(The Commonwealth v. Sweney.) indictment which charges the defendant with publishing "the following false, scandalous, and malicious matter, viz." &c. and in the same book, page 19, is the form of an indictment for a libel in publishing "a book called The Frisky Songster,' containing words too indecent to be spoken in any language." (") If the prosecutor is compelled to state the tenor of the libel, a variance in a single letter, where it alters the meaning of a word becomes fatal. Queen v. Drake, 2 Salk. 660. 11 Mod. 78, 84. The rule is well established in slander, that it is sufficient to set forth the substance of the words spoken. Kennedy v. Lowry, 1 Binn. 393, and the same objections would apply in case of slander, that operate in a charge of libel. Here the words, the substance of which, may be struck out as surplusage, and then the charge would be of publishing the libel as set out in the indictment. Bradford and Marr, contra. In Queen v. Drake, this was not the point of the case: and no decision or even precedent to justify the mode adopted in drawing this indictment, can be found. On the contrary, in Rex v. Beere, 12 Mod. 219, HOLT, C. J. says, that in an indictment for libel "according to the tenor and effect following," is good: but if it had been "according to the effect," only, he should have been of opinion it was too uncertain. The constant course is, to set out the libel according to its tenor: for the court are to judge whether the words are libellous, and to enable them to judge the words must be set out. In Rex v. Wilkes, 4 Burr. 2527, the attorney general amended the information which had been drawn in the words, "the purport of which,'; &c., and made it read "the tenor of which, &c." When the elementary books say, that it is sufficient to set forth the substance in an indictment, it is not intended that you may set it forth as being the substance, but you must state it positively, and the indictment will be supported if you prove the substance. The opinion of the court was delivered by DUNCAN, J. The libels against the prosecutor stated in the judgment are very atrocious, but their atrocity ought not to close the eyes of the court on their defective statement in the indictment. The jury having found the defendant not guilty on all the counts, but the third and fourth, the attention of the court will be confined to the reasons alleged to arrest the judgment on these two counts, or rather the reason. The additional pleas are above my comprehension, and I, therefore, pass over that which transcends all my intellectual faculties. This reason is unanswerable. The substance of the writing only. is stated in the third count, and in the fourth count. In an action and in indictment for libel, the law requires the very words of the libel to be set out, in order that the court may judge, whether they - (a) But Mr. Chitty adds a query, whether this count is good. (The Commonwealth v. Sweney.) constitute a good ground of action, and unless this is professed to be set out, the declaration or indictment cannot be maintained. The ordinary mode is to state, that the defendant published the libellous matter of the complainant to the tenor and effect following. In that case the word tenor governs the word effect, and binds the party to set out the very words of the libel, and this reconciles the different views which the counsel have taken of the King v. Beere, and Queen v. Drake, from the several reports of these cases. There is another mode of setting out a libel; that the defendant published the libellous matter following, that is to say. But the allegation here is, that the defendant published certain libellous matter in substance as follows. If it is so, that the law requires the libel itself to be stated, how can an indictment be sufficient which states it in substance only: for two statements, which may differ in words. may agree in substance. These counts profess only to state the general import and effect of the libels. If a man says he has read a book, in which is contained a passage, in substance as follows, no one would understand him to be about to repeat the very words of the passage, but only that he was about to give an abstract of it. This is the ordinary sense of the allegation. It has been always held insufficient in an action for a libel written in a foreign language to set out the translation; yet that, if correct, would have contain ed the substance of the libel, and by this mode of charging the prosecutor draws from the defendant the power of calling for the judg ment of the court on demurrer to the words of the libel, whereas, if he states them on record, the defendant, if he thinks fit, may de mur, admitting all the innuendoes and all the motives, and bring before the court the question, whether they amount to a libel. The objection to this mode of setting out a libel, may, at first view, be considered as a useless refinement, a technical sublety, but it is by no means so. For where a charge, either civil or