delivered the opinion of the court:
The principle, or rule of relation of the grant to the certificate, was established on the .ground, that the person wlm had the first certificate had an equitable title to the land contained therein, and was allowed for the sake of justice, and to prevent the party fra»- going into chan*330eery to vacate the prior grant, and to have the legal es* tate united with the equitable interest.
The court are of opinion, that Medcalf, by his special warrant of resurvey, acquired an equitable interest in tiie contiguous vacancy to the lands to be resurveyed, and that as to such vacancy, the patent to William Lyon, to whom Medcalf’s certificate bad been assigned, would relate to the date of the certificate returned on the warrant; but that in virtue of his special warrant*he could not cross an elder survey, and include vacant land patented to Cornelius Howard.
The defendant’s counsel prepared a bill of exceptions; and the court, on the defendant’s prayer, refused to give the direction prayed, but gave the following’ opinion and direction to the jury:
« The court are of opinion, that John Medcalf, by his special warrant of resurvey on tiie lands therein mentioned, acquired an equitable interest in the vacant lands contiguous thereto, from the date of the said warrant, and that the patent which issued to William Lyon, to whom the said Medcalf had assigned his certificate on the said warrant, would reíale to the date of the said certificate, as to such adjoining or contiguous vacancy, and not to give title to any vacant land separated by an cider survey, and included in the patent of Water Oak Ridge.”
On motion of the defendant’s counsel, leave was given to withdraw a juror for the purpose of amending the plots.
A juror withdrawn, &c.