or subjects of any nation in amity with the United States, retaken from the enemy. It has been contended that the case before the court is in the very words of the act. That the owner of the Amelia is a citizen of a state in amity with the United States, retaken from the enemy. That the description would have been more limited had the intention of the act been to restrain its application to a recaptured vessel belonging to a nation engaged with the United States against the same enemy. The words of the act would certainly admit of this construction. Against it it has been urged, and we think with great force, that the laws of the United States ought not, if it be avoidable, so to be construed as to infract the common principles and usages of nations, or the general doctrines of national law. If the construction contended for be given to the act, it subjects to the same rate of salvage a recaptured neutral, and a recaptured belligerent vessel. Yet, according to the law of nations, a neutral is generally to be restored without salvage. This argument, in the opinion of the court, derives great additional weight from the consideration that the act in question is not temporary, but permanent. It is not merely fitted to the then existing state of things, and *calculated to expire with them, but is a regulation applying to present and future times. Whenever the danger resulting to captured neutrals from the laws of France should cease, then, according to the principles laid down in this decree, the liability of recaptured neutrals to the payment of salvage would, in conformity with the general law and usage of nations, cease also. This event might have happened, and probably did happen, before hostilities between the United States and France were terminated by treaty. Yet, if this law applies to the case, salvage from a recaptured neutral would still be demandable. This act, then, if the words admit it, since it provides a permanent rule for the payment of salvage, ought to be construed to apply only to cases in which salvage is permanently payable. On inspecting the clause in question, the court is struck with the description of those from whom the ves sel is to be retaken in order to come within the provisions Talbot V. Seeman. *44 Talbot V. Seeman. * 45 of the act. The expression used is the enemy. A vessel retaken from the enemy. The enemy of whom? The court thinks it not unreasonable to answer, of both parties. By this construction the act of congress will never violate those principles which we believe, and which it is our duty to believe, the legislature of the United States will always hold sacred. If this act does not comprehend the case, then the court is to decide, on a just estimate of the danger from which the recaptured was saved, and of the risk attending the retaking of the vessel, what is a reasonable salvage. Considering the circumstances, and considering also what rule has been adopted in other courts of admiralty, one sixth appears to be a reasonable allowance. It is therefore the opinion of the court, that the decree of the circuit court, held for the district of New-York, was correct in reversing the decree of the district court, but not correct in decreeing the restoration of the Amelia without paying salvage. This court, therefore, is of opinion, that the decree, so far as the restoration of the *Amelia without salvage is ordered, ought to be reversed, and that the Amelia and her cargo ought to be restored to the claimant, on paying for salvage one sixth part of the net value, after deducting therefrom the charges which have been incurred. Waste and GEORGE WILSON v. RICHARD MASON, DEVISEE AND RICHARD MASON, DEVISEE OF GEORGE MASON, v. THESE were writs of error to the district court of unappropria- the United States, for the district of Kentucky, upon ted lands in Kentucky, in cross caveats for the same tract of land. the year 1780, could not be lawfully appropriated by survey alone, without a previous legal entry in the book of entries. A writ of error upon a caveat lies from the district court of Kentucky district, to the supreme court of the United States. Notice of an illegal act will not make it valid. A survey in Kentucky not founded on an entry, is a void act, and constitutes no title whatever; and land so surveyed remains vacant, and liable to be appropriated by any person holding a land-warrant. The caveat of Wilson v. Mason originated in the su preme court for the district of Kentucky, in 1785, while Kentucky was a part of the commonwealth of Virginia, and the record states, "that heretofore, viz. at a supreme court for the district of Kentucky, held at Danville, in the said district, in the m、 nth of March, 1785, came George Wilson and caused a certain caveat to be entered against George Mason, which is in the following words, viz. Let no grant issue to George Mason, of Fairfax county, for 8,300 acres of land, in Jefferson county, surveyed on the south side of Panther creek, adjoining another survey of the said Mason's, of 8,400 acres, on the upper side; because the said George Mason has surveyed the same contrary to his location, for which cause, and also on account of the vagueness of the entry, George Wilson claims the same, or so much thereof, as interferes with his entry, made on treasury warrants for 40,926 acres, specially made on the 9th day of April, 1784. Entered 25th March, 1785." 