
    Confair against Steffey.
    
      Monday, October 23.
    sej^at“al commenced p^cdpTior" to the act of 28th March is pro-that any person tlea o» vacant that act, shall by it. And his purpose and goes on to complete his hewill a warrant at per hundred acres. He may however abandon his settlementand take out a land, without regard to his improvement, obiigedto pay per hundred sist in his intention of raaing an actual settlement, and before it is completed, take out a warrant at ten pounds per hundred acres, and still retain the advantage of carrying back the commencement of his title to the commencement of his settlement; but in such case, if there should be an elder adverse warrant, he must satisfy the jury that he never relinquished his intention of completing an actual settlement.
    In Error.
    THIS case came before the Court on' a bill of exceptions to the opinion of the Court of Common Pleas of Huntingdon county, in which an ejectment was brought by Peter Steffey the defendant in error, for a tract of land containing between * — twenty-six and twenty-seven acres. He made title under warrant dated 4th January, 1815, on which a survey was made on the 11th May, 1815, and returned on the 7th vember, 1815. The defendant, Jácob Confair, claimed under a warrant dated 21st March, 1815, on which a survey was made on the 20th April, 1815. The plaintiff’s warrant being the eldest, and descriptive of the land in dispute, his so far as depended on written evidence, was the best: but the defendant relied also on a title acquired by a settlement menced in May, 1814, to which his warrant related by calling for his improvement, and bv the terms of which he was ° . * _ . _ * “ t ci' to pay interest from the 1st May, 1814. In support or his title by settlement, the defendant gave evidence, that he had cleared a field of ten or twelve acres, which he had with grain in 1814, and that he had also in the autumn of the same year built up to the square a small cabin which remained in an unfinished state at the date of his warrant. The cabin had no roof nor had it either a door or window. rpi •* defendant himself lived on another iract of land* and some evidence was given of an intent to rent the land in dispute to one John Shaffer, who was to live on it; but on this the evidence was slight, nor was any contract concluded. a ' *
    
    The President of the Court of Common Pleas, charged the jury, “ That if the defendant intended to make an actual settlement, such as the law requires, and followed it up with reasonable diligence, his title was good, and the plaintiff ought not to recover. But if the iury should be of opinion, ’ that the defendant had not persevered in his intent to make an actual settlement, but had abandoned that intent before he took out his warrant, in that Case the plaintiff having the first -warrant, would be entitled to a recovery.”
    To this charge the defendant excepted, and whether it was erroneous was now the question.
    The case was argued in this Court fay Burnside, for the plaintiff in error, and by Todd, for the defendant in error.
   Tilghman C. J.,

delivered the Court’s opinion.

By the act of 22d September, 1794, no application could be received in the land office, “ except for land whereon a setUement had been, or thereafter should be made, grain raised, and a person or persons residing thereon.” What was necessary to constitute a settlement, had been defined by the act of 30th December, 1786. There was to be “ an actual, personal residence, with a manifest intention of making it a place of abode, and the means of supporting' a family.” In the case of Bixler v. Baker, (4 Binn. 213,) it was decided, that this settlement, and raising of grain, was a condition precedent, with which the land officers ■ could not dispense, and that no preference or right of pre-emption could be gained by the erection of a cabin, unless the other requisites of a legal settlement were also complied with. Thus stood the law, until the making of the act of-28th March, 1814, by which it was provided, that from and after the 1st day of June, 1814, “ so much of the act of 22d September, 1794, as requires ‘ a settlement, residence, and raising of grain,’ as also so much of the act of 3d April, 1792, as reduces the price of lands' to fifty shillings per hundred acres, should be repealed, so far as respects lands within the purchase of 1768, and the previous purchases,—provided, that nothing therein contained should impair or affect the right of any person who may have actually settled on vacant land before the passing of that act.”—The defendant covers himself under this proviso. He does not bring himself within the words of this proviso, because neither he nor any other person resided on the land, at the time of taking out the warrant, but that I do not regard. A settlement consists of various, progressive acts. A house must be built before a person can reside on the land. And if a question arises on the commencement oí a settlement.right, the quo animo, the field was cleared, and the house built, must be decided by the jury ; for it may be, that these things were done, with a view of evading the law, and without an.intent to complete the settlement by actual residence. In the present instance, the defendant had cleared a few acres, sown grain, and done a day or two’s work towards the building of a house. This certainly was not a settlement within the'act of 22d September, 1794. Something more was to be done, before he would have been entitled to a warrant under that act. But he had done enough to secure his title, provided he persevered in his purpose, and went on to complete his settlement, and in the mean time he would have been protected by the proviso in the act of 1814; for I am clearly of opinion, that it was not the intention of the Legislature to deprive a man of the benefit of a settlement, begun, but not completed, when that act took effect. If he completed his settlement, by personal residence, he would have been entitled to a warrant at the price .of fifty shillings per hundred acres. But he was not bound to comply with the terms of settlement. He might abandon all idea of settlement, and take out a warrant for so much vacant land, without regard.to his improvenent, in which case he would have to pay ten pounds per hundred acres. But suppose he persisted in his intent to make an ac.tual settlement, might he not nevertheless, before it was completed take out a warrant at the price of ten pounds, and still retain the advantage of carrying back the commencement of his title, to the commencement of his settlement ? I think he might—but in such case, he must submit to the hazard of a trial, if there should be an elder adverse warrant. He takes on himself the task of satisfying the jury, that he had never relinquished the intent to complete an actual settlement. This I take to be a fair exposition of the several acts of assembly bearing on the point in controversy. Where is the error then, in the charge of the Court of Common Pleas ? I confess, I cannot perceive it. The jury were told, that if they should be of opinion, the defendant did intend to perfect his settlement, and followed it up, with reasonable diligence, the verdict should be in his favour.’’—I am of opi- • nion, that this was a correct exposition of the law, and therefore the judgment should be affirmed.

Judgment affirmed.,  