
    Hammond, et al. Lessee, vs. Norris.
    A deed located on Che plots, and not counte rloeated by the opposite party may be read by the party locating" 5t, to '•how how it located, but when its validity comes in question if it is had. it is to liave no effect
    The chrffc of a court has no nu.thotity hy law to certify ft fact under seal; his duty is to grant exemplifications
    Parol evidence is not admitted to prove'that a tract of land included in a certificate of survey, never Was actually surveyed by the surveyor
    Parol evidence admitted with the consent of the parties, to prove the law. practice «nil usages, of the land office, before the revolution
    The efficient
    A person who takes oue a warrant of resui vey, without having a title to the original tract resurvey»* &d, acquires an equitable interest an tlu: vacant land ad led, when the composition money is paid; and Jus grant therefor will velat° to the flat.* of Vie certificate of re-mrvey, if it appeal’s that his certificate returned to the land office previous to flu*time \vhe-< a prior grant for the same land issued on a .tumor certificate of survey, made and compounded on after the cominsition money was paid upon ins certificate: and unless it was so returned, the prior grantee was a lair purchaser without notice of «ueh equitab'e interest, and his grant eann.it he overreached or defeated by relation
    The court refined to direct the jury, that if they were satisfi. *d from the evidence* that hy the rules of the land office the certificate of resurvey, under which the plaintiff claims, was liable to be vacated upon a caveat, though the immimotion money was paid thereon, if «f H, for whom the same was made, nad no estate in the original tract, and that upon the certificate being so vacated, the vacant land included therein, and also included by K U »n his certificate, if compounded on in time, might legally he granted to IS I), and being so granted, that the plaintiff* has no title under his grant to any part of the lamí jfo included in the grant to 55 1)
    acres land, giving part a tract,) without courses or referring to ano* ¿her deed, (not produced,) to ascertain the same, is nor legal -evidence to show -title, orto support the location thereof on the without rhe deed to which it refers
    Nor were certain facts circumstances admissible to prove the location of the 86 acres* or to show title thereto, or that the deed referred to, or some bond or contract for 'conveying the 86 acres by metes and bounds, •'kc, as located on the plots, had ever been executed
    Where the plaintiff has made but one location on the plots of the beginning of the land'for which the ejectment is broitgh’, and that is counterloeated, the jury cannot find a beginning for the plaintiff different from that located by him
    The plaintiff must make such locations of the land upon the plots ns will suit his ease The jury cannot find a location of their own, but must find someone of the plaintiff’s, if they find for him
    if the beginning of a tract of land is Tostar canno t be proved, then the beginning is to he found by reversing the ¿hies of the tract from the first known and established boundary
    Appeal from tíre General Court. The appellant brought ail action of ejectment for a tract of land called Part of Wood's lnclosure, lying in Frederick county, containing '2286 acres. The defendant, (now. appellee,) took defence oil warrant under the general issue plea, and by his locations on the plots returned, defended himself under his title to a tract of land called Usher's Freehold, resurveyed for Thomas Usher on the 12th June 1785, and granted to the defendant on the 2d of September 1800. The cause was tried in the general court at May term 1803.
    1. The plaintiff having located on the plots a deed from John Hoioardto Philip Hammond, offered to read in evidence that deed, bearing date the 27th of September 1753, being a deed of bargain and sale hy way of mortgage, conveying unto Hammond “all those two parcels of land, being parte of a tract of land called Wood's lnclosure, and sold to the said John Howard by Joseph Wood, one parcel containing
    
      ¿6 acres, the other 94 acres, as by deed duly made, and recorded in the records of Frederick county, appears; the said two parcels of land being also what the said J. Ifoivqrd's dwelling plantation is made upon; also all that tract of land called Chance, lying in Frederick county,” &c. To the reading of which deed the defendant’s counsel objected, upon the ground that being a mortgage, the plaintiff must show how Howard became possessed of the land? or deduce his title; that although the deed is located on the plots, if it is a bad deed, it cannot be read in evidence to prove a location.
    Chase, Ch. J. 
      . The court are of opinion, that if a paper or deed is located upon the plots, and not counter-located by the opposite party, the party, who so locales it, may read it to the jury, to show how it is located; but when the validity of i’ne deed comes in question before the court, if it is bad, the court will direct the jury that it is a defective deed, and is to have no effect with them, bur to be wholly disregarded.
    The court think the objection by the defendant’s counsel is not a valid one, and that the deed may be road in evidence of the plaintiff’s location of it on the plots. The defendant excepted.
    The clerk ofn court lms no authority by law to certify a latí under the seal of the eomt, Xiisthityis to grant exempli» iicatiojib
    2. The plaintiff then read to the jury the deed from J. Howard to P. Hammond, with the permission of the court, (though objected to by the defendant,) as evidence that the deed was located upon the plots. It was admitted by the parties, that Wood's Lot and Wood's Tnclosure are one and the same tract of land, and that there are two names Cor the same land. The defendant, to prove thatHoward never had any interest or title in Wood's Lot or Wood's Tnclosure, an ju any part thereof, located upon iha plots as beginning at a, offered to read in evidence the certificate of the clerk of Frederick county court, under his seal of office, certifying, “that among- the records of the said cotysty, from the commencement of the said county up to the year 1775, there is no deed, bond of conveyance, or other instrument of writing, from Joseph TP ood to John Howard, for or respecting the land called Wood's Lot, or Wood's .Tnclosure, except a deed for ninety-four acres.”
    
