1824. The Fanny. DECREE. This cause came on to be heard, &c. On consideration whereof, it is DECREED and ORDERED, that so much of the decree of the said Circuit Court as orders that the claimant pay to the libellant the appraised value of the hides, in the proceedings mentioned, together with interest and costs of suit, be, and the same is hereby affirmed, with costs, subject, however, to such deduction for freight as the said Circuit Court may hereafter direct, to be paid out of said appraised value, as may be hereafter decreed under the further proceedings in this cause: And as to so much of said decree of said Circuit Court, as directs the amount of freight to be deducted, agreeably to the previous order of said Circuit Court, the same is hereby reversed and annulled. And it is further ORDERED, that said cause be remanded to the said Circuit Court, for further proceedings to be had therein, according to law, for the purpose of ascertaining, upon further proof, whether the claimant had paid the freight of the hides to the owner of.the Fanny; and, if so, whether the claimant was a bona fidei purchaser of said hides, without notice. And if the said Court should be satisfied from such further proof, that the said claimant, Nathan Levy, has paid the owner of the Fanny for said freight, or that he was not such bona fidei purchaser, without notice, then with instructions not to allow a deduction of freight from the said appraised value. But if the said claimant was such bona fidei purchaser, without notice, or if said freight had not been paid by said claimant to the owners of the Fanny, then the freight for the hides, excluding the freight on the lignum vita, to be deducted from the appraised value of said hides. 1824. Danforth V. Wear. [LOCAL LAW.] DANFORTH V. Wear. The acts of Assembly of North Carolina, passed between, the years 1785 and 1789, invalidate all entries, surveys, and grants, of land within the Indian territory, which now forms a part of the territory of the State of Tennessee. But they do not avoid entries commencing without the Indian boundary, and running into it, so far as respects that portion of the land situate without their territory. The act of North Carolina, of 1784, authorizing the removing of warrants which had been located upon lands previously taken up, so as to place them upon vacant lands, did not repeal, by implication, the previously existing laws, which prohibited surveys of land within the Indian boundary. The lands to which such removals are made, must be lands previously subjected to entry and survey. ERROR to the Circuit Court of West Ten nessee. This cause was argued at the last term, and Feb. 15th. again argued at the present term, by the AttorneyGeneral and Mr. Swann, for the plaintiff, and by Mr. Williams, for the defendant. a They cited 2 Tenn. Rep. 157. N. C. Rep. in Confer. 440. 1 Tenn. Rep. 30. b He cited Preston v. Browder, 1 Wheat. Rep. 115. Danforth v. Thomas, Id. 155. VOL. IX. 85 1824. Danforth Wear. March 1st. Mr. Justice JOHNSON delivered the opinion of the Court. This is one of those cases which not unfrequently occur, in which, for want of the scrutinizing eye of the party interested to maintain a judgment below, the Court there is made to appear to have given a decision very different from that actually rendered. But, whatever may be the opinion of this Court, independently of the record, we are concluded by the bill of exceptions, and must decide according to those questions which the record presents. The parties are citizens of the same State, but jurisdiction is given to the Courts of the United State's, by the fact of their claiming title to the land in controversy, under grants from different States, to wit, the States of North Carolina and Tennessee. The facts stated in the bill of exceptions,, taken in connexion with the laws of the two States and public treaties, sufficiently exhibit to this Court, that the grant from the State of North Carolina, under which the plaintiff made title, although commencing in, and embracing, a tract of country over which the Indian title had been extinguished, yet extended into, and included, a large body of land, over which the Indian title existed at the time of the survey, but has since been extinguished. Had the case, then, set forth that the land covered by the defendant's grant lay within the country which was subject to the Indian title, at the time of Danforth's grant, and bore date subsequent to the extinguishment of the Indian title, it would, probably, have exhibited a true view of the case which the Court below was called on to decide. But, so far from exhibiting this State of the case, the facts admitted, not only do not confine the controversy to the tract of country that lay within the Indian boundary, but, taken in their literal meaning, expressly admit the contrary. The words of the admission are, "that the defendant was in possession of the land claimed by the plaintiff." And when we come to inquire what land the plaintiff claims in the suit, we find it to be the whole 100,000 acres, "the beginning corner of which, and a portion of the land covered thereby, lay in a tract of country to which the Indian title had been extinguished, prior to making the survey and issuing the grant. Here, then, we have the parties, contrary to all the probable truth of the case, contending about a title to land lying without the Indian boundary at the time it was surveyed for the plaintiff in ejectment. But we must take the case as we find it on the record, and decide accordingly. It appears, then, that the plaintiff's grant was rejected in the Court below, and not permitted to be read to the jury. This rejection could only be sustained upon the ground that it was wholly void, or wholly inadmissible in that cause. For if the grant was good but for an acre of the land claimed in the action, the Court could not have withheld it from the jury. As to lands surveyed within the Indian boundary, this Court has never hesitated to consider all 1824. Danforth V. Wear. Danforth Wear. 1824. such surveys and grants as wholly void; but as the total rejection of the grant, according to the case stated, goes to its validity as to that part-of the land also which lay without the Indian boundary, there must be found some other ground for sustaining the decision, than that which invalidates surveys executed in the Indian territory. In the present case, there can be but two such grounds supposed to exist; either that there was no law authorizing the survey in any part of the land granted, although without the Indian boundary, or, that the whole was affected by the illegality of that part which extended within that boundary. It was in the first of these alternatives that the Court held the case under advisement from the last term. In the case of Danforth v. Thomas, (1 Wheat. Rep. 155.) this Court threw out the suggestion, that a grant of land must have some sanction created by statute. As relates to the present subject, it did not appear that any law had been passed, subsequent to the extinction of the Indian title, by which this recent purchase was authorized to be taken up under warrants. But the Court, upon consideration, are satisfied, that under the laws and practice affecting the lands in question, the extension of the county line subjected the lands purchased of the Indians, to the general land laws of the State. By the 3d section of the act of 1777, entries are permitted within any county of the State, and the creation of counties has always, in that State, been held |