held that the exercise of this equitable jurisdiction seems to be more especially called for, when the legal invalidity of the instrument is not apparent on the face thereof, but requires evidence aliunde, as in the present case of the deed to Cooper, being fair on its face and in common form, showing nothing of the gaming transaction: See 1 Hov. 17, and the cases there cited; also, the same book, 421, where it is laid down, "that it may be very salutary exercise of equitable jurisdiction to order deeds to be delivered up, which, though void at law, may throw a cloud over a party's right, or involve him in litigation; and that the interference of equity will be more especially proper when the legal invalidity of the instrument is not apparent on the face thereof." See the cases there cited.

These authorities show that the plaintiff, Johnson, had in the present case an indisputable right to come into equity, to have the deed made by him to Cooper delivered up and canceled, or a relief equivalent thereto. It results that the plaintiff, Johnson, being now in equity by means of an equitable right, the redress for which a court of law could not give him a remedy, the court of equity will not send him to law to seek redress for a part of his case which is not connected with the equitable part, but will decide the whole matter before them, upon the principle of lessening litigation. This course is supported by 1 Hovenden, 216, where it is laid down that "though the invalidity of an impeached instrument might be the subject of an action, it is discretionary in the court of chancery, whether an issue on an action shall be directed or permitted; if the facts and the law are indisputably clear, it is within the jurisdiction of the court to act, not only without sending the parties to law, but without allowing them to go there." Several cases are cited which give reference to others.

The third objection against the relief prayed by the bill is, that it was not brought within the time prescribed by the limitation of the fourth section of the eighth chapter of the act of 1799.

It is admitted that the fourth section amounts to a statute of limitations to the actions given by it and brought under it, although it wants that strength of expression which the general act of limitations of 1715 possesses. That act, when it gives the right to bring actions within a certain number of years or months, adds the negative, "and not afterwards." This negative clause is not used in expressing the limitation of bringing suits within three months under it; however, it will be

taken as a competent act of limitation, and there are two answers to it, either of which meets it fully, and shows its inefficiency in this case for the purpose relied on. The first answer is easily given, and plainly apparent on the face of the act, and is this, that the plaintiff's case is not within the act, either in its letter or spirit. The second answer is, that if the plaintiff's case was embraced by the act, the defendants have not availed themselves of the advantage by pleading it or relying upon it in the answer, pursuant to the practice of our courts of equity.

As to the first answer, the limitation of bringing the action given by it to the losing party in a gaming transaction, is given to an action at law, brought to recover some specific thing lost and delivered at the time, and not to a suit in equity, to declare void a conveyance of land. The action given by the provision of this section is debt or case, which are peculiarly confined to a court of law, and not within the jurisdiction of equity. This is further apparent to be the intention of the legislature, by expressing the subject-matter of the action to be brought, to wit: money or goods so lost and delivered, the proper subjects of legal cognizance in actions in the courts of law. Now, land lost at gaming, and conveyed by the loser to the winner by deed, can not, by any latitude of construction, be possibly tortured into a signification to mean and express money or goods lost and delivered. But it is evident that cases of the nature of the present are not within the spirit of the act; they would not be within the intention of the legislature, as the necessary and proper relief upon this transaction is out of the pale of proceedings at law, and beyond the powers and jurisdiction of courts of law. Neither can it be admitted, that in this instance of gaming alone, the legislature intended to confer on courts of law equitable jurisdiction, with the powers incident to such jurisdiction, when there was no necessity, other courts for the same purpose being already established and existing. The assumption would be perfectly gratuitous, that the legislature had any such intention.

The second answer is, that if the plaintiff's case was embraced by the act, the defendants have not availed themselves of the advantage pursuant to the practice of equity proceedings.

It need only be observed on this point, that the constant practice and rule of proceedings in courts of equity in this, that the statute of limitations must be either pleaded, or the benefit of it insisted upon in the answer, otherwise the defend.

ant can not take the advantage of it. This practice is founded on the rule of the common law, "quisquis juri pro se introducto renunciat." Every one may renounce the benefit of a law introduced in his favor. We are of opinion therefore, that the judgment and decree of the circuit court of chancery be reversed, and a decree be drawn agreeably to the law as held in this opinion.

Decree reversed.

The principal case is cited in Rucker v. Wynne, 2 Head, 620, to sustain the following points: that courts of equity will compel gaming securities to be delivered up and canceled; that in transactions contravening public policy, relief will be given to a particeps criminis, but that the relief is given, always in aid, not in subversion, of public policy. In the latter case, McKinney, J., in overruling Weakley v. Watkins, 7 Humph. 356, and approving the principal case, said: " 'The jurisdiction of a court of equity to grant this relief is denied, on the authority of the case of Weakley v. Watkins and Ferguson, 7 Humph. 356. This case, it is apparent, was hastily considered, and there is no reference to any authority in support of the decision. It is in direct opposition to the case of Johnson v. Cooper and Crosswhite, 2 Yerg. 524, in which, upon an elaborate examination of the question on principle and authority, the contrary doctrine was established. The case of Weakley v. Watkins might well enough be distinguished from the present case by the element of a most atrocious fraud, which characterizes the latter. We are not inclined, however, to rest our determination upon this distinction, but upon the distinct principle announced in Johnson v. Cooper and Crosswhite, which, in our opinion, is the sound doctrine, and well sustained by authority." See, to same effect, Kelton v. Millikin, 2 Coldw. 414. Upon the proposition that equity will order a deed for land to be delivered up, though void in law, as a clond upon the title, whether the invalidity appears upon the face of the instrument or not, the principal case is cited with approval in the following cases: Jones' Heirs v. Perry, 10 Yerg. 83; Almony v. Hicks, 3 Head, 41; Williams v. Tal liaferro, 1 Coldw. 39; Porter v. Jones, 6 Id. 318. In Almony v. Hicks, 3 Head, 41, the principal case is relied upon to sustain the proposition that when a court of equity obtains jurisdiction of a controversy for one purpose, it will retain it until the whole matter is disposed of, and the rights of the parties settled. Also in Nichol v. Batton, 3 Yerg. 474, the construction given to the act of 1799, c. 8, by the principal case, is recognized as correct, and that act was held to be a statute of limitation, and that unless a party commenced an action to recover back money or property paid on a gaming contract, within the time prescribed therein, his action was barred.

