242 THE RAILROAD v. HOYE.—2 BLAND.

ceptions including a solicitor's fee to be taxed by the register,
1820, ch. 161, s. 8.

And it is further ordered, that the said plea of the defendant be
overruled; and that the defendant pay unto the plaintiffs, the sum
of £5 current money, and the costs of the said plea to be taxed by
the register, and be in contempt until the said sum of money and
costs be fully paid. 1785, ch. 72, s. 25.

And it is further ordered, that the defendant make a full and
sufficient answer to the bill of complaint on or before the 20th day
of February next.

The defendant answered as required by this order, to which the
plaintiffs having put in a general replication; and commissions
having been issued and returned with evidence taken under them,
the case was, by consent, referred to the auditor, with directions
to state accounts; and notice having been given by advertisement
in the newspapers, to the creditors of James Clarke, deceased, to
file the vouchers of their claims, the auditor made a report accord-
ingly, which was confirmed, &c.

258 *THE RAILEOAD v. HOYE.
LAND WARRANT,—CAVEAT.

All common warrants must be lodged with the principal surveyor, and
entered in the manner prescribed; otherwise surveys made under
them, will be deemed void as against others regularly made.—No posi-
tive rule, or law can be suffered to be made the instrument of fraud.—
Where there is a material difference between the location in the sur-
veyor's book, and the actual survey, the latter is taken as a virtual aban-
donment of the former.—In caveat cases, there being no appeal, it is
usual, where there is a reasonable doubt, to let the patent go, so as
thereby, in effect, to give the parties the benefit of an appeal, (a)

THIS case arose in the land office upon cross-caveats, the one by
The Baltimore and Ohio Railroad Company, as the holders of a
certificate of a tract of land, called Clara Fisher, against the
issuing of a patent on the certificate for the tract of land, called
River's Bend; and the other by The Chesapeake and Ohio Canal
Company, as the assignee of a certificate obtained by William W.
Hoye, of the tract of land, called River's Bend, against the issu-
ing of a patent on the certificate of the tract of land, called Clara
Fisher.

It appears, that about the 23d of May, 1828, the surveyor of'
Allegany County, was requested to attend on the Potomac River.

(a) Approved in Chapman v. Hoskins, 2 Md. Ch. 496.