
    *Harvey v. Preston.
    [Wednesday, November 2d, 1803.]
    Caveat — Time for Entering — WhenceCalcuIated,—The time of the return of the survey into the office, is the period from whence the six months are to he calculated for entering a caveat; in such a case, the caveat must shew the fact.
    Same — Inclusive Survey, — A caveat lies as to an inclusive survey, although there be no certificate from the County Court, that it is reasonable.
    Inclusive Surveys — Construction of Statute. — The act of Assembly concerning inclusive surveys does not extend to lands held by entry only.
    Land — Entry—Effect of Prior Entries. — No entry can be made under a warrant which is exhausted by prior entries.
    Patent — Issued by Lt. Gov. — Presumption.—If a patent be issued by the Lt. Gov. it will be presumed that the Gov. was absent, &c.
    Caveat — Damages.—Damages are not to be given upon affirmance of the judgment in cases of caveat.
    Harvey entered a caveat against a patent to Preston for 950 acres of land in the county of Botetourt; which was surveyed for Preston upon the 13th of December, 1793, tinder an order of Botetourt Court, granting' him leave to comprehend his several adjoining claims in one survey; because Harvey claimed part thereof by an entry of the ISth of April, 178S, for 250 acres; of which, 187 acres were surveyed on the 3d of June, 1785, and a patent obtained therefor on June 11th, 1787. The jury find Harvey’s entry, survey and patent; as also the several entries of Preston, with his inclusive survey: They likewise find, that the inclusive survey contained part of Harvey’s survey; that the last course, but one, of Harvey’s survey, was never actually run; that Preston, when he made his inclusive survey, knew he was upon the land claimed by Harvey, whose entry he supposed to be vague and illegal. The District Court gave judgment in favor of Harvey; and, thereupon, Preston appealed to this Court.
    Randolph, for the appellant.
    There ought to be a venire facias de novo. By the R. C. 148, [ed. 1803,] any person, having a surplus within his boundaries, may apply for a re-survey. The caveat has been entered prematurely; for, it is before the County Court had given judgment upon the return of the re-survey; which has the effect of subjecting us to costs, which we ought not to bear. Another reason is, the Lieutenant Governor could not issue a patent, unless it appeared that the Governor was absent, &c. but nothing of that kind is shewn in the patent. A third reason is, that the survey is not correct; for the last course, but one, is not found to be run; and -the ^omission might have made a great difference in the quantity of the land, as well as in the course of the lines; which may thereby have been rendered altogether uncertain. The failure, therefore, is a fatal objection.
    Wickham, contra.
    There is no occasion for a venire de novo; for, the re-survey is in the record. Besides, there is an agreement to dismiss the caveat in the County Court, and to enter it in the District; where a survey was, b3’ consent, ordered in the same manner as if it had been continued in the County Court: which obviates every objection made. The verdict finds that a patent was granted to Harvey; which implies that it was issued rightly. But, if there was no patent, still we have a survey; which is sufficient to support the caveat. The survey is accurate enough ; for, the small mistakes in the original survey will not affect the case; as, the last survey, under the order of the Court, has rectified them, and made every thing certain.
    Harvey’s is the better title. Preston’s old survey does not interfere with Harvey’s entry; he withdrew part, and surveyed the residue. This survey pursued the entry, although the jury find it did not touch the outward lines of it. All the lines are established except the mistakes at the corner D: but the jury intended to say these are the corners meant; and that the lines and corners are included in Harvey’s’ survey and grant. The land, then, being identified, small mistakes will not vitiate. Herbert v. Wise, ante, 239, and Shaw v. Clements, 1 Call, 438. The jury, by establishing our corners, in effect have said, that the plat contains our land. The last line but one, not having been run, will make no difference, if there were data enough to ascertain it. The line is a short one, and might have been laid down without the aid of a chain. Stever v. Gillis, in this Court, ante 417, the other day, R. C. 148, ed. 1803.
    ^Preston’s claim is not well founded. He calls for our survey, which he cannot transcend, as he must take our lines as his own limits. His entry, besides, is without any warrant; for, the whole was appropriated by others before that was made. But he did not hold grants for adjoining tracts: Por, he had entries merely; and the courses were uncertain: But it must be shewn, that the .lines actually adjoin, before the party is entitled to an inclusive patent. In making the survey, they went upon our land, knowing the fact to be so; which is a very material circumstance.
    Randolph, in reply.
    Preston has not shewn a title; but neither has Harvejq and that is a good reason for a venire de novo. The two lesser warrants are distinct from that for the 8000 acres. There ought to have been a re-survey, and, therefore, the caveat was premature. The survey in the District Court has not been returned into the Register’s office, within the six months, and that is a full answer to the proceedings in that Court. But, if Harvey shews no title, he had no right to caveat our patent: and, therefore, the judgment should be in our favour, upon the merits. Besides, the jury expressly find, that there are mistakes in the courses and distances; for, the establishment of the corners spoken of on the other side, is predicated upon the last survey, and not upon the original. As one line was not run, the circumstances are necessary to be known, in order to ascertain whether the omission has given Harvey more than he was entitled to. The patent ought to have shewn that the Governor was absent. It is not true, that calling for Harvey’s lines admitted his right; for, it was only a sort of index by which he might make his entry certain. A man may have an inclusive patent for an entry, as well as a grant.
    Wickham. If it is clear that Harvey had a title, why award a venire de novo, when it is evident that Preston has no claim? The parties agreed *to relinquish the benefit of the County Court proceedings, and, therefore, it was unnecessary to await a judgment there. Of course, a venire de novo can never change the case, and, therefore, it would be useless to award it; especially as it appears that Preston had no claim. Davis v. Miller, 1 Call, 127. The last survey corrected all the mistakes in the first, and the jury expressly refer to it. There must be a grant, or there can be no inclusive patent; for, the word re-survey, in the act, evidently shews, that a prior survey must have preceded.
    Randolph. It was necessary, that the proceedings in the County Court should have gone on and be known, in order to ascertain whether Preston had a title: Which was hindered by the premature caveat. If the proceedings in the County Court were to be substituted by those in the District Court, still a judgment ought to have preceded a caveat; and, therefore, the consent spoken of, is no answer to the objection.
    Cur. adv. vult.
    
