
    HICKMAN vs. BOFFMAN.
    r furveTcon" ft^meTTjr'the land law 0/ i,779> °f than the fettle, menta and pre-⅞⅞⅛
    The mark. ing the lines ⅝ ¿raétofland b* a fwom furvey- or, by virtue of the^ie^ i°au" thority^ confti-futes a furvey takes'hatafrom that period. ‘ "
    The plat and certificatethere. dence ¿f the furvey ; not a part of it.
    provided they were recorded in the time ed by thofe The land law of 1779, confirms fürveys rnade on military warrants, whkh were not then recorded,
    aft of ,748 whkh makes it the « or^reiord jStaWMdcertfc.-ficatesof furvey is* dTredcry to* the furvey or, & tloes not create Aeright dfthe jndividuai to the land furvey-
    Christina Boffwan, as heiress át law of John Bpif-man, exhibited her bill in chancery, against James Hickman ; in which she claimed a tract of land lying on the waters of Boon’s creek, in Fayette county, by virtue of a certificate tor settlement and pre-emption, granted to her iii 1779, for her ancestor’s having raised corn, in dn the land. ’ ' _. " '
    Hickman held the land by virtue of a patent granted to him on the 10th day of April 1781, issued upon a ^urYey made in the year 1775, on a military warrant for 2000. acres of land, issued on the fth day of March 1774, by the then governor of Virginia, by virtue of the reSal proclamation of 1763. This survey was made by John Floyd, a deputy under the surveyor of Fincastle county, which county at that time included the land in "The plat and certificate of survey were not made out by Floyd, and returned to the surveyor’s office, until May 1780. Previous to that time the county of-Kentucky had been erected, which included the land ⅛ question ; and Floyd was then a resident qi Kentucky, cOunty, ’
    In the year 1774, an entry, by virtue of this warrant, had been made with the surveyor of Fincastle, for land on Hickman creek, being some miles distant from where it was surveyed.
    It was proved, by a deposition and receipt in the cause,, that in the year 1779,M’Clanahah, as agent for Hickman, received this warrant from the surveyor of , 1 ⅛,.„ v r . . , i - .. • " mcasue. What was done with me warrant aitei> wards, did not appear.'
    The* complainant also set up an agreement, with an agent of the defendant, that he should withdraw this survey ; but this point was not insisted on in the argument. '' ‘' ' " '
    Before the hearing of the cause., ⅛ the Fayette circuit court, the parties entered an agreement of record, that eA^er of them might, at any time before fhe trial in this court, file such records, &c. “as relatedfo theirrespec-tiye titles.”. ’" ’ ' ‘ ’
    That court entered a decree in favor of the complainant. Hickman appealed.
    Before the argument here, the appellee filed, a certifi-pate of the registefof the land-office, dated the 3d day pf May 1808, that‘⅜ He does not discover, from an examination of the survey, that a warrant accompanies it.”
    Pr¡or t0 thj land iawof’79^ ot having the force of a law, either be made upon military war, exceeding 400 acres,
    Entrieson mlpt¡or to that date, were not bindms on tbe other perfon.
    Every officer aa'"gund“the: fanction of an oath,orinwhom the government t0 have done his duty, i)™1 ^10°d"
    This pie >s equally t0 a ga¡nft th<f <⅛, & to a pro-c'edlns,agalnft individual, de. úved through officef of the
    
      Hughes and Clay, for the appellant.
    
    Our claim to the land in question, if it be good at all, is elder and superior to the claim of the appellee. The sprvey tpade by Floyd, in 1775, was made in pursuance of law, and the usage and custom oi the offices under the regal go-vemment; and was, under it, an appropriation of the land.
    The first act claimed under by the adverse party, (their improvement) was illegal when made, and was no appropriation of land. It is therefore immaterial whether their claim be founded on a village right, or an actual settlement; for ours is superior to either. But if the claims were to have preference from the first act done, our suryey was elder than their improvement.
    The confirmation of these military surveys by the act of 1779, was not necessary, on account of any informality or insufficiency in themselves ; but haying been inchoate gifts, from the regal bounty, it was questionable whether the government of Virginia, after the revo- ,. . , i , . fution, were bound to complete these titles. But having done so, the confirmation relates back to the survey, and our right commences with it, if we have brought opr-selves within the law — See the cage pf Mays vs. Hamilton, Wythe’s reports 36, &c.
    Our claim was, in the court below, and no doubt will again, be objected to, beeausp the plat and certificate of survey were not returned to the surveyors office, as early as it ought to have been. But the court will find, in 1 Brad. 393 and 324, that the time for returning filats and certificates of these kind of surveys, was pro-onged until the first day of July 1781. A survey1 returned within thp period thus given by the law, is as ya-lid to eyery purpose, as if it had been returned the day after it was made. _
    This claim was also attacked, because of the entry made on this warrant, for other land, previous to the survey in question.
    
