1816. Danforth's V. March 8th. TODD, J., delivered the opinion of the court as follows: On Lessee This was an action of ejectment brought by the Thomas. plaintiff in error against the defendant in error. the trial of the cause in the circuit court, it appeared from evidence that the land in controversy was situate in the tract of country lying south of Holston and French broad river, and between the rivers Tennessee and Big Pigeon, the Indian title to which was extinguished by the treaty of Holston. The plaintiff claimed by virtue of a grant, issued by the state of North Carolina, bearing date the 26th of December, 1791. The defendant claimed under a grant from the state of Tennessee, bearing date the 2d of January, 1809. The defendant, by his counsel, objected to the grant under which the plaintiff claimed title being admitted in evidence, on the ground that it was for land which the laws of North Carolina had prohibited from being entered, surveyed, or granted. The court sustained the objection, and prohibited the grant from going in eyidénce to the jury; whereupon a verdict and judgment was rendered in favour of the defendant. A bill of exceptions was taken to the opinion of the court, and the cause was brought up to this court by writ of error. The correctness of the opinion of the circuit court depends on the sound construction of the act of the general assembly of the state of North Carolina, passed in 1783, c. 2. s. 5 and 6, whereby the lands, within certain limits therein designated, (including the lands in controversy) are reserved for the Che rokee Indians, and the citizens prohibited from entering and surveying lands within those limits. It is contended, on the part of the plaintiff, that this act cannot be construed, nor did the legislature mean to give the Indians a right of property in the soil, but merely the use and enjoyment of it. That the succeeding legislatures, by the acts of 1784, 1786, and 1789, have changed this reservation for the use of the Indians, and given unlimited access, for the purposes of making entries and surveys "to all lands not before specially located," and to "all vacant lands" within the limits of the state. Consequently, locations could be made, and grants issued to perfect titles of lands lying within the limits of the Indian reservation. Whether the legislature had the power, or intended to give the Indians a right of property in the soil, or merely the use and enjoyment of it, need not be inquired into, nor decided, by this court; for it is perfectly clear, that the 5th section of the act of 1783, c. 2., prohibits all persons from making entries or surveys for any lands within the bounds set apart for the Cherokee Indians, and declares all such entries and grants thereupon, if any should be made, utterly void. They had the power, and have declared, unequivocally, an intention, to prohibit entries from being made within those reservations. The several acts of 1784, 1786, and 1789, although they contain general expressions, which, if taken singly, might seem to sanction entries and surveys for "all lands not before specially located," or to "all vacant lands;" yet, when taken together, these gene 1816. Danforth's V. Thoinag 1816. Danforth's y. Thomas ral expressions must be controlled by the restrictions and prohibitions as to the reservations for the Indian tribes. The reasoning used in the case of Preston v. Browder, applies with equal, if not greater, propriety, to this case. And, although at different periods different sections of these reservations have been subjected to appropriation by entries and surveys, it has been in consequence of the several treaties with the Indians, by which the boundaries of the reservations have been altered, and the Indian claim extinguished; but it is believed, that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the legislature authorized or permitted it. Whatever doubts this court might entertain on this subject, were they now construing these laws upon the first impression, that doubt would be removed on a view of the case of Avery v. Strother, in the Reports in Conference, p. 431., decided by the judges of the supreme court of North Carolina. This is a decision directly in point, made by the supreme court of the state, construing the laws brought into the view of this court, and is decisive of this case. And, as this court have been uniformly disposed to pay great respect to the deci sions of the state courts respecting titles to real estate, this decision has its full influence on the present question; and, therefore, the judgment of the circuit court is unanimously affirmed with costs. Judgment affirmed. (PRIZE.) THE ANTONIA JOHANNA. A neutral ship was chartered for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any port in the Baltic, and back to London, at the freight of 1,000 guineas. On her passage to St. Michaels, she was captured and brought into the port of Wilmington, N. C. for adjudication. A part of the cargo was condemned, and part restored. The freight was held to be chargeable upon the whole cargo, as well upon that part restored as upon that condemned. Query, Whether more than a pro rata freight was due to the master? It seems that the property of a house of trade in the enemy's country is confiscable as prize of war, notwithstanding the neutral domicil of one or more of its partners. APPEAL from the circuit court for the district of North Carolina. This was the case of a Russian ship, captured on the 2d of June, 1814, by the privateer Herald, on a voyage from London to St. Michaels, and brought into the port of Wilmington, N. C., for adjudication. The ship was chartered by Messrs. Burnet & Co., a mercantile firm at London, for a voyage from London to St. Michaels, thence to Fayal, thence to St. Petersburg or any port in the Baltic, and thence to return to London, at the stipulated freight of one thousand guineas. The ship and cargo were libelled as prize of war, and, upon the hearing in the district court, that part of the cargo which was not claimed was condemned. The residue of the cargo, excepting one moiety of certain 1816. The Antonia Johanna. 1816. The Antonia Johanna. packages, claimed on behalf of Messrs. Ivens & Burnett, a mercantile firm at St. Michaels, was restored. The whole freight was decreed to be paid to the master, and charged exclusively upon the proceeds of the property condemned, and the moiety of the property restored to Messrs. Ivens & Burnett. From so much of this decree as respected the controversy between the captors and the claimants of the cargo, an appeal was interposed to the circuit court, where the decree was affirmed, and the cause was brought, by appeal from the latter decree, to this court. Wheaton, for the appellants and captors. The cause may be divided into three branches: 1st. As to the claim for the three invoices of goods shipped by Messrs. Burnett & Co. of London, to Messrs. Ivens & Burnett, of St. Michaels. 2d. As to the remainder of the cargo. 1. There is a hostile trade which will affect the property engaged in it with confiscation, as completely and effectually as a hostile domicil, and that without regard to the national character of the individual. Thus, the produce of an estate in the enemy's country, belonging to a person domiciled in a neutral country, is liable to capture and condemnation." This principle was adopted and confirmed by this court, in the case of Mr. Bentzen, a Danish subject, resident in Denmark, whose claim to 30 hogs a 5 Rob. 20. The Phoenix., |