SLANDER JOHNSTON against TAIT. IN ERROR. LANDER in the Common Pleas of Mercer. a 1813. Pittsburg, A declaration that the defendant said "there 66 "was a collusion "between A, B and C, to person swear a "false oath, &c." is not supported by proof of his having said "make a third "there was a col The declaration laid the words to have been spoken by Tait as follows: "It is a rascally business. There was “collusion between William Johnston, the plaintiff meaning, "Aaron Hackney, Levi Arnold and Peter Rambo, to make "John Bowman swear a false oath in a suit before Peter "Rambo, (Peter Rambo esquire a justice of the peace mean“ing,) between Bowman, the said John Bowman meaning, "lusion between "A and B, to "and Hackney and Arnold." The evidence was, that the de- "make &c." fendant said "that Johnston had entered into a collusion with "Aaron Hackney and Levi Arnold, to make &c.," without mentioning Rambo. The judge charged the jury that it was not supported by doubtful, whether the evidence supported the declaration; proving the words and the plaintiff's counsel excepted. S.B. Foster and Campbell for the plaintiff in error. The substance of the words was proved, and that was sufficient to support the declaration. The words proved were substantially those laid, because there was an alleged conspiracy between the plaintiff and two of the three persons named. In an indictment against the plaintiff for conspiracy with the three, he would have been convicted on proof of a conspiracy with two of them. The case of Cuming v. Sibly (a), E. 9 Geo. 3. C. B., and the King v. Lookup (b), 7 G. 3. B. R., are strong to shew that it is sufficient to prove the substance, except where the tenor is stated. A. W. Foster contra. The offence according to the words proved, was a different offence from that charged in the declaration, since a conspiracy with A and B, is a different offence from a conspiracy with C and D. If the words are changed, and the charge remains the same, the words are matter of form; but if the change of them, changes the offence, they are matter of substance. The offence is changed not merely when its specific character is altered, but also (a) 1 D. and E. 239. (b) Ibid. If the words "the goods of laid are "he stole "A," they are to have been "he "stole the goods "of B." 1813. JOHNSTON v. TAIT. when its individuality is gone. He cited Nelson v. Sir Woolston Dixey (a). TILGHMAN C. J. delivered judgment. To give the plaintiff the full benefit of his exception, I shall consider the judge as having said that the evidence did not support the declaration; for when he told the jury that the law was doubtful, they would naturally find for the defendant, it being incumbent on the plaintiff to make out his case without doubt both in fact and law. It is a question. which admits of very little reasoning. The single point is, whether the words laid and the words proved are substantially the same. I think they are not. A collusion between A, B and C, and between A, B, C and D, are different things. It is not necessary to prove the words exactly as laid; it will do if you prove so many of them as are actionable. 2 Salk. 660., the Queen v. Slater. If the plaintiff declares that the defendant called him a strong thief, and proves that he called him a thief, the action is supported, because the only material word is thief. Dyer 75. But if the words laid had been, that the plaintiff stole the goods of A, proof of the defendant's saying that the plaintiff stole the goods of B, would not support the declaration; because although stealing the goods of B is an indictable offence, yet it is a different offence from stealing the goods of A. So when the defendant says that the plaintiff with B, C and D conspired &c., it is not enough to prove that he said the plaintiff together with B and C conspired &c.; because although it may be indictable for the plaintiff to conspire with B and C, yet it is a different offence from his conspiring with B, C and D; he may have been guilty of both and punishable for both. I am of opinion therefore that the charge of the Court was right, and that the judgment should be affirmed. (a) Hardw. Ca. 291. Judgment affirmed. THIS PAUL against VANKIRK and DEPU. IN ERROR. Pleas 1813. Pittsburg, A warrant directstilled by a justice of constable, if it is HIS was an action of trespass in the Common of Westmoreland, for breaking and entering the house of the plaintiff Paul, and taking away sundry goods. The defendants pleaded non cul. with leave to give the special matter in evidence. the peace to executed by the proper constable of the district, is well directed. A constable and his assistant may On the trial, the plaintiff called a certain William Davis, who swore, that a day or two before the property in the justify under an declaration was taken by the defendants, he was the owner execution from a magistrate,though upon separate of it, and for a valuable consideration sold and delivered it be clearly irregular, e. g. a joint the whole at the still house of the witness, of which he also execution against delivered to the plaintiff possession and the key. The con- principal and bail sideration was the result of a lumping settlement made be- judgments. tween the parties a day or two before the sale; and at the time of the settlement, Davis and Paul knew there were two executions out against the former and Vankirk, one at the suit of William Irwin, and the other at the suit of William Irwin assignee