      
       Caveat — When Instituted, — As to when the suit by caveat must be instituted, see the principal case cited in Noland v. Cromwell, 4 Munf. 164.
    
    
      
       Inclusive Surveys — Construction of Statute. — The principal case is cited in Preston v. Harvey, 2 Hen. & M. 65, to the point that, the act of assembly concerning inclusive surveys, relates only to patented lands.
      Caveat — When Senior Patentee May File. — The principal case is cited in Clements v. Kyles, 13 Gratt. 473, to the point that, a party ma,y enforce a complete legal title by caveat against another seeking to obtain a new grant for the same land. The principal case is cited to this pointin Hardman v. Boardman, 4 Leigh 384.
      Same — Necessity of Setting Up All Claims in First Caveat. — The principal case is cited in Beckwith v. Thompson, 18 W. Va. 125, for the proposition that, a party is not bound in the first caveat, which he files, to set up and specify all claims or grounds for claiming the land, but may set up one only, and after it is determined, set up another and different claim or ground of claim in a second caveat: and the judgment on the first caveat in no manner affects him in setting up his second and different claim in the second caveat. See the principal case cited in Preston v. Harvey, 2 Hen. & M. 62.
    
   ROANE), Judge.

This is a caveat, by the appellee, against a grant under an inclusive survey of the appellant, of December 1V93: The object of it is, to protect the appellee’s title to 187 acres (now found to be 219 acres,) which he claimed by patent of the 11th of June, 1787, founded .on an entry and survey prior to that of the appellant;

On the merits Mr. Randolph seemed to yield the cause, but contended that a ve-nire de novo ought to issue.

