fairly tried at law. In cases of this kind, the admission
of the caveat puts an end to the dispute. There is no appeal
from the chancellor; and the defendant can make no title in
an ejectment. But by the dismission of the caveat, and
allowing a patent to the defendant, either party is in a
condition to have the title tried by the proper established tribunal.
The established rule therefore is this, that unless the caveator,
who alledges, that the land is contained in his grant can
support his allegation beyond doubt, the matter shall be referred
to a decision at law.
It is impossible for a man acquainted with our constitution
and laws to believe that the legislature intended to make the
chancellor not only a judge of title and location, but a judge
without appeal. Is it not indeed notorious, that, in every
cause before the chancellor where there arises an important
question, of either law or fact, it is the invariable practice to
submit it to the general court, or its jury?
After all, it must be allowed to be extremely difficult to
distinguish between cases in which no doubt can be
entertained, and questions in which there may be a difference of
opinion: but every consideration of this kind must have a
tendency to increase the chancellor's caution. If in the present
case he should admit the caveat, he is satisfied there are few
persons, acquainted with the nature of the dispute, who would
not censure him for usurping the office of a jury, and who
would not say that the law under which he acted, or rather his
conduct under a law, is a violation of the principles of the
constitution.
It is adjudged and ordered that the caveat be dismissed,
but that each party bear his own costs.
¾¾
NATHAN PRATHER, against ZEPHANIAH PRATHER'S
certificates of " Lucky discovery" and " Prather's chance."
Caveat in the Land-office, Nov. 28th 1794.
By the practice of this office, which had obtained before
the revolution, and has been since pursued, a man possessed
of common or special warrant of one acre only may survey
any quantity of vacant land not affected by any other warrant.
This practice, although it may in some degree affect the
revenue of the state, cannot be productive of wrong to
individuals ; because no man can have an equitable pretension to
that land which has already been surveyed for another, and
which he himself had not before the survey contracted or
applied for.
But, whether a common or special warrant, under which
a survey has already been made of more land than is expressed
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