¶1The defendant did all in his power to secure his home by making his location at the earliest moment. He had previously apprised the Surveyor that he wished to make the location, and the latter had instructed him to make it with his ■deputy at his office; which he accordingly did. To receive the plaintiff’s location elsewhere, and in the night time, before the location could regularly be made by the defendant at the •office of the Surveyor, within usual business hours, was a surprise and fraud upon the defendant. The time and place •.sought by the plaintiff for making the location are evidence *491that he was seeking an unfair advantage. Under the circumstances he ought not to benefit by his diligence. We are of opinion that the Court rightly held that the party who first made Ms location at the office of the Surveyor, within business hours, was prior in point of right. There is no error im the judgment and it is affirmed.
¶2Judgment affirmed.