
    James S. Guignard v. John M. Felder.
    
      Barnwell, Fall Term, 1833.
    Une obtaining-a survey ofland, forfeits his right to a grant by the lapse of six months between the survey and the locator’s certificate, if any other person applies in the interval and pays the fees and obtains a survey; but it is only in that event that . Party fi«<¡ °urveyngforfeits ^¿i8,^’ of six months, otepSsonap-plies, he paid tim fees, and carried gran™ hts grant mil be entitled that of one who v™ which was rcgu- ^' gi-an^ofThe same date.
    
      . Earle, J. before whom this case was tried, made the following report:
    This was an action of trespass to try title. Location and trespass admitted ; and the case turned on the priority of grants.
    The plaintiff’s grant was for 660 acres, to Guerrard Jour-dan and George Dyche ; surveyed for them 13th October, 1801; recorded in Location office, 19th October, 1801; certified in the Surveyor General’s office, 24th October, 1801, and granted 2d November, 1801.
    The defendant claimed under two grants to William Hall, of 333 acres each, surveyed 9th April, 1794, for him ; recorded in Location office, 13th October, 1801; certified in the Surveyor General’s office, 14th October, 1801, and granted to him 2d November, 1801-
    It will thus be perceived that the grants were of the same date; the defendant’s the'oldest survey, having been made the Qth April, 1794, but not recorded in the Location office until 13th October, 1801, the day on which the plaintiff’s survey was made ; it was certified 14th October, and granted 2d November.
    The question arises on the last clause of the act of 1786 : “ Where any land has been located, and returned to the Loca-ti°n °fflce from whence the survey issued, and the person or persons so obtaining such survey shall neglect to pay the fees ana pass the same through said office, within three months from the date thereof, or within six months from the date of any future survey, then the commissioner oí locations in the district where such survey is made, shall certify the said survey or surveys, for any person or persons applying for the same and paying the fees thereon.”
    The grants bearing the same date, the question arises which is to have priority. This, in general, would be determined by the survey. Here it is supposed the defendant had forfeited his right by the lapse of more than six months between the date of the survey and the locator’s certificate; and so indeed he would, if any other person had applied in the interval and had paid the fees. But it is only in that event that he forfeits any thing. Should no such application be made, he is entitled to pass his survey through the office on paying the fees. It was certified for him the 14th October, 1801. The plaintiff’s survey was certified the 24th October, 1801. The defendant’s grant therefore is entitled to the priority, either from being the oldest survey, no application being made by any other person, and therefore the clause of the act oi‘1786 not applying at all; or on the ground that William Hall himself took advantage of the provision, and made application to the commissioner to carry into a grant his own lapsed survey. This he had a right to do as well as another; and having made the application, paid the fees, and procured the locator’s certificate, the date of that certificate will determine the priority of the grant.
    On the case made I was of opinion that the plaintiff could not recover. He took a nonsuit, with leave to move the Court of Appeals to set it aside. This is here done, on the ground that the plaintiff’s grant had the priority.
    
      W. F. Desaussure, for the motion,
    cited P. L. 334, 393, 400, 413 ; 2 Brev. 3, 5 ; 2 Faust, 137, 2 Bay, 426, 406 ; 2 N. & ■arc. 405
    
      Patterson, contra.
    The surveyor is required to return the plat to the Commissioner of Locations, and it will be presumed that as a public officer he did his duty.
   Per Curiam.

We concur entirely in the view which Mr. Justice Earle has taken of the law of this case.

Motion dismissed.  