HUIDEKO

V.

a private right of entry-for there cannot be actual setPER'S LESSEE tlement without actual entry. These expressions of DOUGLASS. the act imply as complete a right of entry, as a warrant itself. By the act of the 22d of April, 1794, vol. 3. p. 581, 636, no warrant can be obtained for unimproved lands. There must be a previous actual settle

ment.

work, he returns into the fort to his former place of residence.Why did he retreat so precipitately? We hear of no danger existing at the time of completing these labours which did not exist. during the time he was engaged in them. What prevented him from proceeding to cover the cabins and from inhabiting them?Except the state of general hostility which existed in that part of the country, there is no evidence of a particular necessity for flight in the instance of this plaintiff. It is most obvious that the object of his visit, this wilderness was to erect, what he considered to be improvements; but they were, in fact, uninhabitable by a human being, and consequently could not have been intended for a present settlement. He was, besides, an officer in the army, and whilst in that service he could not settle and reside at his cabin, although the country had been in a state of perfect tranquillity. In short, his whole conduct, both at that time and afterwards-his own statements when asserting a title to the lands, the recitals in his warrants of acceptance, and certificates of survey, all afford proof which is irresistible, that he did not mean in 1793, to settle. Mistaking the law, as it seems many others have done in this respect, he supposed that an improvement was equivalent to a settlement, for vesting a right to those lands. It is not pretended, even now, nor is it proved by a single witness, not even by Crouse, who assisted in making the improvements, that he contemplated a settlement. It has been asked, could the legislature have meant to require persons to sit down for a moment on lands encompassed by dangers from a savage enemy ?—I answer no :-at such a time it was very improbable that men would be found rash enough to make settlements-But yet no title could be acquired without such a settlement, and if men were found hardy enough to brave the dangers of a savage wilderness, they might be called imprudent men, but they would also deserve the promised reward, not for their boldness, but for their settlement.

The first evidence we have of an intention in the plaintiff to make an actual settlement was in the spring of 1796, long after the actual bona fi le settlement of the defendant with his family, for I give no credit to the notice from the plaintiff to the defendant in July, 1795, since, so far from accompanying it with actual settlement, he speaks of a future settlement which, however, was never carried into execution. Every thing which I have said with respect to the 400 acres surveyed in the name of George Balfour will apply a fortiori against the three other surveys in the name of Elizabeth Balfour, &c. who, it is not pretended, were ever privy even to the making of the cabins, or ever contemplated a settlement upon

those lands.

HUIDEKO

PER'S LESSEE

V.

It is not necessary that any act should be done on the part of the commonwealth, because there is no title to be defeated. But if she is bound to do any act, the DOUGLASS. act of the actual settler is her authorised act. He cannot be a trespasser, because land was vacant.

If the law then had stopped at the proviso, it is clear that the plaintiff never made such a settlement as would entitle him to a warrant. But he excuses himself from having made such a settlement as the law required, by urging the danger to which any person attempting a residence in that country, would have been exposed. He relies on the proviso to the ninth section of the law which declares "That if any such actual settler, or any grantee in any such original or succeeding warrant shall, by force of arms of the enemies of the United States, be prevented from making such actual settlement, or be driven therefrom, and shall persist in his endeavours to make such actual settlement as aforesaid, then, in either case, he and his heirs shall be entitled to have, and to hold, the said lands in the same manner as if each actual settlement had been made and continued." Evidence has been given of the hostile state of that country, during the years 1793, 1794, 1795, and the danger to which settlers would have been exposed. We know that the treaty at Fort Grenville was signed on the 3d of August, 1795, and ratified the 22d of December in the same year-although Meade settled with his family in November, 1795, it is not conclusive proot that there was no danger even then, and at any rate, it would require some little time and preparation, for those who had been driven off, to return to their settlements, and if the cause turned upon the question whether the plaintiff had persevered in his exertions to return and make such settlement, as the law requires, I should leave that question to the jury, upon the evidence they have heard. But the plaintiff, to entitle himself to the benefit of the proviso, should have had an incipient title at some time or other, and this could only have been created by actual settlement preceding the necessity which obliges him to seek the benefit of the proviso -or by warrant.

I do not mean to say that he must have had such an actual settle. ment as this section requires, to give a perfect title, for if he had built a cabin, and commenced his improvement in such manner, as to afford evidence of a bona fide intention to reside, and had been forced off by the enemy, at any stage of his labours, persevering at all proper times afterwards, in endeavours to return, when he might safely do so, he would have been saved by the proviso. But it is incumbent on the plaintiff, if he would excuse himself from the performance of what has been correctly called a condition precedent, to bring himself fully and fairly within the proviso which was made for his benefit:-this he has not done.

Decisions in the Supreme Court and in the Common Pleas of this State have been cited at the Bar, two of which I shall notice for the purpose of pointing out the pecaliar mark which distinguishes them from the present, and to prevent any conclusions from being drawn Vol. III.

H

HTIDEKOPER'S LESSEE

V.

DOUGLASS

By the 15th section of the act, certain holders of warrants theretofore granted are authorised to locate them, in any district of vacant land in the State, provided that the owners of such warrants "shall be under the same regulations and restrictions, as other owners of warrants taken for lands lying north and west of the Alleghany river and Conewango creek, are made subject by this act," that is, they are to make their settlement in two years from the date of their warrants, although their warrants were more than two years old when the act

from what has been said either to countenance or impeach those decisions. The cases I allude to are the Holland Company v. Coke, and the feigned issue tried at Sunbury.

