
    *Hamilton v. Maze.
    [June, 1791.]
    Lands — Orders of Council for — Act of 1779. — Orders of council, before the revolution, in favour of companies for large tracts of unappropriated land, were valid; and surveys, under them, were secured by the act of 1779, establishing the land office.
    Same — Same — Same — Appellate Jurisdiction. — The court of appeals had exclusive jurisdiction in such cases.
    Same — Same — Same — Greenbrier Company. — The Greenbrier company was of that description; and their surveys before the date of independence, good.
    Greenbrier Company — Act of 1779 — Rights of Settler under. — A settler, upon such a survey, was, by the 7th section of the act of 1779, only entitled to 309 acres, but, upon a caveat to the survey, the general court might, under circumstances, have allowed him 400 acres, when the survey was made for a wrongdoer.
    Settlement Right, Pre-emption* — Difference.—Difference between a right of settlement, and a preemption: the first allowed to be taken out of the survey, but not the latter.
    Same — Same.—Therefore, where a judgment of the general court directed the settlement and preemption both to be taken out of the survey, and a bill in chancery was brought to enforce the judgment and set aside a patent upon the survey, the defendant might resist the preemption, but not the settlement.
    Same — Same—Fraud—Patent for Whole Survey. — A patent obtained for the whole survey after the judgment of the general court, was fraudulent as to the settlement; and the patentee was decreed to convey the part of the survey to the settler.
    Caveat — Duty of Caveator. — A party who can caveat, ought to do so; but circumstances may excuse it.
    Upon the 29th of October, 1751, an order of council was made, granting to Thomas Nelson and others, members of the Green-brier company, leave to take up 100,000 acres of land on Greenbrier river, northwest and west of the Cowpasture and Newfoundland ; and four years were allowed them to survey and pay rights for the same, upon return of the plans to the secretary’s office. Under this order, the company surveyed several tracts, and sold some of them to other persons before the end of the year 1754: at which period, an invasion of that country by the Indians, put an end to all further proceedings; and, in the year-1763, a proclamation of the king having prohibited the settlement or grant of any lands on the western waters, further execution of the said order of council was suspended, until the 16th of December, 1773; when the. council, (upon consideration of the petitions of Thomas Wallcér on behalf of himself and the other members of the Loyal corn-pany, and *of Andrew Lewis, agent for the Greenbrier company, praying that the grants made to the officers and soldiers under the proclamation of 1763, might not be suffered to be located, so as to interfere with their grants; and of the petitions of sundry inhabitants settled on the grants of those companies to the same purpose; and of the petitions of Hugh Mercer and sundry other officers,) ordered, that the officers and soldiers should be at liberty to locate their lands, wherever they should desire, so as not to interfere with legal surveys, or actual settlements; that every officer should have a distinct survey for every thousand acres ; that those should be deemed settlers, who resided on any tract of land before the month of October then last past, and continued to do so, having cleared some part thereof, whereby their intention to reside was manifested; and that every settler should have fifty acres at least; and, for every three acres of cleared land, fifty more, and so in proportion: which should be taken as part of the grants to the said companies respectively, when the land office should be open to them, unless such settlers should choose to hold under the officers or soldiers, or any of them, rather than under the companies. Subsequent to this order, the company made several other surveys, which had not been carried into grant, at the date of the declaration of independence.
    In 1764, James Maze went to that country, made a settlement, and put a tenant on it; but, in 1773, William Hamilton and Andrew Hamilton took possession thereof, and kept him out by force: at this time, and always afterwards, he resided about two miles from the place.
