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BALTIMORE v. McKIM. 463
Chancellor, as judge of the Land Office; and, indeed, there seems
to be no more reason now why an appeal should be allowed, than
serve that there has been laid out for Thomas Bladen, Esq. by virtue of these war-
rants six thousand three hundred and five acres, of which two thousand two hundred
and fifty-four acres are claimed by Mr. Ross; and it is also evident, that five thou-
sand and two hundred acres were surveyed before Mr, Bladen left this Province,
which he did in June, 1747, yet he never made good, rights for more than four
thousand and twelve acres, which was in 1746.
Your Excellency will observe, that in the order of October, 1743, as well as in
the other two of the 15th and 16th of April, 1745, there are these words, 'caution to
be paid on the return of the certificate,' which is unprecedented, and the more
extraordinary as no special order appears, or is referred to.
By the11th article of his Lordship's instructions, dated the 14th day of June,
1733, contained in the following words : 'There shall be in all future common war-
rants a clause inserted by proviso, that the patent shall be taken out within the space
of two years after the date of such warrant which said clause you are hereby
enjoined so strictly to observe as not to suffer the renewal of said warrants after
such time or any patents to issue contrary to the true intent and meaning thereof,'
it is, as your Excellency will observe, expressly ordered, that a conditional clause
be inserted in every common warrant enjoining the person obtaining it to sue out
patent within two years from the date of such warrant; nevertheless, there is no
such proviso or clause in the warrants granted by Mr. Bladen, which are therefore,
in that respect, repugnant to his Lordship's instructions.
We shall conclude our remarks on these warrants with observing, that instead of
the usual words, 'return your certificates of survey thereof within six months from
the date thereof,' there are inserted in the warrant of the 16th of April, 1745, the
words following, 'return your certificates of survey thereof into his Lordship's
Land Office with all convenient speed,' which expression we conceive can never be
construed to imply the space of fifteen or sixteen years.
[t appears by an old and imperfect memorandum book in the office, that certificates
for Buck Lodge, Sugar Bottom, Providence, Turkey Flight, Bigg Bottom, Prized,
Lawrence, Cove, and Three Spring Bottom, were returned into this office some time
before April, 1747. This Mr. Thomas Cressap, by his letter to us, dated the 6th of
April, 1761, seems to admit, or rather insists on; and is supported by the evidence
of Col. Thomas Prather, who acted, at that time, as an assistant to Cressap; and by
the deposition of one Joseph Tomlinson, which deposition with that of Col. Thomas
Prather, and Mr. Cressap's letter are submitted to your Excellency's perusal; but
we beg leave to remark, that although all certificates are directed to be returned by
the deputy Surveyors into the Land Office, there is nothing more common than for
the partys themselves, or for others in their behalf to withdraw the same; nor can
it be otherwise, for until the Examiner's endorsement appears on the back of each
certificate as well as his Lordship's agents' acknowledgement of composition, the
certificate is incompleat; and as nothing appears to the contrary it is more than
probable, if any regard be paid to Tomlinson's deposition, that this was the case
with those certificates delivered into the office for Mr. Bladen, before April, 1747.
Upon the whole, as Mr. Bladen did not pay caution for, or make good rights to
more than 4,012 acres, though he had it in his power before he left the Province, and
as no person ever applied on his behalf to pay up caution for the remainder until
May, 1761, which was after Doctor Ross had obtained his special warrants, and
there is a sufficient quantity of land surveyed and unpatented to satisfy both their
claims.
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