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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 374   View pdf image (33K)
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374 LAND-HOLDER'S ASSISTANT.

and to the examiner, registers, and surveyers, relative to
every part of their duties.

    The former rules of the land office were, then, expressly
made applicable to matters taking their commencement under
the proprietary government, and prior to the passing of this
act,¾in exclusion of any new rules which might be adopted
for the future government of the office; but, there arises,
here, a question whether those old rules were to continue to
be applied, also, to new business, until they should be
superceded by other regulations. This question is raised by the
chancellor in the case of Wilcoxon vs. Edmundson: He
admits that no new rule, applicable to the point in issue, has
been prescribed by the governor and council, and then
proposes a query whether the former rule of the office or the
" dictate of equity," as sanctioned by the act of 1789, is to
govern; but he does not determine the question thus stated,
because the result, he observes, must be the same in either
way. The question however is not difficult. The law of the
land office necessarily consists, in part, of usage or custom:
An usage capable of a precise application becomes erected
into a rule: those which regard matters possessing too many
shades of difference to be comprehended under a single
description continue to bear the name of usages, and the points
to which they are applied must be determined by precedent,
or by analogy. The rule of equity was not intended to
supplant the known rules of the office; for, the chancellor, who
applies this in his decisions, was not authorised to prescribe
new rules, that power being left with the executive, and
consequently he cannot abrogate the old ones. This last position,
I think, is undeniable, and the conclusion from it is that, so
far as the governor and council have not ordained new rules,
the former ones are in force. In short there is,
notwithstanding that the contrary has sometimes been advanced, a
LAW of the land office, composed first of the acts of assembly;
which, so far as they go, nothing can controul; then, of
known rules of office, either expressly prescribed or confirmed,
or tacitly sanctioned, by the governor and council; and
lastly, of usages not reducible, or at least not reduced, to the
form of definite rules, which are also sanctioned in a tacit
manner by the governor and council, in their not having
exercised the power which they possess of superceding, by express
regulations, both rules and usages,
¾in a word, every thing
but the law itself: and, to this law of the land office the
principle of equity is applied, in the decision of contests, in the same
manner, and no other, as the same principle is applied in the
chancery court to the law of the land. I proceed to notice the
further provisions of the acts of assembly that the reader may
judge for himself; and, in the first place, that which regards





 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 374   View pdf image (33K)
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