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Page:United States Reports, Volume 2.djvu/135

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Swann: Comer or Pew;/ylvania. rag in full force, if the cireumlianees of the cafe required it: (rr) rygri But they were clearly of opinion, that the defendant’s anfwcr uns) was infuflicient, and thereupon decreed a divorce from bed and board. As to Alimony, the defendant not being prepared up- tliat point, ` Curia mini/`nre bull'. Bwsanfs Lelfee vu;/iu ’l`oxem* HE material fa&s, on the trial of this ejctlment, appeared to be thefei The defendant went inte IWrt£umberIan·J ¢ounty, in the year ry.; 7, and made an improvement on a frat]: of land, which traét he afterwards exthanged with his brother, for the one in queliion, with a view to eftablilh a permanent fettlernent for his family. The war, however, broke out foon afterwards 5 and there being a call for foldiers, he enlilted, cn the alfuranee of his friends, that they would take care of the prcmifes for him. In the year 1775, the lelfor of the plaintiff, . likewife went into Nartbumhrlaml County, and obtained poll fellion of the premifes by virtue of a contraét in writing with the defendant’s brother, in the nature of a leafe, by which the plaintiff covenanted to make improvements for the beneEt of the defendant; The leafe was depolited in the hands of a third per- - fon ; but the plaintilPs wife, by a trick, got it into her hands and deltroyed it, in order to make way for a claim to the land in the plaintill·"s own right. The plaintilf having made conliderable improvements, was driven away by the brian, in the year I778; and on the gd of May, r78g, he took out a warrant ` for the premifes, the defendant’s warrant being dated the pre- ceeding day. Upon a hearing before the board of property, there was a decilion in favour of the defendant. The argument turned, principally, onthe conllrufiion of the 8, gand ro, feélions of the ad: of the an December, 1784 (2 Val. Dall. Edit. p. 23;.) which give a pre-emptive right to,-tholb perfons, and their legal reprefentatives, •‘ who had heretofore , occupied and cultivated {mall traits of land, &c. and by their refvlutejfund nmI_/i_4#Z·r·£ug.r during the late wat, mcrited that they lhnuld have the pre·emption of their rel`pe£iive pl:mtations.” .For r/ze P/ainlf it was contended, that he was the aéltual. fettler contemplated by the law, having remained on the land ’till he was driven of by the Indinru ; which brought him precifely within the favoured defcription of [ettlers mentioned in the preamble of the fubfequent ae}, of the goth Dmmbrr, r 786. · (2 I/OL I (11} Vide 3 A:}. ag;. Henri on-sus Hurd. " 1`liis canal`: was tried at Sznxlrujr, 1‘»’isi Prius, in October, r7gt•