I regret that this matter comes before me singly for decision, and more peculiarly so, because until the present circuit, my mind has not been occupied by titles of this nature. Whenever there has been a settled fixed rule of decision, I shall not think myself warranted in infringing it, whatever my private ideas may be on the subject; for endless uncertainty and confusion would thus necessarily ensue. But it seems here admitted by the counsel, that this point has been ruled differently, and therefore it is in some degree left open for further discussion.
The act of assembly of 3d February 1768, contains an express provision in favour of those ‘1 who then were, or there- ‘ ‘ after might be settled on the main roads or communications *2991 U ^ea(^ug * through this province to fort Pitt, under the -* 1 ‘ approbation and permission of the chief officer com- ‘ ‘ manding in the western district to the Ohio for the time ‘1 being, for the more convenient accommodation of the sol- “ diery and others.” The proclamation of governor John Penn, of the 24th February following, recites this law with the same exception. While all others, therefore, were subjected to the penalties of death, for neglecting and refusing to remove from the lands then unpurchased from the Indians, *299such settlers with permissions were protected in their possessions, and tacitly encouraged to go on with their improvements. The preamble to the opening of the land office on the 3d April 1769, holds out the same ideas, and expressly declares that 11 those who had settled plantations, especially “those who had settled by permission of the commanding ‘ ‘ officers to the westward, were declared to have a preference, “but those persons who had settled or made what they call “improvements since the purchase, should not thereby ac- “ quire any advantage.” It appears to me, that the settlements without permits entitled to a preference .under these words, must necessarily be restricted to those bona fide improvements which were made prior to 3d February 1768, (the time of passing the law,) and who removed therefrom on the governor’s proclamation. There are no words which expressly direct that settlers with permissions shall forfeit their preferences, by not making applications on the day of opening the office. Their rights are secured by an independent 'clause. Nor in my idea, would any other construction be reasonable or just, or agreeable to the usage and practice of the proprietary land office, as to improvements in the old purchase, or the liberality with which they were accustomed to treat original settlers on vacant lands. These people, under a kind of licence, granted to them as the followers of a camp, or necessary concomitants of an army, defending the western territory, had settled' and cultivated farms, at some considerable expence and risque, and received encouragement from the lords of the soil. The strictest rules of justice and fair dealing would demand, that they should have due and convenient notice of a different arrangement, before they should be required to abandon the product of. their labours. Suppose a person possessed of a crop of corn in the ground, having a permission to settle, and does not enter his application on the 3d April 1769, shall another who enters his location and gets the same early surveyed before the ensuing harvest, strip him of his property, by an action of mesne profits subsequent to the trial of his ejectment? Every man’s feelings will answer in the negative, and will -assert that such settlers were sheltered *and protected in their possessions, under the true spirit and meaning of the foregoing public acts. They operate as implied contracts on the part of the then proprietaries, and give rights of pre-emption, provided applications are made for office rights in due and convenient time. But a day, a week, or a month’s notice in the land office is not sufficient for those who are settled some hundred miles from the city, of an intended change of sentiments in the proprietary agents. Such conduct in my apprehension, would be the arbitrary will of one of the contracting parties, without the concurrence of the other. I will not attempt to draw the line, how early the application for an office *300right should be made by a settler, under a military permit; it must be governed by the whole circumstances attending each case; but I by no means carry it to the extravagant length that the period of time is to be measured by the mere option of the settler.
Cited in 1 S. & R., 523. Messrs. J. Woods and J. Ross, pro quer. Messrs. Hamilton and Brackenridge, pro def.Upon the whole, on the best judgment that I have been able to form on the subject before me, I am of opinion, that a settler under a permission of a commanding officer to the westward, does not lose his preference by omitting to apply to the land office on the 3d April 1769; and I am authorised to say that considering it as a mere abstract question, independent of other circumstances, the chief justice entertains the same sentiments.
Verdict for the plaintiff, for the lands contained within his survey.