gibly to others, must use words which stand for ideas, and employ those words according to their common use and acceptation in the language of the country. A man who would use three to signify eight, would deceive his hearers. He who would speak to others of substances and objects by sounds never before used to signify those things, without any explana tion to make known his meaning, would be guilty of an abuse of language, by uttering empty sounds, and nothing else. From known ideas, the mind may be conducted to the knowledge of things new, and before unknown. But from things unknown to attempt to describe things more unknown, so far from helping us to knowledge, serves only the more to perplex and bewilder the mind. A locator using words which stand for ideas in his own mind, but which do not convey the same ideas, or no certain ideas, to the mind of others, has not complied with the requisitions of the statute. Should he allude to a water course only, by a name unheard of by others, and arbitrarily imposed by himself, he does not write intelligibly to others. So, to include a tree in a forest, whereon he has marked the initials of his name,' may indentify the land in his own mind, but does not communicate to others a competent idea of the intended appropriation. Locators must have reference to objects known to others by their usual names, or by terms in common use and acceptation, describe and make known the objects intended.

66

Notoriety is either absolute or relative. Absolute, as where the object is known so generally that, according to the usual courtesies and intercourse among men, the presumption is irreristible, that any one using ordinary inquiry might have been conducted to the place, as Lexington, Bryant's Station, the Lower Blue Licks, &c. Relative, as where the particular object is not actually known, but is ascertainable by reasonable diligence as one mile east of the Lower Blue Licks, &c.

"As the record in the books of entries is to have the effect of general notice to all holders of warrants, the entry must contain apt reference to objects known to the generality of persons acquainted in the neighbourhood of the intended appropriation. Neither will the proof, that the particular conflicting claimant had knowledge of the appropriation intended, suffice to

help out an entry in a controversy with him, as is adjudged In several cases, and, as I think, very properly. 1st. That would be to make the entry valid as to some, and invalid as to others, as is more fully explained in Craig v. Pelham, Pr. Dec. 286-7. 2d. That would be to test the entry, not by the record, but by matters out of the scope of the record. 3d. It would put men's estates upon a tenure too slender and uncertain, without any sufficient safeguard against the perjury or mistakes of a solitary witness; whereas evidence of notoriety being an appeal to general understanding and knowledge of the people of the neighbourhood, is capable of being rebutted and disproved, if untrue, by calling upon other men who had equal opportunities of information on the subject. 4th. To admit proof that a particular person understood the entry, would be to test the signification and propriety of the language of the entry, not by the standard of general use and common acceptation, but by the particular ideas of two individuals.

"Notoriety must have been co-existent with the entry. The location when made, if valid, is to stand for notice of appropriation from that time. Words conveying to others no precise idea of appropriation, at the time used, because they were not conformable to objects then in existence; or, because the names and terms employed had not then been annexed, in common use and understanding of the neighbourhood, to any individual object, being signs without any thing signified, cannot, without abuse of language and of truth, be made to apply to after-made objects, or after-acquired names. 'A. enters for 400 acres, to include his cabin.' At the time he had no cabin, and, therefore, his entry was null, appropriating no land. One year afterwards A. builds a cabin. Ought he to be permitted to hold land around it by virtue the fact? If so, A. has had one year to make his choice of the country. To suffer him to hold by relation to the time of his entry would be a fraud upon intermediate purchasers. To suffer him to hold against after purchasers, would be, 1st, To make the same entry valid and invalid; good against some persons, and nuil as to others, of which enough has been said before. 2d. To refer his claim, not to the truth of the recorded entry, but to mere occupancy. 3d.To make an act not valid in the

of his entry before

494

to a maxim in law.

beginning, grow valid and legal in the lapse, which is contrary
Quod ab initio non valet, in tractu tem.

poris non convalescit." Noy's Max. 9. In illustration of the
maxim, Noy putteth the case of A. 'remainder limited to
A:, the son of A. B. Having no such son, and afterwards a son
is born to him, whose name is A., during the particular estate,'
the remainder is void, whether the entry alluded to objects not
then existing, or employed names, or terms, not then standing
for signs of the existing objects, or signs of ideas among the ge-
nerality of those acquainted in the neighbourhood, the reason
is the same for denying validity to the entry by means of after
notoriety. To test the entry by any other standard than the
significancy, or insignificancy, of the words at its date, would
Objects
produce an inconstancy and shifting of locations.
Names of streams
lose their old names, and acquire new ones.
are transposed in the progress of time, and of the settlement of
the country. Upon the doctrine that after notoriety should
apply to a previous entry, the identity and validity of entries
would be referred, not to one uniform standard expressed in
the face of each entry, but to perplexed and different standards,
according to the dates of the entries happening to conflict.
Thus the date of a subsequent conflicting entry, would make a
part of a prior entry, and affect its validity or invalidity."