of Jesse Regman. The plaintiff also proved the taking by Depu and Vankirk. The defendant's counsel then produced the transcript of two judgments against Davis, and also separate judgments against Vankirk as his bail; and offered in evidence two executions against Davis and Vankirk, under which Depu as constable, and Vankirk as his assistant, had seized the goods. The executions were respectively directed "Westmoreland County, The Commonwealth of Pennsylvania, to —— constable;" and recited that Irwin had obtained judgment before the justice against Davis and Vankirk, the amount of which it required the constable to levy of their proper goods &c., as if the judgment were joint. To this evidence the plaintiff objected, but the Court admitted it, and sealed a bill of exceptions. Two objections were urged in this Court against the evidence as a justification of the defendants: 1. That the writs were not directed to any constable, and therefore not to the constable of the township &c., where the defendant resided, according to the act of 20th March 1810; but it was admitted they were executed by the proper constable. 2. That 1813. PAUL บ. VANKIRK. the judgments, being separate, did not warrant the executions, which were joint. Forward, for plaintiff in error. A. W. Foster, contra. TILGHMAN C. J. after stating the case, delivered judg ment. Two objections are made to the execution. 1. That it is not directed to any constable. 2. That there was no judgment to warrant it. 1. The act of assembly orders that the justice shall direct his warrant to the constable of the district. This execution is directed to constable. It would have been more proper to direct it to the constable by name, or to the constable of the district generally; but it may be supported, because it is admitted that it was executed by the constable of the district. The word constable with a blank, cannot be said to be directed to a wrong constable, and may be understood as intended for the right one. I do not know that the constable was bound to execute it without a more particular direction, but he was justified in so doing. 2. The execution was certainly irregular. A joint execution against principal and bail, ought not to be issued on a separate judgment against each. If the plaintiff in the suit before the justice, had been defendant in the present action, it might have lain upon him to shew that his execution was supported by the judgment; but the case is different with the constable, and the other defendant who acted as his assistant. It is enough for them to shew an execution issued by competent authority. Whether the execution is supported by the judgment, is a question in which it would be unreasonable for the law to involve them. It was necessary for the defendants to make out that the goods levied on were the property of Davis, and that they had authority to make the levy. I am of opinion that the execution was legal evidence to shew the authority, and therefore the judgment should be affirmed. Judgment affirmed. BOYLES against JOHNSTON'S Executors. IN ERROR. 1813. Pittsburg, or, shewing a sur office of the deputy surveyor, on which A's name was indorsed in of the deputy missible in evi survey for A. THIS HIS was an ejectment in the Common Pleas of Indiana, The field notes of for 2131 acres, which the executors of Johnston, the a deputy surveyplaintiffs below, claimed under a warrant of the 8th December vey for A at a particular time;1774, in favour of Stephen Porter, for 200 acres on Stoney a warrant in the Run. On this warrant a survey was made on the 24th No- ing for A as adname of B, callvember 1775 by Joshua Elder, deputy surveyor, for 2131 joining of a suran old acres. On the 1st March 1782, Porter conveyed to Robert vey found in the Johnston the testator, who obtained a patent from the Commonwealth. The defendant claimed under an application dated the 3d the hand writing April 1769, and signed by John Pomeroy in the name of John surveyor,all Stephenson, for 300 acres of land on the north side of Black- these papers adlick about two miles from the fording, which he produced, dence to shew a together with a copy of the location for the land, in Stephenson's name. No survey of this tract was ever returned to the land office; but the defendant proved that in the year 1772, a cabin was built upon the land in dispute by one Robert Reed, and about five or six acres of land deadened; that Pomeroy bought the improvement of Reed, and placed one Milligan upon the land, who improved it for him in the years 1775 and 1776; and that Pomeroy in his life time had receipts for the surveying fees paid to Joshua Elder, which had been lost, and had requested. Thomas Allison about 20 years before the trial, to procure a tenant for the land. In order to prove a survey of the land in dispute for Pomeroy, under the above location, the defendant's counsel then offered in evidence, successively, the following papers: 1. A manuscript book containing the field notes of Joshua Elder, deposited in the office of the deputy surveyor of the district, and remaining there, by which it appeared that this land was surveyed for Pomeroy on the 22d April 1773. 2. A warrant in the name of Samuel Moorehead, dated the 24th June 1785, calling for John Pomeroy's land as adjoining. 3. An old draught of a survey found in the office of the deputy surveyor, on which the name of John Pomeroy was endorsed in the hand writing of Joshua Elder, and on which the |