Stephens M'Cargo. 1824. the law. One of these is, that the warrant shall be entered with the surveyor of the county within twelve months after the end of the session of Assembly in which the law was enacted. That session of Assembly ended on the 26th of June, 1779, and, consequently, the time given by this act for making entries, expired on the 26th of June, 1780. But the Legislature was induced, by weighty considerations, to prolong this time, and various acts of Assembly were passed, which did prolong it, until after this entry was made. It has been supposed, however, that there was, at least, one interval between the expiration of the law and the act of revival'; and this circumstance gives birth to the present controversy. The right of the Legislature to give farther time for entering pre-emption warrants, has never been drawn into doubt; but the influence of such laws on the rights or claims of others, has been questioned. The appellant contends, that by making his entry on the 30th of May, 1780, he acquired an inchoate right to the land, which could be defeated only by such an observance of the law, on the part of the person possessing the pre-emption warrant, as would preserve it from forfeiture; and that the land vested in him, by virtue of his entry, the instant the forfeiture took place. We will inquire how far this principle is countenanced by the words of the act. When the Virginia Assembly was about to open a land office, for the purpose of selling the immense tract of vacant territory within its limits, certain pre-existing rights were recognised and "Stephens V. M'Cargo. affirmed; and others, which had no previous legal 1824. existence, were created, and conferred on meritorious individuals, as a reward for the fatigue and hazard encountered in exploring the country. Of the latter description, was the pre-emptive right, given to him who had marked and improved a tract of land. When the land office was opened, it was opened for the sale of waste and unappropriated land, not for the sale of land already appropriated, or of land, a right to appropriate which was vested by law in another; consequently, no entry, strictly speaking, was authorized, either by the act or the words of the warrant, on lands which were not at the time waste and unappropriated. The words of the law opening the land office, are, "Be it enacted, that any person may acquire title to so much waste and unappropriated land, as he or she shall desire to purchase, on paying the consideration of forty pounds for every hundred acres," &c. The land, then, which was brought into market and offered for sale, on which the purchaser might place his warrant, and to which he might acquire a title, was "waste and unappropriated land;" land to which another had by law a pre-emptive right, could not be of this description. So long as that pre-emptive right continued, it was withdrawn from the general mass of property brought into market and offered for sale; it was land to which the power of appropriation conferred by the warrant did not extend. The idea and intention of the Legislature, on this subject, is more clearly expressed in the clause Stephens V. McCargo. 1824. which provides for the disposition of the property in the event of a failure to make the entry within the time limited by law. It is in these words: "And where any such warrant shall not be entered and located with the county surveyor, within the before mentioned space of twelve months, the right of pre-emption shall be forfeited, and the lands therein mentioned may be entered for by any other person holding another land warrant ; but such pre-emption warrant may, nevertheless, be located on any other waste and unappropriated lands, or upon the same lands, where they have not, in the mean time, been entered for by some other." It would be, at least, useless, to grant an express power to the holder of a common treasury warrant, to locate the land after the forfeiture of the pre-emption right, if that power had been previously granted by the general clause, which enables him to locate waste and unappropriated land; and the limitation on the right of location, which makes it to commence after the forfeiture of the pre-emptive right, is op osed to the idea of its pre-existence. The subsequent words authorize the holder of the pre-emption warrant to locate it " on any other waste and unappropriated lands, or upon the same lands, where they have not, in the mean time, been entered for by some other." There can be no doubt that the words, " in the mean time," do of themselves import that interval which occurred between the forfeiture of the preemption right and the re-entry of the warrant. Only an entry made in this interval, obstructs the re-entry which may be made by the holder of the pre-emption warrant. If the sense of these words could be rendered still plainer, it would be done by considering them in connexion with the other parts of the sentence. The entry which is preserved and protected against the re-entry of the pre-emption warrant, is that which had just before been authorized; that is, an entry made after the right of pre-emption had been forfeited. If the pre-emption warrant of Harrison had been reentered, and had come in conflict with the entry of Stephens, made prior to its forfeiture, it must have prevailed, or the words of the law have been entirely disregarded. The act of Assembly, prolonging the time for making his entry, is certainly equivalent, while in force, to a re-entry made by himself without such act. It was in force when his entry was made, on the 5th day of June, 1786. Upon the words of the law, then, there can be no doubt respecting the superiority of the title under Harrison, so far as it depends on the entries. The difficulty is produced by the circumstance that a patent was issued to Stephens before the warrant of Harrison was entered with the surveyor. The entry of Stephens was made on the 30th day of May, 1780, before the pre-emptive right of Harrison had expired. The survey was made on the 14th of February, 1783, while the act of May session, 1782, which prolonged the time for making these entries until June, 1783, was in force. The patent issued on the 1st of March, 1824. Stephens V. M'Cargo. 1824. Stephens V. M'Cargo. 1784, at a time when the act, passed in 1783, prolonging the time for making entries until nine months after the end of that session of Assembly, was in fc ce. It is not, we think, to be doubted, that the several acts of Assembly, prolonging the time for entering pre-emption warrants, have the same effect, except as to entries made "in the mean time," that is, in the interval between a forfeiture and a renewal of the right, that would be allowed to the original act, had it continued in force until after Stephens obtained his patent. The act of 1783 expired in June, 1784, and was revived and continued, by a subsequent law, until November, 1786. It was during the existence of this law that Harrison's entry was made. The pre-existing law was permitted to expire before the act for its revival and continuance was passed; and the appellant contends, that this interval cured all the defects in his title, and placed it beyond the reach of any legislative enactment. In support of this position, he relies on the principle settled in Kentucky, that a patent is an appropriation of land, and that no subsequent entry can draw its validity into question. He relies also on the case of Hoofnagle et al. v. Anderson, (7 Wheat. Rep. 212.) The Court has felt great difficulty on this point. The proposition that a patent is an appropriation of the land it covers, although the proceedings previous to its emanation may be irregular and defective, is unquestionably true; but this principle has never, so far as is known to the Court, |