He may, if he thinks proper, have vacated both the certificate
of Rogue's harbour, made by Clark, and the certificate of
Jones's purchase, made by the surveyor; and he may then
have a new certificate returned, comprehending just his real
purchase or he may have an order for correcting the latter
certificate, so as to exclude Whitford's vacancy C.
It is adjudged and ordered, that the caveat of Hugh
Whitford against the certificate Jones's surplus be dismissed; that
the said Whitford's caveat against the certificate of Rogue's
harbour, and the certificate of Jones's purchase be admitted;
that the caveat of Benjamin Jones against the certificate of
Hugh's adventure be also admitted; and that orders,
agreeably to what is herein before mentioned, shall, on application,
be granted.
¾
N. B. The chancellor omitted to mention one fact, which
was, that at the time Whitford took out his warrant of
resurvey, and even when he returned his certificate, there was
no certificate of Jones's purchase returned; so that he could
not with any plausibility claim, under his purchase, vacancy
contiguous to Whitford's patent, and not comprehended in his
the said Jones's purchase.
Now that the certificate of purchase is returned, no man,
perhaps, hereafter, can with plausibility claim, as vacancy,
under a warrant hereafter taken out, the land comprehended
in the certificate of Jones's purchase.
November 17, 1796.
¾¾
NELM ) The dispute turns upon this single point; what
agt ) is the termination of the 11th line of Kirk-
SMITH) minster?
The expression in the certificate is, " thence W 126 ps. to
" a marked white oak, standing upon the north side of the
" branch first mentioned, where the first bounder standeth,
" and upon the east side of a glade, that runneth into the said
" branch, being a corner tree of a tract of land surveyed for
" Phoenix Hall." The caveator lays down Kirkminster so
as to run to a spot which he contends, and which he offers
deposition to prove, to be the beginning of a tract called
" Dogdown bottom," surveyed for Phoenix Hall, which tract, he
says, was the only tract in the neighbourhood, or county
surveyed for Phoenix Hall. The deft. admits the allegation that
the said " Dogdown bottom" was the only tract surveyed for
Phoenix Hall.
If the 11th line of Kirkminster be as contended by the
caveator, its course is nearly opposite to the course expressed,
which is west, and the length of it is much shorter than the
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