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RANDOLPH ties. The keeper of a state jail is neither in fact nor ซ. in law the deputy of the marshal. He is not appointed DONALD- by nor removable at the will of the marshal. When a

SON.

prisoner is regularly committed to a state jail by the marshal, he is no longer in the custody of the marshal, nor controlable by him. The marshal has no authority to command or direct the keeper in respect to the nature of the imprisonment. The keeper becomes responsible for his own acts, and may expose himself by misconduct to the "pains and penalties" of the law. For certain purposes, and to certain intents, the state jail lawfully used by the United States, may be deemed to be the jail of the United States, and that keeper to be keeper of the United States. But this would no more make the marshal liable for his acts than for the acts of any other officer of the United States whose appointment is altogether independent. And in these respects there is a manifest difference between the case of a marshal and a sheriff. The sheriff is, in law, the keeper of the county jail, and the jailer is his deputy appointed and removable at his pleasure. He has the supervision and control of all the prisoners within the jail; and, therefore, is justly made responsible by law for all escapes occasioned by the negligence or wilful misconduct of his under keeper.

On the whole, as neither the act of congress nor the doctrine of the common law applicable to the case of principal and agent, affect the marshal with responsibility for the escape of a prisoner regularly committed to the custody of the keeper of a state jail, we are all of opinion that the decision of the Circuit Court upon this point was erroneous, and that the judgment must be reversed.

This decision renders it unnecessary to consider the other points raised in the bills of exception.

Judgment reversed.

POLK'S LESSEE v. WENDAL & AL.

1815.

. Feb.

7th.

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Absent....LIVINGSTON, J. TODD, J. & STORY, J.

THIS case as stated by the chief justice in deliver- The act of N. ing the opinion of the Court, was as follows:

Carolina, 1783 ch. 2, openiag the land of

fice, did not prohibit a person from mak

ing several ditferent entries,

This is a writ of error to a judgment in ejectment rendered in the Circuit Court of the United States, for the district of West Tennessee. On the trial, the Plaintiff below, who is also Plaintiff in error, relied on a pa- amounting in tent regularly issued from the state of North Carolina, the whole to for 5000 acres of land, dated the 17th day of April, 1800, which patent included the lands in controversy.

more than

5000 acres, nor from purchasing the

rights acquired by others by entries, nor from uniting several entries

The Defendants then offered in evidence a patent issued also from the state of North Carolina, and dated on the 28th of August, 1795, purporting to convey 25060 acres of land to John Sevier, which patent also compre- in cne survey hended the lands in controversy. To the reading of this grant the Plaintiff objected, because,

1. By the laws of the state of North Carolina no grant could lawfully issue for as large a number of acres as are included in that grant.

and patent;

and such un'on of several entries is allowed by the act

of 1784, ch. 19. In a patent,

the obliteration of the consideration,

2. The amount of the consideration originally expres- does not make

sed in the said grant appears to have been torn out.

void the grant. In cases depending on the

state, the set

3. The said grant on its face appears fraudulent, the statutes of a number of acres mentioned being 25060, the number of tled construc warrants forty of 640 acres each, and yet the courses and tion of those distances, mentioned in its body, include more than the state 50,000 acres.

statutes, by

Courts, is to be respected. In Tennessee,

These objections were over-ruled and the patent went the younger to the jury. To this opinion of the Court the counsel patent on the for the Plaintiff excepted.

The counsel for the Plaintiff then offered to prove for

the purpose of avoiding the said grant,

elder entry prevails over the elder patent on the younger entry. A patent justifies a presumption that

1. That the forty warrants of 640 acres each mention- all the previ

LESSEE v.

POLK's ed in the said grant, purport, on their face, to have been issued by Landon Carter, entry taker of Washington county, and that the land covered by the said grant is WENDEIL situated between the Cumberland mountain, and Tennes& AL. see river and not within the said county of Washington. ous requisites 2. That the consideration of ten pounds for every of the law have hundred acres was fraudulently inserted in the said grant, been complied by procurment of said grantee, John Sevier.

with.

