
    *Guerrant v. Bagby.
    Decided, February 28, 1818.
    I. Caveat — Proof That Grant Obtained by Caveatee Pen-dente Lite — Effect.—Ip a Caveat case; If it be found by the Jury, or agreed by the parties, that since the institution of the Caveat, a Grant from the' Commonwealth of the land in controversy, has. been obtained by the Caveatee; judgment ought to be entered dismissing the Caveat; but such judgment to be no prejudice to any suit in Chancery which the Caveator may be advised to bring to vacate the said Grant, or any Grant that may issue to the caveatee in consequence of such judgment of dismission; the judgment on the Caveat being, in that event, not pronounced on a compar-. ison of the respective rights of the parties. 
    
    On the 22d of June 1807, Daniel Bagby filed in the Clerk’s office of Buckingham County Court a Caveat, previously entered with the Register of the Land office, against the issuing of a Grant to Peter Guerrant jr. for 420 acres of land, lying in the said County, described in the said Caveat as “being part of a survey of 500' acres of land surveyed for the said Guer-rant, on the 22d of February 1806, by John Patterson the County Surveyor; 1st, because the original entry of the said Peter Guerrant does not include the said 420 acres of land; and because he had made a previous survey on his location aforesaid, and closed his lines, and oh tained from the said surveyor a plat and certificate of the said SOO acres of land which did not include the said 420 acres: — • 2dly, because Daniel Bagby claims title to the said 420 acres, by virtue of an entry made with the same Surveyor on the 10th of April 1804, under an exchanged Band Office Treasury Warrant, bearing date the 8th day of June 1803, No. 1440, granted to Richard Philips, and regularly assigned to the said Daniel Bagby; also as assignee of John Jones by land office Treasurj” warrant, dated the ISth day of June 1803, No. 3622; also by virtue of an entry made with the said Surveyor on the 24th of November 1804, as assignee oí Thomas Patterson by virtue of a. Land Office Treasury Warrant, No. 3941, dated May 26th, 1804, and surveyed for the said Daniel Bagby by the said Surveyor, December 18th, 1804: — 3dly, because Daniel Bagby claims title to the said 420 acres of land, by virtue of an entry made with the same Surveyor on the 9th of March 1807, by Band Office Treasury Warrant, for 420 acres of land, granted to the said Daniel Bagby, and bearing date the 4th of *March jl807, No. 4402; by virtue of which said several Entries and Surveys, the said Daniel Bagby has a better title to the aforesaid land.”
    A Jury, being impanelled according to law, on the “13th of March 1811, the facts in relation to the conflicting titles of the parties, were specially found; except the following, which Guerrant the Caveatee offered for the consideration of the Jury; viz, that, on the 12th day of October 1800, he made an entry with the surveyor of Buckingham, for two thousand acres of land, by virtue of two land warrants, mentioned in the said Entry and lodged with the surveyor according to law, which entry was intended to cover any vacant land adjoining the furnace tract, as mentioned in the said entry -. — that, on the 9th of November 1802, he renewed the same entry in all it’s parts; and again, in like manner, on the 14th of March 1804; and no caveat hath been entered against the same; that, on the 10th of April 1804, five hundred acres of the said entry were dropped, and entered elsewhere; and, in like manner, 70 acres, on the 7th of Nov. 1804; that, on the 19th of Aug. 1805, the Surveyor of the said County proceeded to survey the said entry, and caused a plat and certificate of said survey to be made for him the said Guerrant, covering 420 acres of land adjoining the said furnace tract, and covering the land in controversy; against which survey, no caveat hath been entered :■ — that, in pursuance of the said Survey, and Plat and Certificate, the Commonwealth, on the 2d day of March 1811, hath granted to the said Guerrant 420 acres of land, being the land claimed by the Caveator: — that, in consequence of the entry of April 10th, 1804, and of another entry for 70 acres made
    the 7th of November 1804, the surveyor, on the 7th of November 1804, made a survey of 570 acres of land, closing the same by two blazed lines; and that the said two lines divide the lands comprehended in that plat from the land contained in the Cavea tee’s grant.”
    ®To establish these facts, the Caveatee offered the said Entries, Surveys, Plats and Patent, and further offered the said Patent to shew that the land claimed by the Caveator was not waste and unappropriated: — but the Court, on motion of the Caveator, excluded the said Patent from the consideration of the Jury, “as being obtained since the institution of this caveat, though upon a prior entry, and subsequent survey, which was not caveated; the Court being of opinion, that the patent ought not to have any effect in the trial of this Caveat:” whereupon, a bilí of exceptions was filed, in which the said Entries, Surveys, Plats and Patent were set forth in haec verba.
    The matters of law arising upon the Special Verdict being argued, the Court entered Judgment for the Caveator, “that he recover against the Caveatee his costs.”
    Upon an Appeal, the Superior Court of Daw was of opinion, that there was no error in the said judgment, so far as it went, and that the same be affirmed; with a farther judgment, “that no grant issue to the appellant on his survey, of the 22d of February 1806, of five hundred acres, for 420 acres part thereof, comprehended in the appellee’s surveys of December 21st, 1804, and March 4th, 1807, filed in this cause ; and that the appellee recover against the appellant his costs.”
    From this judgment, an appeal was taken to this Court.
    Bouldin for the appellant.
    Upshur for the appellee.
    
      
       See monographic note oh ‘'Caveat” appended to Warwick v. Norvell, 1 Rob. 308.
      The principal case is cited in Jackson v. M’Gavock, 5 Rand. 541; Hardman v. Boardman, 4 Leigh 392; Patrick v. Dryden„10 W. Va. 411.
    
    
      
       Note. The Grant offered in evidence in this case, though bearing date since the institution of the Caveat, was founded on a prior entry and survey, not caveatedbut the opinion of this Court is expressed in general terms, that, "if it shall be found &c., that the appellant has obtained a Patent for the land claimed by the appellee, a judgment be entered dismissing the Caveat.” — Note in Original Edition.
    
   February 28th, 1818,

JUDGE ROANE

delivered the Court’s Opinion.

The Court is of opinion, that the judgment of the County Court is erroneous in this, that the survey and patent thereupon, offered in evidence by the appellant, as stated in the Bill of Exceptions, was improperly rejected; and that the Judgment of the Superior Court affirming that of the County Court is erroneous. The same is therefore reversed with costs: — and this court proceeding &c., it is considered that the judgment of the County Court be reversed, with Costs, and the cause remanded to the said County Court, with directions to that Court *to impanel another Jury to find such further facts as may be deemed material, and are not agreed by the parties; in which trial the evidence rejected as aforesaid is to be admitted if offered; and if it shall either be found by a Jury, or agreed by the parties, that the appellant has obtained a patent for the Land claimed by the appellee, a judgment be entered dismissing the Caveat; but such judgment to be no prejudice to any suit in Chancery which the appellee may be advised to bring to vacate the patent aforesaid, or any patent that may issue to the appellant in consequence of such judgment of dismission; the judgment on the Caveat being, in that event, not pronounced on a comparison of the respective rights of the parties.  