Act of March 1, 1819—January 1, 1820. R. C. ch. 86.

thereupon found that he hath no more than the quantity of land expressed in his patent or grant, with the allowance hereinafter mentioned, the party giving such notice shall be liable to pay all charges of such resurvey, for which he shall give sufficient security to the said patentee or grantee at the time of the notice; otherwise such notice shall be void and of no effect; and moreover, for his unjust vexation, shall also be liable to an action upon the case, at the suit of the party grieved: and that in all such new surveys, the patentee or grantee shall have an allowance at the rate of five acres in every hundred, for the variation of instruments. Ibid.

64. § 61. Where any person shall find any mistake or uncertainty in the courses or description of the bounds of his lands, and desires to rectify the same, or shall hold two or more tracts of land adjoining to each other, or shall own any location or entries adjoining such tracts, or any of them, and is desirous to include them in one grant, he may, in either case, having previously advertised his intentions, and the time of application, at the door of the courthouse on two several court days, and also having given notice to the owners of the adjoining lands, present a petition to the court of the county in which the land lies, reciting the nature and truth of the case; and such court may, and is hereby empowered to order the surveyor of their county to resurvey such lands at the charge of the party, according to his directions, and the original or authentic title papers, taking care not to intrude upon the possessions of any other persons, and to return a fair plat and certificate of such resurvey into the said court, to be examined and compared with the title papers; and if such court shall certify that, in their opinion, such resurvey is just and reasonable, the party may return the same, together with his material title papers, into the land office, and demand the register's receipt for them; and in case any caveat shall be entered against his obtaining a new grant upon such resurvey, the same proceedings shall be had therein as is directed in the case of other caveats; and the court, upon hearing the same, may either prohibit such new grant, or vacate the caveat, as to them shall seem just; but if no caveat shall be entered within six months after such return, or if a caveat shall be entered and vacated as aforesaid, the party, upon producing new rights for whatever surplus land appears to be within the bounds, more than the before mentioned allowance of five acres for every hundred, may sue out and obtain a new grant for such lands thereupon, in which shall be recited the dates and other material circumstances of the former title; and the title papers shall be delivered by the register to the new owner. Ibid.

65. § 62. All inclusive surveys heretofore made as aforesaid, embracing together with patented lands, other lands claimed by entry only, and all grants which have been or may be issued upon such surveys, shall be deemed good and valid in law, if such surveys and grants were in other respects pursuant to law, notwithstanding that the lands so claimed by entry were never separately surveyed; saving, however, to all persons, bodies politic and corporate, other than the commonwealth, the full benefit of all right and title which may have been acquired by them, to any such lands, before the passing of this act. Jan. 12, 1818, c. 16.

66. § 63. The judges of the general court shall, once in every year, and oftener if they see cause, appoint two or more capable persons to examine the record books and papers in the land office, and report in what condition and order they are kept; who shall compare all warrants of surveys returned to the said office executed, with the list of those issued therefrom, and cancel all such as shall appear to have been properly executed or exchanged, an account of which shall be kept by the register, charging therein those issued, and giving credit for those cancelled as aforesaid; but no original warrant shall

Act of March 1, 1819-January 1, 1820. R. C. ch. 86.

be burnt or otherwise destroyed, but shall be regularly filed in the land office with the title papers. May 1779, c. 13, 10 Stat. Larg. 50; 1789, c. 43; 1792, c. 86, R. C.

67. § 64. No original plat and certificate of survey, once received and carried into grant, shall thereafter be delivered out of the land office, but shall remain among the other evidences of the title. 1789, c. 43; 1792, c. 86, R. C.

68. § 65. Provided however, That the register of the land office be and he is hereby authorized and directed to deliver to any person or persons authorized to receive the same, the original plats and certificates of survey, returned to his office for lands situated between the Scioto and Little Miami rivers, and for which grants may have been issued in consideration of military services. Jan. 11, 1798, c. 237, R. C.

69. § 67. On receiving each survey into the register's office, the fees established by law, that will accrue on the same, including the issuing of the grant thereupon, shall be paid; and if the register shall credit any person, he shall account for the fees so credited, in the same manner as if they had been received. Oct. 1784, c. 51, 11 Stat. Larg. 443; 1792, c. 86, R. C.

70. § 66. The register of the land office shall account for with the auditor and pay regularly into the treasury, at the end of every six months, all fees by him received from time to time, making oath that the whole fees so accounted for are the whole profits accruing from the said office, so far as he knows or believes, up to the date of such account; and, moreover, his accounts of fees received shall be fairly stated and compared by the auditor, with the books of his office, before the account shall be passed. If the register of the land office at any time fail to account according to the directions of this act, for the space of six months, he shall forfeit and pay the sum of ten thousand dollars, for the benefit of the literary fund, to be recovered in the name of the governor or chief magistrate for the time being, in any court of record, by the auditor, on thirty days previous notice; and the onus probandi shall be on the defendant. Ibid.

