On the first point in the opinion just delivered, I entertain no doubt; in regard to that, I concur with the other Judges. On the second point, my opinion is not so clear, but as at present advised, I concur. Oci the third point, I have no doubt, and con-~ur also. In my view of this particular case, the fourth point is immaterial to either party. In affirming the judgment of the court below, I do not concur with the other Judges.
The defendant below asked the court to instruct the jury, that there was no legal evidence before them to enable them to find for the plaintiff. This instruction the court refused, and' this Te isal, among other matters, Is assigned for error. This instruction is broad. Where there is any evidence to support a recovery, such an instruction should i~ot be given. But here, as I understand the testimony, there was nothing to enable the jury to *178find for the plaintiff below, and the instruction should therefore have been giren.
In support of his right to recover, the plaintiff below relies upon a written instrument given in evidence, and, in this case, miscalled a location, as I ¡nn inclined to be-]jeve# The language of this pape.r is this: “Thomas applies to locate,” and the paper is signed by “Ihomas Hickman.” If the language had been: “John B. Wallace locates,” as in the case of Tindall v. Johnson, it would not have varied the matter. This instru-t is not a location, but a mere application to locate, Every person who wished to avail himself of the benefit act °f Congress, had first to get his eertiucate from the recorder of land titles; next, to make his application to the deputy surveyor for a locution; and the inhere offered in evidence, is Hickman's application to locate, and in my opinion nothing more. It was competent for any person to make the same, application, at the same time, and for the same tract of land. But the application to locate was one thing, and.ihe location made by the “deputy surveyor, or under his direction,” was another and a very different thing. Suppose two persons, Hickman and another, for example, had applied at the same time, in the very same terms, to locate the same tract of land, (a thing that might w'ell have happened,) would each application have amount! d to a location of the land applied for? If so, each would have had, at the same time, a location for the same land; and as a “New Madrid location,” under our statute, will maintain ejectment, each might have maintained ejectment at the same time for the same land. But this instrument, in my opinion, cannot amount to a location; some subsequent action was required upon it. It does not appear that any subsequent step was taken. The deputy surveyor may have rejected it; he may have thought Hickman showed no authority entitling him to claim a location. When a claimant applied for a location, and showed himself entitled to one, it was the duty of the deputy surveyor to make the location' — “to cause a survey thereof to be made — to return a plat of such location to the recorder — to return a notice in writing, designating the tract located, and the name of the claimant on' whose behalf the location was made; and this notice and plat the recorder was required to cause to be recorded in. his office” — see act of Congress, 2, 485, Geyer’s Digest. In this case, where fa the application to locate? The paper in evidence, signed by “Thomas *179Hickman,” is the.apphcation. Where is the ¡location by the surveyor?. Thi§ is not in. evidence; Where is ¡thfe plat of the survey? This is not in evidence. Whereas the notice of the surveyor ..to the recorder, designating the tract located, and the claimant? This is not imevi-dence either.; The plaintiffs’, right to recover, then, rests upon the naked application of Hickman- to .locate; If we had the notice of the surveyor to the recorder, it might then be presumed that all the preceding steps necessary in making the location had been taken; but on the mere application of-Hickman to locate, itnughtnot to be presumed that all the subsequent steps necessary to make the location had been taken. This might be presuming the. very thing which the officers refused to do. The surveyor may have decided at the very threshold that Hickman had no right to locate. The surveyor was not bound to make a location for every man ¡who applied for one. He was not even,.authorized to do so^ except when the claimant showed himself entitled to a locationaccor-ding to the provisions of the act of Congress: It might well have become the surveyor’s duty -to reject' applications made without authority to locate.
1 am of opinion, then, that this -instrument, wasffiot a “New Madiid location;” that- there- wasmo evidence.to support the-.plaintiffs’ action; that the court erred-in-refusing the above instruction; and that the judgmenl.-bf the circuit court ought to be reversed and remanded.