      The plaintiff’s counsel objected to the certificate by the clerk of Frederick county court being read in evidence, because, they contended, it was not the duty of the clerk to certify that there were no deeds remaining on record in bis office; that bis duty was to give exemplifications of such as might appear on record. That the clerk ought to have been subpcened, if the party wished the benefit of tbe evidence offered, and examined him as a witness, whether he had searched for, and could not find such deeds. v
    Chase, Ch. J. The court are of opinion, that the certificate given by the clerk of Frederick county court is illegal and incompetent evidence, and refuse to let it be read to the jury.
    The clerk has no authority by law to certify a fact under the seal of the court of which he is clerk. His duty is to grant exemplifications. The defendant excepted.
    Parol evidence not admitted to prove that si tract of land included in a certificate oí survey never was actually surveyed by the suv vc) or
    3. The defendant then offered evidence, \_a witness to prove the confession of J. Howard,that the land called Part of Wood’s Inclosure, included in the certificate thereof, made for J. Howard, and dated the 5th of March 1753 under which the plaintiff claims title, never was actually surveyed under the warrant whereon that certificate is alleged to be founded; that tbe certificate was not made by Isaac Brooke, the deputy surveyor of Frederick county, or by any other person duly authorised to make the same, but that the same was made by J. Howard himself, by references altogether, without any actual survey.
    - Chase, Ch. J. The court refuse to let the defendant give the evidence offered, or any part thereof, to the jury, (a). The defendant excepted.
    Parol evidence admitted, with the consent of the parties* to prove the law, practice.
    and usages of the land office.
    A common warrant may he located on any uncultivated vacant land in the county, if no person has acquired a right of pre-emption to such vacant land.
    A special warrant is used to affect cultivated vacant land, in which the location and quantity of acres are designated and the parly pays the composi'ion money at the time of obtaining the warrant.
    A warrant of resurvey is taken out for the purpose of i('surveying a tract, or parcel of land in which the party has a fee simple. The party theieby acquires a right of preemption in ah the .adjoining vacant land.
    A person obtainin’? a warrant of resurvey, not having a title to the original tract resurveyed, acquires an equitable interest in the vacant land added, when the composition money is paid* and his grant therefor will relate to the date of the certificate of vesurvey, if his certificate was returned to the Jand office when a prior grant for the same land was issued on a junior certificate of survey, not compounded on until after the composition money was paid on his certificate.
    4. The plaintiff, to make title to the land in the declaration of ejectment mentioned, read in evidence the warrant of resurvcy which issued to John Howard, on the 6th of Fcbiuary 1753, “to resurvey part of a tract of land called Hood’s Indosure, originally laid out for 86 acres, to amend all errors, and to add the contiguous vacancy,” &c. Also the certificate of survey, dated the 5th of March 1753, made in pursuance of the warrant of resurvey, stating, that “by virtue of a special warrant of resurvey granted to John Howard, to resurvey part of a certain tract of land called Wood’s Indosure, originally laid out for 86 acres, bearing date the 6th of February 1753, to resurvey the said land, to amend all errors, anil to add the contiguous vacancy,” &c. The surveyor, Isaac Brooke, certified, that he had resurveyed the land, and found no error; that he had added a piece of contiguous vacancy containing 2200 acres, ‘ ‘beginning at the original begin - ning, and running thence with tire original N 68° W 54 ps. N 19° W 60 ps. then S 8P W 81 ps. S 53° E 48 ps. S 52° W 98 ps. N 25° W 38 ps. N 23° W 80 ps. N 5° W 106 ps. N 86° E 95 ps. lo intersect the beginning of the N 7° E ISO ps. course of a tract of land called Howard’s JRange, and running with said courses N,” &c. &c. “containing 2286 acres of land.” Also the assignment oí Howard to Philip Hammond, on the 29th of November 1753, annexed to the certificate of survey, whereby Howard assigned to Hammond “the certificate returned on a certain resurvcy had and made upon 86 acres of land, being part of a, tract of land called Wood’s Indosure, originally taken up by Joseph Wood, together with all bis (the said Howard’s,) right, &c. of and in the said certificate and the laud, which by resurvey contains 2286 acres,” fyc. Also that the certificate was examined and passed on the 6th of March 1754; the composit ion money paid on the 7th of March 1754, and the quit rents paid up to the 7th of June 1771, amounting to £80 5 0. Also other indorsements on the certificate, showing that it was on the SGlh of January 1772, cavecled by Philip, liezin, and Matthias Hammond-, on the IGfii of March 1772, caveated by Edward Dorsey, oí John-, on iie 29th of October 1772, caveated by Thomas Horsey; that the caveats were dismissed by the act of April session «782; that there was an entry in the margin of the book, in which the wan ant was entered, that a caveat had been entered by Greenbury llidgely, ana others, i:i 1754, and which had not been noticed when the other caveats wexe entered dismissed, and a list thereof forwarded by the re - giste? of the land office; that the last mentioned caveat oS Greenbury Ridgely was withdrawn by Richard Ri.dgdy> Ms son and heir at law, and that patent had issued on the 9th of September 1796 to Philip, Rezin, and Charles Hammond, and Richard Hopkins, and Hannah his wife. Also the last will and testament of Philip Hammond, (the elder,), dated the 6th of June 1753, wherein it does not appear that the land called Pq.rt of Wood’s Indo sure is mentioned, but by his will ‘‘all the rest and residue of the real and personal estate” of the testator, is devised to his six sons, Charles, John, Philip% Denton, Rezin and Matthias, to be equally divided between them, and their heirs, as tenants, in common. The plaintiff also offered in evidence, that P. Hammond, the testator, died, some time in the year 1760, and that Charles Hammond was his eldest son and heir at law, to whom the title which P. Hammond, the father, had in the land, descended, and who became entitled to all the interest his father had therein 
      . The plaintiff then deduced a regular title from C. Hammond, down to the lessors of the plaintiff. Also that the tract of land for which this suit is brought, as well as the several tracts or parcels of land described in the grants and deeds aforesaid, are truly located by the plaintiff on the plots. The defendant then offered evidence to prove, that there was no tract of land in the county of Frederick patented by ¿he name of Wood’s Inclosure, or so called in the certificate for tlie same; that a tract of land situate in Frederick county, was on the 10th of January 1748-9, resurveyed for Joseph Wood, by virtue of a warrant of resurvey dated the 28th of July 1748, and patented to him, the 1st of June 1750, for 1540 acres, and called in the certificate and patent thereof, Wood’s Lot; that this land did afterwards acquire, in the neighbourhood where it lay, the name •alsoof Wood’s Inclosure; that a tract of land contiguous thereto, surveyed on the 12th of November 1752, called The Request, and located upon the plots, did actually begin at the end of the 19th line of Wood’s Lot, but i¿ the certificate thereof, calls to begin at the end of the 19th line of Wood’s Inclosure', that several mesne conveyances, 
      U;r pairs of Wood’s Lot, executed by the proprietors ¡.hereof between the years 1754 and 1759, cali and des•cribe the land by the name of Wood’s Indomre. The defendant then read in evidence the patent to Joseph Wood, dated the 25th of March 1747, for the land called Wood’s Lot, containing 126 acres, and granted to him for so much laud due him by virtue of a warrant for that quantity granted him the 18th of February 1746, which tract Is stated to lie in Prince-'George’s county, and beginning ai a bounded oak standing on the E. side of a small branch, &c. agreeably to a certiiicate dated the 25th of March 1747. The defendant then offered evidence to prove, that /Pood’s Lot is truly located upon the plots, as beginning at A, and described by black lines from No. 1 to No. 45, black 'figures. Also that J. Howard never had any interest in, or title to, any part of Wood’s Lot, or Wood’s Inclosure, either in law or in equity, except as to 94 acres part thereof, which 94 acres are truly located on the plots? and to prove this, the defendant offered the evidence of the clerk of Frederick county court, the keeper of the land records of that comity, to prove, that among the records •of the county, from the commencement «1 the county up io the year 1775, there is no record of any deed, bond of conveyance, or other instrument of writing, from Joseph Wood to J. Howard for or respecting Wood’s Lot or Wood’s Indosure, except the deed for the 94 acres above stated. Also the evidence of the clerk of the general court for the western shore, that among the records in his office there is no record of any deed, bond of conveyance, or in-thru meat of writing of any kind, from ,7. Wood to ,7. Howard, respecting Wood’s Lot or Wood’s Indosure, theplaintiifhaving on the trial produced no su ch deed, bond of conveyance, or instrument of writing, or any copy thereof. Also that J. Howard, or any person claiming from or under him, never was seized or possessed of any part or parcel of Wood’s Lot oi Wood’s Indosure, except the before mentioned 94 acres. Also that the 86 acres of land located by the plaintiff upon the plots, as the original upon which the resurvey called Part of PVoad’s Indosure is pretended to have been naide, was always, from the taking up thereof, to wit, from the 10th of January 1748, till the year 1780, in the possession, occupaüon, and actual user of ,7. Wood, the patentee, by actual indosure of part, and by cutting and using the wood land as to the residue, and during all that time never was, in the whole, or in part, in the possession of J. Howard, or of any person claiming under him. Also, that from the 1st of January 1780, down to this time, the said lands have been, and still are, in the like possession and occupation of the defendant in this cause, claiming under J. Wood, and not under any title derived through or from J. Howard. The defendant then read in evidence a deed from Joseph Wood to Edward Dorsey, for part of Wood's Lot or Wood's Inclosure, dated the 20th of June 1754, and reciting, that on the 21st of June 1750, Wood had conveyed to Dorsey part of Wood's Inclosure, containing 584 acres; that the parties had discovered that patent had issued to Wood fo- the laud, by the name of Wood's Lot, although commonly called and known by the name of Wood's Inclosure. This deed was therefore to confirm the title, &c. Which land is truly described on the plots as beginning at red B, and described by yellow lines. That on the 22d of August 1757, E. Dorsey obtained a special warrant to resurvey the part of Wood's Lot so conveyed to him, which warrant staled that he was seized in fee of and in 584 acres of land, part of Wood's Lot, lying in Frederick county, originally, on the 1st óf June 1750, granted by patent of confirmation to Joseph Wood for 1540 acres, contiguous to which he had discovered some vacant land, and being desirous to add the same, prayed a special warrant to resurvey his part of the said tract — warrant was therefore granted to him, &c. Also a certificate made for E. Dorsey, bearing date the 18th of February 1758, in virtue of the said warrant, by which certificate it appears that the said part so resurveved for Dorsey, contained only 564 acres; that 336 acres of vacant land were added, and called The Resurvey on Part of Wood's Lot, containing 900 acres. Also a patent to E. Dorsey for the same land, bearing date the 18th of February 1758. Also that E. Dorsey, the patentee, died previous to the 16th of October 1760, and that the lands descended to his heir at law Thomas Dorsey. Also that the land so granted to E. Dorsey is truly located on the plots beginning at B, and described on the plots by blue lines from 1 to 38, red figures, marked at the end of each line with red P W L. Also that E. Dorsey, the patentee, and those claiming under him, held, used and enjoyed, The Resurvey on Part of 
      
