The matter was submitted to the charge of the court.

It was said by them, that there having been no actual settlement anterior to the plaintiff’s survey, the plaintiff’s title must prevail, unless it has been avoided by his non-performance of the conditions of settlement and improvement. But who has prevented this performance ? Who expects to derive a benefit from this improper conduct ? The answer is the defendant. If we count the period from which the settlement is to commence, from the 22d December 1795, the ratification of the treaty at Fort Grenville, the defendant has within the time allowed for making the settlement, obstructed the plaintiff or his agents, from complying with the law; and according to all our decisions shall reap no advantage therefrom. If the case was even dubious, the defendant’s lawless conduct should postpone him, on principles of general policy and safety.

Verdict for the plaintiff instanter.