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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 375   View pdf image (33K)
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LAND-HOLDER'S ASSISTANT. 375

the general power of the chancellor, though it is not the first
in course.

    The act of 1789, ch. 35, ordains as follows¾viz. " That
" in all disputes which may hereafter arise before the
" chancellor, as judge of the land office, he shall have full power
" and authority to decree thereon according to equity and
" good conscience, and agreeably to the principles established
" in the high court of chancery, as if the matter were brought
" before him by a bill in chancery."

    From the language of this section it may, perhaps, be
thought that I have gone too far in supposing that nothing new
has been introduced relative to the principles of decision in
the land office; and it might seem presumptuous in me to
attempt to judge of the effect of the latter part of the provision,
unacquainted as I am with what a chancellor may or may not
do in a matter brought before him by a bill in chancery. It is
not improbable, besides, that the late chancellor, who was
appointed in the year 1789, may have been concerned in
drafting this law, and if so, he must have been well informed
concerning its intention, and the occasion that existed for such a
provision; but, although the section forms but a single
sentence, it embraces two distinct considerations, namely,
principle and form. As to principle, I still think that nothing
substantially new was introduced; for, " equity and good
" conscience" can mean nothing very different from " right
reason and good conscience," which formed the rule of
action of the former judges of the land office; but in regard to
special authorities, and forms of proceeding, I suppose that
something new was introduced by this law, and yet not much;
for when it is recollected that the person who by the act of
1781 was to decide contests in the land office was the
chancellor, an officer already clothed with authority to decide, on
principles of equity, upon every dispute that came before
him in that character, and that no new principle was then
ordained further than concerned a distinction between old and
new cases, it must be admitted that this law can have done
little more than to make those principles special and positive
which before were incidental and implied: and, to prove that
the sphere of authority, as to matter or substance, was not
enlarged, the chancellor does not vacate a patent under the
general provisions of the law of 1789 although he does it on a
bill or complaint in chancery, and is also authorised by that
act to vacate a patent in a case therein described, as judge of
the land office. I have no design in labouring this point but
to set the principles of decision in the land office in a clear
and full light. The reason for my saying so much upon the
subject will be found in the adjudications of the late
chancellor, who seldom decided a case of importance without some





 
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Kilty's Land-Holder's Assistant, and Land-Office Guide
Volume 73, Page 375   View pdf image (33K)
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