      Wood’s Lot. from the date of the certificate thereof, un™ der the aforesaid title, down to the bringing of this ejectment, »art of it in cultivation and under actual enclosure, and part bein'»; in woods unincloscd, by cutting, using wood oa and therefrom; and tiiat J, Howard, or any person under him, never did use, occupy, possess, or in any way enjoy, any part of the lands included in the resurvey called The Jlesursty on Part of Wood’s Lot, or any part of the lands included within the lines of the resurvey called Part, of Wood’s Indosure,. The parties in this cause, by consent, examined John Callahan, esquire, the register of the land office for the western shore, who deposed, that according to the law, practice, and usages of the land office, prior to the year 1753, and ever since, no person was entitled to a patent on a certificate returned on a warrant of resurvey, unless such person was seized of an estate of freehold in the original whereon the resurvey was made. That by the law, practice and usages aforesaid, from ihe time aforesaid, if the person so having returned a certificate, and liad by the samé included vacancy, and had paid to ihe officer, entitled to receive it, the full amount of caution money for the vacancy added, and the land was, after that payment, included in a subsequent certificate on which the caution money was fully paid, although subsequent to the payment of the first caution money, that in such case, if the prior certificate was caveaied in the land office, and it was proved and made appear to the judges of ¡he land office, that neither the person for whom the prior certificate wrr made, nor any one claiming the certificate, had any k-gri estate or seizin in the original on which the certificate of the resurvey was made, that then the prior certificate would be, and ought by the said law, practice and usages, to be vacated, and a patent ought to issue on the second or subsequent certificate, if that certificate was not in other respects liable to objection; and that upon so vacating the first certificate, the party claiming the same would be entitled to as much land warrant as would amount to the sum of money so paid for caution money. Mr. Callahan, upon cross examination, deposed that he has been in the land office, except fifteen or eighteen months, upwards of thirty-four years; that he came into that office in the year 1767. He knows of no proprietary instructions given, that a person taking out a warrant of resurvey on lands of which lie was not seized in fee, and in virtue of that warrant including vacant land and compounding for the same, which prevented such person from having a patent for such vacant land. But that it was the understanding and practice of the office, in his time, that stich patent would not be allowed. He knows of no usage- or instance, in which a caveat lias been heard and determined unless' the caveator did show an interest in the. lands at the tirhe. Ho does not kno v any instance in-which the caveat has prevailed unless the caveator had air interest in the land caveated. He knows of no instance in which a certificate made in pursuance of a warrant of l’esurvey, after' composition money paid, by a person not seized of the original, lias been Caveated and vacated by a person not having an interest at the time when the money ivas paid, but has understood that any lands taken by a common warrant, special warrant or warrant of resurvey, Would prevail against such certificate, but he cannot refer to any particular case. According to his understanding and Recollection, the payment of the caution money was not made a question where the party obtaining the''certificate had no original; but that where a certificate of jtmior date, regularly made and compounded on, includfhg the same land, though made after the payment of the caution money upon the elder, prevailed. lie has no recollection of any particular case, but he always understood the payment of composition money under suck circumstance's was an unimportant circumstance. He docs not recollect aiiy Case where a person- lias entered a caveat alleging himself seized of the original, on which the warrant of resurvey issued to another person. Interrogatories were put to Mr. Callahan by the plaintiff and defendant, to which he answered in the manner set forth in Kilty’s Land' Holders Jlssistani, 456, 457 and 458.
    The plaintiff then offered in evidence that the said Callahan, entered into the land office, as a clerk, in the year 1767, that at that time William Steuart was the chief clerk, and so continued till the year 1774, when David Steuart succeeded him and continued to hold that office until 1777; that Saint George Peale was appointed register of that office the 21st of April 1777, and so continued till the year 1779, when the said Callahan was appointed; and that during the time William Steuart was the chief clerk. 
      Eainl George Peale was principal acting clerk under him, and also under David Steuart, both of whom had several •other clerks in that office. And the parties, by consent, also examined the Honourable Alexander Contee Hanson, chancellor of the state, and judge of the land office, who deposed and answered the several questions propounded by the counsel of the parties as they are set forth in Kilty’s Land Holder’s Assistant, 445 to 456, 4.60 to 465. Which evidence was delivered by the registered the laud office for the western shore, and by the Judge of that office, in open court, and reduced to writing by them respectively,* and the testimony by them so respectively given was, by consent of the parties, agreed to be received, to operate so far as the same is legal and proper. The plaintiff also read in evidence certain proprietary regulations or iustructionsP f_ Which see in Kiltq’s Land Holder’s Assistant.'^ The defendant then offered to prove, that the certificate for Part of J food’s In closure had never been returned into the land office, until after E. Dorsey had obtained his patent for The Renuroey on Part oj Hood’s Lot, to wit, till after the IGdi of February 1733; that E. Dorsey, and those claiming under him, have regularly paid the quit rents upon the whole of The Resuroey o« Part of Wood’s Lot, from the l'8th of February 1758, to the commencement of the revolutionary war between the. United States and Great Britain, and have ever since paid the public taxes and county levies ■air! dues thereon. The plaintiff then prayed the opinion of the court, and their direction to the jury, that the patent which issued on the 9th of September 1796, to Philip, Jlczin, and Charles Hammond, and Richard Hopkins, and Hannah his wife, will, by relation to the date of the certificate of survey, be effectual to pass a title to all the vacant land included therein, notwithstanding John Howard liad no right or estate of, in ami to, the eighty-six, acres of land on which the warrant issued, and notwithstanding the same may have been included in Edward Dorsey’s resurvey aforesaid..
    Martin, (Attorney General,) Key-and Johnson, for the plaintiff,
    cited 18 Vin. Ab. tit. Relation, 289, 290. Garretson’s Lessee vs. Cole, 2 Harr, & M'Hen. 459. Howard’s Lessee vs. Cromwell, 1 Harr. & Johns. 115. Gibson’s lessee vs. Smith, Ibid. 253. Lloyd vs. Gordon, 3, Harr, & M'Hen. 254.
    
