A pre-emption warrant granted to the plaintiff in ejectment, under the act of 21st December 1784, though he has not been on the Pine Creek lands since the commencement of the late war, shall prevail against a defendant, who has not taken out his warrant until after the 1st Nov. 1785.
This cause was tried at Sunbury, May assizes 1793, and a verdict taken for the plaintiff, subject to the court’s opinion on the following reserved point: whether the pre-emption warrant to the plaintiff, he not having been on the Indian lands after the commencement of the war, will be sufficient to establish the title in him, the defendant not having taken out his pre-emption warrant until after the 1st November I785?
The facts disclosed in evidence at the trial were as follow. The lessors of the plaintiff claimed under a warrant dated 4th May 1785, calling for John Nicholson’s improvement. Nicholson settled on the lands in question in 1773, went out in the militia and left John Redick in possession under a lease from him. Redick afterwards claimed the lands as his own, and retained possession until 1774; he was taken a prisoner by *405the Indians in 1777, and returned to the lands after the wai and died there.
Nicholson died on his return with the militia. His eldest brother and heir at law conveyed to John M’Connel, who brought an ejectment and died. The suit was revived by his heirs the now plaintiffs.
Messrs. Ingersoll, pro quer. Mr. Tilghman, pro def.
The words of the 10th section of the preemption act, passed 21st December 1784 (2 Dali. St. Daws, 235) are express, that no one shall be entitled to pre-emption of the Pine Creek lands, unless application for the same be made, and the consideration thereof tendered to the receiver general on or before the 1st November 1785.
Under the circumstances of this case judgment must be entered for the plaintiff.
1 Yeates 405
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