Mr. Justice Lipscomb delivered the opinion of the court, Mr. Justice Wiieelee not sitting. In this case, it is very apparent from the record that the location of McGimpsey’s headlight for three hundred and twenty acres of land had the preference over Ramsdale’s, and ought, from the evidence, to have been so found by the jury as there was no evidence adverse to this claim of preference. If it had been improperly snrveyed, this should have been corrected without the loss of his preference.

The paper testimony shows that Page’s headright of one-third of a league-had also a preference, from priority of location; but this location was charged with fraud, and the jury having found against - it, and in favor of Ramsdale, there is no ground for setting their verdict aside, as there was evidence conducing to prove the fraud. If the question was a new one, I should feel strongly inclined to deny the right of Ramsdale to have raised his former location; hut the practice commenced with our land system, and to upset it now would disturb land titles to an incalculable extent.

It is supposed, too, to he sustained by precedent from other states, in which it had been equally unfounded in any express provision of law, but originated in liberality and indulgence to holders of warrants. It would seem that the court could have, and ought to have, cancelled by its decree the patent for Page’s headright of one-third of a league of land, so as to have enabled him to have made another location.

Por the reason that this ought to have been done, and also that McGimpsey’s headright for three hundred and twenty acres ought to have been preferred, the judgment and decree must be reversed, and the cause remanded, for the purpose of reforming the decree in conformity with the opinion here expressed.