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(Todd v. Rough.)
ing of the said last mentioned citizens, falsely and maliciously spoke and published, of and concerning the said certain bounded trees, and other allowed land marks forming the boundary line, and the evidence of the boundary line, between the said plantations of the said plaintiff and the said James, as aforesaid, these false, scandalous, malicious, and defamatory words following, that is to say:Peter Rough, (meaning the plaintiff,) moved the line, (meaning the said boundary line between the said plantations, formed of and by the said bound trees, and other allowed land marks,) and he, (the said plaintiff meaning,) made a new line; (meaning thereby that the said plaintiff had altered and removed the said boundary line, and the certain bounded trees, and other allowed land marks aforesaid, to the wrong of him the said James, and fraudulently made a new line, a different, and false, and boundary line between the plantations aforesaid of the said plaintiff and the said James.)
The defendant pleaded, not guilty: and afterwards, the following agreement to refer was entered into.
Amicable action in the Court of Common Pleas of Dauphin county. Harrisburg, December 12th, 1820. In the Common Pleas and Quarter Sessions of Dauphin county: Whereas there are several suits depending in the above courts, between Peter Rough and the above named persons, stated as defendants, viz: A prosecution for a riot, and assault and battery; an action of ejectment; and an action of slander;-and the said Peter Rough also claims a right of way over lands, supposed to be land of James Todd, for which he is willing to pay, as well as for any damages occasioned by him hitherto, in his use of the said way from the main road to his still-house, if the same shall be found to be Todd's land; and in order amicably to settle all the above matters in variance between the parties, it is hereby agreed that the same be referred to Edward Crouch, Obed Fahnestock, and Archibald M'Allister, Esqrs., whose settlement of the same the said several parties hereby bind themselves to abide by: rules of reference, to be entered in the civil causes between the parties, and the same to be referred to the above named referees. Ex parte rule, to proceed on ten days' notice.
A rule of court was taken out in the present suit, stating this agreement; and the arbitrators afterwards made the following report:
The arbitrators, appointed by the within rule, being met on the 7th of June, 1821, at the house of Simon Single, according to the above agreement of the parties, and being duly organized, and having heard the parties, their proofs and allegations, in relation
(Todd v. Rough.)
to the within action of slander, do award for the plaintiff six dollars damages, and that the defendant pay the costs of suit. Witness our hands, &c.
On the plaintiffs motion, judgment was entered thereon: and the following errors were now assigned by the plaintiff in error.
1. The suit in the Common Pleas is Peter Rough v. James Todd, and the rule of reference is in a suit of Peter Rough v. David Todd, James Todd, and William Martin; the reference is therefore between parties strangers to the suit.
2. The suit in the Common Pleas is Peter Rough, plaintiff, and James Todd, defendant; and the award and judgment thereon are for Peter Rough, plaintiff, against David Todd, James Todd, and William Martin, defendants.
3. The submission joined a criminal prosecution with two civil suits in the same reference.
4. The declaration states no cause of action. The suit is slander, and no actionable words are laid; nor is there any count for special damages.
Elder, for the plaintiff in error, contended that the award was bad. 1. Because the submission was of several suits depending, and the award is only in one. The award settles no more than this suit, whereas it was the intent of the agreement that all the actions depending, as well as the plaintiff's claim to a right of way, should be determined at the same time. The claim to a right of way is not determined: so that the referees have not made a full and final award on the matters submitted. Besides, an indictment for a riot is included in the submission: a matter which the referees could not determine, nor could any judgment be given on their award. One rule of court could not authorize a determination of all these matters, and therefore the submission was void.
2. The words stated in the declaration are not actionable. They are, "Peter Rough moved the line and made a new line;" which he might have done very innocently through mistake or inadvertence. The act against removing land marks, passed in 1700, Purdon's Dig. 367, enacts, "that no person in this province or counties annexed shall cut, fell, alter, or remove any certain bounded tree or other allowed land mark to the wrong of his neighbour or any other person, under the penalty of any sum not less than ten pounds;" which penalty may be recovered in the Quarter Sessions. Act of 20th March, 1810, Purd. Dig. 363. But the declaration does not aver, that the defendant charged the plaintiff with removing any bounded tree or other allowed land mark, but only with moving the line. The innuendo cannot help the words. In Parker v. Spangler, 2 Binn. 60, it was held not actionable to say of
(Todd v. Rough.)
the plaintiff she swore a false oath, though the innuendo was that she had committed perjury.
1. Though the agreement embraced several matters, it authorized a distinct proceeding in each, and that was the only regular course. Different suits may be determined by the same referees, and it is no objection when no such condition is contained in the submission, that other suits were not determined, if there be a valid report in one. Neither does it appear whether the other suits were or were not determined: or, if they were not, why that was the
2. As to the words, a colloquium is laid. It is averred, that they were spoken "of and concerning certain bound trees and other allowed land marks, forming the boundary line and the evidence of the boundary line between the plantations of the plaintiff and defendant;" which sufficiently fixes their application, so as to make the act the offence for which punishment is imposed by the act of assembly.
The opinion of the court was delivered by
TILGHMAN, C. J. This is an action of slander, brought by Peter Rough, the plaintiff below, against James Todd, the plaintiff in error.