    In 1774, Samuel Lewis, the surveyor of the county, was authorized by the company, as their agent, to make surveys for settlers under the order of council in 1773; and Maze required him to survey his settlement aforesaid; which was opposed by Andrew Hamilton, who requested that it might be surveyed for himself; each forbidding a survey to be made for any other person. Whereupon, Lewis, as his custom was in disputed cases, proposed that a survey should *be made generally, leaving the name blank, to be afterwards filled up as the right between the parties should appear; but the proposition was rejected by both. However, on the 19th of June, 1775, Lewis made a survey of 1100 acres, including Maze’s settlement; but whether it was made in blank, according to his usage aforesaid, does not distinctly appear.
    In this situation matters remained until the revolution, and the passing of the act of assemblj' in the year 1779, for adjusting and settling the titles of claimers to un-patented lands. Chanc. Rev. 90.
    Under that act, Rinnie, as assignee of Maze, (but for the benefit of Maze himself,) applied to the court of commissioners to establish his settlement, and for a certificate of his right; and, upon the 14th of January, 1780, the following judgment was entered, “at a court continued and held at the Savannah in the county of Greenbrier, the 14th day of January, 1780, came John Rinnie, assignee of James Maze, plaintiff, and Andrew Hamilton and William Hamilton, defendants; said plaintiff claims first settlement; said defendants claim purchased from John Maze and John 'Tackett: whereupon, witnesses being examined, and the parties heard, it’s the judgment of the court, that the said defendants Andrew and William Hamilton, shall have their settlement and preemption right for the said land, and that the said defendants recover their full costs. ’ ’ In consequence of which, the commissioners made the following certificate, that is to say, “We, the commissioners, for the district of Augusta, Botetourt and Greenbrier, do certify, that Andrew Hamilton is entitled to four hundred acres of land, by right of settlement, before the first day of January, 1778, being part of a survey of eleven hundred acres made for him in the year 1774, in Green-brier county, where he now lives, also a right of preemption for five hundred acres, adjoining the said settlement.”
    James Maze filed a caveat, in the general court, against the foregoing judgment and certificate of the commissioners.
    *Upon the 2d of May, 1782, the court of appeals, on the petition of Thoms Walker, on behalf of himself and the other members of the Loyal company, and of Thomas Nelson, on behalf of himself and the other members of the Green-brier company, ordered, “that all surveys made by a county surveyor, or his deputy properly qualified according to law, previous to the year 1776, and certified to have been made by orders of council to the Loyal and Greenbrier companys, or either of them, ought to be confirmed, and that the register be directed to issue patents upon all such surveys as shall be returned, and so certified.”
    In the case of James Maze’s caveat, the general court, on the 9th of October, 1782, entered the following judgment, ‘ ‘on the petition of the plaintiff to have his claim considered, and it appearing to the court, upon examination, that John Rinnie, who in the entry of the judgment aforesaid, claimed as assignee of the said James Maze, who was present, and a party to the trial, was a trustee and agent for the said James Maze; and it being proved that he, the said James Maze, laboured under disability with respect to testimony, partly occasioned by the inclemency of the weather, at the time of the meeting of the said commissioners, thereupon a hearing is granted to the said James Maze in a summary way; and the parties, by their attornies, having waved a trial by jury, and submitted the cause to the judgment of the court, the transcript of the judgment aforesaid being seen and inspected, and divers witnesses sworn and examined, and the parties heard by their counsel, it seems to the court, that the said judgment is erroneous: Therefore, it is considered, that the same be reversed, so far as it relates to the four hundred acres aforesaid, and any right of preemption of the defendants belonging thereto; and that a grant issue to the plaintiff for the said four hundred acres of land in right of settlement, and for one thousand acres more, in right of preemption, to which no other person hath any legal right or claim, he the said plaintiff complying with the terms of the law in such *cases made and provided, and that the plaintiff recover his costs.” To this judgment, the court of appeals granted a writ of error, but afterwards quashed it, for want of jurisdiction in the court of appeals; the judgment of the general court being final in such cases by the act of assembly.
    
