CUNNINGHAM v. BROWNING 319

satisfaction of their claims, (m) But the most common ground of
caveat is, that the lands specified in the certificate on which the
patent is asked, are not vacant;. but are, in whole or in part,
included in an elder warrant, entry, survey, or patent, (n) And,
wherever the same land is contained in the certificates of both par-
ties to a caveat, it is considered, that each of the parties has
caveated his antagonist, (o)

The method of bringing a controversy, instituted by a caveat, to
a hearing appears to have been taken from that pursued in England;
and was always, from a very early period of the provincial govern-
ment, essentially the same as at present, (p) On a caveat being
entered, both parties may be considered as actors; for, if called
for, by either party, an order may be passed appointing a day for
hearing; but no caveat can be dismissed without hearing, or giving
the parties an opportunity of being heard.(o;) After a party has
thus obtained an order appointing a day for hearing, a subpoena
is issued from the chancery office under the great seal, as formerly,
to summon the opposite party to appear before the Chancellor to
maintain, or -to answer the caveat. And subpoenas may, in like
manner, be issued to summon witnesses to testify, (r) If required,
the parties may, by the same or a separate order, obtain authority
to take the depositions of witnesses before any justice of the peace
on giving notice as usual, and also, a direction to the surveyor of
the county, or some other impartial person to survey the lands, and
lay down the conflicting pretensions of the parties; and the sur-
veyor may summon witnesses to give evidence on the survey.(s)
Upon the return of all which, on the day appointed, the arguments
of the parties are received by themselves, or their attorneys either
orally or in writing; unless before, or on that day, further time be
allowed for the hearing, of which the party obtaining the order
must give his antagonist notice.(t)

The applicant for the patent must make out his case by shewing
himself entitled to a patent for the tract of land he has caused to
be designated in his warrant, his entry on the surveyor's book,
or by his certificate; and thus, in general, holding the affirmative, he
opens and concludes the argument, (u) After which the case is

(m) 1785, ch. 78.—(n) Land Ho. Ass, 83; West v. Hughes, 1 H. & J. 9.
(o) West v. Hughes, 1 H. & J. 10.—(p) Land Ho. Ass. 73, 83.—(q) Garretson v.
Cole, 1 H. & J. 374; April 1782, ch. 38, s. 8.—(r) Land Ho. Ass. 831, 488;
April 1782, ch. 88, s. ll.(s) Land Ho. Ass. 426, 488; 1789, ch. 35, 8. 6.—(t) Land
Ho. Ass. 489.—(u) Land Ho. Ass. 453.