It is certain, on those merits, that the judgment of the District Court is right; for, the land A, B, C, D, E, F, G, A, is interlocked under the two titles; and that of the appellee, is prior and complete; whereas, that of the appellant is defective. 1

*But it is said, that the caveat is premature, as not shewn to have issued within six months after the survey. The answer is, that the time of its return into the office is the period, from which the limitation is to be computed. This time is not shewn in the present case. Perhaps the law is directory, to the Register,' in this instance; and if the' appellant mean's to take advantage of such an objection, he ought to have stated facts to support it.

It was also said, that being an inclusive survey, no'caveat lies; because there is no certificate, by the County Court, that the re-survey is reasonable. I think, on the contrary, that if a caveat lies notwithstanding such certificate, it lies a fortiori where the certificate has been omitted.

I think the act authorising inclusive surveys, does not extend to lands held by entry. If so, as no separate survey was made on the appellant’s entry in question, a grant could not issue therefor; But probably, no survey whatever, even independent of the appellee’s title, would have availed; as the entry of the appellant for ISO acres is found to have been made upon a warrant, which has been exhausted.

But it is said, that this is a caveat on the ground of a better right; and that none is shewn, inasmuch as the patent is by the Lieutenant Governor, without stating the absence of the Governor, &c. The ground of this caveat being so, is perhaps an answer to Mr. Wickham’s idea, that we ought to extend the judgment to prevent any grant, (even for land not claimed by the appellee) from issuing. It seems to me, that the judgment in such case should be merely co-extensive with the better right which is set forth as the ground of the caveat. With respect to the objection to the grant, as above mentioned, I presume that the ground of our decision on a similar point, in Harvey and wife v. Borden, *gets over the objection. We shall not readily presume that an officer (and the second Magistrate of the Commonwealth,) has acted in a case where it is illegal for him to do so.

I see no reason for a venire de novo; and think the judgment of the District Court should be affirmed.

FLEMING, Judge. I am of opinion, that there was not the slightest grounds for the appeal; and therefore think, that the judgment ought to be affirmed.

LYONS, Judge. Concurred that the judgment ought to be affirmed.

Judgment affirmed.

On entering the judgment, a question was made bjr the Clerk, whether it was to be affirmed with damages?

Wickham. A caveat is a real action ; and therefore, damages majr be given.

Randolph. Real actions existed before caveats: and, therefore, that term does not apply to them. In practice, they never have been considered as real actions; and, therefore only SOs. is taxed for the lawyer’s fee.

ROANE, Judge.

In the case of The Auditor v. Graham, 1 Call, 475, the Court considered motions included under the terms suits and actions. This construction holds a fortiori as to caveats; which are less summary; in which the ground of complaint is required to be specified; and when facts, not agreed by the parties, are to be settled by a jury. The term real actions certainly comprehends them; and the omission of inserting caveats in the ' same ’''clause, with controversies concerning mills, roads, &c. with which they were usually coupled, could only have arisen from a supposition that they were comprehended under the general term. There is the same reason for extending damages to them, as to those proceedings; and it ought not to be deemed, that they were omitted in'order to be provided for, without reason; and when the words are sufficiently extensive.

FLEMING, Judge. The caveat is a kind of equitable process; and, therefore, damages, which are a penalty, ought not to be given, unless the act of Assembly had directed it.

LYONS, Judge. A caveat appears to me to be like an injunction, and, therefore, to be governed by equitable rules. This idea is confirmed by that part of the act which directs, that the Court shall have power to give costs, or not, according to circumstances: For, the damages are like costs: Both are penalties; and, when exercising an equitable jurisdiction, penalties are never inflicted by the Court, unless they are expressly directed by the law. I think, therefore, that damages are not recoverable in this case.

The judgment was accordingly affirmed with costs, but without damages.  