      Subsequent to the judgment of the general court, Andrew Hamilton obtained from Lewis a plat of the 1100 acres surveyed on the 19th of January, 1775, purporting upon the face of it, when so obtained, to have been made for the said Hamilton; and an order, dated the 2d of November, 1783, drawn by the said Lewis as agent of the company, and directed, to the register, requiring him to issue a patent, upon the said survey, to the said Andrew Hamilton, upon his settling for the composition money and patent fees. In consequence whereof a patent accordingly issued to Hamilton on the Sth of November, 1783, no caveat having been filed in the register’s office against it.
    Maze, upon discovering the foregoing steps taken by Hamilton, exhibited his bill, in the high court of chancery, against Andrew Hamilton and William Hamilton, stating his settlement; his expulsion from it by the Hamiltons; his inability to get his testimony at the trial before the commissioners; the judgment of the general court; and the subsequent obtaining of the patent by the defendants, which was alleged. to have been fraudulently effected.
    The answers of the defendants insisted on their own settlement and the survey aforesaid; charging that the plaintiff’s settlement was nothing more than a hunting cabin; which (as they stated, was his custom) he had abandoned, and gone to another place, after having sold his good will right to John Maze and Thomas Spencer; of whom, the defendants alleged they had purchased it for the sake of peace. That John Tacket, afterwards, claiming a moiety of the land as a partner of the complainant, the defendants purchased his pretensions also, in order to quiet all claims. That the survey for the defendants was made under'the order of council in favour of the Greenbrier company, *(whose title had since been confirmed by the court of appeals); and that the patent was granted in conformity to the order of the company’s agent. That the survey was not the ground of defence, either in the court of commissioners, or in the general court, because it was not then known that the claim of the company was valid, it having always been considered as doubtful, until it was confirmed by the court of appeals— and that the defendants had not committed any fraud, but were justifiable in obtaining their patent.
    The plaintiff filed a replication to the answer, stating, that the lands were “within the bounds ,of the company’s grant, and that he always intended to hold under them, if possible.” That Lewis, upon hearing of the dispute between the plaintiff and the Hamiltons, réfused to survey for either party; but proposed to survey, and give a plat to the party who should prevail on the termination of the dispute. Notwithstanding which, he had made the survey, and furnished the plat and order to the register, after the decision of the general court, but before the writ of error in the court of appeals was quashed; and that the register, not being apprized of the judgment of the general court, had issued the patent, without notice of the circumstances.
    The depositions of the witnesses went generally to prove the settlement of the plaintiff; his expulsion by the Hamiltons; the complainant of Maze, at the trial before the commissioners, of the absence of a witness, and his want of some papers that had beep lost; Lewis’s offer, at the dispute about the settlement, to survey, subject to the true right, and the rejection of the proposition by both parties.
    The court of chancery made the following decree: “The court is of opinion, that the judgment of the general court, the 9th October, 1782, in a case between the parties to this suit, having reversed the judgment of the court of commissioners appointed by virtue of the act of general assembly, made in the j^ear 1779, intituled an act for adjusting and settling the titles of claimers to unpatented lands under ^the present and former government, previous to the establishment of the commonwealth’s land office, for the district of the counties of Augusta, Botetourt and Greenbrier, so far as the judgment of the court of commissioners related to the 400 acres of land lying in the county of Green-brier, called the Cabin Place, and any right of preemption of the defendants belonging thereto, and the said judgment of the general court having awarded that a grant should issue to the plaintiff for the said 400 acres of land in the right of settlement, and for 1000 acres more in right of preemption, to which no other person hath any. legal right or claim, complying with the terms of the .law in such cases made and provided, which judgment of the general court, the court of appeals have judicially disaffirmed their power to reverse, by their order of the 1st of November, 1733, quashing the writ of error brought for that purpose, by the said judgment of the general court, the right claimed by the defendants under the survey certified by Samuel Lewis, the 19th of June, 1775, to have been made by him for the defendant Andrew Hamilton, so far as that survey includes any land to which the right of the plaintiff is asserted by the judgment, was annulled : That the decree and order of the court of appeals the 2d of May, 1783, on hearing the several claims of Thomas Walker and Thomas Nelson, on behalf of themselves and the Loyal and Greenbrier companies, if it contravenes, which however is contestable, the judgment of the general court, ought not to bar the plaintiff, not only because he was no party to the order and decree, but because the judgment of the general court, whose authority in that