บ. of the trustees who are to join in the conveyance, and THORNof the heirs of Thomas Carson, are not stated, nor does TON the award declare who is to prepare and tender the deed. These, too, were questions proper for the con- CARSON. sideration of the Court below, but form no objections to the award. It does not appear from the record that the Defendant had refused or failed to do every thing which the law required him to perform to entitle him to the judgment of the Court, and we must therefore presume that no delinquency on his part was shown by the Plaintiff; that if it was necessary for him to prepare and tender the deed such as the law required, he did so to the satisfaction of the Court. If he failed to do that which would warrant the Court in entering judgment on the award, it was the duty of the Plaintiff to have shown this as cause against entering the judgment, and to have spread all the facts upon the record, which might enable this Court to decide whether the Court below acted correctly or not. The award is said to be unreasonable because it requires the Plaintiff to get other persons to join in the conveyance to the Defendant which he may not be able to do. But surely if the Plaintiff was bound to pay the bonds in suit, or to convey a good title to certain property, which title would not be valid in the opinion of the referees, unless other persons joined in the conveyance, he cannot surely complain that he is ordered to pay the money, unless he executes such a deed as will pass a good title. It is his misfortune if he cannot make the title, but it is no reason why, in that event he should not pay the money. There are other causes assigned why the award is unreasonable; but as the facts to prove it unreasonable do not appear in the record, they cannot be noticed by the Court, even if such objections would, in law, be sufficient to set aside the award. 1813. March 17th. WALLEN v. WILLIAMS. The Circuit Court of Ten ty, cannot a to enforce its ecree. Absent....LIVINGSTON, TODD, and STORY, J. ERROR to the Circuit Court for the district of nessee, as a East Tennessee, in a suit in equity, in which Joseph Court of equi- Williams on the 15th of November, 1799, brought his ward a writ of bill of complaint against Elisha Wallen and John Wilhab. facias liams, whereby he stated that the Defendants and possessionem others in the year 1779 entered into a co-partnership in the entering of lands in the land office for the sale of lands in that part of the state of North Carolina which now lies within the district of East Tennessee; and that each party was, on demand, to pay his proportion of the money due to the state upon the entries, to the party who should advance it: and that if any party so failed to pay his proportion, he should forfeit his share of the lands entered, and should cease to be a partner. That Joseph Williams, the Complainant, paid the whole of the money due to the state for the lands entered, and that John Williams, one of the Defendants, not having paid any thing, sold his share of the lands to the other Defendant, Wallen, who had notice that nothing had been paid by John Williams. Wallen obtained patents, upon this assignment of John Williams, for two tracts of 640 acres each, and one for 440. The latter tract of 440 acres he sold to a purchaser without notice; but he still held the other two tracts. That the Complainant had demanded from Wallen payment of John Williams's proportion of the money due to the state, which Wallen refused to pay. The Defendant in his answer relied in part on the statute of limitations. The facts being proved to the satisfaction of the judge, he decreed that "the said Elisha Wallen be di"vested of all the right, title, interest. property and "claim which he had, or has, to the said two tracts of “ 640 acres, and each of them, and that all the right, "title, interest, property and claim of, in and to said "two tracts of land and each of them, and every part ❝and parcel thereof, be vested in the said Complainant, "Joseph Williams, his heirs and assigns forever, to บ. have, hold, occupy, possess and enjoy the same and WALLEN ❝each and every part thereof, with their hereditaments "and appurtenances against the said Elisha Wallen, WILLIAMS "his heirs and assigns forever." And it was further decreed that the Defendant, Wallen, should pay to the Complainant the sum of $ 593 33 1-3, the value of the tract of 440 acres as found by the jury which had been impannelled to ascertain its value; and that for the purpose of compelling payment thereof the Complainant should have execution, which was accordingly issued and satisfied. The Complainant afterwards obtained a writ of hab. fucius, grounded upon the affidavit of the marshal that the Defendant refused to deliver possession to the Complainant according to the decree. By virtue of this writ the Complainant was put into possession of the two tracts of 640 acres each; and the Defendant, Wallen, brought his writ of error. JONES, for the Plaintiff in error, Moved the Court to direct the Court below to quash the writ of hab. facias and to award a writ of restitution; upon the ground, as it is understood, that the Court below, as a Court of equity, could not award such a writ. He cited 5 Com. Dig. Tit. Pleader. 