      In deciding this question, the court must not he mis? led, and apply the rules of the land law of 1779, to cases prior thereto.
    Previous to that law, there was no act of assembly au-thorising an appropriation of land by entry. There was, however, under the orders o,f council, and usage of office, on appropriation by entry permitted, provided the quantity did not exceed 400 acres — -See acts of Virginia of 1748, body of laws 219, 220, and Wythe’s reports, page 40.
    The records of the council were destroyed by fire, during the revolutionary contest ; and the usage of the of-t fices, is to be collected only by experience in, this kind ofbusiness.
    Prior to the law of 1779, appropriations qf military, warrants, were made by survey only.
    The entries, therefore, which, were made on military warrants, were no appropriation of the warrant, nor of the land j but the land was subject to be. taken by an actual survey, and the warrant to appropriation elsewhere.
    The entries were intended; as indications, to the surveyor, of the wish of th.e party, to appropriate the land — > as his direction to survey it in the absence of the proprietor, when it vyould be convenient, or. safe, to the sur-? yeyor.
    That the surveys, and not. entries, were considered as appropriations, see 1 Brad. 292, 293 . The legislature confirm the surveys. If they had considered entries on military warrants, as appropriations, they would have (¿onñrtned the entries and: surveys made thereon, and not the surveys only.
    
    It could not be material to us, whether the entry were, or were not, considered an appropriation of the warrant; for the survey, whether, legal or illegal, when, made, is confirmed by the act of 1779, above refered to.
    It has been further objected to, this claim, that the, warrant on which this claim was bottomed, is not now. found in the. register’s office.
    This objection admits of several answers. This is a, point not put in issue by the bill. It is a question not made below ; and is bottomed Upon the certificate of the register, now brought into the cause for the first time. The agreement below, only authorised filing the titlu papers of either party ; in other words, those which Were necessary to make out the title of either party. It could never have been intended; to authorise either, to exhibit papers to make out a new cáse, different from the one decided on below.
    But if this Question were properly before &e court, it could not avail the appellee. The warrant was in the surveyor’s office, when the survey was made. It au-thorised and gave validity to the süryey. And the laws of Virginia, then required the warránts which Were satisfied, to be cancelled — See 1 Brad. 318 
      . This law was not repealed until 1789 — -See 1 Brad. 341, § SO 
      .
    
    If this would not account for the absence of the warrant, it was the duty of the register not to issue a patent without the warrant , and it is presumable that he did his duty. The presumption of law, is, that every officer does his duty ; and the contrary, if charged or relied upon, must be proved, although it may be a negative —See í Rol. Rep. 83 — Bul. N. P.298 — Viner,title, evidence — Comb. 57 — Gilb. law of evidence, 146.
    