criminal, is brought against a defendant, arising out of the publication of a written instrument, as is the case in forgery or libel, the invariable rule is, that the instrument itself must be set out in the declaration or indictment, and the reason of that is, that the defendant may have an opportunity, if he pleases, of admitting all the facts charged, and of having the judgment of the court whether the facts stated amount to a cause of action, or a crime: for it is clear that when it can be shown distinctly, what the instrument is, on which the whole charge depends, that instrument must be shown to the court, that they may form their judgment. A defendant is not bound to put the question as a combined matter of law and fact to the jury, but has a right to put it as a mere question of law to the court. This mode of stating a libel is a departure from the uniform course of all the precedents, and one deviation will naturally lead to another, and by degrees we shall lose that certainty which is the great object of every wise system of law to preserve. This relaxation in pleading is a source of vast delay to the suitor, and in this state, (The Commonwealth v. Sweney.) owing, I think, to a very mistaken policy, or false pride, all judicial proceedings are sinking into chaos, which scorns all forms, and requires more time to find out the true state of the record, than to decide on it when it is known. Besides, the mode of alleging the libel would deprive a party of his writ of error, and it would make the verdict of a jury binding in cases where it ought not to be so: for if the jury find their verdict, that the libel proved was in substance the same as the charge in the indictment contrary to the opinion of the court who tried the cause, that would be binding on the parties, and the defendant could bring no writ of error, though the whole might be a question of law. An argument which at first made some impression on my mind was, that the words "in substance," might be rejected without impairing the sense, and then the charge would be, that he published the libellous matter as follows. But, in substance, could not be rejected as mere surplusage, for it is a material part of the description of the libel. I think, therefore, the judgment was bad, and that the judgment of the Quarter Sessions should be affirmed. Judgment affirmed. [SUNBURY, June 16, 1823.] LEEK against COWLEY and others. IN ERROR. Where a testator orders his land to be divided among several persons in a particular manner, they take under the will when the division is completed, notwithstanding they execute mutual releases. The daughter of the testator took under his will an estate in fee in a portion of land, to be divided off to her by three persons; after the division she married, and, by a mistake of the scrivener, a release was executed from the other children to the husband alone in fee simple, which purported to be in execution of the will, and contained a covenant on their part, never to claim any right in the land; the wife died without issue; held, in ejectment by the releasors, that they were not barred of their right to the land. THIS was a writ of error to the Court of Common Pleas of Columbia county, in which the case was as follows: John Cowley and others, plaintiffs below, children of James Cowley, deceased, brought an ejectment against Peleg M. Leek, the defendant below, and plaintiff in error, for a tract of land in Columbia county. The plaintiffs claimed under the will of their father, James Cowley, who devised all the residue of his estate, real and personal, to his two sons and four daughters, (naming them,) in the following manner, that is to say, my executors herein after named, to choose three discreet, judicious men, to divide my land into six parts, as near alike in quantity and value as conveniently can be, and value the same, so that my said sons and daughters pay to each other the difference in the value of the said (Leek v. Cowley and others.) lots of land; my daughter Barthena to have the first choice, Mary the second, John the third, Thomas the fourth, Martha the fifth, and Sarah to have the remaining and last share." The testator appointed his sons John and Thomas, and Samuel Webb, his executors. He died in 1813, and after his death, his land was divided according to his will, and one part allotted to his daughter Mary, who afterwards married the defendant, Leek, and died without ever having had issue. During the life of the defendant's wife, it was thought proper to execute mutual releases between the children of James Cowley, in order to confirm the division which had been made of his lands. The releases were drawn by Samuel Webb, the executor, who conceiving, as he stated in his evidence, that man and wife were both one flesh, drew the release of the land in dispute, from the other children to Peleg Leek alone, without mentioning his wife. Webb, who was examined as a witness, swore, that he was not instructed by the parties to draw the release in this