      
      Shaaff, Mason and Harper, for the defendant,
    cited Co. Litt. 150. a. Ringgold’s Lessee vs Malott, 1 Harr. & Johns. 299. 3 Coke, 28, 29, 3O. Anon. 3 Atk. 314. Townsend vs Ash, Ibid 340. 2 Shep. Ab. (3d part,) 149, 150, 151, 152. Bladen’s Lessee vs Cockey, 1 Harr, & M'Hen 234. 3 Lev. 285. 2 Vent. 89, 200. Cro. Jac. 512. 10 Coke, 49. Hath’s Lessee vs Polk, 1 Harr. & M'Hen. 363. 3 Blk. Com. 43. 2 Roll. Rep. 502. Jenk. 428. 18 Vin. Ab. tit. Relation, 290, pl. 8. Selwin vs Selwin, 2 Burr. 1134. S. C. 1 W. Blk. Rep. 222, 223. Roe vs Griffits, 4 Burr. 1962. Doe vs Roe, Ibid 1971. 2 Roll. Ab. 399. Garretson vs Cole, 1 Harr, & Johns. 370. Beall's Lessee vs Beall, Ibid 347. Peter’s Lessee vs Mains, 4 Harr. & M'Hen. 423. Cheney vs Ringgold’s Lessee, (ante 87.) West’s Lessee vs Hughes, 1 Harr. & Johns. 13. Lloyd vs Tilghman, 1 Harr, & M'Hen. 85.
    Chase, Ch, J. In deciding the question before the court, it will be necessary to consider the efficient qualities of the different kinds of warrants which are used to take up vacant land, cultivated or uncultivated.
    A commoti warrant may be located on any uncultivated, land in the county, to the surveyor of which (he warrant is directed, if no person has acquired a right of pre-emption to such vacant land.
    A special warrant is used to affect cultivated land, in which the location and the quantity of acres are designated-, and the party pays the composition money at or before the time, of granting the warrant, for the number of acre? so directed. The survey is then made within the. usual time of six months, for ascertaining with more exactitude and- precision the land thus affected. If on the survey being made it appears to the party that he has not as much land as he paid for, he can apply the surplus of his warrant to affect any vacant land, which a common warrant is competent to take, whether it lies in contiguity or detached from the. land so located in his warrant.
    A warrant of resurvey is taken out for the purpose of-resurveying a tract or parcel of land in which the party lias a fee simple. In virtue of such warrant, the party acquires a right of pre-emption in all the adjoining vacancy, and if he makes his survey, and pays the caution money within two. years from the date of his warrant, he has a complete equitable interest in all the vacancy included in his survey.
    