The incipient title under which the plaintiffs claimed in those causes were warrants authorised by the third section of the law. The incipient title in the present case is settlement. The former was to be completed by settlement, survey, and patent. This to precede the warrant, and for the most distinct explanation of this distinction it will be important to ascertain what acts will constitute an actual settler to whom a warrant may issue, and what constitute an actual settlement as the foundation of a title. I have before explained who may be an actual settler to demand a warrant, namely one who has gone upon and occupied land with a bona fide intention of an actual present residence, although he should have been compelled, to abandon his settlement by the public enemies in the first stages of his settlement:-but actual settlement, intended by the 9th section, consists in clearing, fencing, and cultivating two acres of ground at least on each one hundred acres, erecting a house thereon, fit for the habitation of man and a residence continued for five years next following his first settling, if he shall so long live. This kind of settlement more properly deserves the name of improvements, as the different acts to be performed clearly import. This will satisfactorily explain what at first appeared to be an absurdity in that part of the proviso which declares that "if such actual 'settler shall be prevented from making such actual settlement," &c. the plain meaning is, that if a person has once occupied land with an intention of residing, though he has neither cleared or fenced any land, and is forced off by the enemies of the United States before he could make the improvements, and continue thereon for five years; having once had an incipient title, he shall be excused by the necessity which prevented his doing what the law required, and in the manner required :—or if the warrant holder who likewise has an incipient title although he never put his foot upon the land shall be prevented by the same cause from making these improvements, &c. he too shall be excused if, as is required also of the settler, he has persevered in his endeavours to make those improvements, &c.

But what it becomes such a grantee to do before he can claim a patent, or even a good title, is quite another question, upon which I

give no opinion.

passed. This can only be done by giving a construction to this section similar to that which we contend ought to be given to the 9th.

WV. Tilghman, on the same side.

The treasury of Pennsylvania was overflowing by the sales of lands between 1784 and 1792. The ut most that has been received from the sale of the lands under the act of 1792, including the tract called the triangle, is 500,000 dollars.

There are two descriptions of persons contemplated by the act. 1st. The monied men who could procure settlers and, 2d. the hardy but poor actual settler, who was to have a credit of ten years for his purchase money. The State did not want money; but a barrier. Population, and not revenue, was the object.The actual settlement of the land was the sine qua non

As to the plaintiff's surveys and warrants, they cannot give him a title. Not the surveys. 1st. Because they are a mere description of the land which the surveyor is authorised by the eighth section to make, and the applicant for the warrant is directed by the third section to lodge in the Land Office at the time he applies for the warrant. It is merely a demarcation, a special location of the land intended to be appropriated, and gives notice of the bounds thereof, that others may be able to make adjoining locations without danger of interference; this is not such a survey as is returnable so as to lay the foundation of a patent. 2d. It is not authorised by a warrant. 3d. It was not for an actual settler. 4th. It was not made by an authorised surveyor, if you believe, upon the evidence, that the authority to Steel was antedated, and given after the survey was returned. Not the warrant. 1st. Because it was not a warrant of title, but of acceptance. 2d. It is not founded on settlement but improvement, and if it had recited the consideration to be actual settlement, the recital would have been false in fact, and could have produced no legal valid consequence.

As to the caveat; the effect of it was to close the doors of the Land Office against the further progress of the plaintiff in perfecting his title. The dismission of it again opened the door, but still the question as to title is open for examination in ejectment, if brought within six months, and the patent will issue to the successful party.

The plaintiff, therefore, having failed to show a title sufficient to enable him to recover in this action, it is unnecessary to say any thing about the defendant's title and your verdict ought to be for the de fendant.

The jury found for the defendant.

HUIDEKO

PER'S LESSEL

V.

DOUGLASS.

HUIDEKO

of the contract. This appears from the whole tenor of PER'S LESSEE the act itself, as well as from the general circumstan

DOUGLASS.

ces and policy of the State,

The term actual settler has two different significations, as used in the act. But there can be no settlement without actual personal residence. An actual settler sometimes means a person who is on the land with an intent to remain-and sometimes it means, fencing, clearing, cultivating, building, and residing five years. By the act of 30th December, 1786, 2 vol. p. 488, it is declared," that by a settlement shall be understood, an actual, personal, resident settlement, with a manifest intention of making it a place of abode, and the means of supporting a family, and continued from time to time, unless interrupted by the enemy, or by going on the military service of this country during the war." Thus, the word settlement, in the 8th section, is used in its common acceptation. It is merely the inception of title; but the settlement mentioned in the 9th section, is the completion of title. The 9th section was intended to define more exactly what kind of settlement should vest a title.

There being then no settlement without residence, and no time of residence prescribed, except the five years, if there has not been such a residence, there has been no residence, and if no residence, no settlement. Settlement, therefore, includes both improvement and residence.

Every tract of 400 acres was to be specifically settled. The misfortune of the Holland Company was, that they undertook an impossibility. They had gaged to settle 1162 tracts in two years.

The words "in default," &c. show that settlement was the main object. It is improbable that the proviso should be intended totally to defeat the great object of actual settlement; and yet that would be its effect, if the war should continue for two years, which, at the time of passing the act, was a very probable event.