particular instance is supreme, and therefore equal to the authority of the court of appeals in general, is prior in time to the decree and order, and consequently will prevail against them, and that the subsequent conduct of the defendant Andrew Hamilton, which was not sanctified by the said decree and order, in proceeding to obtain a grant from the register of the land office, and in attempting thereby to frustrate and elude the judgment of *the general court, was a fraud, against which the plaintiff ought to be relieved: Therefore the court doth order, adjudge and decree, that the defendants be injoiped from obstructing the plaintiff in proceeding to carry the said judgment of the general court into execution, and do at his costs convey to him the inheritance of the 1100 acres, mentioned in the said survey, and granted to the defendant Andrew Hamilton, by letters patent, the Sth of November, 1783, or so much thereof as shall be included within the bounds of the land to be surveyed for him in pursuance of the said judgment, and do also pay unto him his costs expended in prosecuting this suit: but the plaintiff is understood to be accountable to the Greenbrier company for so much of the land as he shall take out of the defendants’ survey, in the proportion of three pounds for every 100 acres: and liberty is reserved to the parties to resort to this court for its further direction, as to any matter relating to the subject of this decree.”
    'The Hamiltons appealed to the court of appeals.
    John Taylor for the appellants.
    The whole case was not before the general court; for the right of the company was not cognizable there; and the decree of the court of appeals was neither filed nor suggested; of course the judgment of the general court did not bind the right. Maze’s settlement is not completely established by the testimony, and the survey is superior to it. The commissioners, and consequently the general court had not jurisdiction in cases of surveys for companies; but the power of settling such questions was given to the court of appeals exclusively; and therefore the pretensions of Maze, who had no survey, was destroyed by the decision of the latter court in May 1782. Hamilton is not precluded from insisting on this now; for the circumstances of the case excuse his failure to contend for it before the commissioners and the general court; which puts the cause in the same situation as if it had never been stirred. But, if the controversy, *in the general court, had never taken place, and this were an original attempt in this court, Maze could not have recovered; and, if so, his equity is not aided by a determination, in which the actual right was never considered. Under the second section of the act of 1779, mere entry, and much more a survey, would be sufficient to destroy the pretended right of settlement; and the fourth section establishes settlement rights on waste and unappropriated lands only ; but those which are the subject of the present contest were not of that character, because they had been actually surveyed. Maze does not pretend any right by compromise, or purchase, from the company ; and therefore he has done nothing to bring himself within the provisions of the act of assembly. No caveat was filed against a patent upon the survey ; and no objection can now be urged, which might have been insisted on at the trial of a caveat.
    Marshall, contra.
    The general court had jurisdiction of every thing relating to the subject. Neither Maze nor Hamilton made any express contract with the company; and therefore each must stand, or fall by the provisions of the act of assembly. If there never had been a controversy about this matter in the general court, and it were now an original contest in this court, Maze might have recovered upon the superiority of his title; for his settlement is proved, and the completion of his improvements was prevented by the expulsion of the defendants, who cannot derive advantage from their own wrong. Whether the land belonged to the commonwealth, or to the company, Maze was entitled: If to the commonwealth, his claim was good under the 4th section of the act of assembly as a claim for waste and unappropriated land: If to the company, then it was sustainable under the 10th section of the act as a claim in right of settlement; because he had commenced an improvement, and was hindered from perfecting it by the violence of the defendants. The decision in the court of appeals does not *affect Maze, as he was not a party to it; and he had acquired a fair right to the land anterior to that judgment. If Hamilton’s claim had been well founded, it ought to have been asserted in the general court; and he is estopped to urge it now, as a partjr is not permitted to keep back part of his defence, wait events, and bring it forward on a future occasion, after having taken his chance upon the first trial. The commissioners and the general court had, both of them, power to decide upon the survey; and, as the record of the general court shews nothing to the contrary, it is to be presumed that all matters in controversy were decided. Had it been otherwise, it should have appeared in the proceedings. Maze knew nothing of the survey; and therefore is not to blame for not having filed a caveat in the register’s office. The conduct of the defendants, in procuring the survey, and obtaining the patent on it, was fraudulent; for the judgment of the general court was conclusive ;■ no appeal lay from it; and every thing done, in contravention of it, was unjustifiable.
    Cur. adv. vult.
    