      The question for decision now occurs, can a person, who takes out a warrant of n-tuiv-y without having-a title to die land to be resurveyed, acquire a title in the vacant land taken up and included in such resurvey?
    The court are of opinion, that such warrant will operate as a common warrant, and aifect any vacant land which a common warrant was competent to aifect; and that, if the jury find the facts as stated, that an equitable interest vested in John Howard on the 7th of March 1754, when the composition money was paid, in ail the vacancy included in his resurvey, and that the patent obtained in 1796, and granted to Charles, Philip, and liezbt, llar,morid, and Hannah Hop!,bis, wife of Richard Hopkins, will operate by relation to the date of the cemllcaie of reeurvey, if it, appears to the jury that the certificate was returned to the land office previous to the time when Edward Dorsey obtained his grant, which is stated to be oa the 18th of February 1758. That, in the opinion of the court, unless that fact is found by the jury, Edward Dorsey was; a fair purchaser without notice of the equitable interest of John Howard, and the grant of Edward Dorsey cannot be over-reached, or defeated by relation. The defendant excepted.
    The court refq*= ed to direct the ju« ry, that íí they \u*re sati-ihd front the evidence that* by the rules of the land-office, the certificate of resurvey, under which the plaintiff ebiinr?, was Habits to he vacate d upon a caveat, the1 the composition money ivas pud there 1 on, if J. JJ. for ■was made, had no estate or seisin iri the original traer, and that upon the cei tsfutate heing; so cant land inoiided therein, anti also included hy K. in l«is junior emn 15 cate, if compounded on in time, mip,lit legally be granted to K. I>- and being so granted, that the plaintiiHuul no title under his/jrani to jmj part of the ¡and so included in thegifUU to K*
    5. The defendant then prayed the court for their opinion and direction to the jury, that if they were satisfied from the evidence, that by the rules; and regulations of the land office in the year 1753, and since, the certificate of resurvey, under which the plaintiff now claims, was liable and subject to be vacated upon a caveat, notwithstanding ike payment of the composition money thereon, if ,/. Howard, for whom the same was made, had no estate or seisia in the original tract, so resurveved, and that upon the certificate being so vacated, the vacant land so included therein, and also included by E. Dgrsey in his certificate of resurvey called The Resurvey on Part of Wood’s Lot, as above stated, if the last certificate was compounded on in time, and in all other respects conformed to the rules and regulations of the land office, might legally, properly and regularly, be granted to E. Dorsey, and being so granted, Dial the plaintiff had no title under the grant for Part of Wood's Jndosure to any part of the land so included within the patent to .£’. Dorsey for The Resurvey on Part of Id ood’s Dot.
    
    
      Chase, Oh. J. The court cannot give the opinion aná direction prayed for. The defendant excepted.
    A deed for 86 acres, being part of a tract of land, without courses or distances, but referring to another deed, which cannot be found, to identify the same, is not legal evidence to show title ‘or to^ support the location thereof on the plots. Nor were certain facts and circumstances admissible ' to prove the location ofvhe acres, or lo show litlfc there-J ; I ! I ■ ■
    
    6. The plaintiff then gave in evidence the patent of Wood’s Lot, granted to Joseph Wood on the 25th of March 1747, for 126 acres of land. Also a .resurvey made thereon by Wood, and the patent granted to him oti ¡the 1st of June 1750, for 1540 acres of land, .and called Wood’s Lot; and that the same lands are truly located 011 the plots. Also, that the resurvey called Wood’s Lot, was known in the neighbourhood by the name of Wood’s Incloswe, and that Wood’s Lot, the resurvey, and Wood’s Inclosure, were one and the same tract of land. Also a certificate of resurvey made by J. Howard of Part of Wood’s Inclosure, surveyed on the 5th of March 1753. ]Efe then deduced the title to the said land down to the lessors of the plaintiff. He then offered in evidence the deed dated the 21st of June 1.750, from J. Wood to J Howard, for 94 acres, of land, being part of Wood’s Lot, and called Wood’s Inclosure-, and that the same is truly located by him. on the plots. Also a deed from J. Wood to E. Dorsey for a part of Wood’s Lot, daied the 20th of June 1754; and that the same is truly located by him otj the plots. He then produced, and offered to read in evidence, the deed from J. Howard to P. Hammond, dated the 27th of September 1753, herein before mentioned in the first bill of exceptions; and showed, that the 8(5 dcrcs of land therein mentioned, were located by him on the plots, beginning at the end of the 27th line of Wood’s Lot, as located by him at black a, and running, &c. to the. beginning; and to prove that to be the true location thereof, he offered to give in evidence the deed, and the resurvey ■made by E. Dorsey on the 18th of February 1758, on the land so conveyed by J. Wood to Dorsey, and called The. Resurvey on Part ofi Wood’s Lot-, and that the resurvey is truly located by him on the plots; and that (he 35th line of that resurvey strikes the end of the third line, of the 86 acres, and then runs three lines thereof reversed to the beginning of the 86 acres, and thence to its beginning at black B, excluding the 86 acres. He further offered fo prove, that after the death ofE. Dorsey, the land contained in the last mentioned resurvey and patent descended T. Dorsey his heir. Also that the devisees of P-. Dam-
      
