1808. Lessee of v. McCLURE. who were unable in the beginning to pay any money, this practice at length grew into a right, and what had originated in benevolence became the law of the land. I speak now of the lands sold by the proprietaries prior to the year 1769. The last pur- BUCHANAN chase made by them of the Indians was at Fort Stanwix 4th November 1768. In opening their office for the sale of these lands, they determined, as has been already mentioned, to give no preference to persons who settled between the 4th November 1768 and the 3d April 1769. To have given such preference would in a great measure have defeated the equitable intention of putting all persons on an equal footing. Nor could there be any just cause of complaint against the regulation adopted by the land office. Only a few months intervening between the purchase and the notice of the opening of the office, and those months including the winter when improvements cannot be carried on to great extent, it was improbable that any one could have been induced to go to considerable expense, under an idea that he would obtain a preference by settlement. But there was a class of settlers of another description, whose case was entitled to a different consideration. This leads me to the second point, the true construction of the terms proposed by the land office. Although it had always been the policy of the proprietaries and the legislature to discourage settlement on lands not purchased of the Indians, because it gave offence to the Indians and might produce war, yet when the seat of war between Great Britain and the colonies, and France and the Indians allied to her, was transferred to the Ohio and the country between Pittsburgh and the great lakes, it became extremely convenient and almost necessary that there should be a chain of inhabitants on the military roads leading from the settled country to the western waters. For this purpose the commanding officers of British forces had been in the habit of granting licences to settle, and in many instances persons seated themselves without licence, but under an implied permission. These people were exposed to great danger, and many of them were cut off by the savages in their frequent incursions. This kind of settlement had taken place chiefly, but not altogether, in the western parts of the state. It is to be remarked too that many of those who had settled without licence, were entitled to favour, because they had relinquished their settlements in consequence of an act of Assembly passed in the spring of the year 1768, and a proclamation issued by the governor in pursuance 1808. Lessee v. McCLURE. of it. It was thought reasonable therefore, that a preference should be given, on the opening of the land office, to “those of "who had settled plantations, especially those who had settled BUCHANAN" by permission of the commanding officers to the westward." Had the proprietary order stopt here, there might have been some ground for arguing that the words of the order included all settlers prior to the opening of the office, however different their cases or merits might be. But, to take away all doubt, the order proceeds to exclude certain settlers by negative expressions, viz. "those who had settled, or made what they call improvements "since the purchase." It is contended that these negative words are to be restricted to those persons who only made trifling improvements, without having settled plantations. But neither the expression, nor the reason of the thing, justifies this restriction; the words "those who had settled" include all kinds of settlement; and the reason of the order, as before explained, certainly demanded that no preference should be given to any kind of settlement made after the purchase. I have hitherto considered this matter as if it were a new point. But that is far from being the case. It has been understood ever since the opening of the land office in 1769, that those persons who settled between 4th November 1768 and 3d April 1769 were entitled to no preference. The board of property determined so in the case of the very land now in dispute, on the 26th March 1770, in a cause between John Buchanan and the late Dr. William Smith, under whom the defendants claim. The same principle was laid down by Chief Justice Chew before the revolution, as I am informed by my brother Yeates in the case of Kidd's Lessee v. Campbell, and by Chief Justice M'Kean and other Judges of the Supreme Court since the revolution, in the cases of Thompson's Lessee v. Beeler and Sheerer's Lessee v. McClure; and it is admitted that this has been the uniform opinion and course of decision at Nisi Prius. Now although the point has never been brought before this court in bank, yet when a principle affecting titles to land has been supported for near forty years by repeated decisions at Nisi Prius, from which no appeal has been made, it appears to be so incorporated with the law as to render it dangerous to touch it. I am of opinion on the whole that the judgment of the Circuit Court should be reversed, and a new trial ordered. YEATES J. and SMITH J. Concurred. 1808. V. McCLURE. BRACKENRIDGE J. I take this to be the first time that the point has come before the court in bank. It had come more than Lessee once to my knowledge, before Judges of the Supreme Court at of Nisi Prius. I always took it to be simply the question, whether BUCHANAN a prior settlement could be affected by a posterior office right; for the only distinction that could be taken in the case was, that the usage under which settlement was protected, did not extend to that portion of time which elapsed from the purchase of 1768 until the opening of the office in 1769: a period of about five months. Why it should not, I had never been able to comprehend. Is it because the office was not open to take out rights during this period? This ought to furnish the stronger reason in support of the usage, which had its origin in the office not being open to take out rights during the proprietary minority. It was not in the face of any act of Assembly to settle; for the law prohibited only settlements before the purchase, but this was after the purchase. It was not in the face of the proclamation of the proprietary governor, commanding