This case comes before this court upon a certificate of division of opinion between the judges of the Circuit Court of the United States for the District of Ohio, upon a bill of review exhibited in that court. The character of the cause as made upon the pleadings and evidence, and the question on which the judges were divided in opinion, are so succinctly and at the same time so clearly disclosed in the statement of the judges, that they will be best presented by a simple repetition of that statement in these words:--
'This cause having been remanded from the Supreme Court of the United States to this court, for a further order touching the point upon which the opinions of the judges of this court upon the hearing thereof were opposed, in compliance with said mandate of said Supreme Court, the said point of disagreement of said judges is now ordered to be restated more specially and at large. The said point of disagreement arose out of the following facts, stated and set forth in the original bill of said Walter Dun, and admitted to be true by the demurrer of said Duncan McArthur thereto, who was the respondent to said original bill, viz.: That said McArthur, on the 3d of January, A. D. 1825, obtained a patent for the tract of land in controversy, which is situate in the Virginia military reservation, in the State of Ohio, on an entry made on a Virginia military land-warrant, in the name of Robert Means, assignee, on the 23d of November, A. D. 1822, followed by a survey of said entry, made in the name of the said Robert Means, assignee, on the 18th of March, A. D. 1823; which said Robert Means before said entry, and as early as the year A. D. 1808, had departed this life. And that, on the 4th day of April, 1825, another patent for the same tract of land was issued to one James Galloway, on an entry thereof made in the name of said Galloway, on the 10th of December, A. D. 1824, on another Virginia military land-warrant, and which was duly surveyed in his (said Galloway's) name, on the 15th of the same month of December, A. D. 1824, and which tract of land was subsequently conveyed by said Galloway to said Walter Dun. Upon which said state of facts, touching the titles of the said parties to said tract of land, this point was raised by the counsel for the complainant in said bill of review, upon the hearing and argument thereof, viz.:-Whether the said location and survey of said tract of land in the name of said Galloway, and the patent issued to him for the same, are not null and void, as being made and done in contravention of the proviso to the second section of the act of Congress of the 1st of March, A. D. 1823, entitled 'An act extending the time for locating Virginia military land-warrants and returning surveys thereon to the General Land Office."
Thus it will appear that the only question for consideration here arises on the proper construction of the proviso contained in the second section of the act of Congress above mentioned. This act-after providing in the first section that the officers and soldiers of the Virginia line or Continental establishment, their heirs or assigns, entitled to bounty lands within the country reserved by the State of Virginia, between the Little Miami and Scioto Rivers, shall be allowed a further time of two years from the 4th day of January, 1823, to obtain warrants and complete their locations, and the further time of four years from the same period to return their surveys and warrants to the General Land Office to obtain patents-contains in the second section a proviso in the following words:-'Provided, that no locations as aforesaid in virtue of this or the preceding section of this act shall be made on tracts of lands for which patents had previously been issued, or which had been previously surveyed; and any patent which may nevertheless be obtained for land located contrary to the provisions of this act shall be considered null and void.' 3 Stat. at Large, 773. Upon this proviso, which appears to be a literal transcript of the proviso contained in the first section of the act of 1807, the question for our consideration, as has been already remarked, is presented.