      moral, the assignee, claimed the land contained in tile certificate, so assigned, as personal properly, raid that C. Hammond, his heir, claimed the same as land not devised by the will. Also, that a caveat was entered by the devisees against the issuing of a patent to C. Hammond on the certificate, and which caveat was endoised and noted on the certificate on the SOth of January 1772. He also offered in evidence, a dead dated the 17th of November 1779, from Philip and h'ezin, two of the devisees, to Matthias Itammond, one other of the devisees, for their interest inthc two tracts mentioned in the deed from J. Howard to P. Hammond, their father, and in which the 86 acres are described by the following metes and bounds, to wit: “Beginning at the end of the 27th course of the land called WooiVs Inch-sure, and running” &c. and that the same are the beginning, courses, metes and bounds, by which the plaintiff hath located the 86 acres on the plots. Also a deed dated the 17th of November 1779 from M. Hammond to 7?. Warfield, conveying all his right and interest to the two parcels of land mentioned in the deed from J. Howard to P. Hammond to be conveyed, and in that deed the 86 acres of land are described as contained within the same metes and bounds and beginning at the same place. And that IfarKsId did, in consequence ®f that deed, enter upon and possess the parcels of laud therein mentioned, and that afterwards, in the year 1790, he sold his interest and right in the two parcels of land to T. Dorsey, and gave up the two parcels -of land to T. Dorsey. Also an original deed, dated the 14th of March 1772, from C. Hammond, heir at law of F. Hammond, to Lis brother ,/. Hammond, one of the devisees, for his interest and estate in the two parcels of land. And that J. Hammond, in his life-time, sold all his interest in the two parcels of laud to Dorsey, that both V. & J. Hammond departed this life antecedent to the 22d of June 1784, and that IP. Hammond was the son and heir of J. Hammondj and that on the 22d of June 1784, IF. Hammond, in consideration of the payment to him by T. Dorsey of the sum of £33 7 6, the balance of the purchase money then due from T. Dorsey, under the sale by his father, did execute a deed to T. Dorsey, convoying to him all his right and interest in the two parcels of land. And that 2. Dorsey, so being entitled, as heir at law, to the lands contained in the resurvey made by E: Dorsey, and having so purchased the two parcels of land mentioned in the deed from J. Howard to the first mentioned P. Hammond, afterwards, on the 27th of September 1784, entered into a contract in writing, under seal, with Thom,as Usher, for the sale of certain land?,, and among others, the 86 acres, and that the 86 acres in that fcontract are described as being- purchased by P. Hammond, in his life-time, oh the Sth of November 1751, of a certain <7. Howard, and as having been-bought by T. Dorsey oí the devisees of P. Hammond, and as having been sold by J. Howard to P. Hammond, and purchased by T. Dorsey, and having proved the execution of the contract, offered to i-eád the same in evidence. He also offered to give in evidence a deed from T. Dorsey to T. Usher; dated the 12th of February 1785, for the several-tracts of lands in the contract mentioned; and that the courses, lines and metes, mentioned in the deed; are truly located on the plots by the plaintiff:', and do include the whole of the 86 acres as located by the plaintiff, and that one line thereof strikes the second line of the 86 acres, as located by the plaintiff, and runs thence to the end thereof; then with the Sd, 4th, 5th, and 6th lines of the plaintiffs’ location of íhtí 86 acres; and then with the given line; to its beginning at black a, and thence to black B,t the beginning of the deed; and that in the deed there was a covenant Of warranty as to the parts of tire resurvey ofi Wood’s Lot contained in the said deed, against T. Dorsey, his heirs and assigns, and against J. Howard, and his heirs and assigns only. Also a deed from T. Dorsey to T. Usher, dared the 27th of May 1785, for the same lands, describing them in the same manner, but containing a general warranty. And that T. Usher did, by virtue of the deeds to him, enter into and take possession of the lands so conveyed by T. Dorsey, and among other parts thereof, of the 86 acres, so sold to him by T. Dorsey, and so located, and made a resurvey thereon, and returned a certificate of resurvey, dated the 12th of June 1785, called Usher’s Freehold, and that the same is truly located on the plots by the plaintiff; and that the lines thereof include the whole of the 86 acres, striking the same at the same place, and running with it in the same manner as the deed from T. Dorsey to T. Usher, and that T. Usher was possessed of the land !>í) contained in his certificate, until his death, which happened about January 1786. That T. Usher, by his will appointed T U, S J, J U, ¡k J I), executors thereof, and did devise, direct, and empower them, or the survivors or survivor of them, to make sale of all and every part of Ills real estate, and to execute deeds lor the same, to the purchasers thereof, in fée simple; and that the executors did take upon themselves the execution of the will, and obtained, in due form of law, letters testamentary. That after the death of T. Usher, one John Salmon filed a bill in the court of chancery against the devisees and executors of T. Usher, to compel a sale of his real estate for the payment of his debts; that it was so proceeded in that suit, that a decree was made for the side thereof; and that by virtue of that decree, the said lands were sold to divers persons, as stated in a report thereof returned to the court of chancery, and by the chancellor approved, ratified and confirmed. That the part of the land located by the defendant as his defence, was purchased by Catharine Usher, widow of T. Usher, and by her sold to the defendant, who entered into and possessed the saíne under that sale. That it was agreed that the patent upon the certificate so retunied by T. Usher should, for convenience, bo granted to the defendant, and that he should then convey to the several purchasers under the decree, the respective parís respectively by them purchased; that the patent was so issued, and conveyances so made, and that the respective purchasers of the land, so contained in the certificate returned by T. Usher, did enter upon and possess the parts thereof by them respectively purchased, by virtue of fbe title of T. Usher, and the sales under the decree. And that after the death of T. Usher, his executors claimed the whole land contained in the certificate, so by him returned, under his title. Also a deed from Joseph TPood, the patentee, to Jonathan H ood, his son, but not bis heir at law, dated the 4th of March 1780, for “all that tract or parcel of land, being part of a tract called The Resurvey on Wood’s Lot, beginning at the end of the 27th line of the said resurvey on TFooel’s Lot, and running,” &c. “containing 153 acres of land,” &c. And that the 153 acres included the 8f> acres of land mentioned in the deed from J. Howard to P. Hammond, and are the same 86 acres of laud located by the plaintiff as the 86 acres sold to T, 
      
