1821. v. TRAVIS. MORRIS υ. the defendant was in possession. The only corner found on the ground, applicable to the survey, was a white oak. Pittsburg. On measuring the distance from that corner to the next, MORRIS which, on the draft, was an asp, some marks were found along the line. No asp was found at the end of it, but some aspen grubs, as well as some of hickory and sassafras. In answer to a question put by the plaintiff's counsel, the Court WILKINS. further charged, that if but one line was measured by the deputy surveyor from one corner to another, although it was marked from corner to corner, and no other line was either run or marked, this would not, although extended, be an execution of the warrant under which the plaintiff claimed. If the other lines had been run, this ought to appear by probable testimony, as by connecting it with other lands, which either then or afterwards were surveyed. In the suit against Travis, the charge of the Court was, in substance, the same in this respect. In summing up in this latter suit, the Court omitted to notice the testimony of Alexander Craig, given on behalf of the plaintiff. The verdicts in both suits were in favour of the defendants, and the plaintiff excepted to the charges of the Court respectively. In the ejectment against Travis, the plaintiff gave evidence respecting the improvements made by the defendant : the defendant afterwards offered evidence of the extent of these improvements: which was objected to by the plaintiff, and admitted by the Court. The plaintiff excepted. One opinion was delivered in both these cases, as the opinion of the Court, by GIBSON J.-The question before the jury, was not whether the plaintiff's title to the landfincluded by the diagram of the survey returned, should be affected by reason of the lines of the survey not having all been run out and marked, for the Court declared at the outset that the title was good; but 1821. MORRIS v. TRAVIS MORRIS 2. whether the defendant had intruded within the plaintiff's Pittsburg. lines. It is true that near the conclusion of the charge, the Court did, in effect, say that a survey, of which only one line has been run and marked, is void; but even if the case had been left on that ground, there would have been no error, for the very point was resolved in Fugate v. Cox; and I WILKINS. think there are arguments in favour of the doctrine that can never be successfully encountered. By this, I do not mean to say, that a survey will be void wherever no more than one line can be found. That one line is found marked on the ground, may be a circumstance of more or less weight, to go to the jury as evidence that the other lines were marked and run also: and such evidence being accompanied with possession and acts of ownership during the requisite period, (which, in analogy to our Statute of Limitations, I take to be twenty-one years,) will raise a legal presumption in favour of the regularity of the survey. But although the survey of an insulated tract, of which only one line was in fact run, would unquestionably be void against a person subsequently appropriating the same land under a purchase from the State; yet where a general marked outline encloses several tracts owned by the same person or by a number of persons, (which would undoubtedly be a good survey of the whole,) I can see no reason why the intermediate lines as plotted on the diagram, should not be valid for all purposes of division between the original owners, or purchasers from them when the lands thus surveyed have been retailed. If then the plaintiff had shewn, by producing the warrants and the diagram of the general survey, that this was one of a number of tracts laid together by a common boundary, and that by a survey of the intermediate lines according to their courses and distances, the defendant was found to be within the lines of the draught of this particular tract, the case would have been clear of all difficulty. But this was not done, and in the case as disclosed, I cannot see how the survey, which appears to have been void from the beginning, could, even admitting the plaintiff had title, have any operation for the purpose of defining boundary; because if it could in any aspect, it must necessarily have been sufficient to guard subsequent appropriators from surprise, and have been a valid appropriation of the land in the first instance. 1821. MORRIS V. TRAVIS. But it is objected, the Court withdrew the evidence of one Cruig from the attention of the jury. But this no fur- Pittsburg. ther appears, than that in summing up on the question of fact, the Court was entirely silent as to the operation of his testimony; which was by no means a withdrawal of it. Again it is objected, that the defendant was permitted to shew the extent of his improvements on the land he had in WILKINS. possession; but this it was competent for him to do, if for no other reason, to rebut the evidence the plaintiff had given on the same subject. The judgment is therefore affirmed. MORRIS υ. Judgment affirmed. M'CONNELL against M'Cox. IN ERROR. Thursday, ERROR to the Court of Common Pleas of Allegheny In slander, county. a declaration stating the words to have been spoken words spoken Elizabeth M Coy, the plaintiff below, brought