WALLY'S HEIRS v. KENNEDY.

[2 YERGER, 554.]

"LAW OF THE LAND," AS USED IN THE CONSTITUTION, means a general public law equally binding upon every member of the community, under similar circumstances, and every partial or private law which directly proposes to destroy, or affect individual rights, or does the same thing, by affording remedies leading to similar consequences, is not the "law of the land."

ACT OF 1827, c. 39, WHICH DIRECTED THE DISMISSAL of certain class of suits, growing out of the reservations of lands to the heads of Indian families, under the treaties of 1817 and 1819, with the Cherokees, upon certain facts being made to appear, is partial, and therefore unconstitutional. THE facts are stated in the opinion.

By Court, CATRON, J. This was an action of ejectment brought by the heirs of Wally against the defendant; claiming the land in controversy as a reserve, by virtue of the treaties of 1817 and 1819, with the Cherokees. The material question involved is this: on the trial below the defendant proved that the suit was prosecuted for the benefit of another, and not the lessors of the plaintiff, who had contracted to convey their interest before the suit was brought. On this point the court charged the jury, "that if they believed the lessors of the plaintiff had sold their interest in the land in dispute, they must find a verdict for the defendant." The jury accordingly found a verdict for the defendant. The charge of the circuit court was grounded on the act of 1827, c. 39, passed December 6, of that year. This suit was commenced twenty-seventh August, 1827. The act first provides" that interrogatories might be exhibited to the plaintiffs, and if it should appear that the suit was prosecuted in trust for another it should be dismissed." This mode was not pursued. Or, "that the defendant on the trial of the cause might prove by witnesses that the suit was instituted or prosecuted, in whole or in part, upon a contingent interest, or in trust for any other person than the one in whose name such suit was brought; and if the facts should so appear from such examination it should operate as a bar to the recovery of the plaintiff." The act of 1827 is a partial law, applying only to suits then brought, or which might thereafter be brought in the name of any Indian reservee, to recover lands under the provisions of the treaties of 1817 and 1819, between the United States and the Cherokee nation of Indians.

The treaties secured to the reservees the right of citizenship; of course in 1827 they held the same relation to the body politic, and were entitled to the same measure of constitutional protection as the citizens of Tennessee.

Does that part of the act of 1827 which declares that the suit shall be barred, if the defendant prove it was prosecuted in trust for another, violate the constitution? By this it is declared that no free man shall be disseised of his freehold, or deprived of his property, but by the judgment of his peers or the law of the land. What is the law of the land?" This

court, on two occasions, and upon the most mature consideration, has declared the clause, "law of the land," means a general public law, equally binding upon every member of the community. The rights of every individual must stand or fall by the same rule or law that governs every other member of the body politic, or land, under similar circumstances; and every partial, or private law, which directly proposes to destroy or affect individual rights, or does the same thing by affording remedies leading to similar consequences, is unconstitutional and void. Were it otherwise, odious individuals and corporate bodies would be governed by one law, the mass of the community, and those who made the law, by another; whereas, a like general law, affecting the whole community equally, could not have been passed: Vanzant v. Waddel, 2 Yerg. 260. For the most lucid and conclusive exposition of this clause of the constitution within the knowledge of the writer, he refers to the opinions of Judges Green, Kennedy, and Peck, in the case of the Bank v. Cooper's securities, at Nashville, in 1831, post.

The act of 1827 is peculiarly partial. It is limited in its operation to a comparatively small section of the state, and to a very few individuals claiming a very small portion of the section of country referred to.

It is a common case to sell and give a bond for title to the lands sold, the fee still resting in the covenantor. To eject an intruder, the action must be brought in the name of the covenantor, for the benefit of the covenantee. Yet frequently a link in the chain of title is wanting, and demises must be laid in the names of the lessors, clothed with the naked legal title. Were these privileges denied, the action of ejectment would afford no remedy to the true owner in very many cases. Had the act of 1827 been general, it would have applied itself to all such cases, and then the equitable owner, and he who held the legal title in trust, would have been barred by parol proof that the grantee had sold and contracted to convey. This would be an absurdity, particularly when applied to suits pending at the passage of the law; and it is confidently believed such a law would not have found a single advocate in the legislature.

The act was intended to drive from the courts of justice a few odious individuals, who it was supposed had speculated upon the ignorance and necessities of the Indian reservees, and fraudulently obtained their claims for trifling considerations, and were corruptly obtaining evidence to establish rights to re

AM. DEO. VOL. XXIV-33