      Usher by T. Dorsey. Also a deed, dated 9th May 1786} ' by Jonátltán Wood, executed in due form of law; to the execuj-órs 0f T. Usher, to confirm their' title to the 86 acres; in which -it is 'expressed, “that doubts had arisen in regard to the title of 86 acres, part of a tract of land sold by T. Dorsey to the said T. Usher” and that in consequence Jonathan Wood conveyed to the executors of T. Usher, all his fight and title to the 86 acres, to begin at the end of the 27th course of Wood's Inclosiire, ánd riming thencé, &c; That the course's ánd beginning, so described by the héir oí Joseph Wood, under whom J. Iiovs’arii alaimed the 86 acres; are exactly correspondent with the location of the 86 acres made on the plots by the plaintiff! That before and at the time when the said deed was exe»tiited; the executors w'ére possessed of the 86 acres; according to the location 'under the title of T. Usher, and that the 86 acres wCre the sartie 86 acres mentioned in the deed from J. Howárd to P. Hammond, and which, had thus been conveyed to P. Hammond-, and which had thus been conveyed to Warfield, ánd to T. Dorsey, and on Which J-. Howard made his resurvey; and that no person whatever has had any possession of the 86 acres» located as the plaintiff hath located the same; except. J. Howard, and those claiming from ánd under him. Evidence was then offered, that no deed could be found on record from Joseph Wood to J. Howard for the 86 acres.
    
      Mason, Shaaff, and Harper, for the defendant,
    objected to the reading of the deed from J. Howard to P. Ham.inond, dated the 27th of September 1753, to prove the location of the 86 acres. They cited Co. Lilt, 352. 5. 3 Com. Dig. (E. 4¡) 274.
    
      Marlin, (Attorriéy Genéral,) Key and Johnson, contra,-
    cited Gitting's Lessee vs Hall, 1 Harr. & Johns. 14. The Earl of Sussex vs Temple et al. 1 Ld. Raym. 311; and Gilb. L. E. 100.
    Chase, Ch. J. The deed from J. Howard to P. Halmtnond of the 27th of September 1753, does not sufficiently specify the land, being for 86 acres, and 94 acres, parts of Wood's Inclosure, “conveyed by Joseph Wood to John Howard, as appears by deed recorded- in Frederick county,” but the deed thus referred to cannot be found. ThN áeetl does not define the 86 acres by any courses or distances, there is, therefore, nothing in it whereby any locatable land can be conveyed, and of course passes nothing, and passing nothing it cannot be evidence. Nothing but the deed itself can prove the location of the land recited in the deed now offered to be read to the jury. The court are therefore of opinion, that the deed from J. Howard to P. Hammond is not legal evidence to show title in Hammond in the 86 acres of land, part of Wood’s Jnclosure, as located on the plots by the plaintiff, or to support his location of the same, without producing the deed from Joseph Wood to JHoward, to which the deed from J-Howard to Hammond doth refer, to ascertain and identify the 86 acres intended to pass by the same; and that the deed is inoperative to pass the same, without producing that deed. The court refuse therefore to suffer the same, to be read to the jury.
    The court are also of opinion, that the facts and circumstances, stated by the plaintiff, are inadmissible to prove, the location of the 86 acres, and the court refuse to suiter the same to be read to the jury for that purpose, or to show title in P. Hammond in the 86 acres of hind. The plaintiff' excepted.
    Nor. that thp «leed referred tp€ or some bond or' contract for cim° veying the i>6 acres by the metes and bounds, &<;. as io* eated on the plotsj had ever been ese*
    7. The plaintiff then, in. order further, to prove that, 3. Hood did execute to J. Howard some conveyance for the 86 acres of land, or some bond or contract for the conveying to Howard the 86 acres, by the same metes anti bounds, and beginning as located by the plaintiff*, offered to give in evidence the deed from Howard toP. Hammond, ami the resurvey made by J§. Dorsey on the 18th of February 1758, on the land so conveyed by Wood to Dorsey, and that the resunvey is truly located, t^q,
    Chase, Cl). J, delivered the same opinion as that given on tlie prayer in the preceding bill of exceptions, and then proceeded as follows: The court are also of opinion, that the facts and circumstances, stated by the plaintiff, ares inadmissible to prove, that Joseph Wood did execute to John Howard a conveyance for the 86 acres of land, or a bond, or contract, for the conveying to Howard the 8,6 acres by the same metes and bounds, and beginning as im vated by the plaintiff; and do accordingly refuse t® allow i the same to be given in evidence to the jury. The plaintiff excepted.
    ■Where the plain- < tiff ñas made but tone location on ‘ the plots of the be» ginning of ihe , land for which the ejectment is bvo’t, and that is connterlocated, the ju- , ry cannot fmd a ’ begriming for the Íiiaintift’ different i'Qm that located by Tiim.
    'Ihe plaintiff must make such locations, on the plots as will suit Alia case.
    The .jury cannot find a location of their own, but must find some one of the plaintiff’s, if they find for
    < ‘ , , ’ 8. The plaintiff then prayed the opinion, and direction of the court to the jury, that unless tli^y are satisfied, from the evidence, of the true position of the beginning of the 86 acres of laud, on which the resurvey called Part, of Wood’s Inclosure was made, or the beginning pf that re/ survey, and for which land this suit’ is brought, that then they have a right, and are bound by law, to ascertain a place of beginning, by reversing the first nine courses, of ■that resurvey without variation, or with such variation as they think right, from the place marked a on the plots, at red figures 27, and red P W L, and that unless they are. satisfied, from the evidence, of the place where.the 104th line of the resurvey calls for, that then the true location of the land is to be ascertained by running the lines of the. resurvey from the. place marked on the plots at q, without or with such variation as they tiling proper, until the given line shall intersect and close with the beginning so found by reversing as aforesaid» And that the jury are by. law competent to draw lipes on the plots, to ascertain the true position of the. land in the declaration mentioned, or to make such description thereof in their verdict, as shall fix the true position of the same, notwithstanding there are no such lines on the plots at this time located. And in case, they have evidence, to satisfy their minds, of the true original beginning of the resurvey made by Wood, and for which this suit is brought, and that the saipe is at a piace different from what is located by either the plaintiff or this defendant, that then they are to begin at the place so proved, and run the first eight courses of the grant, without or with such variation, as they think m^st proper, to, correspond with the original location; and that the ninth course, must be run to its call at a, red 27, red P TVL¿ and in case they have not evidence to establish the place, called for at the termination of the 104th line, that then they have a right, and are bound, to locate the lines from qf with or without variation, as they think proper, until the. given line shall intersect and close with the place of beginning. And that the jury are by law' competent' to draw lines on the plots to ascertain the true position of the land, or to make such description thereof in their verdict as; shall fix the true position of the land, notwithstanding, there arc no such lines on the plots at this time located. And on fixing such location the plaintiff is entitled to then: verdict for all such laud as is included within their finding, and which is also contained m the locations oí the plaintiff of Pari of ¡ l ood’s Inclosure, and for which the defendant liatli taken defence.
    