71. § 71. [Whenever hereafter the interests of the proprietors of lands in any county in this state shall require the processioning of the same, it shall be lawful for the court of the county to make an order, to be entered on record, directing the sheriff to summon all the acting justices to assemble at the courthouse on some day named in the order; and if a majority of them shall be of opinion that the lands of the county ought to be processioned, a suitable number of processioners shall then be appointed: Provided, That nothing in this act contained shall empower the court of any county to cause the lands therein to be processioned oftener than once in three years. Act of Feb. 23, 1839, c. 7, § 1, p. 9.] The said processioners shall proceed to see such processioning performed, and to take and return to the said court an account of every person's land they shall procession, and of the persons present at the same, and what lands in their precinct they shall fail to procession, and the particular reasons of such failure: 'which return shall be in the following form:

A copy of which order shall be delivered by the clerk of every court respectively, to the freeholders so appointed, within fifteen days after the making

Act of March 1, 1819-January 1, 1820. R. C. ch. 86.

thereof; and the said freeholders shall cause the same to be obeyed in every particular, and shall cause notice to be given at the most public places in their county, at least three weeks before the same is to be performed, of the time appointed by them for processioning in each precinct; and the said courts shall also cause the accounts returned by the freeholders, to be registered in particular books to be kept for that purpose by their clerk. Each processioner shall be allowed, by the court of his county, one dollar for every day he shall be employed; and in case of the death, resignation or removal from office of any such processioner, the court of the county where such vacancy shall happen, shall have power to appoint a successor; and every county court shall make a reasonable allowance to the clerk thereof, for the services to be performed by him, by virtue of this act; which several allowances shall be levied in their next county levy. Mar. 1661-2, act 78, 2 Stat. Larg. 101; Oct. 1705, c. 21, 3 Stat. Larg. 325; Oct. 1748, c. 1, 5 Stat. Larg. 426; 1792, c. 86, R. C.

72. § 72. That no person may pretend ignorance, the court are also to direct what precinct or precincts in their county, respectively, every particular freeholder thereof shall attend and perform the processioning as aforesaid.

Ibid.

73. § 73. If any county court shall fail to make such order as aforesaid, every justice of the peace of such county shall forfeit and pay twenty-five dollars.(1) If any freeholder shall fail to obey and execute such order, every freeholder failing shall forfeit and pay fifteen dollars; and any county court clerk failing to perform his duty, as directed by this act, shall forfeit and pay twenty-five dollars: If any other person, not having lawful excuse, (to be judged of by the county court,) shall fail to perform his duty, as is herein required, every person so failing shall forfeit and pay fifteen dollars; one moiety of which several forfeitures shall be to the commonwealth, for the use of the literary fund, and the other to the informer; and may be recovered by warrant before a magistrate, or in any court of record within this commonwealth, having jurisdiction thereof, as the case may be. 1748; 1792.

74. § 74. Provided always, That in any suit, information or warrant brought against a magistrate of a county or any other person for any breach of this act, where the defendant shall give sufficient evidence to the court, or magistrate, before whom the suit, information or warrant shall be depending, that he was necessarily absent, or that, being present, he offered to do his duty pursuant to this act, in such case the suit, information or warrant, as to such defendant, shall be dismissed. Ibid.

75. § 75. All and every processioning the bounds of any person's lands at three several times, heretofore made, according to the directions of the laws then in force, or hereafter to be made pursuant to the directions of this act, shall be held, and is hereby declared to be sufficient to settle such bounds, so as the same may never afterwards be altered; and every processioning made in pursuance of and conformably to the former laws, shall be, and is hereby declared to be, one of the three times of processioning, by this act held to be sufficient. Oct. 1705; 1710; 1748; 1792, c. 86, R. C.

76. S 76. When any controversy shall hereafter happen between persons, whose lands lie contiguous, about their respective bounds, and the owner or owners of such lands shall refuse to suffer the same to be processioned, in such case, the freeholders appointed as aforesaid, shall, within ten days after such refusal, certify the same under their hands, to the court of the county wherein such lands shall lie, at their next session; and such court shall thereupon order their surveyor, with a jury, to lay out the bounds in dispute, at

(1) See act of Feb. 26, 1839, c, 7, § 2, p. 9.

Act of March 1, 1819-January 1, 1820. R. C. ch. 86.

the charge of the party, against whom the rights to such bounds shall be determined, and to return such survey to the next court after the same shall be made, which return shall be recorded by the county court clerk. 1710; and Ibid.

77. § 77. If such lands shall happen to lie in two or more counties, then certificates as aforesaid shall be returned to the court of each county; and the court of that county in which the beginning of such controverted bounds shall lie, shall order their surveyor, with a jury of their county, to survey the whole bounds in dispute, and the sheriff of each county wherein the same shall lie, to attend the surveyor in their respective counties; and such survey shall be made, returned, recorded and registered, in like manner as aforesaid, and at the charge of the party against whom the right of such bounds shall be determined. And all and every survey, and surveys, so as aforesaid made and registered, shall be held, deemed and taken to be a sufficient processioning of such lands, to all intents and purposes, as if the same had been done by and with the consent of the owner thereof. Ibid.

