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458 BALTIMORE v. McKIM.
versy between individuals; because the decision on a caveat was
not, in any way, conclusive of the right. If the patent was
for laying out the tract aforesaid, called Coursey upon Wye; which said tract of land,
as the said Hemsley alleged, for the imperfections aforesaid, remained still to be
vacant, and subject to his special wan an t, laid upon the cultivation thereof as
aforesaid.
Secondly.—It was alleged, that although the warrant upon which the surveyor had
laid out Coursey upon Wye, should be held and deemed to be good and sufficient
warrant to the surveyor for the taking up of so much of that tract called Coursey
upon Wye, as had not before been cultivated; yet that the survey thereof, as far as
it related to any part of the cultivated lands must necessarily be null and void; such
lands being excepted in all common warrants, according to the usual form, 'lands
not already laid out for, nor cultivated by any person, nor lands reserved for his
lordship's use;' but that the lands so by him, the said Hemsley, taken up, by virtue
of his lordship's special warrant aforesaid, were cultivated at and before the time of
the survey of Coursey upon Wye, no one will pretend to deny. Wherefore as the said
lands would not be affected by the common warrant aforesaid, allowing it to be a
good warrant, which, however, he doth not grant, he prays that his lordship's Let-
ters Patent may be made out to him, the said Vincent Hemsley, according to the
course of the office, for the two hundred and thirty acres of cultivated vacant land,
according to his certificate of survey thereof already made and returned into his
lordship's Land Office.
Whereupon the complainant replied to the first allegation, and saith, true it is that
the warrant upon which the survey of the tract of land called Coursey upon Wye, is
grounded, was by an assignment from Col. Peter Lawyer for nine hundred and
twenty acres of land, part of a greater warrant for two thousand three hundred and
forty-five acres, which said warrant, as is above alleged, and according to a record
thereof, was found to have been executed upon other lands before the assignment of
the nine hundred and twenty acres, part thereof, unto Col. William Coursey afore-
said; but the petitioner also maintained, that it is also found, upon the same record,
after the discovery of the imperfections of the warrant aforesaid; and, it is very
probable, made by Col. Coursey himself for the greater security of his land, another
entry is likewise found, next after the entry and discovery aforesaid, viz: upon the
8th of May, 1696, new caution is given for the same; which the complainant saith
she is humbly of opinion was then accepted of by the Lord Proprietor as a full com-
pliance with his conditions of plantation, it never having been practiced by his lord-
ship, nor any of his noble ancestors, to take advantage of inadvertent slips or mis-
takes; but always when discovered have allowed the liberty of amending the same,
as in this present case. And the petitioner farther saith, that although it be not ex-
pressly mentioned on the face of the records, that the new caution given was on the
part of the said Col. William Coursey; yet it is implied, as a most consonent rea-
son, that such new caution given for the mending the defects in the warrant afore-
said did affect the assignment made unto Col. Coursey's part of that warrant, equally
with all other parts thereof, it being declared upon record, that new caution was
given for the same.
As to the second plea of the said Hemsley, that no common warrant would affect
cultivated lands which, as he alleged, are excepted in all such warrants; the com-
plainant answereth and saith. Notwithstanding it he at the present, and for many
years oath been the practice of the Land Office to make an exception of all land
already surveyed, cultivated or reserved for his lordship's use; yet, that the practice
of the office was not the same, at the time of laying out the tract of land called
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