
    Hammond, et al. Lessee, vs Warfield.
    The courts w’tl? take notice > «of* the rules of ¿he land offieeusforming regulations tx*fative to propeity., ami will direct «he jury as to the law arising from -such.
    The rules of tlyo land office cannot be proved by witnesses; they are to be found on the record* of that office* end in the proclamations of the propria-
    The usage and nractice of t?ie land office must ho proved by the adjudications of the judges of that office, and not by the opinions of witnesses as to what was that usage and practice.
    Where a wairant of resurvey, taken out by J II, who was not seized of the original tract rosurveyefl, was located on vacant land not contiguous to meli original tract, his grant therefor will operate by relation to the date of the certificate of resurvev, if the composition money was paid in time, and the certificate of resurvey was returned to and in the land office, when a warrant of resurvey i-»ued it» J C to affect the vacant land included in J íl‘s certificate; or if the composition money was not paid in time by J C on his resurvey, and J H’s certifi *ate was in the office when J C did compound, the grant to .T H will relate to the date of the certificate.
    But if J II*s certificate ivas not in the office when the warrant issued to .T C, and J C compounded ©n !u- resurvey in time; or if J H’s certificate was not m the office: when J C did compound, though not in time, and obtained his grant, then J C was a fair purchaser for a valuable consideration without notice of the equitable interest of J FT, and the grant to J C cannot be overreached by re'atioiu
    Ifvacant land, not contiguous to the original tract resurvoved, is included in the certificate of resurvey, it is not legal notice of the location of the warrant, until the certificate is returned to the Sand office
    If an assigned lend warrant was applied m time to the payment of composition money on vacant Sand included in a certificate of resurvey, such application will be equivalent to the payment of so much money
    The jury are to find when the composition money was paid on a certificate of survey.
    A naked p»«session, (possession without right,) is adversary only to the extent of actual enclosures.
    Where the plaintiff’s grant operated by roSafion to the date of the certificate, and overreached th« «defendant’s cider grant for the same land, the entry of the grantee, under such elder grant, and the possession by him, anti those claiming under him, wis without right, and cannot bar the plaintiff’s recovery, unless such possession was by actual enclosures for 20 years prior to the bringing the eject-
    To entitle a party to the benefit of the relation of his grant to the certificate, if. is incumbent on him to shew an equity; and the producing copies under seal of the warrant, certificate and grant, is not sufficient to entitle him to such benefit.
    The time when a certificate was returned to the land office, is a matter of fact determinable by the
    to the judge.* of the land office by T D, with certain alterations made therein in the band-writing of a clerk in that office, (now (lead,) stating when a certificate was returned, not permitted ?<o be given in evidence, ns a circumstance to prove at what time the certificate ivas returned, or to prove it was returned before a certain period, as the party against whom the testimony is, intended $o ■operate doss nut derive any interest in the land m question tuuler T
    
    Appeal from the General Court. Ejectment for a tract of land called Part of Wood’s Indo sure, lying in Frederick county, containing 2286 acres. The defendant, (now appellee,) took defence on warrant, under the general issue plea, for a. tract of land called The Resurvey on Hobson’s Choice.
    
    
      i. At the trial at May term 1803, the defendant produced the honourable Alexander Conlee llamón, Chancellor, and judge of the 'land office for the western shoi'p, and jproposed to him the following question, to wits “If a certificate on a warrant of résúrvey is returned, in which vacant land Is included, riot contiguous to the original, but separated by elder surveys; and the person returning the said certificate has paid the caution for the land not contiguous to the original, and ho patent lias issued, and a mail . ' by a warrant taken oüt after the payment of the said caution money, returns a certificate including the vacancy comprehended in the certificate of the survey which is not contiguous to the original, and pays the caiition money; if the above facts appear to the judges of the land office, would not, by the laws of the land office, the former certificate be vacated as to the vacancy not contiguous, and patent issue to the youriger certificate?” But tile counsel for the - plaintiff objected to the question put to the witness.
    Chase, Ch. 3. The courts of justice Will take notice of the rules of the land office as forming regulations relative to property, and will direct the jury as to the law arising from such rulés. The tules of the land office cannot be proved by witnesses; they are to be found on the records of the land office, and in the proclamations of the proprietary. Opinions as to the rules of the land Office cannot be received ás evidence. The usage and practice of thd land office must be proved by the adjudications of the judges of the land office, and not by the opinions of witnesses as to what that usage and-practice riiay be¿ The adjudications coritain the legal information as to what have been the usage and practice in the land office. The court therefore refuse to allow the witness to be examined. The defendant excepted.
