THE RAILROAD v. HOYE.—2 BLAND. 245

ered as equally available; nor could any one ascertain, from a view
of the books and proceedings of either the principal or assistant
surveyor alone, whether any other person had already entered a
warrant to affect the land he wished to obtain.

I am therefore, satisfied, that although every survey must be
dated on the day on which it was actually made; yet, in this in-
stance, the survey of Clara Fisher, having been improvidently
and erroneously made by the assistant, before the warrant had
been lodged with and properly noted by the principal surveyor in
* his book, must be considered as void and unavailable as
against all special entries and surveys made regularly and 261
bona fide before that time. 'Wilson v. Motion, 1 Cran. 100.

But these regulations, made, in this respect, with the avowed
intention of preventing disputes, ought not to be allowed to be so
applied as, in any manner, to work that very mischief they were
designed to prevent. Equity will not suffer any rule or legislative
enactment, however positive, to be itself perverted into an instru-
ment of fraud; or to be so used as to give any one, not ignorant
of the facts and the bearing of the rule, an unjust and unfair ad-
vantage. The great Statute of Frauds itself is always so con-
strued and applied as to prevent its being used as the means and
cover of fraud. Mestaer v. Gillespie, 11 Vex. 627; Fermor's Case. .'3
Co. 77.

The intention of these rules is to give a right of pre-emption to
him who should first, in the manner prescribed, designate the land
he proposed to purchase. The claimant of Clara Fisher had pro-
ceeded erroneously; and, because of that error, his right of pre-
emption would, as against all other bona fide purchasers, be post-
poned from the 25th to the 29th of May. But, on seeing the exact
sameness of the surveyor's description of River's Bend, the loca-
tion of which was made in the surveyor's book on the 28th of
May, with that of Clara Fisher, it seems to be difficult to resist
the conviction, that the claimant of River's Bend, was fully ap-
prised of the previous survey of Clara Fisher; that he availed
himself of the information it afforded, and designed to take an
unfair advantage of the erroneous manner in which it had been
made. Under such circumstances, to give the certificate of River's
Bend a priority over that of Clara Fisher, would be to make these
rules themselves the instruments of fraud. It would be like allow-
ing a subsequent purchaser, with full notice, to avail himself of a
defect in a conveyance, or of the Statute of Frauds in opposition
to a fair, equitable, and known right: which would be contrary to
all the principles of equiiy in this respect, and has never been per-
mitted in any case whatever. (b)

(b) SEWAED v. HICKS. 1718.— It appearing to the Court, that George Seward

had a warrant from the late Lord Proprietary,—that Thomas Smithsou, upon