      Allen and Wickliffe, for the appellee.
    Our claim to the land in question, is founded on an actual settlement; the identity and notoriety of the objects called for, have not been questioned, either by the pleadings or arguments. Our right to the land must therefore be valid, unless the appellant’s claim is valid and superior to ours.
    It is true, the act of 1779, confirms surveys made under military warrants; but it is pot every marking of trees in the woods, which constitutes a survey. It must be done under sufficient authority, with an intention of appropriating the land ; and the acts evidencing that intention, which the law has prescribed, must also be done. After a survey is made, a plat and certificate must be made out, and recorded in the surveyor’s office, within two months, as evidence of the intention of the party to appropriate the land; and to perpetuate the boundaries thereof — See acts of 1748, body of Virginia Laws 220. Until this is done, the survey is subject to alteration by the party for whom it was made, at his will; of by the surveyor, for any inaccuracy in it. It cannot, therefore, be said to be a survey within the law of 1779, until this is done.
    That surveys of record, were those intended to be confirmed, and no others, is evident from the law’s having directed the surveyor’s books to be brought before the respective boards of commissioners . This was certainly intended to enable the claimants and commissioners to avoid appropriated lands. The survey ⅛ question, was, therefore, not complete at the passage of hw of 1779, and cannot, therefore, come within its provisions.
    But there áre other objections to this claim. This survey is said to be made in 1775, by Floyd, then a deputy. A plat and certificate of survey were made out by Floyd, in 1780; after Fincastle county had been del stroyed, and others erected in its place. Floyd was then a resident of Kentucky county, and riot of Montgomery county, which, by law; retained the Fincastle officers, papiers, &c. He had, therefore, ceased to be á deputy surveyor of Fincastle ; and a plát and certificate of survey, made out then, by him, wás as unauthorised ; as illegal arid Void ; as if it had been made out by a person who never had been a deputy surveyor of that bounty.
    If, therefore, the patent has beeri obtained upon this illegal plat and certificate, it must surrender to a valid settlement and pre-emption, regularly carried iiito grant* It will be peculiarly hard, if, as the fact was, when our claim was granted; and we appropriated the land, there was not a scrape of a pen on record, to notify ÜS of Hickman’s claim ; nor even a warrant in the surveyor’s office, to put us upon the inquiry ; and yet, by a surreptitious certificate of survey, our rights are to be overhal-ed and prostrated.
    Another fatal defect in the claim of the appellant, is; that the warrant had been entered, before the date of the survey, on other lands ; which entry had not beeri withdrawn ; and, therefore, the claim, according to well established rules, can only take date from the patent;
    It has, however, been contended that an entry was not an appropriation of the warrant. I agreé with the counsel for the appellant, that there was no áct of the legislature, previous to the act of 1748, refered to by him, which speaks of entries. It was authorised by the orders of council, and the usages of the oflices. In the case read by Mr. Hughes, chancellor Wythe recogni-ses as law, the practice of making entries. The Set read by him, speaks of máking entries, as a matter of right. And the right to make the entry, must be as extensive as a right to appropriate land; If the person applying* appropriate ,4⅛0 acres Only, he could enter but 400 acres : but if be could appropriate more, he might enter as much as he Cpidd appropriate. The fact that entries were made on military warrants, shews that the practice and usage did authorise it. If it were authori-sed, some benefit must have been derived from ⅛ or it would not have been done. Suppose an entry, ánd ⅜ subsequent survey, made strictly in pursuance thereof, were to interfere with another survey, older than that Survey, but younger than the entry ; would not the oupger survey relate back, and attach to the entry, and old the land ?
    If, therefore, an entry ón a military warrant, could, in 1774, appropriate land, the appellant’s warrant did, in that year, appropriate the land on Hickman, and could not, by the survey of 1773, appropriate other land. For after a Warrant has once appropriated land, it never can appropriate other land, until it is confirmed by a patent, or unless it be withdrawn.
    A further defect in the claim of the appellant, is, that there was no warrant returned to the register’s office, to authorise the issuing the grant. It is, however, answer^ cd, that this pqjrit is hot put in issue by the pleadings* It is true, it is not specifically named 1 but the plead* lags .state ogr claim to be the better one, in the usual manner, ;n bills pn adverse titles. It never has been held, and cannot be, that you must, by the pleadings in these kinda of suits, point out the weak part in your adversary's title. The equitable title is put in issue, of course any thing which goes to shew that we have an equitable title, and that they have not, is within the issue.
    Hcither will thé answer, that the papers We now fi!# ⅝⅝ not within the agreement of the parties, avail the apr, pedant* Any records, &c.( relating to the titles qf either party, is within the agreement, these ate document!* fyom the register’s office, and relate to the title Of the appellee, ,ao4 aye within the lettef and meaning of, the agreement.
    The cases refered to Oft the other side,. relative#, the presumption pf law being ⅛ favor of an officerVdátig <jluty, are cases qf prosecutions against office»®, Or in the nature of prosecutions, and in those cases the pre« sumption is in favor of innocence. That dbctrine will not extend to civil cases.
    It is not, however, necessary to controvert that, rule here. We shew that the warrant was not in the survey- or’s office, when the plat and certificate were recorded, but had been withdrawn by the agent of the appellant. The warrant could not, therefore, authorise nor support the survey. See the case of Jones’s heirs vs. Taylor’s heir and Lee 
      
      , where it was decided that if there were not a warrant in the surveyor’s hands, to authorise the survey, it could not hold the land against an adverse claim.
    As we have shewn that the warrant was taken out of the office by them, they must shew what they did with it. There is no presumption of law in their favor.
    If, as has been conjectured, the warrant was burnt, upon the emanation of the grant, they could shew it. The law made it the duty of those who burnt the war-ran.ts5 to keep an account of them . They might, therefore, shew that the warrant of the number called for in their patent, was burnt. But its absence is easier accounted for, by adverting to that part of the law which authorises these warrants to be exchanged for others, 1 Brad. 293, § 3 , and thus appropriated.
    Clay, in reply.
    If the land law of 1779, had intended to confirm those surveys only, which were 01 record, it would have been easy to have expressed that intention, by using the words “ surveys of record.” It could not, therefore, have been the intention of the law. It would have been unjust and unequal to have so enacted : for no law, prior to that time, limited a surveyor as to the time in which he was to make out his plat and certificate. And even this law did it indirectly, not directly. It required them to be registered, in a given time ; and they could not be registered, until recorded in the surveyor’s office 
      .
    