    When A (?rant shall by relation operate from the date of the certificate of resurvey* and wh<?n it sha 1 not, where the -vacant land included, was not contiguous to, and the person obtaining the warrant was not seized of, the original tract
    An assigned land warrant may he
    applied to the payment of the money
    2. The plaintiff offered in evidence the same title which was offered in evidence in the case of the same plaintiff against John .Norris, tried at the present term, and which title is particularly set out in the fourth hill of exceptions taken in that cause. (Ante 132.; The plaintiff then proved, that the land referred to, called Wood’s Lot, acquired by reputation the name of Wood’s Inclosurc, and that they are one and the same tract of land. The defen» üít'nt then read in evidence a patent granted to John Car-mack, Stephen Richards, and Daniel Richards, for a tract of land called Hobson’s Choice, dated the 23d of January 1/53, for 25 acres. Also a warrant of resurvey granted to the said patentees on the 18th of April 1/53. Also a certificate made in virtue of that warrant, dated the 4th of September 1/53, and the land called 'The Resurvey on Hobson’s Choice, containing 395 acres, which was examined and passed the 1st of July 1/55. Also the patent which issued in virtue of that certificate, to Basil Dorsey, dated the 19üi of May 1755, stating that the certificate had been, on the 19th of May 1/55, assigned to him by Carmack and Richards. Also an order of the laud office for granting a certain warrant, and the warrant which issued in virtue thereof, dated the 15th of October 1/54, to Henrietta Maria Dulany, for 3000 acres-. Also a renewment of that warrant on the /th of April 1/55, to II 31. Dulany, far 1127 acres-. Also the marginal entries on the warrant, showing how the same had been employed, vi/.. “3/0 acres assigned Basil Dorsey, and applied to The Resurvey on Hobson’s Choice.” Also an assignment from II 31. Dulany to D. Dorsey, for 3/0 acres, a part of the said warrant. lie also offered evidence to prove that the certificate of Pari of Wood’s Inclosure, was not returned to the land office at any time on or before the 19th of May 1/55. The defendant then prayed the opinion of the court, and their direction to the jury, that the patent of Pari of Wood’s Inclosure, cannot relate to the date of the certificate thereof, or to the time of paying the caution money on the certificate, So as to overreach the title of the defendant under the patent of The Resurvey on Hobson’s Choice, but that the title under the last mentioned patent, is an elder title than that under the certificate of Part of Wood’s Inclosure, lie also prayed the opinion of the court, &c. that if from the evidence the jury do not find that the certificate of John Howard was returned to and in the land office when Basil Dorsey compounded on the certificate for The Resurvey on Hobson’s Choice, and obtained his patent for the same, that in that event B. Dorsey, though the payment of the composition money made by him was not within two years after the date of the warrant in virtue of "which The. Resurvey on Hobson’s Choice was resurveyed, was a fair purchaser for a valuable consideration, without notice of the equitable interest of J. Howard, and the patient to B. Dorsey cannot be overreached or defeated by relation-. And he further prayed the opinion and direction of the court, &c. that if the jury should be of opinion, from the evidence before them, that the assignment by H M Dulany to B. Dorsey, was- made before thé 18th of April 1755, then the payment of the caution money made by him on his certificate of The Resurvey on Hobson’s Choice, will take effect and have operation in the same manner as if the payment had been made before the 18th of April 1755.
    Chase, Ch. J. The court áre of opinion, that if it appears to the jury that the warrant of resurvey, taken out by John Howard, was located on the 5th of March 1753, and the cerlificaté was returned on or before the 18th of April 1753; when the warrant of resurVey on Hobson’s Choice was taken out by John Carmack, Stephen and Daniel Richards', and that the composition money was paid by Philip Ilammónd, thé assignee of Howard. within twa years from the date of his warrant, then the patent ta Philip Hammond, and others; will operate from the date of the certificate. Blit if the certificate on the warrant taken out by J. Howard was not réturned to, and in the land office on the 18th of April 1753, and the jury find that Carmack and Richard's, or B. Dorsey, did compound On the certificate on thé warrant oh Hobson’s Choice, within two years from the date of that warrant, then the patent to Hammond and others cannot operate by relation to the date of the certificate; ahd overreach the patent to B. Bor•W
    
    But if tíie jury do hot find the composition money was paid within two years from the date of the warrant, by Carmack and Richards, or B. Borsey, and do find that the certificate of J. Howard was returned to, and in the land office when B. Borsey compounded on the certificate for' The Resurvey on Hobson’s Choice, then the patent te Hammond and others will operate by relation to the certificate; but if the jury do not find that the certificate of J. Howard was returned to, and in the land office when B. Dorsey compounded on Ihe certificate for The Resurvey on Hobson’s Choice, and obtained his patent for the same, in that event B. Dorsey, though the payment of the composition money made by him was net within two years;after the date of the warrant, in virtue of which 7he Resurvey on Hobson's Choice was resurveyed, was a fair purchaser for a valuable consideration without notice of the equitable interest of J. Howard, and the patent to B. Dorsey cannot be overreached or defeated by relation — The court being of opinion, that as the land, (on which the Warrant of resurvey of ./. Howard was located,) was not contiguous to the original tract resurveyed, there could be no legal notice of the location of the warrant but on return of the certificate to the land office.
