of securing, at option, all the vacancy to be found in the
reserves, not sold by a particular name, or designation, to other
people; and that therefore, whenever a vacancy is surveyed
under warrant, he may come in and obtain it provided, at most,
that he has not before obtained the full quantity, expressed in
his certificate.
Now this cannot surely have been the meaning of the
intendant; because several of these certificates have been
granted to different persons:¾they cannot each have an exclusive
right to the same thing; and, supposing the intent of the
intendant to have been to introduce a scramble amongst those
purchasers, to the probable perpetual exclusion of all other
men, he has intended what he had no power of doing¾his
authority was to sell; and it is essential to a sale, that the
thing sold be certain, or at least reducible to a certainty,
by some act or acts agreed, or implied, to be done.¾Again,
the intendant could not properly be said to make a sale when
the contract was to be binding at the option of the purchaser
only, without any limitation of time within which the option
shall be made.
It is indeed difficult to assign a good reason, wherefore the
intendant granted such certificates at all,¾they appear
intended to confer a privilege of hunting for so many acres in
the reserves, not sold to others, and to stipulate that if the
grantee can find so many, or more, he may secure them, at
a certain price; and if he can find none, that he shall pay
nothing, notwithstanding he has executed a bond for a
certain sum, which must unavoidably be recovered, unless he
can obtain relief from the legislature, or from the court of
chancery, on the ground, that he has obtained no land, or not
so much as his certificate expresses.
But, supposing the operation of his certificate to be, the
giving him a privilege of hunting for vacant land, and of
obtaining a patent or conveyance for it, when found, at a certain
price (and the operation of his certificate or of the entry on
the intendants books cannot possibly be supposed, without any
other evidence of contract, to be more extensive or
beneficial) he surely ought not, with success, to plead that privilege,
against a person who has had a prior survey under a warrant,
in consequence of a law, passed since the grant of the
certificate, expressly subjecting vacant land in the reserves to be
taken by a warrant.
The case before the chancellor is briefly this: Markey
returns a survey under a common warrant, and is caveated by
Hurst, who has had no survey at all of the land in dispute,
but alledges that in the year 1785, he purchased from the
intendant a part of the land comprehended in Markey's survey.
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