3 B. 20, and 9 There was no appearance for the Defendant in error. FAIRFAX'S DEVISEE v. HUNTER'S LESSEE. Absent....MARSHALL, Ch. J. and WASHINGTON, J. THIS was a writ of crror to the Court of appeals Lord Fairfax, of Virginia in an action of ejectment involving the con- at the time of FAIRFAX's struction of the treaties between Great Britain and the DEVISEE United States, the judgment of the Court of appeals 2. being against the right claimed under those treaties. HUNTER'S LESSEE. his death, had the absolute property, sei appropriated Northern The state of the facts, as settled by the case agreed, was as follows: 1. The title of the late lord Fairfax to all that entire zen and nos territory and tract of land, called the Northern Neck session of the of Virginia, the nature of his estate in the same as he waste and un- inherited it, and the purport of the several charters and the grants from the kings Charles 11 and James 11, under Neck of Vir- Which his ancestor held, are agreed to be truly recited in an act of the assembly of Virginia, passed in the my may take year 1736, [vide Rev. Code, v. 1. ch. 3, p. 5] for the lands in Vir- confirming and better securing the titles to lands in the ginia by de- Northern Neck, held under the right honorable Thomas lord Fairfax," &c. ginia An alien ene vise, and hold the same until office found. The common wealth of Vir Northern From the recitals of the act, it appears that the first ginia could not letters patent (1 Car. 2.) granting the land in question grant the un- to Ralph lord Hopton and others, being surrendered in appropriated lands in the order to have the grant renewed with alterations, the earl of St. Albans and others (partly survivors of, and title should partly purchasers under the first patentees) obtained have been per- new letters patent (2d Car. 2,) for the same land and session; & the appurtenances, and by the same description, but with British treaty additional privileges and reservations, &c. Neck until its fected by pos of 1794 con firmed the title to those lands of lord Fairfax. The estate granted is described to be, "All that entire in the devisee tract, territory or parcel of land, situate, &c. and bounded by, and within the heads of the rivers Tappahannock, &c. together with the rivers themselves, and all the islands, &c. and all woods, underwoods, timber, &c. mines of gold and silver, lead, tin, &c. and quarries of stone and coal, &c. to have, hold, and enjoy the said tract of land, &c. to the said [atentees] their heirs and assigns forever, to their only use and behoof, and to no other use, intent or purpose whatsoever." There is reserved to the crown, the annual rent of Gl. 138. 4d. in lieu of all services and demands whatsoever;" also one fifth part of all gold, and one tenth part of all silver mines. To the absolute title and seizin in fee, of the land FAIRFAX'S and its appurtenances, and the beneficial use and enjoy- DEVISEE ment of the same, assured to the patentees, as tenants v. in capite, by the most direct and abundant terms of con- HUNTER'S veyancing, there are superadded, certain collateral LESSEE. powers of baronial dominion; reserving, however, to the governor, council and assembly of Virginia, the exclusive authority in all the military concerns of the granted territory, and the power to impose taxes on the persons and property of its inhabitants for the public and common defence of the colony, as well as a general jurisdiction over the patentees, their heirs and assigns, and all other inhabitants of the said territory. In the enumeration of privileges specifically granted to the patentees, their heirs and assigns, is. "freely and without molestation of the king, to give, grunt, or by any ways or means, sell or alien all and singular, the granted premises, and every part and parcel thereof, to any person or persons being willing to contract for or buy the same." There is also a condition to avoid the grant, as to so much of the granted premises as should not be possessed, inhabited or planted by the means or procurement of the patentees, their heirs or assigns, in the space of 21 years. The third and last of the letters patent referred to, (Jac. 2.) after reciting a sale and conveyance of the granted premises by the former patentees, to Thomas lord Culpeper, "who was thereby become sole owner and proprietor thereof in fee simple," proceeds to confirm the same to lord Culpeper, in fee simple, and to release him from the said condition, of having the lands inhabited or planted as aforesaid. The said act of assembly then recites, that Thomas lord Fairfax, beir at law of lord Culpeper, had become sole proprietor of the said territory, with the appurtenances, and the above recited letters patent." By another act of assembly, passed in the year 1748, [Rev. Code, v. 1. ch. 4, p. 10] certain grants from the crown, made while the exact boundaries of the North |