Irvine v. Sims's Lessee. 3 D.

2. That it is not brought within proper time, but is barred by the statute of limitations.

As to the first objection, did this title stand merely as an equitable one, I should strongly incline against it, if not deem it altogether insufficient. It is of infinite moment, in my opinion, that principles of law and equity should not be confounded, otherwise inextricable confusion will arise; neither will be properly understood; and instead of both being administered with useful guards, which the policy of each system has devised against abuse, an heterogeneous mass of principles not intended to assort with each other will be blended together, and the substance* of justice will soon [*465 ] follow the forms calculated to secure it. I totally reject all the modern cases introduced by Lord Mansfield, and supported by some other judges, but lately, wisely as I conceive, discountenanced by the present court of king's bench, of taking notice of a cestui que trust at all in any other right, than as holding in fact possession, with the concurrence of the legal trustee. So far, consistent with legal principles, a court may go, but not, as I conceive, one step further, and that it violates the most important principles of the common law to consider a cestui que trust as having an iota of legal right against the trustee himself. Whatever excuse a court may have for doing this, when the want of a court of equity may urge them to procure substantial justice, by a deviation from legal strictness as to form, I should hesitate long, before I should deem myself warranted in assenting to such a practice, when both powers are vested in the very same court, but each has different modes of proceeding prescribed to it. But I think we are relieved from any dilemma of this kind, by strong and unequivocal declarations of highly respectable gentlemen of long experience in this State, that a warrant and survey, where no money remained to be paid, and a patent was only to ascertain that all previous requisites had been complied with, has been uniformly deemed a legal title, as opposed to an equitable one; and has all the consequences as such, even as to dower, which affords a strong presumption in favor of the supposed legal title, for it has been so long held, though I think erroneously at first, that there should be no dower of a trust estate, that perhaps no judge would be warranted in a court of chancery in allowing it. Whether this opinion was originally right or not, yet having been the ground of many titles, it would be improper in the court to shake it. I am not certain, also, but it may properly be considered, that the proprietor under a warrant and survey, according to long usage, is at least in the nature of a tenant at will to the public, and as such has a right of possession against all others, except some person having a better

Irvine v. Sims's Lessee. 3 D.

right, claiming under the public, which better right does not, for the reasons I have given, exist in this case, in the plaintiff in error. This point, however, I merely intimate, it not being necessary to deliver an opinion upon it.

Another circumstance has occurred to me, which I suggest with diffidence, as it was not spoken to at the bar; that though the compact and confirming act did not render a survey unnecessary, yet when a survey was made, it being a right derived from compact

alone, the title ought to stand on that ground alone, and [* 466] not depend on a patent which imports a grant by the * State,

at its own discretion, of property of its own, and seems to imply that the State is the sole agent in the conveyance of the title. With respect to the objection from the statute of limitations, it is sufficient to say, that that act, in my mind, clearly contemplates other objects, and neither in its letter, or spirit, is to be applied to this new and peculiar case; but admitting that it did, the facts in this case do not come within the provisions of it, there appearing to have been no such laches as the act contemplated to prevent.

9 W. 241; 9 P. 711; 12 P. 410, 657; 13 P. 436; 14 P. 353; 9 H. 421.

THE STATE OF NEW YORK v. THE STATE OF CONNECTICUT et al.

4 D. 1.

Neither the supreme nor circuit courts, nor a single judge can grant a writ of injunction without reasonable notice.

What is reasonable notice depends on the circumstances of the case.

An injunction to stay proceedings at law will not be granted at the instance of one not a party to, or interested in, those proceedings.

THIS was a bill in equity, filed by the State of New York against the State of Connecticut, and the plaintiffs in the suits of Fowler et al. v. Lindsey et al., and Fowler et al. v. Miller, (3 D. 411,) praying inter alia for an injunction to stay those proceedings at law. Notices of the motion for a temporary injunction were served on the defendants on the 25th and 26th of July, and on the 6th of August the injunction was moved for.

ELLSWORTH, C. J. The prohibition contained in the [ 2 ] statute, that writs of injunction shall not be granted, with

out reasonable notice to the adverse party or his attorney, extends to injunctions granted by the supreme court, or the circuit court, as well to those that may be granted by a single judge.

Hazlehurst v. The United States. 4 D.

The design and effect, however, of injunctions, must render a shorter notice, reasonable notice, in the case of an application to a court, than would be so construed, in most cases of an application to a single judge: and until a general rule shall be settled, the particular circumstances of each case must also be regarded.

Circumstanced as the present case is, the notice which has been given, is in the opinion of the court, sufficient, as it respects the parties against whom an injunction is prayed.

Counsel were then heard on the motion for an injunction.

THE COURT, after advisement, delivered their opinion, that as the State of New York was not a party to the suits at law, nor interested in the decision of those suits, the injunction must be refused.

It was then moved, that if the State of Connecticut should not appear on the first day of the next term, the complainants should be at liberty to proceed ex parte. (3 D. 335.) But as the subpœna had not been served sixty days before its return, this motion was waived, and an alias subpœna awarded.

HAZLEHURST et al. v. THE UNITED STATES.

4 D. 6.

IN error from the circuit court for the district of South Carolina. A rule had been obtained by Lee, the attorney-general, at the opening of the court, that the plaintiffs appear and prosecute their writ of error within the term, or suffer a non-pros.: but it was found, that errors had been assigned in the court below, and a joinder in error entered here. The rule was, therefore, changed to the following: "that unless the plaintiffs in error appear and argue the errors tomorrow, a non-pros. be entered." The plaintiffs not appearing, the writ of error was non-prossed, according to the rule.

Turner v. Bank of North America. 4 D.

TURNER, Administrator, v. ENRILLE.

4 D. 7.

In this case the court affirmed the decision in Bingham v. Cabot et al. (3 D. 382,) and reversed' the judgment because the record did not show the alienage of the plaintiff below, nor the citizenship of the defendants.

4 D. 12; 2 H. 9; 16 H. 314.

TURNER, Administrator of STANLEY, Plaintiff in Error, v. THE PRESIDENT, DIRECTORS, AND COMPANY, OF THE BANK OF NORTH AMERICA, Defendants.

4 D. 8.

The 11th section of the Judiciary Act, (1 U. S. Stats. at Large, 78,) makes it necessary to state on the record the citizenship of the payce of a negotiable note sued on by an indorsee.

THIS was a writ of error to the circuit court for the district of North Carolina. The error assigned, and the state of the record, appear in the opinion of the court, delivered by —

*

ELLSWORTH, C. J. The action below was brought by [ 10 ] the president and directors of the Bank of North America, who are well described to be citizens of Pennsylvania, [ 11 ] against Turner and others, who are well described to be citizens of North Carolina, upon a promissory note, made by the defendant, payable to Biddle & Co., and which, by assignment, became the property of the plaintiffs. Biddle & Co. are no otherwise described than as "using trade and merchandise in partnership together," at Philadelphia or North Carolina. And judgment was for the plaintiff.

The error assigned, the only one insisted on, is, that it does not appear from the record, that Biddle & Co., the promisees, or any of them, are citizens of a State other than that of North Carolina, or aliens.

A circuit court, though an inferior court, in the language of the constitution, is not so in the language of the common law; nor are