by General Wayne; and until that treaty was ratified by the president and senate of the United States. I would query, did not the treaty put an end to hostilities in fact; and as to ratification it must be considered as relating to that peace established.

But on the 2d point; the court lay it down, that no individual can take advantage of the breach of the condition. "unless through the instrumentality of the state by granting new warrants in a specified form."

It was contended and might be made a question on the other side, whether the act of the legislature itself did not

provide, that advantage should be taken of the forfeiture, in a different manner, viz. by the entry of an individual, without a warrant. "It shall be lawful to and for this commonwealth to issue new warrants to other actual settlers for the said lands." Must not applicants have actually settled before the warrant could issue? If so, an entry for the condition broken is allowable.

Hazard v. Lowry. A note is added by the editor, page 214. "This judgment" says he "fully confirms the doctrine of Morris v. Neighman, and the point is settled." On the contrary it did not touch the all-sweeping doctrine in Morris v. Neighman, viz. "that an entry could not be made without a vacating warrant." The person entering could see the tract vacant, and that it had remained vacant for more than two years since the pacification by the treaty of General Wayne; but how could he tell, or the commonwealth ascertain the warrant it had been surveyed under.

It was impossible to ascertain it, where the description in applications, refer to some leading warrant, as it is called, and it could only be by measuring over again, the whole country that it could be known what warrant would take a particular tract. The idea of a vacating warrant never ought to have come into the mind, in such a case. Nor the idea of not having a right of entry without a warrant. It is contrary to the policy, and express words of the act. The point is not settled, and I take it never will be in that way. Attorney General v. grantees under the act of 3d April,

1792.

2 Smith's Laws, 105.

"His religious principles" says the editor, speaking of William Penn, the grantee of the charter under Charles, II. "did not permit him to wrest the soil of Pennsylvania, by force from the people to whom God and nature gave it." What is the evidence of God, or nature having given it, save the

mere circumstance of possession; or the being found upon it. God and nature have given the whole earth to man as a common inheritance. But the right to a particular part can be no more than his proportion of the soil to the individual. This, taking into view quantity and quality. Power may engross more, but it is incorrect in that case to resolve it into right. It is the common cant, that the natives had an exclusive title, under the law of nature to this continent; but it cannot bear the test of an investigation. They had a right only to so much of it as was their proportion of the whole earth. This is taking up the matter on the strict principle of natural right. Upon this principle, can it be said, that a few scattered tribes could claim the whole of this continent. So soon as discovered, the nations of Europe had a right to enter upon it, the share being too much which they occupied in proportion to their population. But I do not question the expediency of obtaining by fair means, and even by purchase, the possession of a part. This was advisable; as an individual may buy his own to avoid a law suit; or give something in consideration of quieting a claim. It may be said that considering their mode of life, hunting, a larger tract was necessary to an individual savage, than to a civilized man living by the cultivation of the soil. What have we to do with mode of life where right is in question? My ideas on this head were expressed some years ago, in a treatise on the Indian right of soil.

On what is it founded? Having had a foot first on the continent? Then one Indian might claim the whole: spend his winter in the torrid zone-his summer in one or other of the frigid, and spring and fall in the temperate. That would be unreasonable. Will two Indians have this right? There must be more than that. Two tribes ? It would be too much to take up the whole continent with two tribes. How many must there be to give the right? Just as many as there are. If there was one less, would they have the right? Yes. Two less? Yes. How many might there be less, and the right exist? I cannot tell-nor no one else. There must be some fixed principles on which all right depends. law of nature, it is a right to as much as is necessary for our sub

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