    The court are algo of opinion, that if warrant was ap=, plied by Carmack and Richards, or B. Dorsey, in payment of the caution money, within two years from the date of the warrant granted to Carmack and Richards, that such application of warrant will be equivalent to the payment of so much money. ' But the court are also of opinion, that, although the assignment by II. M. Dulany to B. Dorsey was made before the 18th of April 1755, the payment of the caution money made by him will not take effect as a payment unless the warrant was so applied by him within two years from the date of the warrant The. defendant excepted.
    Whore the eoira¿ position mom*} wtti not paid m tin»? under a regular warrant and cer*> ft fíente, but wa-; paid win li a cortificate of an iriegular íesurvey under an irregular warrant n as in the- of-flee, the grant oit the '.alter resurve> will operate bv « *“ hnion to the. ceitifíente Bul. i 1th í latter certificate as not in the of. flee w hen the coni ’ position money oil the former wa* paid, tho* not in tune, then tho grant on the for» mer cannot be overreach’d or deieatttd by reiat^A
    8. The plaintiff then offered to prove that the usage and Custom of returning certificates to the land office was, that the surveyors who made the certificates respectively returned them to the land office, and from the land office the certificates were sent by the clerk or register to the examiner-general, for examination, by whom again they were generally returned to the land office. He then prayed the opinion of the court, and their direction to the jury, that if they do find the composition money was not paid within two years from the 18th of April 1753 by Carmack and Richards, or B, Dorsey, that then the patent to R, Hammond and others will operate by relation to the certificate, although the jury shall find that the certificate was not returned to the land office before the 18th of April 1753$ provided the composition money was paid on the certificate ©f Part of flood’s Inclosure before the composition money was paid on the survey made in pursuance of the warrant of resurvey which, issued on the 18th of April 1753. He also prayed the direction of the court to the jury, that the 4 1 ” . K © T • , -. ' ' , ' application of common warrant to compound on the resurvey made under the warrant of tlie 18th of April 1753, cap have no Other effect than if the caution money had befn paid in money; and that although they find that the common warrant, which was applied as composition mo-, ney, issued on the 5th of April’ 1755, yet it can only bd considered a payment for the land included in the survey made under the warrant of the 18th of April 1753, from the time it was applied as a payment, and cannot go back, either to the 5th of April 1755, or tp the time it was assigned to B. Dorset] who made tlie payment with it.
    Chase, Civ. J. delivered the same opinion of the court, as that given on the defendant’s prayer in the preceding bill of exceptions, excluding the first section of that opinion. The plaintiff excepted; and the defendant also excepted to so much of the opinion of the court as determines, that under the circumstances, as stated, which in the opinion of the court, will, entitle the patent for Part of Wood’s Inclosure, to a relation, to the certificate, so as to overreach the patent for The Resurvey on Hobson’s Choice,* under which the defendant makes, title,
    IF t)be plaintiff's grant operated by relation from the date of the certify cate, and over-* reached an elder grant for the same land to the defendant, the entry ol tlie grantee updei the elder, and'The possession by’hyx and those claiming tinder fiim, was pdifiout riglit, and cannot, bar ‘ the plaintiff, unlesi such * possession vas bv actual en» closures foj* 2C years prior to the printing- the eject
    A naked possession, (possession without right,) i¡ adversary only tt |he extent of £ctpa enclosures.