    The provisions of the law, requiring the books of the surveyor to be produced to the commissioners, were directory and precautionary only; not necessary to give validity to the claims therein recorded. If the books 'had not been produced at all, it could not injure the right of those, the evidences of whose claim, were thus withheld.
    To contend that the recording constituted or made a part of the survey, is like pursuing the shadow, or identifying it with the body which causes it.
    A survey is the marking and abutting of the land. To be a legal one, the surveyor must have a warrant for so doing. If, when he made the survey, he had such a warrant, the right of the party to the land surveyed, is complete ; and making out a plat and certificate thereof, is but the evidence of that right, and for the purpose of perpetuating that evidence.
    If there were any thing improper in this business, it was the improper conduct of Floyd, in not returning his works as soon as he might have done. This delay might have been procured by Boffman, and for his benefit. We could not prevent it. And shall the neglect of an officer of government, not under our control, jeo-pardise or impair our right ? It surely cannot.
    But it is said, that Floyd had no authority, as deputy of Fincastle county, in 1780 ; and therefore, that the plat and certificate then made out, was void. It maybe admitted, that in 1780 he had no power, under his former deputation, to make surveys. But he had authority to perpetuate the evidence of what he had done, while in office : as a sheriff who executes process, while in office, may make return thereon, after he is out of office.
    The question relative to the entry made on Hickman*» warrant, must be decided by the laws and customs prior to the land law of 1779. That law requires that surveys should be made in conformity to entry. But there was no prior act of assembly, nor usage, or custom, which required this conformity j and the act of 1748, and opinion of chancellor Wythe, read by Mr. Hughes, shew that the entries alluded to. therein, were bur. for 400 acres. The entries on military warrants, were indications of intentions to appropriate, and might be completed or abandoned by survey. Perhaps not an instance can be found in the surveyor’s books, of a formal withdrawal of one of these entries. The warrant isa direction to the surveyor, to survey, not to enten land. It could not, therefore, be satisfied by an entry, but remained in force until the survey was made. And even if the entry were considered an appropriation of land, the survey must be considered a virtual withdrawal, and re-appropriatiott of the warrant. When the land law of 1779 passed, it was known that surveys, could not, from the times and dad-gets, oft the frontiers, he made, Warrants ⅜⅛⅛⅛ íhófé-? Í9re directed to b;e entered, Utíd thé surveys to Be made in conformity thereto. This was a neW fégulatlbfi, Unknown theretofore, and not applicable to cut Claim.
    The law of 1779, Confirming these surveys, üses thé expressions, ‘-‘surveys made on Warránts,’* not oft, dr ⅛ pursuance of entries. Whether they were, or wére hot, iriadb in pursuance df the entries, must be lAhiatCrial, provided they were made before the first day of January 1778, fay á legal surveyor, under a warrant founded <jn the %ing of Greát Britain’s pf oclátóatibft, of 17 63, Thfa object q| the law, Was, to quiet uncertain clairiis ; to givé them absolute validity ; leaving the identity df their boundaries dtíly,to be questioned, if the Claims were attacked by subsequent tights.
    To the arguments on the remaining points, I reply,that We cannot, from iffié account kfapt at the register’s, office, df thé wárranfs destroyed; shew the riüthfaefk df the warrants. The accounts kept, were of the uggre«ate ártióuñt destroyed ; not df the particular WarrkntS estroyéd. An inquiry at the office, Will shew Í ⅜⅛⅝ Correct.
    The presttmption of law, that aft officer dóes duty, holds both in Civil áftd criminal CaSes ; arid thé Authorities, refered to will prove it. The register Could not legally have received Our plat and Certificate, with-i put ⅜ ^arrant. Bl’Cl.anahan, after having withdrdWft it from the surveyor’s office, must have kept it, ánd rer turned ⅛ to the register’s office, With, the plat arid cer-. tificate. The appellant was entitled to take both froift the surveyor's office, find hpurid to lodge both, ita the register’s office. His having received Ofte fey his Agent, previous to th’e other, does not destroy the preSütoptióft. that they were returned together. It Would Be ás easy to rCtqrn i;he plat, and withhold the Warrant, after &4⅜ Were taken Out df the surveyor’s Office together, As if Would be if they Were taken out separately.
    The presumption of law cannot be cóühtér&téíi, Brit fay positive proof that thé Whtránt was riot rétíUrhed, <& Was elsewhere appropriated.
    The case pf jMnes^s heirs its. Ttiylorh heif, ⅞⅝.  ⅛ not applicable to the present. In that casé, there Was nd Warrant in the surveyor’s Office, dr hands, %t the time of making the- survey, to áíithtífisé it; ⅛⅛⅜ thé Watfiffit Which was afterwards lodged, was a war* rant to survey for jdnes, and not for Strcrther and Jones; áñd Covild not make valid foe illegal survey theretofote ihade. In óur case, there was a proper Wafrant when the Stlteey was made* and the question is, whether it wére Of Were nOt returned to the register’s office.
    It is to be recollected, that the warrant is a loose pat* per, kept in the register’s office, subject to be lost or destroyed by accident, of the design of any person who may have access to the office; These papers too, have Been removed from Virginia here. And precarious indeed Will be our land titles, if the loss of such a paper, after the emanation of a grants is to destroy the right to the land, A patent should be held sacred, unless thete be thfe most conclusive proof that it was obtained by fraud* dr Without foundation,
    
      May 9th.
    