      
      Statute of 1779 — Pre-emption in Adjacent Land.— The act of 1779, establishes the rights of prior set-tiers, and gives pre-emption when vacant lands can be found adjoining. But a right to pre-emption in the adjacent land, as a consequence of settlement, cannot prevail against a right claimed under a survey of the adjacent land made prior to 1779. Burnsides v. Reid. 2 wash. 43, 47, citing and distinguishing the principal case.
      Principal Case Approved. — In Burnsides v. Reid, 2 Wash. 48, Judge Carrington speaks thus of the principal case: “Notwithstanding the criticisms that have been passed upon that decision, this court, upon a revision of that case, consider it to have been determined in strict conformity with the law, and agreeably to the principles of equity.” See Mace v. Hamilton, Wythe 51.
      Supersedeas — Quashal—Costs.—The principal case is cited In Gaskins v. Com., 1 Call 202, as authority for the proposition that a writ of supersedeas, improperly granted, will be quashed, but without costs.
    
   PENDLETON, President,

delivered the resolution of the court, as follows:

This is a bill to set aside a patent upon the ground of fraud; and whether relief is to be afforded, or not, must depend upon the circumstances of the case; and a correct interpretation of the act of 1779, for adjusting and settling the titles to claimers to unpatented lands, previous to the establishment of the land office. Chanc. Rev. 90.

That act takes up all such claims, and gives rules for the whole. Under it surveys and settlements were provided for;, and the method of establishing them prescribed.

The first, that is surveys, consisted of two classes.

1. Surveys under entries, orders of council particularly defined, or proclamations; all enumerated in the first section of the act; and upon these, if regularly made and the law complied with, patents were to issue of course, unless *caveats were entered in the register’s office, and lodged in the general court, where they were to be decided according to the usual course of such proceedings. With cases of that kind, the commissioners, appointed by the act, had nothing to do, either to aid, or to destroy them; and therefore they constitute no part of the present enquiry.

2. Surveys made under the other orders of council described in the 10th section of the act. This class was not to be tried upon a caveat in the general court; but the claims were to be laid before the court of appeals, who were to hear and determine them in a summary way; and, as the controversies were merely between the claimants under the orders of council and the public, the attorney general was to attend on behalf of the commonwealth. Chame. Rev. 94, sect. 10. With surveys of this character, the court of appeals had exclusive cognizance, and no other tribunal could intermeddle with them. For that part of the 8th section, which relates to settlers upon lands surveyed for companies, obviously meant surveys for companies having undisputed titles, and was confined to litigants claiming under such companies. This is proved by the direction,, that 'the clerk shall enter “The names of all such persons to whom titles shall be adjudged for lands within the surveys made by order of councillor any company, with the quantity of land adjudged, and in what survey; and, if the same is only part of such survey, in what manner it shall be located therein, the name or style of the company, and.the price to be paid them, with the time from which the .same is to bear interest.” Which plainly supposes valid surveys for companies having secure titles. For the names of all successful applicants were to be enrolled, and all of them were to pay the price of the land, adjudged to them, to the company, who could have had no. right to the price, if they had no . title to the land: which makes it clear, that the title of the company was to be considered as fixed, and that none, but derivative rights under them, were to be decided by the commissioners.

*The result'is, ' that all questions relative to the validity of 'the second class of surveys were to be determined in the court of appeals only; and consequently, that the decision of that court, in May 1782, was conclusive.

But the claim of’the Greenbrier company was under one of the orders of council mentioned in the tenth section of the act; and consequently, the decision of the court of appeals established their right to the survey in question; subject, however, to the derivative rights of others having claims under the company, and the provisions of the seventh section of the law.

It makes no difference that Maze was not a party to that cause; for, from the nature of the thing he could not be; because' the jurisdiction in that instance was special, and confined to controversies between the state and the company.

Maze, therefore, cannot oppose the company, but must claim under them, or give up the contest altogether, as his first occupation commenced in 1764, subsequent to the order of council of 1751', granting the land to the company.

It is urged, however, that the judgment of the general court may have proceeded upon a recognition of the rights of the company, and settled the controversy between the parties to this suit in conformity to those rights and the decision of the court of appeals; and as nothing appears to the contrary, the judgment ought to be considered as final, especially in a court of equity.

But to this the answer is, that the fact is directly otherwise; for it is admitted in the pleadings, and proved by the testimony in the cause, that nothing but the priority of settlement and the pretended purchase of the cabin right was in controversy, either in the court of commissioners, or in the general court. Of course, the right of the company neither was, nor could have been decided by the latter court.

It is said, however, that the appellants might have introduced the testimony into the general court; and that, if it *was fraudulently neglected, and kept back with a view to ulterior proceedings, they are as much barred, as if the survey and the decision of the court of appeals had been laid before the general court.

