Danforth

V.

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

to bring the vacant lands within the county under 1824. the operation of that act..

On the second alternative, it was contended in argument, that the survey was not in its inception invalid; that it was good as to part, because out of the Indian boundary; and as to the residue, was made good under the general provisions of the laws of North Carolina in favour of removed warrants; that, at most, it was only suspended by the Indian title, and attached legally and effectually to the soil, as soon as the interposing title of the Indians was removed.

In the two cases of Preston v. Browder, and Danforth v. Thomas, decided in this Court in 1816, (1 Wheat. Rep. 115. 155.) the inviolability of the Indian territory is fully recognised. It was the law of the land, as adjudged in the case of Avery v. Strother, decided in the North Carolina Court of Conference, in 1802. Indeed, the State of North Carolina appears to have been sedulous in her efforts to prevent encroachments upon the Indian hunting grounds, and her laws are express and pointed in invalidating entries and grants made within such reservations.

But the present grant commences in a tract of country over which the Indian title was extinct; and whatever might be the state of right, were the beginning corner within that boundary, and a portion of the land beyond it, we see nothing in the laws of North Carolina ar Tennessee, to avoid a grant in the whole, when it commences legally, and only covers in part the lands on which surveys are prohibited. For that part, therefore, which

Danforth

V.

Wear.

Danforth

V.

Wear.

1824. lies without the boundary, the grant must be held valid, and this alone entitles the plaintiff to a reversal. But as the cause must be again tried below, and the question on its validity as to the residue, as presented by the bill of exceptions, has been argued fully, and must arise again, we will now consider it.

The points made by the plaintiff's counsel are stated by himself thus:

1. That the State of North Carolina had a right to issue the grant in question, and the Court erred in not suffering it to be read.

2. That the grant was good as to that part of the land to which the Indian title was extinguished. 3. That the grant, oeing founded on a removed warrant, was good for the whole land.

To the first and second of these positions we have expressed our assent, and only the third remains to be disposed of,

This rests upon the sixth section of the act of North Carolina, of 1784, entitled, “an act to prevent the issuing of grants," &c.

By this section, the right is given to remove warrants which have been located upon lands previously taken up, so as to place them upon vacant lands; and the supposed operative words, in the present instance, are these: "Shall be at full liberty to remove his or their warrants to any other lands, on which no entry or entries have been previously specially located; and the Surveyor, or Surveyors, are hereby authorized and required to survey and make return thereof, in like manner as for other returns and surveys, as by law directed"

Reference was had to the act of 1786, and the 1824. cession act on the same subject, but they add nothing to the provisions of the act of 1784.

The effort is to construe this act as virtually repealing the previously existing laws, that prohibit surveys of land within the Indian boundary, and as opening the whole State to the right of removing warrants.

We are of opinion, that there are several considerations, which repel this construction.

It is obvious, that the lands to which such removals are authorized, must be lands previously subjected to entry and survey, otherwise the absurdity occurs, of a reservation in favour of entries and surveys which the existing laws have declared to be nullities.

Again; "the Surveyors are authorized and required to survey and make return, in like manner as for other surveys and returns is by law directed." But does any law authorize or enjoin a survey of the Indian country? or shall this act be construed to enjoin as a duty, that which an existing act prohibits under a penalty?

These considerations remove all doubt, on the correct construction of the law respecting removed warrants; but if doubts did exist, the general policy and course of legislation of the State would forbid such a construction. The purport of the law is, to authorize removals to that land only, which might be at the time legally entered and surveyed by other warrants.

Danforth

Wear.

1824.

Miller

V.

Stewart.

We are of opinion, that there is error in the judgment of the Court below, in refusing to let the grant be read to the jury.

Judgment reversed.

[SURETY.]

MILLER V. STEWART and others.

The contract of a surety is to be construed strictly, and is not to be extended beyond the fair scope of its terms.

Where a bond was given, conditioned for the faithful performance of the duties of the office of Deputy Collector of direct taxes for eight certain townships, and the instrument of the appointment, referred to in the bond, was afterwards altered, so as to extend to another township, without the consent of the sureties, held, that the surety was discharged from his responsibility for moneys subsequently collected by his principal.

'THIS was a case certified from the Circuit Court for the District of New-Jersey, upon a certificate of a division of opinion of the Judges of that Court. It was an action of debt upon bond, and the material facts disclosed in the pleadings were, that the plaintiff, Ephraim Miner;being Collector of the direct taxes and internal duties for the fifth Collection District of New-Jersey, by an instrument of appointment, under seal, and pursuant to law, appointed Stephen C. Ustick his Deputy Collector, for eight townships within his