difficulty about the variance in the quantity of the land." The rules established by Lord Fairfax were known to conform to those of the crown, and the declarations of the judges in this case, all of whom were acquainted, in some degree, with the usages under the regal government, make a strong impression on this court in favour of the opinion that, in the council chamber, the law was understood to be, that excess in the survey was not to be regarded. The law of this case, then, so far as respects the state of title previous to the emanation of either grant, appears to be with the first survey. It remains to inquire whether a court of equity will relieve against the legal title acquired by the first grant. The principle on which relief is granted is, that the patent, which is the consummation of title, does, in equity, relate to the inception of title; and, therefore, in a court of equity, the person who has first appropriated the land in contest has the best title, unless his equity is impaired by the circumstances of the case. In this cause, the first patentee is said to be a purchaser without notice. But, for the reasons assigned in a former part of this opinion, the court does not consider him as clothed with that character. His warrant authorizes him to survey waste and unappropriated lands, and he undertakes himself to find lands of that description. The government acts entirely on his information; and the terms of his grant are, that the lands were waste and unappropriated. It is not for him to say that he had misinformed the government, and had surveyed appropriated instead of vacant lands, and had thereby entitled himself to be considered as a purchaser without notice. Neither does the court conceive that the plaintiffs TAYLOR BROWN. have forfeited their right to come into a court of equity, by their negligence. In the case of 1 Wash. 116. the prior right of the plaintiff had been absolutely forfeited, so that the defendant had the first title both in equity and law, and the plaintiff's bill was dismissed because he failed to prove the fraud which he alleged, and which was, in that case, necessary to give the court jurisdiction. In the case of Picket and Dowdale, and of Curric and Burns, there were both forfeiture and abandon ment. In the case of Johnson and Bronw, 3 Call, 259. more than sufficient time had elapsed between the entry and survey of the plaintiff to produce a forfeiture; but, by the old law, notice was to be given by the surveyor before a forfeiture could take place, and this fact was not proved. During forty years this entry had been totally neglected; and the court was of opinion that, after such a lapse of time, the fact of notice by the surveyor might be presumed. This case then also turned on the principle of forfeiture. There were, besides, a great many circumstances in Johnson's title which gave a strong bias to the judgment of the court. The difference between the casc under consideration, and those cited is apparent. But the case of Johnson v. Buffington was much stronger than this. The prior survey was actually forfeitable, but had not been forfeited; and in that case, after a much longer time than exists in the present, a court of equity supported it against the eldest grant. The general principles which have been relied on, in this branch of the argument, cannot be considered as applicable to a case in which the act, which constitutes the foundation of the charge of negligence, was performed within the time allowed by statute for its performance. The circumstances, which excused the owners of military surveys for not returning them, were before the legislature and have been declared, by law, to be sufficient. But it is contended that the plaintiffs can have no equity beyond the 2,000 acres contained in the warrant on which M'Donald's survey was made. If this court is to consider itself as merely substituted for a court of law, with no other difference than the power of going beyond the patent, this question is already decided. But, in the case of Bodley and Hughes v. Taylor, an opinion was indicated that its jurisdiction, not being given by statute, but assumed by itself, must be exercised upon the known principles of equity. This opinion is still thought perfectly correct in itself. Its application to particular cases, and indeed its being considered as a rule of decision on Kentucky titles, will depend very much on the decisions of that country. For, in questions respecting title to real estate especially, the same rule ought certainly to prevail in both courts. But, in its equity, this case differs essentially from Bodley and Hughes v. Taylor. In that case, Taylor had the eldest entry as well as the eldest patent. In this, the eldest equitable right is with him who holds the eldest grant. In that case, the variance between the entry and survey of the elder right is established by a set of rules growing out of expositions subsequent to the survey. In this, the eldest grant is founded on a survey made on land which, in point of fact, was previously appropriated. But, which is of great importance, in that case, the terms of the subsequent location prove that the locator considered himself as comprehending Taylor's previous entry within his location, and, consequently, did not suppose so much of the land covered by his entry as being then subject to appropriation. * Quere, youngest ? TAYLOR V. BROWN. TAYLOR He either did not mean to acquire the land within Taylor's entry, or he is to be considered as a man watching for the accidental mistakes of others, and preparing to take advantage of them. What is gained at law by a person of this description, equity will not take from him; but it does not follow that equity will aid his views, and give more than the law gives him, by allowing him to hold what he has legally gained, while he demands what is legally lost. In this case, M Donald supposed himself to be appropriating, and in fact was appropriating, land to which no other had, at the time, any pretensions. In addition to these strong differences, in equity, between the two cases, no decision of Kentucky was shown to the court, which was applicable to the case of Bodley and Hughes v. Taylor. But the case of Beckly. Bryan and Rausdale is conceived to be an authority in point for this case. The decision of the court of appeals of Virginia, in the case of Buffington and Johnson is also considered as expressly in point, and is to be respected, because both these surveys were made while the country in which they were made formed a part of Virginia. It is thought not absolutely unimportant, in a court of equity, that one of the circumstances has occurred, which, at law, rescues the surplus land in M'Donald's patent from the possibility of being acquired by any other person. An alienation has taken place. The decree, therefore, of the court for the district of Kentucky, is to be reversed, and the defendant must be decreed to release to the plaintiffs, respectively, the lands within Sumner's patent which lie within the lines of the land conveyed by M'Donald's heirs to them respectively. THE UNITED STATES v. JOHN ARTHUR AND THE U.S. V. ARTHUR. ERROR to the Kentucky district court of the United States, in an action of debt on a bond for 6,000 dollars. 28th The capias ad respondendum issued on the of June, 1803, returnable to the first Monday July in the same year, and was served on the of June. The want of condition of al oyer of the, bond in plea ofperformance is fatal. Upon demurof rer, the judg30th court must be against thepar ty who commits the first ment of the ac- error. The declaration was in the usual form of an tion of debt for the penalty of the bond with a profert, but without setting forth its condition or any breach thereof. The defendants, without praying oyer, pleaded as follows: "And the defendants, by their attorneys, come and defend the wrong and injury when and where, &c. and for plea say they have well and truly kept and performed, and have faithfully executed and discharged, all and singular the duties enjoined on them by the laws of the United States, and the conditions in the writing obligatory in the declaration mentioned, and this they are ready to verify," &c. The plaintiffs replied, that they ought not to be barred, &c. because they say "that the said defendants have not well and truly kept the several conditions in the said writing obligatory, as they in pleading have alleged, but have broken the same in this, to wit, that the said John Arthur, although duly appointed to the office of collector of the revenue for the first division of the first survey of the district of Ohio, as stated in the said condition, had not, at the time of executing the said writing obligatory, executed and discharged, nor after the execu1 Vol. V Kk |