    
      
      
         May éftb and §tb.*.. Abfent, Judge Bib?;
    
    
      
       May féíTion, cn, 1%, § t, Chán. Rev. 90 — >Á¿b of Kentucky of 1796-7, p. 70, § Jt, 1 Brad. 292.
    
    
      
       JChan* Rev. of Vir. Laws 91, J22---A£U of Kentucky of 1796-7, p„ %1> § P* $%> Í 26. See alfo Alftods &c. vs. Miller ante 193.
    
    
      
       Chan. Rev. 9*, 93— »£lsof 1796-7, ?. 76,77.
    
    
      
       Chin. Rev. 98 — afta of Kentucky of 1796-7, p. 9*, ⅝ 19.
    
    
      
       Aits of 1796-7,p. no, § no.
    
    
      
       Chan. Rev. 96 — afts of Kentucky of 1796-7, p. 90, § x6, 1 Brad. 312.
      3 Eaft’s Rep. 199, 200,
    
    
      
       W cil“-of Vi*756*7* p. ¾⅛,⅜ 9, i Brad, 3oa
    
    
      
      
         Pr. Dec. 82.
    
    
      
      
         Chan Rev. 98 — a¿ls of Kentucky of 1796-7, p.94, 318. 1 Brad. 318.
    
    
      
       Chan. Rev. 91-acts of Kentucky 1796-7 77..
    
    
      
      
         Chan, Rev 91 — -aits of P-*33- 3’ Ula ’
    
    
      
       Pr. Dec. 32.
    
   EbWArd's, Ch. J.

delivered the following opinion of the CourtThe appellant claims the land in ContteVtef-gy, by patent, bearing date on the 10th day of April, in foe year 1781, issued upon a survey, made in the ye at 1775, on á military warrant, for 3000 acres of land* issued On the 15th day of March 1774, by the theft governor Of Virginia, by virtue of the regsd proclamation éf 1763* The appellee claims the land by virtue of & Certificate for settlement and pre-emption-, granted hfer, as heiress at law to John fioffittan deeteasfed, ⅛⅛ acCottót bf the said decedant’s improving the Samé, and raising cbm in the year 1776. Entries and surveys, both Of the Settlement and pre-emption, were made for the appellee by virtue of said certificate, upon which she hath obtaitteti. gráfttS younger ⅛⅜ the appellant’s. As foe appellaat’s claim is prior in date, and of highe r dignity ⅛ law, ⅛⅛⅛ ⅜⅛ appetitee^* he must prevail, Unless the Objections-, Or some of them, urged against his title-, are deemed Valid!

⅜⅜⅞ Objections Which Scent Worthy of ⅛⅛⅛⅜⅛⅛⅛⅛⅛ áfe-⅛ i

Fitet-^That although foe Surrey WSS mide fo fob year; 177S, ⅛0 plat and certificate foeteéf Wérfe made otft, and returned by John Floyd, the ássSiStánt surveyor, ⅜⅛ thfe Office of his principal, the Surveyor of “FiWcáStle fedén-#r, 'until May 1780: wherefore ⅛ is contended hy foe obunsel for thfe aprpdifefe, fee, Thstft ⅛⅛ ffttrfoy Ought hot t&tféfif dáítépfíorto théúprini lts©} áály-, ThAttístifé survey was not of record, in the surveyor’s office, at the time of the passage of the act of 1779, it was not confirmed by that act; and, 3dly, That as the survey had not, been recorded within the time prescribed by the act of 1748, it was void. The premises contained in this objection, are true, as to the matter of fact; but none of the conclusions attempted to be drawn therefrom, are warranted by law. r

The first conclusion has been drawn from an inattention to what constitutes the survey, and what is merely evidence of its having been made, and a description of; its boundary. It is true, that every marking and bound-, ing of a piece of ground by a surveyor, is not a survey in estimation of law : but whenever it is done by a sworn surveyor, by virtue of a warrant, or other legal authority, the moment the marking of the lines and corners is completed, it is a survey made in fact, and in estimation of law : the plat and certificate is only evidence of making of the survey, containing a description of its boundaries ; to be recorded for the purpose of perpetuating the evidience thereof, and enabling the party to perfect his title, by obtaining a grant pursuant thereto. As the. certificate is only evidence of the making, it should bear date on the day of the making of the survey : sueh, it is, believed, has been the universal practice amongst all surveyors, as far back as the practice can be traced.

