source: Caselaw Access Project

author: Judge Lane :

license: Public Domain

text:
    Daniel Jordan v. The Overseers of Dayton.
    .A patent issued by the United States, securing the exclusive right to manufacture and use certain medicines, does not authorize the administration of them, in the character of a practicing physician, without conforming to the laws of the state where administered..
    Error to the court of common pleas of Montgomery county.
    The overseers of the poor brought an action of debt, before a justice of the peace, against Jordan to recover certain penalties for practicing physic in violation of the statute regulating the practice of physic and surgery. The case was appealed to the court of common pleas, and judgment was there rendered in favor of the overseers of the poor; to reverse which, this writ was prosecuted.
    The facts were agreed between the parties as follows:
    It was admitted that Jordan, not being a member of any medical society of the state, and not being qualified to practice medicine, as required by the statute, did administer medicine to, and prescribe for one William Sullivan and one William Prigg, and received fees and rewards therefor. That on January 25, 1823, a patent was regularly issued from the United States to Samuel Thompson, granting to him, his heirs and assigns, for the term of fourteen years, the exclusive right of making, constructing, using, .and vending to others to be used, a certain new and useful improvement, being a mode of preparing, mixing, compounding, administering, and using the medicine described in certain specifi•cations thereto annexed, in the manner and in the diseases set forth in said specification. It was also further admitted that Jordan was the assignee of Thompson, and vested with all the rights 295] and privileges conferred upon ^Thompson by the patent, and that the medicines prescribed and used by Jordan in his treatment •of Prigg and Sullivan, were the same set forth in the patent and ispecifications, and were administered for the diseases therein men* tioned. Also, that on the -day of-, 1813, a patent was granted to the same Samuel Thompson with specifications substantially the same as those attached to the patent of 1823, and conferring the same rights and privileges.
    Corwin and Collet, for plaintiff in error:
    The defense set up, in the case agreed, requires the court to settle in the first place, the true construction and effect of section 11 of the act of February 26, 1824, entitled “an act to incorporate medical societies, for the purpose of regulating the practice of physic and surgery, in this state.” It is under this section that the action is brought. We contend that the facts admitted in this case do not bring the defendant within the penalties provided in the law, and now sought to be recovered of him, as a practitioner of physic or surgery. The first clause of section 11 of the act incorporating medical societies is expressed in language which it is not difficult to understand, especially when interpreted in reference to the whole law, its intention, and the object had in view by the legislature. After making various provisions concerning the study of medicine as a science, plainly intended to provide modes and means by which that science, as now generally understood, should be taught, they go on, in section 11, to provide that “no person, other than the members of said medical societies, shall, after the 1st day of July next, be permitted to practice physic or surgery, in this state, and if any person, not being a member of said societies, shall practice physic or surgery, he shall not be entitled,” etc. The first question to be determined is, what is the act designated by the legislature, using the terms just cited? It is contended, by the defendant in error, that every recommendation of any specific remedy for a particular disease is a practicing of physic within the meaning of this act; for such must be the ground taken, in effect, before a right of recovery can be urged against this defendant.
    *The agreed case admits that the defendant, in two instances only, did advise the use of some of the medicines mentioned in Thompson’s patent, for some of the complaints enumerated in the schedule which makes a part of the patent. Every fact necessary to make out the plaintiff’s case, which is not expressly admitted or proved, in a penal action, is presumed not to exist.
    The law under consideration very clearly intended to prevent every person, not a member of a medical society, from presenting himself to the public as a person skilled in the system and science •of physic or surgery, which it was its object to encourage, by providing persons known to be conversant with that science, as now practiced and taught, who should examine such as should present themselves, as properly qualified, by a thorough acquaintance with that science. This law, when it speaks of physic and surgery, means those sciences which treat of all known diseases, and propose the remedies for all, and not a patent for a medicine which is held out to the world as a remedy for one, or, at most, a very few of those disorders, which it is the province of a practitioner of physic to understand and cure. By an examination of the patent under which it is admitted defendant acted, it will be found that the diseases therein enumerated, to which alone the remedies he •used are applicable, make up but a small portion of the disorders, which it is the province of a practitioner of physic to treat and cure. Hence, it is very clear that the selling and pointing out the application of these medicines alone, can not be said, within the meaning of this statute, to be the practice of physic, in the general sense in which it is there used. If such construction be put upon this section of the law, then every merchant or druggist who sells a bottle of Godfrey’s Cordial, or of La Mott’s Drops, or a box of Lee’s Pills, is guilty of practicing physic, within the meaning of this act; for, in each of these cases, a printed list of the diseases in which the medicince should be used, with the quantity and number of the doses, is sold with the medicine ; and this is prescribing and receiving pay for it, and yet it certainly has never been understood to be a practicing of physic, nor were such cases in the mind of the legislature, when they employed the terms above referred to in this act.
    *Upon the grounds assumed by the defendants in error, every tooth-drawer, every female accoucheur, every nurse who applies any of the many effectual, simple cures of a burn, or ordinary flesh wound of a child, is a practitioner of physic or surgery, if it could be shown that any of these had received compensation for their labor, this being included.
    But, in the second place, we contend that one, or even two in-, stances of administering any medicine, can not be said to be a practicing of physic. This is done by almost every head of a family in this country. It is something more than this that is ■implied in the term practice, in the law under which plaintiff in error is sued. It is not only administering, prescribing, and selling medicine, but it is either a habitual and long-continued series of such acts, or it is a few instances of the kind, accompanied with, a public profession of the character of a practitioner of physic, that constitutes the character in the view of the legislature. Neither of these cases is made out by the facts in this case. Jordan, it is not admitted or proved, ever held himself forth to the public as a doctor, nor can it be said that the two instances of his using the patent medicine, as set out in the agreed case, constitute him. a practitioner of physic.

