to make some allowance, yet, the variation being
different in different places, and at different times, no general
rule can be found applicable to all cases; and as an arbitrary
allowance would be inconsistent with the principles of justice,
it has, necessarily, been adopted as a rule to make no
allowance, without proof of the original running of one or more
of the lines, whereby the proper allowance for all might be
ascertained. For further reasonings on this point, and on
various other parts of the practice, I shall refer the reader to the
decisions themselves; but something further remains to be
said relative to the authority of the judges of the land office,
and the methods of proceeding on caveats.
The rise, and the general nature, of caveats have been
explained in the former book. They constitute a proceeding of
essential use in the land office, in preventing litigious and
groundless actions of ejectment in the courts of law; for,
without a title, by or under a patent, such an action cannot be
maintained. The judge of the land office, in admitting a
caveat against a certificate founded on erroneous or fraudulent
proceedings, such as would eventually be condemned in a
court of law, destroys the germ of an useless litigation; for,
as the late chancellor very frequently observes in his decrees,
the defendant in the land office, when the caveat against him is
admitted and ruled good, is without appeal and without
remedy, at least as to his obtaining a patent on the certificate as it
stands, although, after such corrections as shall have removed
all defects recognized in the admission of the caveat, he may
still obtain a patent upon the same certificate. The practice
a while ago noticed of dismissing caveats where very little is
wanting to establish the irregularity of the certificates, is in
one point of view considerate, as it affords the only
apportunity which the defendants can have of trying their right at law,
where some possibility of a right is admitted to exist; but,
on the other hand, lessens the utility of the institution of
caveats; discourages them where perhaps they ought to be
entered; and lessens also the importance of patents, in sending
them into courts of law merely to be set aside. On which
side lie the greatest advantages, or inconveniences, I shall not
pretend to determine.
The principal directions relative to the summoning of
parties &c. in trials in the land office, are contained in the act of
1782, ch. 38, which provides that subpoenas may issue from
the chancery (or the general court of either shore) to
summon parties to appear, or to require the attendance of
witnesses to give testimony on any caveat; that every sheriff
shall obey such subpoena; that attachment for contempt may
go from the court issuing the subpoena against a witness for
non-attendance, and that such witness may be fined as in other
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