A patent is void at law if

the state had

3. That no entries were made in the office of the enno title, or if try taker of Washington or elsewhere authorizing theissuing of such warrants.

the officer who

issued the patent had no authority so to do.

In North Carolina the want

of an entry nullifies a patent.

4. That the pretended warrants are forgeries.

day of

5. That at the time of the cession of the western part of the state of North Carolina to the United States, and at the time of the ratification thereof by congress, on the After the cession of land by 1790, the said pretended North Caroli- warrants did not exist, nor were any locations or entries na to the U. in the offices of the entry taker of Washington county former had no from which they appear to have issued, authorizing right to grant their issuance.

States the

those lands to

any other

grantee who

had not an in

6. That no consideration for the said land was ever cipient title be- paid to the state of North Carolina or any of its officers.

fore the ces

question, whe

sion The And, to prove that since the execution of the said ther such in- grant the consideration mentioned therein had been alcipient title ex- tered from 50 shillings to ten pounds, the counsel for the isted, is therePlaintiff offered to read as evidence a letter addressed by the said John Sevier, to James Glasgow, then secrctary of state for the state of North Carolina, in the words following, to wit:

fore open at

law,

"DEAR SIR,

"Jonesborough, 11th November, 1795.

"I am highly sensible of your goodness and friend"ship in executing my business at your office in the man"ner and form which I took the liberty to request. Per

mit me to solicit a completion of the small remainder

"of my business that remains in the hands of Mr. Gor- POLK'S "don.

LESSEE ซ.

"Should there be no impropriety, should consider WENDELL myself much obliged to have ten pounds inserted in & AL. the room of fifty shillings. I have directed Mr. Gor"don to furnish unto you a plat of the amount of three 640 "acres which I consider myself indebted to you provided you would accept the same in lieu of what I was in"debted to you for fees, &c. which I beg you will please "to accept in case you can conceive that the three war❝rants will be adequate to the sum I am indebted to you.

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The counsel for the Defendants objected to the reception of this testimony, and it was rejected by the Court. To this opinion also an exception was taken.

A general verdict was rendered for the Defendants, on which the Court gave judgment.

This judgment has been brought up to this Court by writ of error.

C. LEE, for the Plaintiff in error.

Two questions arise in this cause.

1. Whether the fraud does not vacate the grant to Sevier ?

2. Whether the evidence of that fraud should not have been admitted:

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POLK'S 1. The invalidity of the grant to Sevier appears upon LESSEE its face. It is mutilated by the erasure of the consideration. And it has been fraudulently altered in a material WENDELL part.

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& AL.

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By the law of North Carolina, the survey must be annexed to the patent, and is a substantial part of it. From this survey it appears that under 40 warrants, for 640 acres each, amounting to 25060 acres, there have been granted to him more than 50,000 acres.

These objections having been made at the trial below, ought to have excluded the patent from the consideration of the jury.

There is a difference between a public and a private grant. A patent must be issued according to the requisites of the law or it will be void. It takes effect mere

ly by the provisions of the law, and if not made pursuant to law, can convey no title. 3 Co. 77, Fermor's case. 10 Co. 110 Legate's case. 6 Co. 55, Lord Chando's case. * 5 Co. Barwick's case.-Co. Litt. 260.

In the case of a sale of land by a sheriff for taxes, the proceedings must be regular and according to the law which authorizes the sale, or it will be void. So under the bankrupt laws, and the Lord's act in England. The same rule of law applies to a grant from a state; and the party may take advantage of it, in ejectment. 1 Harris &M Henry's reports, 145, The Lord Proprietary of Maryland. Jennings & Al. So if a bond or release be offered in evidence, the other party may shew it was obtained by fraud. And if any objection appear upon the face of the instrument, the Court will take notice of it. 6 Cranch 70, O'Neale v. Thornton.

2. The Court ought to have permitted the Plaintiff to give evidence of the fraud and of the want of foundation for the patent. In ejectment the deeds are not declared upon, nor set forth in the proceedings, so that the opposite party has no opportunity to plead the fraud, or the erasure, &c. He can only produce these facts in evidence by way of objection so as to prevent such deeds from being read in evidence to the jury.

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