66 Whereupon, at October term, 1785, a summons issued, commanding the sheriff of Fairfax county to summon George Mason to appear at the next March term, to show cause why the 8,300 acres should not be #granted to George Wilson, or so much as interferes with his entry for 40,926 acres, made on the 9th of April, 1784." Afterwards, and after Kentucky became a separate state, at a court held for the district of Bairdstown, in September, 1797, " to which court this suit had been removed, and the said George Mason having departed this life, the said suit was ordered to be revived in the name of Richard Mason, the devisee of George Mason, deceased, who was devisee of George Mason, deceased." Richard Mason then removed the cause from the state court to the district court of the United States, for the district of Kentucky, and it was agreed by the parties, "that the judgment in this caveat, (Wilson v. Mason,) if for the plaintiff, should be entered up as a judgment for the defendant in the caveat Mason v. Wilson; and if for the defendant, as a judgment for the plaintiff in the said caveat Mason v. Wilson, which suits are cross caveats between the parties for the same land." "And thereupon came a jury, &c. who, being elected, tried and sworn well and truly to inquire into such facts as Wilson V. Mason. * 46 Wilson V. Mason. * 47 may be material in this cause, and not agreed to by the parties," found the special verdict hereinafter stated. The cross caveat of Richard Mason v. Wilson was filed on the 13th of March, 1799, and seems to be in the nature of a plea or answer to the claim of Wilson. It is in the following form, viz. "Let no grant issue to George Wilson, or his assignees, on the said Wilson's survey of 30,000 acres of land lying in Jefferson county (now Nelson county) on the south side of Panther creek, a branch of Green river, made by virtue of an entry dated April the 9th, 1784, for 40,926 acres, upon the five following land-office treasury warrants, No. 17,639. 19,143. 19,614. 19,616. and 12,795. Richard Mason, infant heir and devisee of George Mason, jun. who was heir and devisee of George Mason, Esq. late of Fairfax county, Virginia, a citizen of the commonwealth of Virginia, by Cuthbert Banks, his next friend, enters a caveat against the same for the following causes: "Because the said survey includes a tract of 8,300 acres which had been before located and entered by the said George Mason in the year 1780, and which tract had been actually surveyed for him the said George Mason, and the certificate of survey thereof, dated October 2d, 1783, returned to the county surveyor's office long before the said George Wilson made his said entry; and because the said entry, made by the said George Wilson, on which his said survey is founded, was illegal and fraudulent, the said George Wilson having knowingly and wilfully located his said entry upon lands which had been actually before appropriated and surveyed for others, as appears by the words of the said Wilson's own entry, which begins at the upper and north-east corner of the said George Mason's 8,400 acre survey, on the bank of Panther creek, upon which survey of 8,400 acres, the adjacent survey made for George Mason of 8,300 acres, made about the same time, binds, and runs thence south 10 deg. east, (being the course to a single degree of the dividing line between the said Mason's two tracts of 8,400 and 8,300 acres,) passing the said Mason's south-east corner 2,600 poles north, 80 deg. east (which is the course to a single degree of the back line of George Mason's said survey of his tract of 8,300 acres) 3,200 poles, and off at right angles north wardly to the bank of Panther creek; and down the same, according to the meanders thereof, to the beginning; whereby it includes the whole of Richard Mason's said tract of 8,300 acres, as devisee as aforesaid of George Mason, as well as some other lands which have been previously located and surveyed for other people; which above mentioned courses could not have been inserted in Wilson's entry, in the manner they are, without his having been acquainted with the said surveys made by George Mason before mentioned; the plats and certificates of which were, at the time of Wilson's said entry, in the county surveyor's office; and from which it is evident Wilson gained the information by which he made his special entry." The original caveat of George Mason v. Wilson, was entered May 6th, 1785. Mason's entries, in the book of entries, were as follows, viz. "1780, April 29th, George Mason enters 8,400 acres of land, to begin on Panther creek, on the east side *thereof, opposite to a beech on the west side, about four miles above the mouth of the west fork, and to run up and down the said creek, and eastwardly for quantity." "1780, April 29th, George Mason enters 8,300 acres to begin at the upper corner of his 8,400 acre entry, and to run up the creek, on the east side, and back for quantity." "1780, October 27th, George Mason desires to make his entry of 8,400 acres more special on Panther creek, viz. to begin four miles above the forks of Panther creek, where it mouths into Green river, on the east side, running up and back for quantity." The tract of 8,400 acres was surveyed on 27th September, 1783, beginning four miles above the mouth of Panther creek, where it empties into Green river, and not four miles above the mouth of the west fork of Panther creek, as mentioned in his first entry. The mouth of Panther creek being more than twelve miles below the mouth of the west fork. The tract of 8,300 acres was surveyed on the 2d of October, 1783, adjoining to the survey of 8,400 acres, below the mouth of the west fork, and not above, as it Wilson v. Mason. 48 * |