    I ’4. The defendant then offered eviden.ee that B. Dorsey, : the patentee, in virtue of his resurvey, entered into, and. • was possessed of The Resurvey on Hobson’s Choice in the iyear 1755, and continued so possessed until his death, : which happened in tlie year 1763; that by his will he dei vised the, land to his son Dennis in, tail, remainder to his ;■ daughterá. That in the month of April 1774, Dennis Dorsey, the devisee, then a minor of the age; of 18 years, en-1 tered upon The Resurvey on Hobson’s, Choice,' and had ; the same surveyed, and run out; that he continued, so to. • possess that land until his. death, which happened in the [year 1778. That D. Dorsey died intestate and without. ; issue, leaving three sisters, to wit, Uriana, married to Tho-1 mas Rollers, Eleanor married to Upton Rhe.redine, and Elizabeth married to Ephraim Howard. That after the death of D. Dorsey, the said. Rollers, Rheredine and Howard, in right of their wives, entered into the land, and were possessed thereof until the 32d of February 1779, when they, together with their wives, conveyed the land to the present defendant, who in virtue of that deed entered into the land «21 the same day, and was possessed thereof, and lias continued so possessed until this time, lie then offered in evidence, from the rent rolls in the land office, that the said land, upon being patented to 11. Dorsey, was also charged to him in the rent ¡’oils; and also, the debt books of the late Lord Proprietary, whereby it appears that the. (pit rents due upon the said land were in the, debt books charged to B. Dorsey, and were by him paid from the year 1756, until his death iu 1763; and that after his death, the quit rents were in the debt books; charged to, and paid by, •!). Dorsey the devisee, from the year 17G3, until the revoluti - en abolished the proprietary quit rents. The defendant then prayed the opinion of the court, and their direction to the jury, that if they should be of opinion, from the whole evidence before them, that 11. Borscy came into the actual possession of The Pcsurvey on Hobson's Choice, claiming the whole thereof under and by virtue of the patent thereof granted to him, before the 3d of May 1760, when P. Hammond, the father of Charles, and grand-father of Philip, one of the lessors of the plaintiff, died, and that B. Dorsey was on that day in the actual possession of that tract, claiming the whole, and that he, and those claiming under him, other than the lessors of the plaintiff! and those under whom they claim, have been in the actual possession thereof, claiming the whole, from the day last, aforesaid until the time of bringing this action, then the plaintiff cannot recover, unless it. should be satisfactorily proved to the jury, on his part, that Charles Hammond, son of Philip, or some person claiming under him, made an actual entry into Part of Wood's Inclosure, claiming fhe whole thereof, at. some time within twenty years next after the 3d o£ May 1760»
    
      Harper, for the Defendant,
    cited Russell's lessee vs. Baker, 1 Harr. & Johns. 71. Davidson's Lessee vs. Beatty, 3 Harr. & M'Hen. 594. Miller's Lessee vs. Hynson, (in the Provincial Court, May term 1734.) Hawkins's Lessee vs. Bolton, (Ibid, April term 1745.) M'Crackin et ux Lessee vs. Harris, (Ibid, May term 1748.) 2, Blk. Com, 311, 312. Co. Litt. 15, a, Sect. 8. Taylor vs. Horde, et al. 1 Burr. 119. Bac, Ab. tit. Trespass, (C. 3.) Bro. Ab. tit. Surrender, 245. b. 1 Leon. 209. 2 Leon. 147. 4 Leon. 184, 2 Roll. Ab. tit. Trespass, 553, 554.
    
    
      Chase, Ch. J. A naked possession, (possession without right,) is only adversary to the extent of actual enclosures» If the patent to P. Hammond, and others relates to the, certificate, the Dorseys and the defendant had only a naked possession, and limitation by adversary possession is only-to the extent of enclosures/
    The court are of opinion, that, if-the patent to P„ Hama mond and others doth; operate, by relation, from the date of the certificate, that in such event the patent to B. Dorsey. for The Bes,urvey. on Hobson’s Choice, which is stated to, be included in the patent to P. Ham'fnondi aod others, doth not pass any thing, but is altogether inoperative, and-the en.fry.of B. Dorsey, and the possession by him, and-those íelípmirig.'njijder him, was without right, and that such -^ossession^e^mot bar the plaintiff, if the jury do find- the ¡ .factseated, by. the plaiptilf, unless they also find that such ! poSáeMon* by, actual- inclosures for twenty years or upwards, prior.to the bringing this ejectment; and in such ca'sé;-it-would only be a bar to the extent of such actual adversary possession by enclosure. The defendant e*-* cepted.
    'The relation of a grant to the certificate of survey, so as to overreach znesne grants, is founded on a principle of equity, and is a fiction of law'introduced fot the attainment of Justice,and to prevent circuity of action.