78. § 78. Provided always, That the processioning and settlement of the bounds of land, held by any tenant for life only, shall not bar or conclude the heir in reversion or remainder; but such heir may at any time within six years after the death of such tenant, controvert the bounds as if no processioning or settlement had been made; and that the processioning and settling the bounds of lands belonging to any person, then being within the age of one and twenty years, feme covert, non compos mentis, imprisoned or not resident within this commonwealth, shall not be conclusive to such person or persons, until six years after their respective incapacities or disabilities shall be removed or determined. 1705, and Ibid.

79. § 80. The several penalties and forfeitures by this act laid, given or inflicted, shall and may be recovered with costs, by action of debt or information, in any court of record within this commonwealth, or warrant before a magistrate,' before whom such penalty or forfeiture shall be cognizable.

1. § 1. Whensoever any person shall desire to prosecute a writ of scire facias, to repeal any letter patent, or grant of this commonwealth, for lands, tenements, or other hereditaments, either because the same letter patent or grant was obtained from the commonwealth by false suggestion, or issued contrary to law, or to the prejudice of his or her private right, such person shall have liberty to prosecute such writ of scire facias, in any superior court of chancery for the district in which the lands, tenements, or hereditaments, granted by such letter patent, grant or any part thereof, may be situated: Provided however, That when any such writ of scire facias shall be prosecuted upon the petition of any person or persons, body politic or corporate,

Act of March 8, 1819. R. C. ch. 119.

other than the commonwealth, no such letter patent or grant shall be repealed, either in the whole or in part, unless such petitioner hath a good equitable right to such lands, tenements or hereditaments, or to some part thereof, commencing prior to the date of such letter patent, or grant; nor shall such letter patent or grant in such case be repealed further than such equitable right may extend: Provided also, That no such letter patent, or grant, issued before the twenty-sixth day of February in the year eighteen hundred and eighteen, shall be repealed upon any scire facias sued out more than ten years after the said date; and that no such letter patent or grant, issued upon or after the said twenty-sixth day of February, shall be repealed, upon any scire facias sued out more than ten years after the date of such letter patent, or grant, saving to all persons non compos mentis, infants, femes covert, persons imprisoned, or out of this commonwealth, in the service thereof, or of the United States, the said term of ten years, after their several disabilities removed. From Nov. 23, 1814, c. 23; Feb. 26, 1818, c. 29.

2.2. The person desirous to prosecute such scire facias shall exhibit a petition to the said superior court of chancery, or to the judge thereof in vacation, briefly stating the causes, for which, in his or her opinion, the letter patent, or grant, sought to be repealed, ought not to have issued. The said court or judge shall thereupon order the clerk of such court to issue to the register of the land office a writ of certiorari, commanding him to certify to the court aforesaid, on or before the first day of its next term, whether such letter patent, or grant, had ever issued; and, if it had, to certify a true copy thereof; and it shall be the duty of the register to conform to the directions of the said writ. Ibid.

3. § 3. Upon the return of such writ, if the register shall certify a copy of such letter patent or grant, the same shall be filed in such court, as an exhibit in the cause; and the petitioner may thereupon exhibit his bill in equity, setting forth the cause of his complaint, making all persons claiming title under such letter patent, or grant, parties defendants thereto, and praying a repeal of such letter patent or grant. lbid.

4. § 4. When such bill shall be filed, a scire facias shall be issued by the clerk against the defendants in the said bill, returnable as other process of the court, requiring such defendants to appear and answer the said bill, and to shew cause, if any they can, why the said letter patent or grant should not be repealed. Ibid.

5. 5. After the return of such scire facias, the proceedings in the cause aforesaid shall be in all respects similar to the proceedings in other bills in equity; the defendant may, in like manner, shew cause, against the relief sought, by answer, plea or demurrer; the plaintiff may in like manner set the cause for hearing, except or reply, and have commissions awarded for taking depositions; and, if the defendant fail to appear, have the bill taken for confessed, or have an order of publication against any absent defendant or defendants. Ibid.

6. § 6. Upon the final hearing of the cause, the court shall decree such letter patent or grant to be repealed, in the whole or in part, or dismiss the plaintiff's bill, as law and equity may require. Ibid.

7. § 7. Any such final decree repealing such letter patent or grant, either wholly or in part, shall be certified to the register of the land office, and the substance thereof shall be thereupon entered in the margin of the original record of such letter patent or grant; and thereupon such letter patent or grant for so much thereof as shall have been so repealed, shall be utterly null and void. Ibid.

8. § 8. The register for the services hereby required of him, shall receive