      Marlin, (Attorney General,) and Key, for the plaintiff’,
    cited the act of November 1781, ch. 20, s 14, and Carrol!,_ et al. Lessee vs E. S. Norwood, 1 Harr. §• Johns. 167-
    
      Shaajf, for the defendant,
    cited Kirkpatrick’s Lessee vs Kygen, 1 Harr, & Johns. 298, and Webb’s Lessee vs Beard, Ibid 349.
    Ciuse, Ch. 3. The court capnot give the direction prayed on the part of the plaintiff', inasmuch as the plaintiff has not made any location pn the plots to warrant the court in directing the jury to find a beginning for the plaintiff, different from that located at the letter G, as the beginning of Part of Wood’s Inclositre, the plaintiff having made only one location of the beginning of that tract of land, and the same having been counterlocated by the defendant.
    The chief judge said, that the plaintiff must make such locations as will suit his case. lie. has made two from the same beginning, one of which the jury must find, if they find for the plaintiff'. It is customary, in order to meet the variation of the compass, to make sundry locations, so as to have one which the jury may find. The plaintiff relies upon his locations; and the jury cannot find a location of their own, but must find some one of the locations made by the plaintiff', if they find for the plaintiff. The plaintiff" excepted.
    On motion of the plaintiff’s counsel, leave was given by the court to withdraw a juror, for the purpose of amending tbp plots; but the plots were amended by consent of the parties without withdrawing a juror, and the trial continued.
    If the beginning of a tract of lana is ]o->t, or cannot lie proved, then it is to be -found by ievevsijH£ the linos fi(-m the first' known and esta** bibbed boundary*
    9. The plaintiff thpn prayed the opinion of the court, and their direction to the jury, that if the beginning of J. Howard’s resurvey is lost, or cannot be proved, then ihe beginning of the same is to ha found by reversing the lilies from the first known and established boundary; and that tlie holders under that resurvey are entitled, to alt the land within that resurvey located from such beginning sp found, unless taken away by elder surveys.
    Tjje Court gave the direction to the jury as prayed.
    Verdict and judgment for the defendant, and the plaintiff appealed to this court.
    The cause was argued' at the last term before Tilghman, Nicholson, and Gantt, J. upon the bills of except tions taken by the plaintiff in the court below, being thp 6th, 7th and 8th, as herein before stated and numbered.
    
      Key, and Johnson (Attorney General,) for the Appellant,
    in their arguments stated, that under the sixth and seventh bills of exceptions two questions occurred — 1. "Whether Howard had title to the 86 acres of land upon "which his resurvey was made? And 3. Whether sufficient evidence was offered to the jury to establish the location of the 86 acres on the plots? They contended that there was sufficient evidence for the court to direct the jury to presume a deed from (Food to Howard. At all events that the evidence ought to have been suffered to go to the jury for them to judge whether or not such a deed had ever been executed. They cited Gilb. L. E. 98. Gitting’s Lessee vs. Hall, 1 Harr. & Johns. 14.
    On the eighth bill of exceptions they contended, that the jury had a right to diyiw lines on the plots, or in any other manner they might think proper, in order to find the beginning of the land in controversy, although the beginning go found might be at a different place from that located on the plots by either of the parties. They cited Darnall’s Lessee vs. Goodwin, 1 Harr. & Johns. 282, Carroll et al. Lessee vs. Norwood, Ibid 186.
    
      Shaaffsnd Harper, for the Appellee,
    in their arguments on the sixth and seventh bills of exceptions, cited Vaugh. 74. Gilb. L. E. 99. Morris’s Lessee vs. Vanderen, 1 Dall. Rep. 67. Com. Dig. tit. Evidence, (B 5.) Smith vs. The Vestry, &c. in this court on the E. S.
    On the eighth bill i f exceptions they insisted that thé plaintiff could not give evidence that the beginning of the land, for which he Drought his ejectment, was at a different place than that claimed by his locations on the plots," They cited Kirkpatrick's Lessee vs. Kyger, 1 Harr. & Johns. 289. Webb’s Lessee vs. Beard, Ibid 349. Hughes’s Lessee vs. Howard, decided in Baltimore county court, and now on appeal in this court.
    
      Curia adv. vult.
    
    
      
      «) Done and Spriggt J, concurred.,
    
    
      
       See Hammond et al. Lessee vs. Sheredine, 4 Harr. & M‘Hen. 430.
    
    
      
      
         The counsel for the plaintiff, in this part of the statement, which they had drawn up, stated, that C. Hammond, had become “seized prout lex postulat” to which the counsel for the defe nd. ant objected. The C ourt said these expressions were only proper wheiea legal, title descends — In this case an equitable title only-descended to C. Hammond.
    
   The Court,

at this term, decided that there was no error in the opinions given by the general court in either of the bills of exceptions taken on the part of the plaintiff below.

Nicholson, J.

corjcni-red, except as to the opinion given in the eighth bill of exceptions, and from that opinion he dissented,

JUDGMENT AFFIRMED.  