OCTOBER TERM, 1736.

#### Rebecca Lloyd, by James Hollyday, her Guardian's Lessee, *against*Colonel Richard Tilghman.

THIS was an ejectment brought for a tract of land called *Lloyd*Town, lying in *^ween Anne’s*County. The defendant took defence upon warrant for a tract of land called Adventure.

*86At the trial, the Jury found by special verdict, that a survey of the land mentioned in the declaration was made, and a certificate, dated the 16th of March, 1679, returned anc* registered in the land-office, according to the laws and usages of the Province of *Maryland.*That on the 10th of *.October,*1684, a grant for the same land passed to *Philemon*Lloyd, under whom the lessor of the plaintiff claims title. The Jury further found, that it did not appear to them that there was any warrant for the tract of land for which the defendant made defence, called the Adventure, according to the usage and practice of the land-office, nor did it appear that the certificate was agreeable to the usage and practice of the land-office. The Jury also found, that it was the practice of the land-office to refuse patents on certificates, which did not certify the date of the warrant by which they were made, and for what number of acres the warrants were granted. That certificates were generally entered or registered in the office. And found a certificate, dated the 18th day of February, 1679, whereby was stated to be “ laid out for Col. *Vincent*Lowe, of *Talbot*County, *u*Esquire, 1,700 acres of land granted to him by a warrant “ bearing date the day of , a parcel of land u called the Adventure, lying in *Talbot*County, on the head “ of *Chester*River, and on the north-west branch of the said “ river, beginning,” &c. “ containing 1,700 acres.” The Jury also found, that certificates had been usually assigned, and the assignees had always obtained grants by virtue of such assignments,, all previous requisites being complied with. That the certificate of the *Adventure*was in the usual form assigned to the defendant, and that on the 22d of July, 1726, the defendant obtained a grant and confirmation thereon, wherein it is stated, that “ We do here- “ by, according to our instructions to *Philemon*Lloyd, ** Esquire, deputy secretary of our said Province'of *Mary-*“ *land,*bearing date at *London*the 19th of March, 1722, “ confirm and make valid the certificate of the survey of “ the tract of land called the Adventure, notwithstanding *8744 any defect in the recital of the date of the said warrant, *u*or otherwise.”(a)

The Provincial Court gave judgment on the special verdict for the plaintiff.

Lib. E. J. No. 2. fol. 293.

*(D. Dulany’s*notes.)

*Tilghman’s*survey is prior to Lloyd’s, and *Lloyd’s*grant is prior to *Tilghman’s.*It has been the constant usage of the country, that a prior survey has always been deemed to give a right against a prior grant on a subsequent survey. It is also one of the express conditions of the warrant, that the lines must not run into elder surveys. It is customary to return to, and record surveys as well as grants, in the land-office, to which all persons may have recourse, to regulate them in the subsequent taking up of lands. As to relation. In *Fitzgib.*230. it is said, that if a man is disseised, and then makes his will, and devises the lands, and afterwards re-enters, such re-entry purges the disseisin; so that by relation, to all intents and purposes, he is in possession from the beginning. Cites *Holcomb*v. Rawlyns, *Cro. Eliz.*540. In *Hynde’s*Case, 4 *Co. 70.*a deed of bargain and sale is made, but before enrolment a fine is levied to the use of the bargainee j after-wards the bargain and sale was enrolled, and the question ■was, whether the enrolment should have relation to the date of the bargain and sale, so as that the estate should pass by it, or whether it passed by the fine. It was resolved, that the estate passed by the fine, because the conn - sec and bargainee were one person, and the relation from the time of enrolment to the date is to protect the bargainee against mesne conveyances to others. *Vide*Hob. 222. In 2 *Bulst.*34. *Hynde’s*case is mentioned, and the *88case of *Wilmer*and *.Knowles*is cited. Where a bargain and sale is executed, and before enrolment the bargainor levies a fine to the use of another person, after the bargain and sale is enrolled, it relates back to its execution and defeats the fine. *Vide Ozv.*80. and *quaere,*if it be law. How bargain and sales shall relate, *vide Co. Litt.*147. b. In 1 *Roll.*99. it is laid down as a fundamental rule, that the execution of a thing executory respects the first act or executory cause. And in 1 *Roll.*100. that when it is executed it shall be deemed as one act, although it consists of several parts, and shall have relation to the beginning. The Judges, in giving their opinion in 1 *Roll.*109. declared, that the execution after the death of the party should have retrospect to the judgment in his life-time. Judgment given the last day of a term shall have relation to the first day. 1 *Leon.*187. So an act passed the last day of a session of parliament shall have relation to the first day. *Hob.*111. So letters of administration shall have relation to the death of the intestate, and not to the time of the taking of them out, or of their date. *Style,*341. So if one dis-trains for rent as bailiff, who is not so, yet if afterwards he in whose name the distress is made, assent, such assent shall have relation to the time of the distress. 2 *Leon.*196. If *A.*bargains and sells to *B.*and before enrolment bargains and sells to *C., C.*has a good estate; but if after-wards *B.*has his deed enrolled in due time, it will avoid *C.’s*estate, *ipso facto. Hob.*165. By the opinion of three Justices against two, a sale by the bargainee before the enrolment of his own deed is good by relation. *Cro. fac.*52. 2 *Inst.*674, 675. A judgment in vacation relates to the preceding term. 1 *Salk.*401. pi. 9. *Vide Cro.Jac.*100. 403. *Cro. Car.*217. 1 *Vent.*860. *{Hob.*136 *q.')*The reason of considerations in law reaches this case, and a con - sideration in law sufficiently implied need not be expressed. 1 *Inst.*201 *a.*232 *b.*233 *a. Litt.*sect. 378, 379. 1 *Roll.*45. *4 Roll.*22.

(a)

 It appears that there are no dockets of the Court of Appeals from the year 1726 to the year 1737.

It has been the constant usage of the country, that a prior survey has always been deemed to give a right *89against a prior grant on a subsequent survey. It is proper •fio set forth in the special verdict the express conditions of warrants not to run into other surveys. That it is customary to return to and. record surveys as well as grants in the land-office, to which all parties may have recourse.

The usage of the country must be found specially, and if an objection should be made to its being so found, on pretence that it is the common law of the country, and need not be *found;*the answer is, that though it may be so, yet, as the determination may be ultimately elsewhere, where the usage is not known, it is proper to have it found; and there is no doubt but that a due regard will be had to it in the *dernier resort.*