If, indeed, the survey and decision of the court of appeals had been thus fraudulently neglected and kept back with a view to future proceedings, it would have altered the case; for a court of equity would not have countenanced such unprincipled conduct. But there is no proof or either. Certainly, .not of the fraudulent design, and there could be no wilful neglect. For Hamilton was not entitled to the benefit of the survey, until he paid the purchase money to the company; and, as he had not done so, at the time of the trial of the cause in the general court, he could not avail himself of the survey there; which accounts for the failure to produce it upon that occasion; because it was, as to him, a useless paper, until he had satisfied the company, and got his title confirmed, according to the directions of the act of assembly. For, prior, to the payment, the survey belonged to the company; was in the hands of their agent; and they had a right to retain it, as a security for the' debt. Accordingly, Hamilton was never able to make any use of it, until he paid the purchase money, and obtained the certificate of the agent of the company to that effect.

It follows, that the company, who were not, in any shape, parties to the contest in the court of commissioners and the general court, were not affected by any thing done there, as both those tribunals, for want of the necessary information relative to the steps which had been taken, acted under a mistake; and neither did, nor could mean to decide upon a title which was not brought before them. Nor is Hamilton affected. For, as he had not a right to use the title of the company, at the periods when the case was tried, in those courts, there could be no objection to his setting it up when he afterwards acquired it; because the payment of the purchase money placed him in a new situation, altogether disconnected *with the former struggle about the settlement right, and the pretended purchase of it; which were the only matters controverted in the general court.

The case therefore ought to be considered as if this were the first trial upon the merits.

The order of council in October 1751, was equivalent to a location of the 100,000 acres of land for the company; and although it was not fully carried into effect before the Indian war, it was nevertheless considered, notwithstanding what is said about the claims of the officers and soldiers, as still in force, and was confirmed by the order of the 16th of December, 1773: and, if so, it continued in force until the revolution.

It was therefore an order of council within the meaning of the act of 1779; and, as such, was established by the decision of the court of appeals in May 1782.

Maze therefore could not haye a preemption right against the survey, as the balance of it was specifically appropriated; and preemption rights are, by the express words of the act of assembly, restrained to cases where no other person hath a legal right or claim.

It is urged, however, that, as the act of 1779 gives a right of preemption upon any waste and unappropriated lands, and as the company had not fully complied with the orders of council, there was no legal right or claim in the company; and therefore that the land, so far as the settlers’ right of settlement and preemption extended, was waste and unappropriated. But, to say nothing of the assertion of the appellee in his replication, that he always meant to hold under the company, it is obvious that there is no force in the objection ; because the right of settlement, and the right of survey, were both established by the same act of assembly; and therefore the one is as effectual as the other. For the relation, with respect to original inception, is as strong as to the orders of council and the survey, as to the settlement: and the statute is not to be garbled as may suit the convenience of parties, but the separate parts ought all to *be considered together, and construed in relation to each other, so as to give a reasonable and consistent effect to the whole. Under that view of the case, the settler was to be entitled to 400 acres, and a preemption right besides, where the lands belonged, exclusively, to the commonwealth; but in cases of company lands, although he was to have his settlement certain, his preemption was to be only in lands where the company had made no specific appropriation, or survey. For wherever there was such appropriation, or survey, by the company, the settler was not to be entitled to preemption out of it. When, therefore, the act gave effect to the orders of council and surveys, it necessarily destroyed all pretensions to a right of preemption against the surveys; because there were then other persons, who had a legal right, or claim, paramount to the right of preemption.

Of course, Maze could not be entitled to more than his settlement against the company, although he might have a preemption right also against the commonwealth, if there were adjacent lands, which had not been notoriously appropriated, or surveyed, by the company.

This brings us to the question of priority between Maze and Hamilton: and there can be no doubt, that the former made the first settlement; and that his possession was interrupted by the violence and improper conduct of the latter. He ought therefore to be put in the same situation that he would have been in, if the violence and improper behaviour had not taken place. In other words, he ought to have the full benefit of his right of settlement, and the only question is, as to the quantity of land which that entitles him to for his settlement and preemption rights?

