Page:United States Reports, Volume 2.djvu/136

 rgo Casas ruled and adjudged in the 1.791. (1 Va!. Dall. Edit. p. 487) " Settlers who have been driven from ars! their habitations in the courfe of the war, or have remained therein, and during the faid time, with much fulferin and at great rifques.” The defendant could acquire no right by mere- lylclearing an acre of land, which was, in fait, a violation of e law ; and, confequently, he had no power to leal'e the pre- mifes. The " rcfolute flaw! aud fuliErings," which the Legif- lature intended to favor, meant a relidcnce and remaining upon the plantation claimed; defending the very fpot from the ene- my; and not a general enliftment in the army. The pre-emp- tion was deftined for the fettlers who defended the foil ; other rewards, donation lands, 8:c. were given to thofe who became foldiers. The plaintid, therefore, was not in potfeflion under the defendant; but as foon as he got poifeflion of the leafe (and how thiswas done is of no importance in law) he difavowed anyrfuch derivative occupancy, and aiferted his own title. or the defendant, it was urged, that the adverfe conltru&.i- on put upon the af} of Alfembly, was inconliltent with jultice. The plaintiff was, in far], the defendant's tenant; the pofiiel`- lion of the former was the polfeilion of the latter; and the law ought never to be fo interpreted as to encourage fraud. Belides, a. foldier is always conlidered to be relident at his home; he makes •‘ a refolute {land" in the fervice of his country ; and is fairly within the meaning of the Legillaturc, exprelfed in the a& already cited. But the a& of gotlr-Dmmlw, 1786, (2 Vol. Dall. Edit. 487.) illullrates, andfonforees this coniiruétion, de- claring in the gd feéiion, that ·‘ by a fettlement {hall be under- {food, an aétual perfonal relident fettlement, with a manifefl: intention of making itaplace of abode, and means of fupport- ing a family, and continued from time to time, unlefs interrupt- ed by the enemy, or going into rl-: military _/Prvice gftbi: mm- hy during the ·war." Br rua Comvr :-This cafe involves two queltions; the oneaqueltion of fa&, and the other a quellion of law. On the former, it is the province of the Jurylto decide; but, in our opinion, it appears clearly in favour of t e lell`or of the plaintilli Vith refpeél: to the latter, we deem it equally clear on the fame (ide. The defendant made the lirli improvement ; and he con- tinued his pollellion, ’till, at the call of his country, he entered into the army. In doing fo, we conlider his conduct, at leail: as meritorious, as the conduét of thofe, who flood their ground, in defenfe of their own plantations. But by engaging in the public fervicc he did not relinquilh his relidcnce; and, regard- ing (as we mull: do) the pl;:intil`l` in the light of the defcndant’s tenant, the plaintifi"s po1Teiiion and improvement arc, in con- templation of hw, the polfeflion and improvement of the defen- dzmt. Farr

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