In some of the district courts of the United States (to which courts the exclusive jurisdiction in the first instance belongs)

great irregularities have crept into the practice in prize causes. These irregularities have been censured at the bar, and occasionally noticed, with expressions of regret, by the supreme court. It is hoped, therefore, that an attempt to sketch an outline of the regular practice of prize courts, in some of the more important particulars, may not be without use to the profession. This outline will be principally copied from the rules of the British courts, which, as far as cases have arisen to which they could apply, have been recognised and enforced by the supreme court of the United States; and, for the most part, are conformable with the prize practice of France, and other European countries, as will appear by a reference to the laws and treaties quoted in the margin. The letter of Sir William Scott, and Sir John Nicholl, to Mr. Jay, written in September, 1794, which is printed in the appendix to Chitty's Law of Nations, (American edition,) and Wheaton on Captures, affords, as far as it goes, a very satisfactory and luminous view of the subject. Something more in detail, however, may be desirable to those who are not familiar with the admiralty practice.

As soon as a vessel or other thing captured as prize, arrives in our ports, notice should be given thereof by the captors to the district judge, or to the commissioners appointed by him, that the examinations of the captured crew, who are brought in, may be regularly taken in writing, upon oath, in answer to the standing interrogatories. These are usually prepared under the direction of the district judge, and should contain sifting inquiries upon all points which can affect the question of prize. The standing interrogatories used in the English high court of admiralty, (1 Rob. 381.,) have been drawn up with great care, precision, and accuracy, and are an excellent model for other courts. They were generally adopted during the late war by the district judges in the principal states, with a few additions, and scarcely any variations. The examinations upon these interrogatories are rarely taken by the district judge in person, for in almost all the principal ports within his district, he appoints standing commissioners for prize proceedings, upon whom this duty devolves.

It is also the duty of the prize master to deliver up to the district judge all the papers and documents found on board,

and, at the same time, to make an affidavit that they are delivered up as taken without fraud, addition, subduction, or embezzlement.d

In general, the master and principal officers, and some of the crew of the captured vessel, should be brought in for examination. This is a settled rule of the prize courts, and was, during the late war, enforced by the express instructions of the president. The examination must be confined to persons on board at the time of the capture, unless the special permission of the court is obtained for the examination of others. (6 Rob. 135. The Eliza and Katy. 4 Rob. 43. 57. The Henrick and Maria.) In order to guard as much as possible against frauds

d Aussi tôt que la prise aura été amenée en quelques rades ou ports de notre royaume, le capitaine qui l'aura faile, s'il y est en personne, sinon celui qu'il en aura chargé, sera tenu de faire son rapport aux officiers de l'amirauté; de leur represénter et mettre entre les mains les papiers et prisoniers; et de leur déclarer le jour et l'heure que le vaisseau aura été pris; en quel lieu ou à quelle hauteur; si le capitaine a fait refus d'amener les voiles, ou de faire voir sa commission ou son congé, s'il a attaqué ou s'il s'est défendu ; quel pavillon il portait, et les autres circonstances de la prise et de son voyage. Ordonnance de la Marine, 1681, tit. 9. art. 21. Declaration du 24 Juin, 1778, art. 42. See also the Swedish Ordinance of 1715, art. 6, Coll. Mar. 168.

e Thus in a treaty of amity and commerce between Charles VIII. king of France, and Henry VII. of England, concluded at Bou

logne, the 24th of May, 1497, and which may be considered as evidence of the prize practice of Europe at that period, is contained the following article: "Simili quoque juramento solemniter præstando promittent, quod de qualibet præda, captura, manubiis, sive spoliis, adducent duos aut tres viros in capto navi præcipuum locum obtinentes, ut magistrum, submagistrum, patronum, aut hujusmodi conditionis, quos Admiraldo, Vice-admiraldo, aut eorum officiariis exhibebunt, ut per eosdem, aut eorum alterum, debite examinetur ubi, super quibus, et qualiter, navis sive bona capta sint; nec facient aut fieri permittent aliquas prædarum, spoliorum, mercium, aut bonorum, per eos capiendorum divisiones, partitiones, traditiones, permutationes, alienationesve, priusquam se viros captos, bona et merces, integre Dominis, Admiraldo, Vice-admiraldo, aut eorum