distance expressed. However, there is no doubt, that when
a natural boundary is called for, and can clearly be proved
to be the boundary meant by the certificate, the call is to be
gratified, and the course and distance disregarded.
In the present case, there is no proof whatever that the
original running of the said 11th line carried the surveyor to
the spot contended for by the caveator; and it is even denied,
by the depositions produced by the deft. to be the beginning
of " Dogdown bottom." Besides, the spot appears to be on
the south side of the branch instead of the north side,
expressed in the certificate.
Now it would seem strange if the south side of a branch
was actually meant when the north side is positively
expressed. And nothing short of clear positive proof could
possibly be admitted to establish a boundary contrary to a plain
positive expression. Here then is another powerful
objection to the caveator's pretensions. When it is added to the
beforementioned objection relative to the course and distance,
and to the objection, that the name of " Dogdown bottom"
is not expressed; and when it is considered, too that the
beginning of Dogdown bottom is now uncertain, and that there
is no proof of the actual original running of the said 11th
line of Kirkminster by the surveyor, and that Kirkminster
run according to the courses and distances expressed, gives
the quantity expressed; it is impossible for the chancellor to
admit the caveat.
By admitting the caveat, the chancellor would not only
undertake to decide that the termination of the aforesaid 11th
line is clearly as contended by the caveator, but he would put
it out of the defendant's power to have the matter tried by a
jury, under the direction of a court of law.
What the determination of a jury may, or ought to be, the
chancellor cannot pretend to determine: but he conceives the
case as proper as any that ever came before him for a decision
at law, and therefore dismisses the caveat.
¾¾
SAMUEL SELBY, )
vs ) In the Land-office, Jan. 25, 1797.
FREDERICK GRAMMAR)
The chancellor having considered the arguments, in
writing, of the counsel on each side, the act of assembly
relative to the subject, and the rules and practice of the land
office, is of opinion that, insasmuch as it is not even alledged that
Gilpin's warrant was in any manner altered, or changed after
it was issued from the office, the time for compounding
thereon was from July 5th 1794 to July 6th 1795 exclusive of the
said 6th of July; that Grammar's warrant, taken out 4 days
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