manner, but did it because he thought it was proper. No money was paid. The deed recited the will of James Cowley, and declared that the intent of the deed was to carry the will into effect. The consideration was one dollar. Webb swore, also, that the deed was read to the parties, but he did not believe one half of them understood its contents. The deed contained the usual words of release to Leek and his heirs and assigns for ever, after which were the following exceptions, "so that neither the said John Cowley, nor the other releasors, (naming them,) nor their heirs, nor any other persons lawfully claiming or to claim, by, from, or under them, or any of them, shall or may, at any time, or times hereafter, claim, challenge, or demand any estate, right, title, &c. of, in, or to the said messuage, tenements, land, &c. hereby remised and released, or intended so to be, but thereof and therefrom, shall, and will be utterly excluded, and for ever debarred by these presents." Upon the death of the late wife of the defendant, the plaintiffs, who were her heirs, brought this ejectment, and the court below gave it as their opinion, that if the deed was executed under a misapprehension, the plaintiffs were entitled to recover. The jury gave a verdict for the plaintiffs. Marr and Bellas, for the plaintiff in error, now argued, that the court below erred in their charge to the jury, and that the plaintiffs were not entitled to recover. The plaintiffs were estopped by their covenant not to claim from ever, after setting up a right to the premises conveyed. A warranty bars the releasor, though he has no right in the lands at the time. Co. Lit. 265, a. So a covenant bars the covenantor from alleging facts contrary to those stated in -the covenant. 10 Vin. Ab. 473. Estoppel, pl. 34, 35. The plaintiffs had no equity, for they had no right at the time of the release: the interest of this portion being at the time entirely in the defendant and his wife, as she had chosen it when the estate was divided under the will, and they had respectively received an equal VOL. X. (Leek v. Cowley and others.) share. As to the mistake on which reliance is placed, it was a mistake of the scrivener, and not of the parties: there is no evidence that they mistook the conveyance. Such a misapprehension by the scrivener of the legal effect of the release is no cause for invalidating it. But further: the defendant below paid £100 towards the legacies, and would have a lien for this amount. It was indispensable that this payment should have been reimbursed by the plaintiffs before they could recover in this ejectment. They cited Pickering v. Stapler, 5 Serg. & Rawle, 107. Cozens v. Stevenson, Ib. 421. 2 P. Wms, 421. 1 P. Wms. 634, 727. 2 Vez. 2 Atk. 592, 1 Atk. 10, 64, 399, 401. 1 Ves. 19, 400, 126. 3 P. Wms. 215, 290. 10 Mod. 451. 2 Esp. Cas. 146, 284. 258, 268. Grier, contra, argued, that on the face of the deed, independently of the circumstances attending the transaction, the plaintiffs were not barred. The intent of the deed was declared to be to carry the will into effect: and it ought to have that construction, and to be carried no further. It was unnecessary, and the mere thought of the executor, and it leaves the rights of the parties exactly where they were before. Considered as a release, it operated only on the existing rights of the parties, even though the words embraced expressly future rights: for such words are void in law. Lit. Sect. The covenant cannot be carried further than the release itself. The circumstances, however, show, that the whole originated, in the ignorance of Webb, the executor, and of all the parties concerned and in such case equity would grant relief. Sugd. an Vend. 111, 112. 2 Dess. Rep. 84. 2 Atk. 203. 2 Vern. 98. Mosely, 364. As to the claim for legacies, he denied that there was any evidence on this point. 446. The opinion of the court was delivered by TILGHMAN, C. J. I think there can be no doubt of the plaintiff's right to recover. The wife of the defendant was seised of an estate in fee simple, under her fathers will, and the release was altogether unnecessary, nor could it affect her right. The will ordered a division of the testator's land, and pointed out the mode of dividing it. So that whenever the division was made, each child held his part in severalty by virtue of the will. Indeed the defendant's counsel does not deny that the wife was seised of an estate in fee, independently of the deed of release, but he relies on what he supposes to be a warranty in the deed, by which, he contends, the plaintiffs arc estopped from claiming this land. But without deciding whether there be a warranty or not, there is an objection which lies at the root of the deed, and vitiates every part of it. It was drawn so erroneously by Webb, the executor, who thought it was his duty to draw it in that manner, without instructions; and was executed under so total a misapprehension of its import, that a Court of Chancery would have no hesitation in set |