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Huidekoper's ner aforesaid, which new grants shall be under and subject to all and every the regulations contained Douglass. in this act. Provided always, nevertheless, 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 the actual settlement had been made and continued.

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Sec. X. And be it further enacted by the authority aforesaid, That the lands actually settled and improved according to the provisions of this act, to whosesoever possession they may descend or come, shall be and remain liable and chargeable for the payment of the consideration or purchase-money at the rate aforesaid, for every hundred acres, and the interest thereon accruing from the dates of such improvements; and if such actual settler, not being hindered as aforesaid, by death, or the enemies of the United States, shall neglect to apply for a warrant for the space of ten years after the time of passing this act, it shall and may be lawful to and for this commonwealth to grant the same lands, or any part thereof, to other, by warrants, reciting such defaults; and the grantees, complying with the regulations of this act, shall have, hold and enjoy, the same to them, their heirs and assigns; but no warrant shall be issued in pursuance of this act, until the purchase-money shall be paid to the receiver-general of the land-office.

Sec. XI. And be it further enacted by the authority aforesaid, That when any caveat is determined by the *board of property, in manner heretofore used in this commonwealth, the patent shall, nevertheless, be stayed for the term of six months, within which time, the party against whom the determination of the board is, may enter his suit at common law, but not afterwards; and the party, in whose favour the determination of the board is, shall be deemed and taken to be in possession, to all the intents and purposes of trying the title, although the other party should be in ac

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tual possession, which supposed possession, shall, never- Huidekoper's theless, have no effect upon the title; at the end of Lessee which term of six months aforesaid, if no suit is enter- Douglass. ed, a patent shall issue according to the determination of the board, upon the applicant producing a certificate of the prothonotary of the proper county that no suit is commenced, or if a suit is entered, a patent shall, at the determination of such suit, issue, in common form, to that party in whom the title is found by law; and in both cases, the patent shall be and remain a full and perfect title to the lands against all parties and privies to the said caveat or suit; saving, nevertheless, to infants, femes coverts, persons beyond sea, non compotes mentes, and others under disabilities, their respective rights, until twelve months after such disabilities are removed.

Sec. XII. And be it further enacted by the authority aforesaid, That no direct taxes shall be levied, assessed, or collected, for the use of this commonwealth, upon or from any of the lands or tenements lying north or west of the purchase made of the Indians, in the year one thousand seven hundred and sixty-eight, or the personal estate found thereupon, for the full space or term of ten years, from and after the passing of this act.

Sec. XIII. And be it further enacted by the authority aforesaid, That the following tracts of land shall be reserved for the use of the commonwealth, that is to say, at Presqu'isle, formed by Lake Erie, the island or peninsula which forms the harbour, and a tract extending eight miles along the shore of the lake, and three miles in breadth, so as to include the tract already surveyed, by virtue of a resolution of the general assembly, and the whole of the harbour formed by the said Presqu'isle, at the mouth of Harbour creek, which empties into the Lake Erie, and along the shore of the lake, on both sides of said creek, two thousand said

acres.

Sec. XIV. And be it further enacted by the authority aforesaid, That all the lands within the triangle on Lake Erie, purchased from the United States, shall be taken and deemed, and they are hereby declared to be, within the limits of the county of Alleghany.

Sec. XV. And be it further enacted by the authority aforesaid, That it shall and may be lawful to and for

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Huidekoper's the holder or holders of any unsatisfied warrant and warrants, heretofore issued for lands, agreeably to the Douglass. seventh section of the act, entitled "An act to alter and amend an act of assembly, entitled an act for opening the land-office, for granting and disposing of the unappropriated lands within this state," passed on the twenty-first day of December, in the year one thousand seven hundred and eighty four, to locate the quantity of land for which such unsatisfied warrant and warrants was and were granted, in any district of vacant and unappropriated land within this commonwealth; provided the owner or owners of such unsatisfied 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, the said recited act, or any other act or acts of the general assembly, to the contrary thereof in anywise notwithstanding.

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WILLIAM BINGHAM, Speaker of the House of Representatives. SAMUEL POWELL,

Speaker of the Senate.

