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Elizabeth J. Barnard, Mary A. Barnard, Corrine Barnard, William S. Barnard, and Thomas Barnard, infant Children and sole Heirs of Thomas Barnard, deceased, by William Cannon, their Guardian and next Friend, Complainants and Appellants, v. Mary W. W. Ashle U.S. 43 (1856)

handle is hein.slavery/ussccases0201 and id is 1 raw text is: DECEMBER TERM, 1855. 4a Barnard's Heirs v. Ashley's Heirs et al. ELIZABETH J. BARNARD, MARY A. BARNARD, CORRINE BARNARD, WILLIAM S. BARNARD, AND THOMAS BARNARD, INFANT CHIL- DREN AND SOLE HEIRS OF THOMAS BARNARD, DECEASED, BY WILLIAM CANNON, THEIR GUARDIAN AND NEXT FRIEND, COM- PLAINANTS AND APPELLANTS, V. MARY W. W. ASHLEY, EXEC- UTRIX, AND WILLIAM E. ASHLEY, AND FRANCES A. ASHLEY, AND HENRY C. ASHLEY, AN INFANT, BY MARY W. W. ASHLEY, HIS GUARDIAN, HEIRS, &C. OF CHESTER ASHLEY, DECEASED, AND SILAS CRAIG'S REPRESENTATIvES. The act of congress passed on the 4th of July, 1836, (5 Stats. at Large, 107,) provided for a direct supervision by the commissioner of the general land-office over registers and receivers of the land-offices, and therefore their judgment is not conclusive in a case where additional proceedings were had before them in 1837. The cases of Wilcox v. Jackson, 13 Pet. 511, and Lytle v. Arkansas, 9 How. 333; commented on and explained. I Where a survey was approved on June 4, 1834, a selection made, under the authority of congress, by Governor Pope, on June 6, 1834, the lands thus selected were not open to pre.emptions under the act of June 19, 1834. Where there was an erroneous survey, a selection of a section did not attach until a correct survey was returned, which was not until the 19th of July, 1834. As the pre-emption law was passed on the 19th of June, 1834, an occupant of the selection would have had the better title, if he could have brought himself within the condi- tions of the law. But the evidence shows that he could not do so. By the act of congress passed on January 6, 1829, (4 Stats. at Large, 329,) a donation claim could not be located upon land occupied by an actual settler. But in this case, the evidence shows that the land in question was not so occupied. THIS was an appeal from the circuit court of the United States for the southern district of New York. The case is stated in the opinion of the court. It was argued by Mr. Pike, for the appellants, and by rft. Lawrence and Mr. Crittenden, for the appellees. The points of law made by the respective counsel were so in- terwoven with the facts, that they cannot be explained without an elaborate statement of the case. Mr. Justice CATRON delivered the opinion of the court. The proceedings in the court below consisted of a bill filed by Barnard against Ashley and Craig, praying that certain patents for lands issued to the defendants might be decreed to be can- celled, upon the ground of a violation of pre-emption rights on part of the complainant, to the following tracts, namely: N. E. J and S. W. fr. - of sec. 27; S. E. fr. I of sec. 28, T. 18 S.,R. 1 W. ; S. W.fr. of sec. 15, T. 19 S., R. 1 W. ; S. E. I of see. 22, T. 18 S., R. 1 W.; and a cross-bill on part of Ashley to be quieted in his title to the S. E. qr. of sec. 22, against the right set up by Barnard to that tract, under a junior

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