The only evidence he produces of his contract is a
certificate for four hundred and two acres in the reserves of
Baltimore, sold to him by the intendant, but this certificate not
ascertaining the precise situation of those 402 acres, he
produces a certificate from Mr. Callahan, of his application, on
the 3rd of December 1779 for one special warrant for 200
acres, another for 100, a third for 100, and a fourth for 40,
amounting in the whole to 440 acres, all lying in the said
reserves; and he now alledges, that the land in dispute was
described by two of the locations in the said warrants.
There is however no evidence that Mr. Callahan's certificate
was ever produced to the intendant, by way of ascertaining
Hurst's purchase.¾On the contrary, as this certificate and
the intendant's certificate of purchase differ in quantity, there
arises a presumption that it could not have been produced to
the intendant, at any time before the sale.¾Besides, even
supposing it to have been produced at the sale, the description in
the application being vague and indefinite, and no survey
being made by Hurst on this land, until a few days ago, and
after a lapse of seven years from the purchase, and after a
variety of surveys made by him of other lands under his
purchase, it ought not, without some further proof than appears,
to prevail against a survey made under a warrant. There is
this further consideration; the application was for warrant to
affect lands not then liable to a warrant; and, if they were
afterwards made liable by the act of Nov. 1781, ch. 20, yet,
the application not being pursued, agreeably to the said act, it
conferred no kind of right on Bennet Hurst; and there is no
direction in any law for the intendant, in his sale of the
reserves, to prefer those who had, at any time, made a fruitless
application for warrant.
Upon these considerations, it seems to the chancellor to be
perfectly clear that Bennet Hurst has not supported his
caveat; altho' it appears that he warned Markey not to survey,
and altho' the certificate of purchase should be deemed clear
of error.¾But it appears from the entry of the purchase on
the intendant's books, that 200 acres had been sold to the said
Hurst, at the price of 4s. 3d. per acre, making £42 10,
instead of 402 acres for £42 10, which would be 2s. 1d. and
the fraction of a penny per acre.¾When it is considered
further that 4s. 3d. per acre was almost the lowest price of land
in the reserves, sold to others, it cannot otherwise be
conceived than that the certificate is erroneous, and the entry
right:¾
Again ¾the chancellor considers the declarations
heretofore made in his presence by the said Hurst with respect to
his purchase, as a strong confirmation of the truth of the
entry on the books¾it appears too, from the information of the
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