Approved, April 3d, 1792,

THOMAS MIFFLIN,

Governor of the Commonwealth of Pennsylvania. The points upon which the opinions of the judges of the court below were opposed, were certified to be as follows, viz.

1. Whether, under the act of the legislature of Pennsylvania, passed on the third day of April, one thousand seven hundred and ninety-two, entitled "An act for the sale of the vacant lands within this commonwealth," the grantee, by warrant of a tract of land lying north and west of the rivers Ohio and Alleghany, and Conewango creek, who by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the tenth day of April, one thousand seven hundred and ninety-three, the date of the said warrant, until the first day of January, one thousand seven hundred and ninety-six, but who, during the said period, persisted in his endeavours to make such settlement and residence, is excused from making such actual settlement, as the enacting clause of the

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ninth section of the said law prescribes, to vest a title Huidekoper's in the said grantee.

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2d. Whether a warrant for a tract of land lying north Douglass. and west of the rivers Ohio and Alleghany, and Conewango creek, granted in the year one thousand seven hundred and ninety-three, under and by virtue of the act of the legislature of Pennsylvania, entitled “ An act for the sale of the vacant lands within this commonwealth," to a person who, by force of arms of the enemies of the United States, was prevented from settling and improving the said land, and from residing thereon from the date of the said warrant until the first day of January, one thousand seven hundred and ninetysix, but who, during the said period, persisted in his endeavours to make such settlement and residence, vests any, and if any, what title in or to the said land, unless the said grantee shall, after the said prevention ceases, commence, and within the space of two years thereafter, clear, fence and cultivate at least two acres for every hundred acres contained in his said survey, erect thereon a messuage for the habitation of man, and reside, or cause a family to reside, thereon for the space of five years next following his first settling the same, the said grantee being yet in full life.

3d. Whether a grantee in such a warrant as aforesaid, who has failed to make such settlement as the enacting clause of the said ninth section requires, and who is not within the benefit of the proviso, has thereby forfeited his right and title to the said land, until the commonwealth has taken advantage of the said forfeiture, so as to prevent the said grantee from recovering the possession of said land in ejectment against a person who at any time after two years from the time the prevention ceased, or at any subsequent period, has settled and improved the said land, and has ever since been in possession of the same.

Dallas, for the plaintiff, contended for three general propositions.

1. That a warrantee (meaning thereby a person claiming under a warrant from the commonwealth) who has been prevented, by force of arms of the enemies of the United States, from improving, settling and residing

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Huidekoper's on the land, but has persisted in his endeavous to do so,

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during two years from the date of his warrant, is forever and totally released, by the operation of the proviso, from the obligation of making the improvement, settlement and residence described in the enacting clause of the 9th section of the law.

2. If not for ever and totally excused under the specified circumstances, yet the warrant vests in such warrantee and his heirs, a title to the land under one of three aspects; 1st. Provided, during and for a reasonable time after the period of prevention, he persists in his endeavours to accomplish an improvement, settlement and residence, although his endeavours should not be successful; 2d. Provided he accomplishes the settlement and improvement within two years, and the residence within five years, after the prevention by hostilities ceased; 3d. Provided he has accomplished the improvement, settlement and residence, at any time before the commonwealth has taken advantage of the forfeiture.

3. The inceptive title of the warrantee gives a right of possession which can only be defeated by an act of the commonwealth, taking advantage of a forfeiture for non-compliance with the terms of the grant.

1st. point.

In order to understand the act of 1792, it will be necessary to take a view of the situation of the state of *Pennsylvania at that period. Her finances were embarrassed, and an Indian war existed on her frontiers. Hence she had two great objects in view, the protection of those frontiers, and the accession of wealth to her treasury. To accomplish the first, no means were so sure as to establish on the frontiers a firm, hardy, and vigilant population, bound by their dearest interests to watch and repel the predatory incursions of the Indians. And to attain the second no means presented themselves so obviously as the sale of the vacant lands.

Although the war was raging at the time when the act passed, yet negotiations were pending, and peace was expected.

The general provisions of the act, therefore, especially those which relate to settlement and residence, are predicated upon a state of peace, while the legislature also took care to provide for a state of war.