this action in the third of slander against William M.Connell. The first count of the person, is not supported by declarations alleged, that the defendant spoke of and con- evidence of cerning the plaintiff the following words, " she is a thief and in the second I can prove it." The second count charged him with say-When a ing of her," she is a thief and a whore, and I can prove it." rule of Court person. authorises a rule for taking depositions to be On the trial, the plaintiff offered in evidence the deposition deered of William McCoy, taken under a rule to take the depositions of course, stipulating reaof ancient, infirm, and going witnesses, on reasonable notice. sonable noThe rule stipulated no particular period of notice. The no- tice, the contice given was nine days: and it was, that the deposition the rule must would be taken at the house of Rachael McCoy, in Green speets the netownship, Beaver county. This deposition was objected to cessity of spe struction of so far as re cifying the number of days notice in the rule, depend on the usage and practice of the Court. 1821. by the defendant, because the period of notice ought to have Pittsburg. been ten days: and because it did not specify with sufficient M'CONNELL Certainty the place of taking it. The Court overruled both objections, and admitted the depositions, and the defendant excepted. v. M'Cor. The evidence given by the plaintiff as to the speaking of the words was, that they were spoken by the defendant in the second person, to the plaintiff. The Court charged the jury, that the variance between the declaration and the evidence, was immaterial, and that the testimony supported the charges in the declaration. This charge was also excepted to by the defendant. The jury found a verdict for the plaintiff below, and judgment was entered thereon. Wilkins and Baldwin, for the plaintiff in error, now contended, 1. That the deposition of W. McCoy ought not to have been admitted in evidence, because sufficient notice was not given. The rule of Court ought to have stipulated the notice. The house also was uncertainly described its locality ought to have been fixed by a further description. 2. The words proved did not support the words charged. It is well settled that the words proved to have been spoken in the third person, support words laid in the second, yet the reverse is not the rule. The variance is material, because words spoken in the third person are an evidence of deliberation and malice. They cited in support of these positions, Cro. Eliz. 857. 8 Johns. 74, 75. Bac. Ab. tit. slander. Johnson v. Tate, 6 Binn. 121, Bull. N. P. 5. Forward, contra. 1. The practice of the bar is to enter the rule as was done in this case, and it is the most convenient practice. The Court below however, is the best judge of its own practice, and of the reasonableness of the notice. As to the place of taking the deposition, the notice is in that respect sufficiently certain. The country is not thickly settled, and the house if not known could easily have been discovered. 1821. V. M'Cor, 2. In reality there is no difference between words spoken in the second and third person: the distinction set up in Pittsburg. some cases between them is artificial and unreasonable. M'CONNELL Courts now look at the substance of the charge, and hold that it is enough to prove the words substantially. Our Courts have gone beyond the English Courts in this respect. But even there we are not without authority. Lord HARDWICKE, in Nelson v. Dixey, Cas. Temp. Hard. 305, lays it down, that when words are laid to be spoken in one person, proof of words spoken in another, will support the declaration. He also cited, Bac. Ab. tit. slander. The opinion of the Court was delivered by DUNCAN J.-Two questions are presented for the consideration of the Court. 1st. Was the deposition of William M'Coy properly read in evidence. 2d. Did the words proved maintain the allegation in the declaration. The just construction of the rule of Court, that a party applying for a rule to take depositions of witnesses, may enter the rule of course in the Prothonotary's office, stipulating a reasonable notice to his adversary is, that the rule itself should stipulate, that is, fix and ascertain the number of days notice; but in the construction of these rules, usage, when it is not repugnant to the principles of natural justice, ought to be greatly respected. The practice of every Court is considered as the law of the Court. The course of the office and variety of precedents, though they passed sub silentio, and no question had been made of them, or judicial decisions, are strong evidence of the usage. It is merely a matter of practice, to establish which we can have recourse to no other source of information, than the records of the Court, and the officers of the Court, and the gentlemen of the bar practising in the district. The enquiry is not, whether this practice originally was right, but whether such practice has prevailed. The records of the Court, the officers of the Court, and many of the gentlemen of the bar, prove that a practice had prevailed for some time before the trial of this cause, to enter the rule in this form, and not to stipulate the reasonable notice in the VOL. VII.-Gg |