At the August term, in the year 1795, the following decree was pronounced:
Bk the Court.By the third fact found for the complainant, it appears that the pre-emption right under which the defendant claims was not allowed for the land in contest.
Therefore, the only question necessary for the court to decide *190on is, are the locations made with the commissioners and surveyor .of the pre-emption right under which the complainant claims such as the law requires, and is his survey made agreeably to them ?
The second fact found for the complainant ascertains that the improvement he claims was as notorious and as generally known as improvements of the like kind were. ' But it seems to the court that this fact is not material, inasmuch as it is not also found what degree of notoriety the generality of other improvements had at the time he made his location with the commissioners.
This being the case, were it clear that his location with the commissioners was as particular as it could have been made at that time, yet the court is of opinion that his location with the surveyor is not in any reasonable degree so special and precise as the law and the reason of the case require, and consequently that it can not be determined whether his survey has been made agreeably thereto.
The court is confirmed in this opinion by considering that the complainant, both with his location with the commissioners and the surveyor, calls to include his improvement; whereas he now shows, as it appears from his first fact, an improvement made for him by some other person or persons; and as it clearly appears that the law contemplated the improvements ’ for which preemptions were to be allowed, as personal services rendered to the community; it seems that the court ought not to presume the improvement which the complainant shows is the same called for in his location with the commissioners, and that the first fact found for him (which appears to be intended to identify his improvement) contradicts his certificate and makes a material addition thereto, therefore ought not to have any weight in the decision. •Therefore, it is decreed and ordered that the complainant’s bill be dismissed, and that the defendant recover of him his costs hy him in this behalf expended.
But a rehearing being prayed on the following certificate of errors:
First. That it is alleged, as a ground for the said decree, that the second fact found for the complainant is immaterial.
Second. That it is alleged that the locations of the complainant with the commissioners and the surveyor are, the former not as particular as it might have been made at the time, the latter not as special and precise as the law and reason of the case require.
Third. That the said decree in effect, though not in terms, goes *191to establish the principle that this court may examine into the sufficiency of the evidence and the foundation upon which the commissioners granted their certificates, ,and will affect most of those claims in this country.
Fourth. That it is said that the court ought not to presume that the improvement the complainant shows is the same called for in his location with the commissioners, when by the facts found it appears that it must be.