    To entitle a party to the benefit of ¿elation, it is incumbent on him ío show an equity. ,
    , 5. The plaintiff then prayed-the. opinion of the court, and their direction to the jury, that if they find and be*’ lieve the facts to be true as stated by him, that then, upon, principles .of law, when the patent, under which he claims, was obtained from the land- office for the land included in the certificate of resurvey, the patent related to the date of the certificate, and operates to give title from that time-, unless facts are proved to rebut and defeat s.uch relation; and that the defendant, on his part, must prove all facts necessary to defeat such relation, it being only incumbent on the plaintiff to produce, offipe copies, under seal, of the warrant, certificate and patent, to claim on his part the benefit of relation.
    Chase, Ch. J. The court are of opinion, that the reía» tion of the patent to the certificate, so as to overreach mesne grants, is founded on a principle of equity, and is a fiction of law introduced for the attainment of justice, and to prevent circuity of action — the court doing that which a court of equity would effect.
    
      The court refuse io give the direction prayed, being of opinion that it is incumbent on the plaintiff to show an equity to entitle him to the benefit of relation, and the producing copies, under seal, of the warrant, certificate and parent, is not sufficient to entitle him to such benefit. The plaintiff excepted.
    The time when a certifieaNiof survey was retamed to the land office* is a matter of fact determinable ■ the jury
    6. The plaintiff having given in evidence the certificate and patent for Part of Woods Inclosure, and that the certificate was examined and passed on the Cth of March 1754, and the caution money paid on the 6th of March 1754; and having proved, that before the year 1766, it was not the practice of the land office that the time of the return of the certificates should be endorsed jpfcditiM'MÉfSfcl cates respectively; and also having givenJdAy iddlfcyUiuft under the proprietary government, it w<mtfi^usual practice for the surveyor to return to the for the office, and for the clerk of the kwiJromce fo send the certificates to the examiner-general %o and for him to return the same, after exarÍ¿iíation, to the clerk of the land office; applied to the court jury, that these facts, so offered in evidence, are sufficient to prove that the said certificate was duly returned to the land office on or before the 5th of March 1754, unless the defendant can prove the contrary.
    Chase,'Ch. J. The court refuse to give the direction prayed, being of opinion, that the time when the certificate was returned, is a matter of fact determinable by the jury, upon the whole evidence relative to that fact given by the plaintiff' and the defendant. The plaintiff' excepted.
    As to the piacn tice relative to the ret ui «in# of certifican s of sinneys to the land office* their examination by the examiner* general, endorsementsthf reon, and entries tin reofyu'dl of caveats thereto, 8ce the granting1 pa tents, and entries thereof, -on tlje rent roI!s The actings and doings of a person under whom the party does not claim, are not permitted to be given m evidence against him
    7. The plaintiff' then offered in evidence, that the office of the examiner-general, and the office of the agent, to whom the caution money was paid, were held in the city of Jlnnapolis, and that the party, after his certificate was examined and passed, and returned to the office, was accustomed to carry his certificate to the office of the agent, and pay the caution money thereon, and to bring the same back to the office; and that after the certificate was compounded on, the party could not take his certificate out of the office, without applying io the judge of the land office, and obtaining his permission for that purpose, and that before the certificate was taken out on such permission, the ¡-.arty was required to give a receipt for the same, which receipt was kept in á memorandum book for that and otlier purposes. It ivas offered in evidence, tliát the said memorandum book; as Well aá other memorandum books, which had been kept for particular purposes in the land office under the proprietary government, have been lost or destroyed. That in such instances, uiidet-the proprietary government, in which the parties themselves carried the certificates to the land office, they wefé carried there before they were examined arid passed, and were sent to the examirier-generáí by the clerk of the land office to be examined, in the same mánrier as if retiirned into the office by the survey- or. And it was also given in evidence by John Callahan, Esquire; Register of the Land Office, who had been examined as to the foregoing facts; that before the year 1/60, it was hot thé practice or uságe in the land office to endorse oh the certificate the time when the certificate was received into the office; that when a warrant of any kind was issued for the surveying or taking up.of land, it was immediately entered up and recorded in a record book kept in the land office for that purpose; that when a person applied to the officé te Caveat any certificate, if .the same was not in the office; or could not conveniently be found, it was usual to enter the caVeat in the margin of the warrant; that under the proprietary government, a caveat docket Was regularly kept, ill which was also entered every caveat a3 soon as made; but that those dockets are now lost. That where a certificate was eaveated, the judge of the land office did not act upon the caveat and dismiss the same, under the proprietary government, unless the certificate was in the office; that the witness knew of no instance to the contrary; and that it was the usual practice to endorse the dismissal of ihe caveat on the certificate. That if a caveat was entered, it was not the usage of the office to have patents made out, sent to the governor to be sealed, returned to the office and recorded, until a hearing and dismissal of the caveat; and that although the caveat had remained more than six months unacted upon and unrenewed, yet it was not the practice and usage of the land office, under the proprietary government, to have the caveat dismissed, and patent issued and recorded, unless on particular application of the party entitled to the patent The plaintiff further offered 