The survey of James Hickman, is a survey of the day on which it was made, and not of the day on which the certificate was made out, by the deputy surveyor, or returned to the office of the principal; or, in plainer terms, it is a survey made in 1775, when the lines and corners were properly marked, by a sworn surveyor, by legal authority ; and not a survey made in the spring 1780 ; at which time, no survey was in fact made. It. cannot be contended, that a surveyor is bound to make, out his certificate of survey, on the very day on which the survey is made. No one, the least acquainted with, the subject, can doubt but that such a doctrine would overturn nine-tenths of the surveys, both ancient and modern, in the country.

If the surveyor can, by law, make out the certificate, a day, or a week, after the survey is really made, he can as well do it, at any time within that period, within which,,, the law permitted it to be recorded. That the certifi-. •cate was both made out and returned, within the tithe allowed by law for recording thereof, will be shewn hereafter.

The position that the survey was not confirmed by the act of 1779, because it was not recorded at the time of the passage of the act, is equally untenable. That act , declares, “ That all surveys of waste and unappropriated land, made upon any of the western waters, before the first day of January 1778 ; and upon any cf the eastern waters, at any time before the end of this present session of assembly, by any county surveyor, commissioned by the masters of William and Mary college, acting in conformity to the laws and rules of government then in force ; and founded upon any warrant from the governor for the time being, for military service, in virtue of a proclamation, either from the King of Great Britain, or any former governor of Virginia, shall be, and are hereby declared good and valid.”

The clause of the act recited, does not require that the survey should be of record at the passage of the act, as one of the conditions upon which the survey should be deemed “ good and valid and there is no other clause requiringit.

It is undeniable, that the words of the act embrace surveys made, whether they have been recorded or not. That the legislature did not intend to confirm those military surveys, which had, at the passage of the act, been recorded, only, is manifest: for, in the clause just recited, they declare that those made on the eastern waters, •at any time before the end of that session, shall be “good and valid.” It is impossible that those afterwards to be made, should have been recorded at the passage of the act. A survey on the eastern waters, made the very last day of the session, is expressly confirmed ; when that day would happen, was, at the passage of the act, uncertain ; and it did not happen for a considerable time after.

Can it be believed, that when the legislature did not require, and Could not possibly have intended to require, that military surveys on the eastern waters, should be of record at the passage of the act, or even during the session ; that they could have intended to require such condition as to those on the western waters, without having declared such intention. The distinction, if intended to ⅛> <PWÍf' WUS too to ⅛« bee» «^⅞⅜⅞⅜⅛⅛ Thp ^egiglftturehaving enumerated .and ¡specified, parti* cularly, the qualities or conditions which the military sii.r<-my should possess, to make it gmd'wd »⅝⅛?tjiey tcpnnpt be presumed tp have intended that any .other should Re required ; but, on the -contrary, that ftll.othetP Were dispensed with.

These observations, it ⅛ believed,.furnish a complete refutation of foe third conclusion attempted to be drawit Ry.thn appellee’s .counsel-r-t4 That the survey is invalid, heqnuse>the surveyor did not record it within two months ufoerit was made, as he was directed by the actof 174⅝ <(or 4⅞1), entitled ‘An act directing the duty of spr-yeyqrs of land.” For if we are correct in supposing, that in order to give foe survey validity, under the act passed in 1779, it wasnut necessary that it shoidd have beep recorded at the passage of that act, much less could it have been necessary that it should have been recorded within two months, the time mentioned in the pet of ;174§. The tinte of recording, if ever material befota the act of 1779, was waived by that act.

But the act of 1743, djd npt mate it material as to the right of the party. The act is purely directory to the surveyor, and annexes no forfeiture of the rigJit to th«y" surveyor’s failure to.recqrd, within any period of time*

The same section of the actof 1748, requires the surveyor to deliVer to tRe owner, a plat and certificate of th£ survey, within five months ; that he shall Certify the ri» vers, creebs, and water courses ; and the adjoining plan-tatfons,. or lands ; and shall also,.in the month of Ju.uo, annually, return to the county, court clerk’s office, a true list of all surveys made by him ; with some pther like directions : and declares, that upon his failure ip any of ¿ipse particulars,, he shall forfeit ⅜000 pounds pf tpbafe* co, &c. ’

It wouhlbe glaringly absurd, to,contend, that Repay®? the surveyor failed to furnish the party with a copy of the stwyey withfoifove nwmths ; or if, when furnished, it did pot mentipp whose land adjoined; foe party should loose hi aright. It is npt less so, to contend, that it» not: bemgrecorded within twoi months, shall, prejudice the right, when neither that, or any other law, declared any forfeiture, The act w¡a& made to direct the., survey-» or aá tb his duty ; to stimulate him in the performance of it, and punish him, not the party, for his neglect Or tardiness.