1. The first error assigned is, that several suits were submitted to arbitration and only one award was made. It appears that there were several distinct suits between the plaintiff and defendant, all of which they agreed to submit to the arbitration of the same persons. But in the present action, a rule of court was taken out, distinct from any of the others, and an award was made on it, unmixed with any of the others. This is all right. There is nothing improper, in referring several suits to the same persons, any more than in having several causes tried by the same jury. In the one case the awards, and in the other the verdicts are given separately, so that no confusion can ensue. There is no force therefore in this objection.
2. The second exception is to the declaration. It is contended that the words are not actionable. To judge of that, we must advert to the manner in which they are laid, which is as follows:"that the defendant in a certain discourse which he then and there had with divers good and worthy citizens of the commonwealth of Pennsylvania, of and concerning the plaintiff, and of and concerning certain boundaries and other allowed land marks, forming the boundary line between the plantations of the said plaintiff and the said defendant, then and there, in the presence and hearing of the said citizens, falsely and maliciously spoke and published of and concerning the said certain bounded trees and other allowed land marks forming the boundary line and the evidence of the boundary line between the said plantations of the plaintiff and defendant, these false, scandalous, malicious, and defamatory words
(Todd v. Rough.)
following, that is to say, Peter Rough, (meaning the plaintiff,) moved the line, (meaning the said boundary line between the said plantations, formed of and by the said bounded trees, and other allowed land marks,) and he (the said plaintiff meaning,) made a new line, (meaning thereby, that the said plaintiff had altered and removed the said bounded line, and the certain bounded trees, and other allowed land marks aforesaid,) to the wrong of him the said plaintiff," &c. &c. We have an ancient law, made in the year 1700, against removing land marks, by which it is enacted, "that no person shall cut, fell, alter, or remove, any certain bounded tree or other allowed land mark, to the wrong of his neighbour or any other person, under the penalty of any sum not less than ten pounds.
The words laid in the declaration are actionable therefore, if they charge the defendant with an act punishable by the act of assembly. For, in a conviction under the act, not only would the plaintiff be subject to pecuniary loss, but to loss of character; because the removal of boundaries has always been held in execration. The curse of God was denounced against it by the Mosaic law. The Romans considered it as an infamous offence, and all civilized nations have been of the same opinion. The reason of this general detestation is evident without certainty of boundary, there is no certainty of property in land.-If the words in question had not been spoken in a conversation relating to bound trees and land marks, there might have been some doubt of their being actionable. It might have been said, that the moving of a line is an expression of uncertain import. But when these words are taken in connexion with a discourse concerning bound trees and land marks, it may be fairly understood, that by the moving of a line, and making a new line, was meant the removal of a post or stone, set up as a boundary, and fixing it in some other place, which would alter the course of the line. It is possible that the defendant might have had some other meaning, (such as the removal of a fence,) but we are not bound, nor would it be right, to resort to probabilities, and reject the obvious meaning of words. If men will speak of their neighbours in such terms as injure their characters, they must take the consequences.
It is the opinion of the court, that the words laid in the declaration, spoken in the manner, and forming part of the conversation there set forth, are actionable; and therefore the judgment should be affirmed.
[LANCASTER, MAY 26, 1823.]
LIGHT against WOODSIDE.
Though the rule in general is, that a survey having been once returned, no other survey can be made on the same warrant without new order, yet if a new survey be made and accepted and patent issued, it is good, if no third person's claim intervened but that of one who consented to such new survey, and encouraged the purchaser to make improve ments.
THIS was a writ of error to the Court of Common Pleas of the county of Dauphin, in an ejectment brought by the plaintiff Adam Light, against the defendant Thomas Woodside, for 500 acres of land in that county. The jury give a verdict for the defendant, and judgment was rendered accordingly.
The plaintiff claimed under a warrant to his father Ludwig Light, dated the 9th of October, 1787, on which a survey was made the 21st January, 1789, and a patent was issued the 6th February, 1818.
The defendant claimed under a warrant to John Light, dated the 15th August, 1780. On the 16th February, 1805, John Light conveyed to Lazarus Wingate, for whom a survey was made on the 2d September, 1805, and a patent was issued the 27th September, 1805. When the survey was made for Wingate, by Levi G. Hollingsworth, the deputy surveyor, Willam Light was present, and showed his lines which included the land in dispute. Improvements were made on this land, with the knowledge of Adam Light, who never claimed it until the year 1818, when being informed that it fell within the lines of his survey, he set up a claim to it.
It appeared also in evidence, that a survey, not including the land in dispute, was made on John Light's warrant on the 23d of September, 1790, by Bartram Galbraith, who acted as deputy surveyor of the district. This survey was afterwards found among the papers in the surveyor general's office, with an indorsement on it in the hand writing of Daniel Broadhead, surveyor general, "not accepted-not commissoned," meaning as was supposed that Bartram Galbraith had not been then appointed by Daniel Broadhead as his deputy, though he was afterwards appointed on the Sth November, 1791. The fact was that Galbraith was the only acting deputy of that district from the year 1762, to the 25th April, 1800, when he was superseded and Mr. Clark appointed in his place. But Broadhead who was appointed surveyor general on the 3d November, 1789, (on the death of John Lukens,) conceived that he had a right to reject the survey of Galbraith, which was made before he had appointed him a deputy.
Certain points having been proposed by the plaintiff in the court