      hi evidence, that the said Callahan was, when examined, j'n the forty-ninth year of hís age; that he first went to write in the land office in the latter end of the year 1767, and continued in that office nearly the whole time, until the formation and adoption of our present government; that when he went to write in the land office, William Steuart was the clerk of the land office, and continued such until some time in the year 1774, when David Steuart succeeded him in the said appointment, and continued to hold that office until the appointment of Saint George Peale, as •register of the land office, in April 1777; and that at the time the said Callahan first went to write in the land office, Saint George Peale was the eldest clerk or writer in that office, employed by William Steuart, (who was not very often himself in the office,) and remained so until he was appointed register. That during the American revolution, to wit, sonietime in the month of January 1776, the books, records and papers, belonging to the land office, were packed up and removed to Upper Marlborough, where they were kept until sometime in July 1778, when they were Brought hack again to the city of -Annapolis, and that by snch removal some loss and injury had happened to some of the books and papers-. The plaintiff further offered in evidence the assignment of the certificate foe ■Part of Wood’s Inclosure, and that it was made and executed on a separate piece of paper, and that the assignment is annexed, by wafers, to one side of a sheet of the -original certificate in the land office, and that the side of the sheet, to which it is so annexed, is blank, and not written upon. The assignment is of “the certificate returned on a certain resurvey had and made upon 86 acres of land, being part of a tract of land called Wood’s Inclosure, originally taken up by Joseph Wood.” He further offered in evidence, that the certificate of Part of Wood’s Inclosure, now remaining in the land office, comprizes and is written upon two sheets of paper; and that the said Callahan had no knowledge that the certificate was ever out of the office from the time the caution money was paid thereon. The said Callahan further in his testimony declared, that he had no knowledge what was the usage and practice in the land office in the year 1753, and for many years after; that when he spoke of the usages and practices of the land office, he meant the usages and practices while lie was a writer therein, which he supposes conformable i'6 the usages and practices which had been in former periods adopted'. That it was the general practice of the land office, and that he did not recollect an instance to the contrary, that caveats were not heard and decided upon, unless the certificate caveated was in the office at the timé of decision; and that it was the practice to note on the certificates caveated's the decisions made thereon, allowing or disallowing the caveats. The plaintiff also offered in evidence three original certificates from the land office; With tlié warrants under which the surveys were made; and the endorsement's in the margin of the warrants of caveats having been entered against patents issuing on those Certificates; and that neither the caveats, the orders, nor decisions made thereon, appear on the certificates. He also offered in evidence a large bundle of original certificates, returned to the land office, from Frederick county; for the year 1753, amounting to the number of 120, and thé same were brought into court, and offered in evidence in the; order in which they were found in the land office, and that in the number aforesaid there were only three certificates on which caveats were noted.' The defendant then offered to prove, that there is no endorsement upon ilie certificate now in the latid office for Part of Wood’d 'Inclosure, of the time when it was returned to the land office; and also proved by John Callahan; esquire, register 6f the land office, that when a certificate of survey or resúrvey was returned to the said office,- and remained therein, and was caveated by any person who opposed á grant issuing thereon, it Was customary to endorsé the entering of the caveat upon the back of the certificate so caveated; but that if the certificate'- was not in the land office whe'h file caveat' was so entered,- that then if was customary to make an entry of the' caveat in the margin of the warrant book, opposite to' the warrant upon Which the certificate Was founded. He then produced from the land office, and showed to the' jury, the warrant upon which this' certificate was founded,; and the book in which the same is entered; and also showed, that in the margin thereof,- opposite to the wa'rrant, it is entered that Greenbury Ridgely did, on the 12th day of July 1754, enter a caveat against a- giant issuing on the certificate for Part of Wood’s Inclosure. He then prochiced the original,certificate for Part of Wood’s Inch sure ^ and from ihe same showed to the jury that there is no entry upon that certificate, made by any clerk or officer in. ihe land office, by which it can be inferred that the same was in the land office, until the 30th of. January 1772, when there is an entry thereon that the same was caveated by Philip, Rezin, and Matthias hanmfond, sons of P. Hump mond, (to whom the same certificate had been assigned by J. Howard,) and that the certificate has no plot