after hearing the arguments, were in favour of a new trial, on the ground that it was incumbent on the defendant, when he had surveyed the land in question as lapsed land, to have entered a caveat against its being granted to any other person, until he was heard by himself or counsel on the merits of his claim. This would have been a sufficient notice to the opposite party to have come forward and shewn his reasons for so long a delay in perfecting his right, and also information to the council board that the land had been previously surveyed for another, by which means the whole merits of both the claimants would have come fully and fairly before the governor and council, who at that time formed the only tribunal competent to try and determine who were or were not entitled to the fee of the soil in question. But instead of pursuing this mode, which was the usage and custom in this country, from time immemorial, in regard to those disputed claims, the defendant appears privately to have surveyed his land, and obtained a grant for it, without any sort of notice either to the present plaintiff or the council board.
*429As, however, nothing stood in the way of the plaintiff when he perfected his grant on his original survey, which had been regularly returned into the surveyor-general’s office, and his grant was the eldest, it unquestionably had a preference, and consequently the very reverse of the proposition is true, and the younger grant is null and void instead of the elder one.
Besides, they were all of opinion, that it would be introductory of much confusion and litigation, as had been well observed by the plaintiff’s counsel, if the court should set afloat the grants of the state for matters previous to the passing of the grant under the great seal; (unless in cases of palpable fraud or imposition ;) and the more especially, as there was a court of caveats then in the full exercise of all its functions, perfectly competent to hear and determine all such points.
Rule for new trial made absolute.
All the Judges present.