UNITED STATES SUPREME COURT DECISIONS ON-LINE

An assignee of a preemption warrant is held to be a competent witness if the facts intended to be proved by his testimony do not tend to support the title of the party producing him.

A general dismissal of the plaintiff's caveat, in Kentucky, does not purport to be a judgment upon the merits.

Error to the District Court of Kentucky on a judgment which dismissed the caveat of Wilson against Speed.

The caveat was in these words:

"Let no grant issue to James Speed, a citizen of the State of Kentucky, for 139 acres of land, said to be surveyed upon an entry of 200 acres by virtue of a Treasury warrant, number 13,800, 24 November, 1782, and the survey dated 10 November, 1797, because John Wilson, a citizen of the State of Virginia, claims the same, part by virtue of a survey made on his settlement right of 20 January, 1786, and part by virtue of a survey made on the entry of his preemption warrant on 20 January, 1786, for Andrew Cowan and assigned by him to William Dryden, for his use, which claims are of a superior nature to the said Speed's. April 22, 1799."

"JOHN WILSON"

The facts appearing upon the record, so far as they are pertinent to the questions before this Court, were as follows:

In the year 1776, Wilson made an improvement by raising a crop on the land, and built part of a cabin.

In consequence of this improvement, he obtained, on 16 February, 1780, a certificate for a settlement right to 400 acres and a right of preemption to 1,000 acres.

On the same day, Andrew Cowan obtained a certificate for the preemption of 1,000 acres on account of marking and improving the same in the year 1776, adjoining the lands of John Wilson on the north side, to include his improvement. clubjuris

Page 7 U. S. 284

On 23 October, 1780, Andrew Cowan entered a preemption warrant for 1,000 acres, on the headwaters of Boon's Mill Creek, to include his cabin and the headwaters of several small branches running into Kentucky and Dick's River. "Also, as assignee of John Wilson's one thousand acres, adjoining the above, including said Wilson's cabin."

On 29, 1783, John Wilson entered

"400 acres of land by virtue of a certificate for settlement lying on a dividing ridge between the waters of Kentucky and Dick's Rivers, to include part of both waters and his improvement."

These 400 acres were surveyed for Wilson on 20 January, 1786, and were never assigned by him.

On the same day, the 1,000 acres, upon the preemption warrant, were surveyed for Andrew Cowan as assignee of Wilson.

On the back of this original certificate of survey was written an assignment purporting to be from Andrew Cowan to William Dryden and attested by "Young Ewing." And also an assignment (made by order of Garrard County Court during the pendency of the present caveat) by certain commissioners in behalf of the heirs of Dryden to William Buford.

On 24 November, 1782, James Speed, the defendant, entered 200 acres upon a Treasury warrant, the survey upon which was the cause of the present caveat.

This survey was for 139 acres, part of the 200, dated 10 November, 1797, and interfered with Wilson's survey of 400 acres, upon his settlement right, and with that for 1,000 acres preemption, which were surveyed in the name of Andrew Cowan as assignee of Wilson. Upon the inquiry into the facts before the jury, the plaintiff Wilson took two bills of exceptions. The first stated that he offered to produce the said Andrew Cowan (who had released to the plaintiff and clubjuris

Page 7 U. S. 285

all claiming under him all his, the said Cowan's, right to the land &c.) to prove that although the preemption warrant for the 1,000 acres was taken out in his name, it was not taken out by him or with his privity, and that although the entry was in his name, it was not made by him or with his privity. And also to prove that he never did and does not now set up any claim or title to the said preemption or any part thereof. Also to prove that the assignment on the original survey of the said preemption, now brought into court by the register of the land office, purporting to be an assignment made by the said Cowan to William Dryden, was not executed by him, the execution of the same not being proved by "Young Ewing," the attesting witness to the same.

But the court was of opinion that the said Cowan was not a competent witness, and excluded him from giving testimony.

The 2d bill of exceptions stated that, after the testimony of Cowan was excluded, the plaintiff offered to produce Charles Campbell to prove that the said assignment, and the signature thereunto as well as the name of the attesting witness, were in the handwriting of William Dryden, to the admission of which testimony the defendant objected, alleging, that "Young Ewing," the subscribing witness, ought to have been produced, and the court being of that opinion, the testimony of Charles Campbell was also excluded, and the caveat was dismissed, with costs. clubjuris

Page 7 U. S. 290