TAYLOR [LIVINGSTON, J. Are those the depositions upon which the jury acted in finding the facts? If they are, I, for myself, should consider the finding conclusive; and that we could not look into the depositions. MARSHALL, Ch. J. When the first case of a suit in chancery of this kind came before this court from Kentucky, the court was struck with the irregularity of the intervention of a jury to ascertain the facts in any other mode than by an issue directed by the court as a court of chancery; and as this court is only authorized to proceed in chancerycases according to the principles and usages of courts of equity, the court was disposed to disregard facts thus found. The court felt no difficulty in looking into the depositions, but their doubt was, whether they should take into consideration the facts found. However, as such a practice was said to have been established in Kentucky, the court agreed to look into the facts found where they were not inconsistent with the depositions in the cause. I think the first case of this kind which came up from Kentucky was that of Taylor and Bodley.] If M'Donald ever had equity, he has forfeited it by his negligence. No step was taken to complete the title from 1774 to 1792, a period of eighteen years. 2 Wash. 106. Pickett v. Dowdall. Wash. 121. Curry v. Burns. 1 Wash. 116. White v. Jones. 2 The doctrine of relation applies only to the parties themselves, viz. to M'Donald and the commonwealth of Virginia. It does not apply where the rights of third persons are concerned. Co. Litt. 190. Plowd. 188. 2 Vent. 200. 2 Wash. 113. 120, 121. Rowan, in reply. 1. It was not necessary that the warrant should have been in the hands of the surveyor. ་ sufficient authority to him to survey the land if he knew that such a warrant existed. But if it were necessary that he should have had it in his hands, the presumption arising from his having made the survey is strong that he had the warrant, and is sufficient proof of that fact until the contrary be proved. The bill avers that the warrant was delivered to the surveyor. The answer does not deny it, and there is no evidence that it was not. It is a matter only between the complainants and the surveyor, and no other person can take advantage of it. It was no injury to the defendant. 2. The recording the survey within two months was a duty imposed by law upon the surveyor, and he was liable to a penalty if he neglected to do so; but his neglect could not invalidate the survey. It does not appear upon the record that the survey was not recorded within the two months. The presumption is, that the officer did his duty till the contrary appears. The act of 1748 requires the surveyor to return a list of his surveys to the college of Willian and Mary, who were entitled to certain fees upon every survey. It cannot be contended that the surveys were void if the list was not returned. There are a number of other things required of the surveyor by that act, yet it was never supposed that his neglect to do them would vacate his surveys. The recording was not intended as notice to others, because the surveyor was expressly forbidden by law to give a copy for twelve months. The only notice which the legislature intended should be given to subsequent purchasers during that period was the marking and bounding the land. The survey is the appropriation. Sumner had all the notice which the legislature intended he should have. The depositions show that the land was actuaily marked and bounded; and that the marks and bounds were a matter of public notoriety. V. BROWN. TAYLOR v. BROWN. The act of recording was a duty which the officer was bound to perform. The complainants could not compel him to perform it, and therefore they ought not to suffer if he neglected it. The issuing of the patent is strong evidence either that the survey was recorded in time, or that the want of such record did not invalidate the title. The register of the land-office was the person best acquainted with all the prerequisites to a grant. After a lapse of thirty years, all these prerequisites are to be preserv. ed until the contrary appears. 3. It was not necessary that the plat and certificate should be made out by the same officer who madc the survey. Every thing that is done by a deputy surveyor is supposed in law to be done by the principal, and when the principal himself undertakes to act, there can be no question. The principal is the only officer known to the law whose certificate can be respected. If the deputy acts, it is in the name of his principal. The making out of a plat and certifieate from the field-book is a mere mechanical operation. It may as well be done by another as by the officer who actually ran the lines. 4. The complainants were not bound to file their caveat. The delay is no argument against their claim. It appears from the record that the patent was made to the heirs or devisees of M'Donald. His death, and their minority, account for the apparent delay. 5. As to the surplus. There never has been a survey vacated in Kentucky because it contained more land than the warrant required. If the lines had comprehended less, the party must have been the loser. If they comprehend more, it does not vacate the survey. The case of Beckley v. Bryan, Sneed, 107. is decisive as to that point. 6. As to the equity of the case. It is not necessary now to inquire how the courts in Kentucky first obtained a chancery jurisdiction in cases of this kind. By a long course of practice, the question of interfering surveys, or entries, has been a question in equity. It is a mode of getting behind the patent. An elder patent is only considered as a means of protecting the prior equity. Sneed, 231. 233. 248. 267. 283. 331. The survey of M'Donald was a prior appropriation of the land. It was no longer waste, vacant, or unappropriated land. It was not a subject for Sumner's warrant to operate upon. Lapse of time cannot enfeeble a claim. It either destroys it altogether, or it has no effect. If the court would restrict M'Donald to his 2,000 acres, where shall they be laid off? The impossibility of locating them, so as to designate the surplus, is a sufficient reason for not adopting the principle. March 1. MARSHALL, Ch. J. delivered the opinion of the court. In this case the title of both parties originates in surveys made by the surveyor of Fincastle county, previous to the passage of the land law of Virginia. Both surveys were made on military warrants issued under the proclamation of 1763. The survey under which the plaintiffs claim, being prior in point of time, they have the first equitable title, and must prevail, unless the objections made to that survey be valid, or unless their equity is defeated by the circumstances of the case. Several objections have been made to the survey, each of which will be considered. 1. It is said that the warrant was not in possession of the principal surveyor when the survey was made. TAYLOR V. BROWN. TAYLOR v. BROWN. The answer given to this objection is conclusive. The warrant is an authority to, and an injunction on, the surveyor to lay off 2,000 acres of vacant land which had not been surveyed by order of council, and patented subsequent to the proclamation. Whether acts under this authority are valid or void, if the authority itself be not in possession of the officer, is perfectly unimportant in this case; because the court considers the certificate of the surveyor as sufficient evidence that the warrant was in his possession, if, in point of law, it was necessary that it should be lodged in the office. That certificate is in the usual form, and states the survey to have been made by virtue of the governor's warrant, and agreeably to his majesty's royal proclamation. 2. The second objection is, that the survey does not appear to have been recorded within two months after it was made. The opinion, that this omission on the part of the surveyor avoids the title which accrued under the survey, is founded on the 6th section of an act passed in the year 1748, entitled, "An act directing the duty of surveyors of land." In prescribing this duty the law, among other things, enjoins the surveyor "to enter, or cause to be entered, in a book well bound, to be ordered and provided by the court of his county, a true, correct and fair copy and piat of every survey by him made during his continuance in office, within two months after making the same." This section is merely directory to the surveyor. It does not make the validity of the survey dependent on its being recorded, nor does it give the proprietor any right to control the conduct of the sur. veyor in this respect. His title, where it can commence without an entry, begins with the survey; and it would be unreasonable to deprive him of that title by the subsequent neglect of an officer, not appointed by himself, in not performing an act which the law does not pronounce necessary to his title, |