The second objection to be considered, is, that an éñ-try had been made, by virtue of this warrant, in 1774, with the surveyor of Fíncasele, at a different place: This objection has no weight in it. First — Becadse' pri- or to the passage of the act of 1779, no law, or Usage having the force of láw, either authorised dr requited entries to be made with the surveyor.* updn military warrants, or upon any other rights, for any quantity of land, exceeding 400 • acres. The act Of making the entry, was, therefore, neither binding on the party, nor any other. The only method of appropriation, was* the marking an actual survey upon the ground.

■ In the second place, even if by the former existing laws and usages, an entry; and a survey Corresponding therewith, had been necessary ; that necessity was removed by the act of 1779, it having declared the siirvey “ good and valid,” without regard to these circumstances.

Upon the whole, this survey had all the qualities necessary to give it validity tinder the act of 1779 ; á'nti the certificate was made out, returned tb, ánd recorded irl the principal surveyor’s office* so aS to be taken 6Ut,and to be fo fact, returned to the lánd-ofixce within the time pre^ Scribed for the registration thereof; Which Was the only limitation, as to time, required by the law, with respect k> the old military Surveys.

This siirvey was so returned and registered ; arid the grant Issued thereon, must bé considered as regularly is* Sued, Unless the only remaining objection entitled to thé consideration df the court, shall be found sustainable.

The objection is, that itdbes riot appear, that the Warrant was returned to tfeé register’s office* with the plat and certificate of survey* So as to authorise the issuing of the grant; atrd the'counsel for the appellee contend* they have shewn it wete ridt returned.

. Considering the tinte when’ this objection tias bieerf started in the cánse far the first time, it cannot have any serious Weight* unless the étddence is clear and conclusive, to shew it was not returned. It is not ailedged in the bill,, or any of the amendments thereto, that the Warrant was not returned'with the plat and certificate ; aai single deposition in’ the cause, seems to have been fakea with a view to that subject; nor is it ever hinted at, until the objection is started in this court, upon the production of a certificate from the register, that the warrant is not now found in his. office ; which certificate is filed on the opening of the cause here, under an agreement of the parties, that either of them might, at any time before the trial in this court, file such records, &c. “as related to their respective titles.”

If the objection had been made in the bill, or even started in the depositions taken, the party might have taken depositions to Have proved the warrant was returned, and had since been lost or destroyed. The fact of the absence of the warrant having been first suggested here, in the manner mentioned, all opportunity of producing proof is cut off from the appellant.

It is a principle of law, well settled, that every officer acting under the sanction of an oath, or in whom the government reposes a trust, shall be presumed to have done his duty, until the contrary be proved. This is a principle of the first necessity in society, and indispensable for the preservation of the rights of those who by law are obliged to commit their interest to the management of the public agents. The. law reposes a special trust in the officer, and the citizen is obliged to trust him. Precarious and perplexing indeed, would the .situation of the individual be, if he were obliged to prove that the officer had done his duty ; or if the presumption of his having done it, were not indulged until the contrary be shewn. This principle is equally applicable to a proceeding against the oflicer, and to a proceeding against the right of an individual, derived through the act of the officer. It would be strange, if it should be indulged in favor of the officer,who may have been guilty, and not in favoring the individual who has done no wrong.

It was the duty of the officer entrusted by the government, not to issue the grant in this case, without the warrant having been lodged with the plat and certificate. He having issued the grant, we must presume that he had the warrant, to authorise the grant, until the contrary be proven. The question then, is, has the appellee made such proof ?

M’Clanahan’s deposition and receipt are relied on. They go to prove, that he received the warrant from the surveyor of Fincastle County, in the fall 1779. But this is by no means inconsistent with the presumption, that the warrant was returned with the certificate of survey, to the register’s office, in 1780; M’Clanahan acted as agent for Hickman, and it is proved that he was present in the spring 1780, with Hickman, when he received the certificate of survey from Floyd, for the purpose of having it returned to the office. It is also proved, that Hickman, at that time, declared his intention to carry his survey into grant. As they must have known, that the grant could not issue without the warrant, the presumption is strong, that M’Clanahan would deliver the warrant to Hickman; that Hickman received it; and that it must have been returned by him, with the -survey ; at least, there is nothing in the transaction inconsistent with his having done so. After the survey was recorded, it was the duty of the surveyor, to deliver both the warrant and survey to the party, to enable him to return them to the register’s office ; but no presumption could be indulged, from that circumstance, that, as he returned the survey, he did not return, also, the warrant, without which, he knew the survey would not procure him a grant.