or table of courses annexed thereto, or filed therewith. He, then offered in evidence, that although it was customary for the surveyor, who made out a certificate before the revolution to return the same to the land office, from whence it was transmitted to the examiner-general, yet there was n.o. regulation which prevented the party himself from bringing his own certificate, and carrying it himself to the examiner, previous to its coining into the land office; and that before the revolution, as well r.s since, it was the business.of the owner of a certificate, which hail been examined and passed, to carry the same to the person authorised to receive the composition money, that lie might ascertain the sum to be paid thereon, and to pay the composition money to the person so authorised to receive the same. That on the 14th of June 1733, there was a proprietary order ret specting the continuance of caveats, in the words following: “That no caveat be permitted to be renewed after the,, expiration of six, months. ” That on the 19th of, Decern-» ber 1768, there was a second proprietary order on the same subject,, in the words following: “That no caveat be permitted to continue longer than six months, nor be renewed after that tipie, unless upon very special circumStances.’* He also offered evidence, that no charge, before the revolution, \yas entered upon.the proprietary rent, rolls fon. lands against any person, until thejands, were patented, and no account raised against any person as the holder of lands, for quit rents as due to the proprietary, except for lands which were patented. That whenever a certificate was returned to the land office, and had been examined and passed, and compounded on, it was the interest of the proprietary that it should be.patented; and if such certificate remained in the land office, and there wps no legal objection to patent issuing thereon, it was customary to issue a patent thereon, and charge the grantee with the euitreatg. due. thereon to the proprietary. It is admitted that the whole of the evidence ottered by both plaintiff and defendant, as stated herein preparatory to the taking this bill of exceptions, so far as the same is not derived from papers of the land office, herein stated'and referred to, is derived from. John Callahan, Esquire, register of the land office. That one of the three- certificates, herein before referred to by the plaintiff, as, the case of a. certificate, caveated whereon the caveat was entered in the margin of the warrant and not upon. the. certificate, was as followeth: The original' certificate bore date on the 22d of July 1754, upon which there was a.caveat entered on the 26th of February 1756, by one / Bayne? that this caveat was en_ fered on the margin of the warrant, and also on the certificate returned to, filed, and now remaining in tire land office? that the said certificate- was afterwards amended, ajid the amended certificate, bearing date on the 26th of May 1769, returned to the land office, upon which amended certificate a patent issued'on the i'5t!í ofNovember 1769, and in the margin, of the warrant, upon which the same, issued, there was an entry in these words/“caveat overruled. Patent issu,ed 15 October 1769,” of which proceeding there was no entry, either upon-the original certificate, or upon the amended certificaté. The- plaint ill' then offered to give in evidence a petition preferred by Thomas Dorsey, on the 2.9{th of October 1772,. to the judges of the land office, caveating the certificate for Part of Wood’d Inclosure, which was originally drawn in the hand-writing of Samuel Chase, esquire, and which remains in'the land' office. The petition, as originally drawn, after stating’ the issuing the warrant, the resurvey, &c. was as follows: “That the said certificate was never returned "to the land’ office, but kept by the said Philip Ilammond in his posses- . sign, till his heath in. the year 1761. Thai the skid certificate was kept by a certain John Ilammond, esquire, son of the said Philip, or by the. said, a certain Charles Hammpnd, esquire, or one of them, from the dealli of the said Philip until the month of June 177Í,” &c. which petition appears on the face of it to haye been altered so as to read as: follows: “That the -said certificate was, on the 4th of October 1753, returned io the land office, that the said certificate was, on the 13th of October..1763, withdrawn out of tile- land office by a certain John 'Hammond, esquire, son of the said Philip,till the month of June 1771,” &cf And the plaintiff oííeretí to give in evidence, that the alteration made in, the petition, by inserting the words and figures, “on the 4th of October 1753,” and the words and figures, “on the, 13tli of October 1763, withdrawn oui of ■> the land office,” is in the handwriting of St. George Peale; and that St. George Peale departed this life some time in the year 1779.
    Chase, Ch. J» The court refuse to permit the plaintiff to give in evidence to the jury the petition preferred to the judges of the laud office by Thomas Dorsey, and the alterations therein, in the hand-writing of Saint George Peale, as a circumstance to prove at what time the certificate for Part of Wood's Indosure was returned into the land office, or to prove that it was returned into the office on or before the! 5th of March 1754, the court being of opinion, tliat it is inadmissible for that purpose, as the defendant does not derive’any interest in the land in questiqn under Thomas Dorsey, by \yhom the petition was so preferred to the judges of.the land office. The plaintiff excepted; and the verdict and judgment being against hima he prosecuted this appeal, ” ' ’
    The cause was argued in this court, at- thelast. June term, before Tilohman, Nicholson, and Gantt, J. upon the several bills of exceptions taken at the trial by the plaintiff-in the court below, being those herein numbered 3, 5, 6; and 7.
