any reason why he does not try his cause the first court, after issue joined, &c. The process by proviso is well known. In civil actions, the defendant cannot carry down a cause by proviso, till there be a laches in the plaintiff. 6 Mod. 246. 2 Salk. 652. And it has frequently been ruled, that though he has a proviso rule, he is not entitled to try his suit, unless he has taken out his distringas by proviso. The words in 3 Black. Com. 357, are very general, but they clearly imply that the plaintiff has been guilty of laches. This appears also from the statute of 14 Geo. 2, c. 17, (6 Ruff. Stat. 417,) from which our act of assembly, passed 21st. February, 1767, (1 Dall. Laws, 475,) is copied almost verbatim. There must be a previous neglect on the part of the plaintiff, to entitle the defendant to a rule for trial. or non-suit. If the law was, as has been contended for by the defendant's counsel, the statute and act of assembly, instead of meliorating the condition of the defendants, would place them in a worse situation. than they were before.

Motion denied.

Mr. Ross, pro quer.

AT NISI PRIUS, AT NEWTOWN, SEPTEMBER ASSIZES,

1797.

CORAM, M'KEAN, CHIEF JUSTICE, And yeates.

RICHARD FENN lessee of JOHN PROUL against JOHN KEIGLER.

Defendant to effect delay, shall not remove the cause by habeas corpus, returnable on the second return day of the succeeding term.

THIS cause had been removed at the last court of Common Pleas for Bucks county, held in August last, by habeas corpus, returnable on the last day of September term. The now defendant had removed some other suits at the same time, wherein the title to the lands came in question, by certiorari, returnable on the first day of the term. In the present action, the plaintiff had taken out adistringas, to be made use of, in case the court should be of opinion that it could regularly issue.

Mr. Condy for the defendant, objected, that the distringas had issued irregularly. There was no intermediate period wherein a venire facias might be filed. The act of assembly of VOL. II.

16

18th April 1795, (3 Dall. Laws, 770,) fully justified the defendant in making the writ of removal returnable on the last day of the term, and puts it in the election of the party suing out the process, to choose the return day.

Mr. Wilcocks for the plaintiff, insisted, that it never could be the intention of the legislature to permit the same party, by a system of management, to postpone the trial of a suit against himself, and in the same moment to accelerate the actions wherein he was plaintiff.

By the court. The plaintiff should have applied in bank. Here we can give him no redress. It would be manifest error to try this cause where the teste of the writs of the venire facias, and distringas juratores, must necessarily be on the same day.

But we think it very clear, that the habeas corpus issued erroneously. The express design of the act was to obviate "delays and inconvenience, as well in the commencement as in the prosecution of suits and proceedings in the Supreme Court." To sanctify the present removal, would be in effect the establishment of a system of delay unknown to the law before, and a deviation from the declared objects of the legislature. The generality of the words of the act has been restricted by a former decision, and we then thought it could not be the intention of the legislature to accelerate the sale of lands, or fix special bail at an earlier period, by a double return day in the same term. the present instance, the reasonable import of the expressions may be satisfied by a construction different from that set up by the the defendant. In mesne process, you cannot overleap a term from the test of the writ, but it is otherwise in executions. 2 Bl. Rep. 846. 2 Ld. Raym. 776. 2 Salk. 700.

In

The causes wherein the present defendant was plaintiff were agreed to be continued, as well as the present suit.

AT NISI PRIUS, AT EASTON, OCTOBER ASSIZES, 1797.

CORAM, M'KEAN, CHIEF JUSTICE, AND YEATES.

CHARLES SOLOMON FREDERITZE against MICHAEL ODENWALDER.

A justification in slander must be confined to the words charged to have been spoken.

SLANDER. The words laid, were charged to have been spoken in the German language, and imported that he, (the plaintiff,) was a liar and murderer, and that the defendant would prove it.

Plea. Non cul. with leave to justify.

The plaintiff proved the speaking of the words laid, by three witnesses. The defendant examined eight witnesses to show, that the words were spoken in the disjunctive, viz: he was a liar or murderer, and then offered to prove that the plaintiff had confessed to four persons, that he had either killed or intended to kill a man. Consequently that he was either a liar or murderer.

