
    Davis & Wiggins vs. Williams.
    The fact that a settler in the Ocoee District had secured an occupancy under the act of 1837, ch. 11, did not prevent him from securing another, under the act of 1839, ch. 8.
    This is an action of ejectment instituted in the Circuit Court of Polk, by Williams against Davis, tenant in possession.of land claimed by Wiggins. Wiggins was made a party. It came on to be tried, on the plea of not guilty, at the October term, 1843, and was tried by Judge Keith and a jury.
    The plaintiff exhibited a probate of occupancy of land lying in the Ocoee district, made on the 3d February,-by Balch, assignments to himself, an entry -made on 27th May, 1841, and proved'the possession of Davis.
    The defendant exhibited a probate of occupany, dated 31st May, 1841, an entry on 1st June, 1841, and a grant of the date of 9th August, 1841, for the land granted to Williams as above stated.
    It appeared, that Balch, the settler of the occupancy, had made probate of an occupancy under the act of 1837, and defendant insisted before the jury, that having availed himself of the act of 1837 to secure an occupant right, his probate of occupancy under the act of 1839 was void.
    Judge Keith, however, was of a different opinion, and so charged the jury, who rendered a verdict in favor of the plaintiff. A' motion for a new trial was made and overruled, and defendants appealed.
    
      Van Dylce, for plaintiffs in error.
    Mullay, for defendant in error.
   GeeeN, J.

delivered the opinion of the court.

The'only question in this case is, whether a party who may have availed himself of an occupant preference in the Ocoee district under the act of l837, is authorized by the act of 1839, if he were in possession of other vacant land at the passage of said act, to have a preference or priority of entry of such land so possessed.

The Circuit Judge told the jury, that such preference would exist, and we think rightly.

By the 5th section of the act of 1837, ch. 11, a preference of entry is allowed to any person, except a Cherokee Indian, who was in the actual possession of any vacant and unappropriated land in said district at the time of the passage of the act.

The act of 1839, ch. 8, was passed to amend the act of 1837, ch. 11; but it provides, that every person in the actual possession of any vacant and unappropriated land in the Ocoee district, shall, from and after the passage of the act, be entitled to a preference of entry at such prices and at such times, and with such other benefits and under such other restrictions, as are prescribed by the act of 1837. The right to an occupancy conferred by this act, is not, by its provisions, nor by any fair inference, made to depend upon the fact, that the occupant had enjoyed no similar benefit under the act of 1837. The right is conferred, without qualification, upon every person who should be in the possession of vacant land, at the time of its passage; but that right is to be enjoyed subject to the restrictions which are prescribed by the act of 1837, in relation to occupant rights under that act.

The restrictions in the act of 1837 do not prohibit a party from a right of occupancy, should he have enjoyed that benefit under the provisions of some prior act. If it did, then the argument- for the plaintiff in error would be sound; for the act of 1839 imposes such restrictions, and such only, as are prescribed in the act of 1837. The act of 1837 prohibits a party from proving more than one occupant right, and this restriction exists in the act of 1839; but as this restriction, by the act of 1839, applies only to occupant rights acquired under that act, so in the act of 1839 it is confined to rights acquired by the fact of possession at the date of its passage.

We think there is no error in the judgment, and order that it be affirmed.  