settlers to remove; for that respected residents before the purchase. Was it because that on the opening of the office in 1769, the proprietary declared that in respect to the locations drawn on that day, the third of April, no regard would be paid to those who had settled, and made what they called improvements, since the purchase? It could not be; because, if the settlement could protect against a grant, the declaration ex post facto, or retrospective, could not take the protection of the law away. It was lex sub graviore lege; a law of their own in the usage they had countenanced; sanctioned by the act of Assembly in the year 1730, 1 St. Laws 248. and which had been established by the decisions of courts and the verdicts of juries. But it was not their meaning, and they have not made it; it would involve an inconsistency in the declaration. For settled plantations made before the purchase, are declared to be respected; and shall they be understood to say, that settled plantations made since the purchase shall not? The first made when there was a law against it, and the second when there was no law, and no intimation from any authority that it was prohibited. Settled plantations, especially by the permission of the commanding officer, carries with it the implication, that without the permission of the commanding officer, settled plantations were to be respected. "Settled or made what they call improvements," therefore 1808. Lessee of v. McCLURE. means something else than settled plantations, and inferior to this. But let it be the meaning of the declaration, that no preferBUCHANAN ence shall be given in case of a number drawn, from being coupled with a settled plantation made since the purchase, it does not necessarily follow that they shall be considered as saying that no settlement shall be respected as protecting against an application. But if they had said it, the previous question occurs: could their saying so supersede the usage, and the law of settlement as to settlement made before? If so, no evidence can be given of settlement made in that isolated space of five months. It is an interval cut off from the usage. How could settlers be aware of this, who during the winter after the purchase, with great suffering and much labour, went upon the ground and established a residence? It is argued that the proprietary not opening the office and granting warrants, evinced that no disposition was to be made for some time of the lands then lately purchased from the Indians. This is not the fact. There may not have been what are usually called warrants, issued to all applicants, but there were orders of survey; they were called special orders; and yet it has never been understood, nor do I know even any Nisi Prius decision, that these special orders could affect the settlement; I mean since the doctrine of improvement came to be recognised at Nisi Prius, which I admit was not the case for a period of time. It is well known that from the year 1783-4, when the first Nisi Prius Court was held within the purchase of 1768 after the revolution, Chief Justice McKean, and the associates with him, overruled all evidence of improvement; so that settlements were swept away indiscriminately until about the year 1789 or 90, when Judges Smith and Yeates came to hold the Nisi Prius Courts, who admitted evidence of improvement, and the whole doctrine of legal tenure as to office right and improvement underwent a change; Chief Justice M'Kean himself at subsequent Nisi Prius Courts concurring. I admit that after this period on a second ejectment, M'Clure v. Shearer, evidence of an improvement made between the purchase November 4th 1768 and 3d April 1769 was overruled, as it had been on the first trial, to my great surprise; for the ejectment was brought in consequence of the change of decisions. It appeared to me an inconsistency: for why what is called an application for a survey, should have a 1808. Lessee of V. greater effect than a special order, I have not been able to comprehend; or rather, to put the point fairly, why settlement made in the interval after the purchase and before the opening of the office should not be protected. It is the inconsistency and con- BUCHANAN tradiction in the doctrine of improvement with which I am dis- McCLURE. satisfied. Either let the principle be rejected altogether, or let it apply generally. The principle after much struggle has been established, and it is the partial application which I resist; for which I can see no reason, and which I take to have originated in temporary misconception; or it is my misunderstanding which yet exists. Judgment reversed, and THIS SEPTEMBER TERM. 1808. KENNEDY against LowRY. Pittsburg, Wednesday, September 14th. of slander though it charges that substance as follows," &c. HIS was an action of slander, originally brought in the In an action Common Pleas of Crawford county, and removed by the declarahabeas corpus to the Circuit Court, where it was tried before tion is good YEATES J. in October 1806. The declaration contained five counts; four of which charged that the defendant spoke &c. of the defendant spoke and concerning the plaintiff " in substance the following false, certain scandalous, and defamatory words;" and one of the counts words, “ in laid words which were not actionable. A verdict was found for the plaintiff, generally, with two hundred dollars damages. On an appeal from a A motion was then made in arrest of judgment upon two decision of grounds: First, That the verdict was general, and one or more the Circuit of the counts did not contain words which were actionable: a motion in Secondly, That four of the counts did not charge words, but arrest of the substance of words; whereas words should be specifically this Court is judgment, laid, though they might be proved substantially. The motion placed in the was overruled by his Honour, and judgment entered for the tion as the plaintiff; upon which the defendant appealed to this court. judge of that Upon the report of the case here by Judge YEATES, it ap- the motion peared that no material evidence was given which applied par- was made, Court upon same situa court, when and may direct the verdict and judgment to be entered as he might have done VOL. I. 3 D |