Sed per cur. If the plaintiff does not prove the words substantially as laid, he cannot recover. The justification must be confined to the words charged to have been spoken, and not to other words. The defendant might with equal propriety, go into the proof that the plaintiff was a thief or adulterer, as into the present deviation from the words laid, and the point in issue would thus be wholly disregarded. Evidence overruled.

The words appearing to have been spoken in heat, and not repeated, the jury found a verdict for the plaintiff, for 25 dollars damages, and 6 cents costs.

Mr. Sitgreaves, pro quer.

Messrs. Clymer, T. Ross and J. Ross, pro def.

AT NISI PRIUS, AT SUNBURY, OCTOBER ASSIZES,

1797.

CORAM, M'KEAN, CHIEF JUSTICE, AND YEATES.

Lessee of BARTRAM GALBRAITH against PHILIP MAUSS.

Evidence shall not be received of the party's intentions to assist an indescriptive application, but his intentions may be given in evidence against him.

EJECTMENT for 700 acres of land in Mahoning township.

On argument the court ruled, that parol evidence of a party's intentions in entering an application for lands in the secretary's office, cannot be received to assist or bolster up an indescriptive location of the lands in controversy. The efficacy of an application must depend on the written words of it; this is the only notice the applier gives of his intentions to appropriate certain lands, and the adverse party shall only be affected therewith. Absolute precise certainty, however, is not to be expected in the descriptions of lands to be surveyed in a new country. It has been often said, that they need only to be certain to a common intent; yet the intentions of an applier for lands may be given in evidence against him to defeat his pretensions to the object in dispute, by showing that he intended to locate other lands. Because the mischiefs and inconvenience attending the former case do not exist here. The rest of mankind are not prejudiced or injured by such testimony; it only affects the party who declares his views and designs in the contract, to what particular spot he considered it as referable.

Verdict for the defendant.

Messrs. C. Smith and Hall, pro quer.
Messrs. Clymer, Duncan and Biddle, pro def.

Lessee of JESSE FUNSTON against JOHN M'MAHON.

A return of survey at least, is necessary to vest an equitable interest in lands, different from those described in the application. A survey made by a person not regularly deputed, on which a patent afterwards issues, may be read in evidence. Original notes of a survey found amongst the official papers of the deputy surveyor, may be read in evidence. But an indorsement thereon, that it belonged to the surveyor, or his declarations that he had made no actual survey, shall not be given in evidence to affect bona fide purchasers who do not claim under him.

EJECTMENT for 94 acres of land in Chillesquaque township. Defence taken for 65 acres.

The plaintiff claimed under two applications, entered on 3d April, 1769, one in the name off Jane Houston, and the other in the name of Thomas Dweyer for 300 acres of land each; on the former thereof, a survey was said to have been made on the 6th June 1771, by William Scull, deputy surveyor, of 214 acres and 106 perches, and allowance, and on the latter, on the day following of 188 acres and 4 perches and allowance, but it did not appear, how or when the drafts of survey were returned into the surveyor general's office.

It was admitted by an agreement of counsel, that deeds had been duly executed by the said Houston and Dweyer to William Augustus Patterson, who mortgaged the premises to John Cox; and such proceedings were afterwards had thereon, that on the 29th November 1793, Flavel Rowan, esq., sheriff of Northumberland county, conveyed the same to the lessor of the plaintiff for 177.

The defendant claimed under an application entered on 3d April 1769, in the name of James M'Mahon, for 300 acres of land, a survey thereon by Jonathan Lodge of 208 acres and allowance, on the 18th July 1782, a conveyance by the said James to the defendant on 1st February, 1790, in consideration of 307: a warrant of acceptance of the survey dated 20th February 1790, which was returned accordingly on the 23d February and a patent thereon to the defendant on the following day, in consideration of 297. 13s.

It was agreed on both sides, that all the several applications designated other lands, and were indescriptive of the object in controversy. The lessor of the plaintiff purchased the lands openly, during the continuance of a court in Sunbury, at the sheriff's vendue, and many bidders attended. But it was sworn by a witness, that when Dweyer's right was knocked down to him at 117., on being told that it interfered with the claim of one John Alexander, he said he would have no dispute with him, if he would indemnify him against the sheriff; and further, that on his desiring the witness to buy he right of Houston, he was told, that as he designed to give the titles to the possessors of the lands, the witness declined bidding against him, and thereupon the location