    
      Key, an fJohnson (Attorney General,) for the Appellant,
    on the third-,bill of, exceptions, contended, that the relation of a patent to, the certificate of survey depended alono' upon those facts which appeared upon record; that a court of law could not travel-out of the record and take into consideration that which did.not appear of record; and that where relation had been refused at, law, it was upon the ground of something appearing on record. They cited Garretson's Lessee vs Cole, 2 Harr. & M'Hen. 459. Garretsan vs Cole, 1 Harr, & Johns. 370. Morris vs Pugh, 3 Burr. 1243. Shep. Ab. 151,. That if the court could travel out of the record for proof., that the certificate of survey was out of the land office, they could, with, th© same propriety, admit parol proof that the party, claiming under a jupior survey, had notice of the prior" one, although, it, vvas not in the office.
    On the fifth bill of exceptions — That if the.relation of a grant to the certificate of survey was objected to, it was incumbent on the party objecting, to-show that the party claiming the relation, stood.in such a situation that he was; not entitled to it. ' They cited Shelley’s case, 1 Coke, 99. Swann vs Broome, 3 Burr. 1596,
    On the sixth bill of exceptions — That it was incumbent, on the defendant to prove, that the certificate of resurvey was out of. the land office^ and that unless he produced such proof, the jury were bound to presume that it was never out of the office after it had been first returned On the seventh bill of- exceptions — That the interlineations in the petition, having been made, by a clerk in the. land office, to whom,the. facts must have been known, waa - the best evidence the nature of the case was susceptible, of, and should have been admitted in evidence,
    
      Shaaff and .Harper, for. the Appellee,
    on the third and,, fiflh_bills of exceptions, contended, that there was no evi(Jencegiven by the plaintiff below, that the certificate for. Part of Wood’s Inclosure was in the office before the patent was.granted to Dorsey, and that there was negative. . evidence offered by the defendant. But that even if it \vas in the office at that tune, the relation, of the grant, to the certificate ought not. to, bq. aJlo.wgcl, as 'Howard had violated the, rules, and- regulations of the office, by obtaining a warrant to’vesucvey land in which he hart no estate, and by including in his resurvey vacant land, not contiguous to. the original tract resurveyed. That, the relation, of a grant to the certificate was not a fixed, and positive rule of law, but. depended- upon the nature of the right, and was never allowed unless it was to produce right. That the doctrine of relation, was founded upon principles of. equity, and it was the act, of the law, • and not of the parties, and, vvas never allowed to divest a lawful vested estate, unless upon equitable principles.. They cited Howord’s Lessee vs. Cromwell, 1, Harr. & Johns, 115. Peter’s Lessee vs. Mains, 4 Harr. & M'Hen. 423. Ringgold’s Lessee vs. Malott, 1 Harr. & Johns. 299. Beall’s Lessee vs. Beall, Ibid 346. Shep. Ab. (3d part,) 149, 150. 
      Butler & Baker's ease, 3 Coke, 28. b. 3 Blk. Com. 43. Co. Litt. 150. a. Land Hold. Jlss. 12¡5, JSf, 149,15!, 152, 153, 154. They also contended, that the application the land warrant, in payment of the composition money bn Dorsey's resurvey, ought to be oil the day it was assigned to him. ....
    On the sixth bill of exceptions, that it was a matter of fact for the jury to ascertain when á certificate of survey was returned to the label office, as the time when it was returned was not endorsed thereon by the register. They cited Carroll hi al. Lessee vs. Norwood, 1 Harr. 4" Johns, 172. . _ _ ,
    On the seventh bill of exceptions, they contended, 1. That the receipt of the composition money, as endorsed on the certificate, was not evidente that the certificate was, at the date of the receipt, or ever was, in the land office— the receiver not being an officer of that office. 2. That the alterations in the petition, by one of the clerks iii the office, was not an official act, and could not, therefore, affect the defendant, who did not claim, under the petitioner. . Curia adv. vult.
    
   The Court,

at this term, concurred in the opinions, pronounced by the General Court in the several bills of fexceptions taken bn the part of the plaintiff below.

ÍUÍKJM.ENT APEIRMEB»  