
    Sweeny's Lessee versus Toner.
    
    THE material facts, on the trial of this ejectment, appeared to be these: The defendant went into Northumberland County, in the year 1737, and made an improvement on a tract of land, which tract he afterwards exchanged with his brother; for the one in question, with a view to establish a permanent settlement for his family. The war, however broke out soon afterwards; and there being a call for soldiers, he enlisted, out the assurance of his friends, that they would take care of the premises for him; In the year 1775, the lessor of the plaintiff; likewise went into Northumberland County, and obtained possession of the premises by virtue of a contract in writing with the defendant’s brother, in the statute of a lease, by which the plaintiff covenanted to make improvements for the benefit of the defendant. The lease was deposited in the hands of a third person; but the plaintiff’s wife, by a trick, got it into her hands and destroyed it, in order to make way for a claim to the land in the plaintiff's own right. The plaintiff having made considerable improvements, was driven away by the Indians, in the year 1778; and On the 3d of May, 1785, he took out a warrant for the premises, the defendant’s warrant being dated the preceeding day. Upon a hearing before the board of property; there was a decision in favour of the defendant.
    The argument turned, principally, on the construction of the 8, 9 and 10, sections of the act of the 21 December, 1784 (2 Vol. Dall.Edit. p. 235.) which give a pre-emptive right to those persons, and their legal representatives, “who had heretofore occupied and cultivated small tracts of land, &c. and by their resolute stand and sufferings during the late war, merited that they should have the pre-emption of their respective plantations.”
    For the Plaintiff it was contended, that he was the actual settler contemplated by the law, having remained on the land ’till he was driven off by the Indians; which brought him precisely within the favoured description of settlers mentioned in the preamble of the subsequent act, of the 30th December, 1786. (2 Vol. Dall. Edit. p. 487) "Settlers who have been driven from their habitations in the course of the war, or have remained therein, and during the said time, with much suffering and at great risques.” The defendant could acquire no right by merely clearing an acre of land, which was, in fact, a violation of the law; and, consequently, he had no power to lease the premises. The “resolute stand and sufferings,” which the Legislature intended to favor, meant a residence and remaining upon the plantation claimed; defending the very spot from the enemy; and not a general enlistment in the army. The preemption was destined for the settlers who defended the soil; other rewards, donation lands, &c. were given to those who became soldiers. The plaintiff, therefore, was not in possession under the defendant; but as soon as he got possession of the lease (and how this was done is of no importance in law) he disavowed any such derivative occupancy, and asserted his own title.
    For the defendant, it was urged, that the adverse construction put upon the act of Assembly, was inconsistent with justices. The plaintiff was, in fact, the defendant’s tenant; the possession of the former was the possession of the latter; and the law ought never to be so interpreted as to encourage fraud. Besides, a soldier is always considered to be resident at his home; he makes “a resolute stand” in the service of his country; and is fairly within the meaning of the Legislature, expressed in the act already cited. But the act of 30th December, 1786, (2 Vol. Dall. Edit. 487.) illustrates, and enforces this construction, declaring in the 3d section, that “by a settlement shall be understood, an actual personal resident settlement, with a manifest intention of making it a place of abode, and means of supporting a family, and continued from time to time, unless interrupted by the enemy, or going into the military service of this country during the war.”
    
    
      
       This cause was tried at Sunbury, Nisi Prius, in October, 1791.
    
   By the Court :

—This case involves two questions; the one a question of fact, and the other a question of law. On the former, it is the province of the Jury to decide; but, in our opinion, it appears clearly in favour of the lessor of the plaintiff. With respect to the latter, we deem it equally clear on the same side. The defendant made the first improvement; and he continued his possession, 'till, at the call of his country, he entered into the army. In doing so, we consider his conduct, at least as meritorious, as the conduct of those, who stood their groundsin defense of their own plantations. But by engaging in the public service he did not relinquish his residence; and, regarding (as we must do) the plaintiff in the light of the defendant’s tenant, the plaintiff's possession and improvement are, in contemplation of law, the possession and improvement of the defendant.  