THE RAIL ROAD v. HOYE. 261

his book, must be considered as void and unavailable as against
all special entries and surveys made regularly and bona fide before
that time, (c)

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
advantage. 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, (d)

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
location 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 apprised
of the previous survey of Clara Fisher; that he availed himself of
the information it afforded, and designed to take an unfair advan-
tage of the erroneous manner in which it had been made. Under
such circumstances, to give the certificate of River's Bend a pri-
ority over that of Clara Fisher, would be to make these rules them-
selves the instruments of fraud. It would be like allowing a sub-
sequent 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 equity in this respect, and has never been permitted
in any case whatever, (e)

(c) Wilson v. Mason, 1 Cran. 100.—(d) Mestaer v. Gillespie, 11 Ves. 627; Fer-
mor's Case, 3 Co. 77.

(e) SEWARD v. HICKS, 1718.—It appearing to the court, that George Seward had
a warrant from the late lord proprietary,—that Thomas Smithson, upon very fraudu-
lent allegations, had obtained a special warrant to resurvey the land in the bill
mentioned, and patent granted thereupon,—it is therefore Decreed, that Thomas
Smithson's patent for the lands in the Mil mentioned, be vacated, and that the com-

34 v.2