But the register, on the 3d of May 1808, certifies, that he does not discover, from an examination of the survey, that a warrant accompanies it. This is certifying nothing more, than that he has opened the survey, and has-not found the warrant wrapped up in it. Can this possibly, at the distance of 27 years after its return, weigh any thing ?• Especially, when the military warrant was a loose paper, not required by law to be recorded. It ought to be recollected, that the papers of the land-office have been carried, since the year 1781, from Richmond to this country. The law too, at the time the grant issued, and for nine years after, required all warrants, upon which grants had issued, to be annually destroyed; It is true, the law required an account of those destroyed, to be kept; giving credit for those executed, and' charging those not executed. But the law did not require such account of the warrants destroyed, to be kept,as would distinguish them from others ; and no such account has been kept. The law requiring warrants which* were executed, to bedestroyed, may not, in all instanees, have been observed ; but we cannot say, it was not in general.

decffions'of the ¿rií¿h“coutt»! fince the 4th of no** 7bé°rea<r mr cited' in ’ fourt.

May 13th.

1¾$. circumstances, then? relied on by the appellee, ?re tpp light and trivial, to rebut the legal presumption, that the register ytas in possession of the warrant when he issued the grant.

If the parol agreement set up in the bill, were proved., which is not done satisfactorily, the principles contained case of Craig vs. Baker , this term, would bn decisive against it.

Some Other incidental objections were made, npt re* quiring any particular answer,

Ppon a thorough consideration of the case, we are of Opinion, that the appellants military survey, and grant thereon, are legal and valid ; and that whether the ap-pellee’s claim could be sustained in a contest with another settlement and pre-emption, or treasury warrant, or not, (which is now not necessary to be determined) the circuit erred in decreeing in fayor of the appellee, against the appellant. — ——Decree reversed,

A motion was made, on a subsequent day, for a re* fearing, and overruled’/'

In the argument of this cause, Clay, offered to read, ^roIn 3 East’s reports 199, 200, that part of lord Ellen* borough’s opinion, in which, after stating the la\v to be, that where it presumes the affirmative, the negative must bp proved, be prpceeds. to recapitulate the adjudged ca-⅞⅜⅜, in support pf this rule.

Tue Cu;ef Justice stopped him, and stated it was a violation of the act of the last session of assembly , wÉi,cb enacts that ‘‘ Reports and books containing, adjudged eases, in the kingdom of Great-Brhain, which decisions have taken place since the 4th day of July, 1776, shall not be read, nor considered as authority, iu; any of the courts of this, commonwealth,” fee.

Clay.- — I do not read nor rely upon the opinion nor decision, in 3 East, I only pse that book, to shew what other books contain, as Roll’s reports, fee- which are authority, but which we have not at this place. I would Use a newspaper in the same way, This is np more. a yiolation of the act, than it would be to use books reported before, but re-printed since 1776 ; and; surely they cannot be prohibited.

Allen. — -The bppks prohibited, ought not to be used, at all. If these adjudications are not evidence of the, law, they cannot be evidence of what the evidences of fhe law contain. It is just as proper, as to permita negro, who is not a competent witness, to state what a white man said, and permit this to go to a jury as evidence.

November 8th.

Hughes and Wickliffe.- — There are manybooks, which are not authority, but which ought to be read and used, for the sound and clear reasoning they contain, as Poe* thier on obligations, When a book is not used as authority, it ought not to be prohibited from being used, for any other purpose. The legislature had no right to pass the law. The mind of the judge should be free, apd unshackled, to receive light from every source. He is then answerable to them, for the result of his decisions. They had no more power to pass the law, than they would to prohibit a judge the use of his spectacles.

jp-DGE Trimbre.t—

If the book is not to have credit, as law, it cannot have credit for what the evidences of the law contain. The legislature seem to have intended, entirely to prohibit the use of these books in court; and thus, to cut off the importation of them, I can have no doubt, but the legislature had the power to pass the law ⅛ question.

Edwards, Ch. J.- — I cannot doubt the power of the legislature, on this subject. It was proper that some period should be fixed by law, after which, the decision»' of the British courts, should be prohibited. I cannot think any rights are withheld or impaired, by the act in question.

By thb COURT.

The hook must not be used at all in court. 
      
       Chan; Rev, qo — afta of 1796-7, 76, x Brad, 292.
     
      
      ~Th* aft puffed the affembly in 174S, but did not take effieS oncii 175#.
     
      
      
        Ante 281.
     
      
       Acts of 1807, ch. 7 p. 23.
     
      
       In the cafe of Gallatin vs. Bradford fall term 1808, the court ftopped the counfel, who cited Douglafs’s reports, and declared that they W&uld not' receive a citation of a decilion, fince the 4th day of July 17:76 $ and; declared it was improper for counfel to refer to. them.
     