And first as to the settlement:

The order of council in 1773 mentions fifty acres for the settlement, and fifty more for every three acres cleared; but the 7th section of the act of 1779, restricts settlers, on company lands, to three hundred acres; which embarrasses the question, as the appellee’s claim is for four hundred, in right of settlement.

*The difficulty, however, admits of two answers.

The first is, that it is probable, that if Maze had filed a caveat to the survey in the register’s office, the general court would, under the circumstances and the equity of other sections of the act of assembly, have allowed him the 400 acres against the Ham-iltons, whose unjust proceedings had prevented him from completing his title to the usual quantity allowed to settlers, as the company had made no other appropriation of it, than a survey on behalf of the tortfeasors, who ought not to be permitted to take advantage of their own wrong.

The second answer is, that the judgment of the general court has given him 400 acres out of the survey which includes the settlement; and as this is not a proceeding to set aside that judgment, but to enforce it, the specific terms of the sentence, in that respect, cannot be disturbed by the appellant, who tortiously hindered him, from obtaining the usual quantity allowed to settlers.

But the case is very different with regard to the preemption right, and the residue of the survey; for the very judgment, as to the preemption is, that the grant of the 1000 acres under that right, shall be of lands “to which,” in the words of the act of assembly, ‘ ‘no other person hath a legal right or claim.” This directly conflicts with the claim of the appellee to the residue of the survey; because the Hamiltons have a legal claim to it under the company: and that necessarily repels the pretensions of Maze, who is only entitled to satisfy his preemption, if he can find land, for the purpose, not subject to prior claims.

The general court, then, having allowed the 400 acres, and that allowance not being inconsistent with the rights of the company, but being strictly just as it respected the Hamiltons, the latter ought not to have attempted to defeat it, by the manoeuvre of procuring the plat, and obtaining a patent for the whole 1100 acres. Therefore, the appellants ought now to convey to the ap-pellee, so much of the land within the survey, as his right of settlement calls for.

*It was said, however, that the ap-pellee ought to have filed a caveat to the survey, in the register’s office; and that his failure to do so precludes him from insisting on his prior right now. But the objection does not apply; for, although it be true, that where a caveat can, it ought to, be entered; and that where a party has a legal remedy, and fails to avail himself of it, without a reasonable excuse, a court of equity will not, in general relieve; yet the circumstances of the present case were particular, and account for the failure. The omission to caveat therefore ought not to be considered as having shut the door to relief; but the case ought to be decided upon its real merits.

Consequently, if the chancellor had directed the 400 acres only, to be taken out of the survey, his opinion would have been affirmed; but he has gone further, and ordered the preemption to be taken out of it also. In which respect, we think he erred.

The decree is therefore reversed; and the following is to be the entry:

“This day came the parties, by their counsel, and the court having maturely considered the transcript of the record and the arguments of the counsel, is of opinion, that the said decree is erroneous: Therefore, it is decreed and ordered, that the same be reversed and annulled, and that the appellee pay to the appellants, their costs by them expended in the prosecution of their appeal aforesaid, here. And it is further decreed and ordered, that a survey be made of the four hundred acres of land for the settlement, to lie south of a line to be run from a spring opposite to Christopher Wamp’s, as the same shall. appear to have been made bj' agreement, between the appellee and John Tackett, in the proceedings mentioned, so as to include the cabin and settlement, and which may be laid down as either party shall direct, to enable the court of chancery to decide between them, on the propriety or reasonableness of the location; that the appellant Andrew’s patent of one thousand one hundred acres, be also surveyed and laid down, to shew *how far the same doth interfere with the said four hundred acres; which being adjusted by the court of chancery, that the said appellant be decreed to convey to the appellee, the inheritance of so much of the said four hundred acres, as shall be found to lie within the bounds of the said appellant’s patent, with warranty against himself and all persons claiming under him, ,and deliver him possession thereof, upon the appellee’s paying to him, at the rate of three pounds per hundred acres, for the quantity so to be conveyed; and as to the residue of the said one thousand one hundred acres, that the bill be dismissed. But the appellee is, nevertheless, to be at liberty to proceed to survey the one thousand acres of land for his preemption, if he can find land to satisfy the same, without interfering with the said patent or other prior claim.”  