      Second. The state legislature can not prohibit the profitable use, by the patentee and his assignees, of the medicines and discoveries specified in the patent.
    By the constitution of the United States, art. 1, sec. 8, “The Congress shall have power to promote the progress of science and useful arts, by securing, for limited times, to authors and inventors, the exclusive right to their respective writings and discoveries.”
    By virtue of this section, Congress have vested in inventors, and their assignees, on the emanation of a patent, the exclusive use for fourteen years, from the date of the patent of their inventions. This delegation of power, from its nature, as well as from the expressions, “exclusive right,” divested the state legislatures of all power of enacting laws concerning this grant. No act of the state government can restrict or control the beneficial or lucrative rise of the patented invention, either by limiting the improvements which may be introduced into the state, or by limiting the ^number, or by prohibiting all persons, except a priv- [298 ileged class, from becoming purchasers or assignees of the invention.
    It is contended, by counsel for defendant, that the patent is void.

      First. Because the discoveries were not made by the patentee.

      Second. Because the patent of 1813, issued for the same compositions of matter, and for the same applications of them, as are contained in the patent of 1823.
    The patent is prima facie evidence that the invention is new and useful. Fessenden’s Law of Patents, 61-63, 325, 326; Lovell v. Lewis, 1 Mason C. C. 182. The facts stated, in the agreed case, are an admission of every legal presumption arising from an inspection of the patent, and preclude every inference to the contrary. How, then, can the defendant contend that, from, the history of the science of medicine, with which we are not acquainted, it appears that those medical compositions, and their specific applications to diseases, are ancient inventions. He has not referred ns to one citation of a scientific or medical author to support his. allegation.
    The patent of 1813 is not for the same discoveries as contained in the patent of 1823. From an inspection of the patents, it is apparent that there is a difference in the materials, and in the compositions of the medicines, as well as in the diseases to which each is specifically apjfiied.
    By the act of Congress, referred to in defendants’ argument, a patent shall be granted for an improvement on a machine, for a new combination of matter, beneficially applied, or for a new and specific use of a machine or combination of matter already invented. If the patent of 1823 be a newly discovered combination of matter, differing in its proportions from that of either of those of 1813, or in its application to a disease, to which it was not applied, by the latter, the plaintiff can not be pronounced guilty.
    In the agreed case, it is only admitted that the plaintiff, in two cases, received fees and rewards for administering to the sick some of those medicines contained in the patent of 1823, in some of those specified diseases.
    *If the patent of 1823 should be void in part, where it pursues strictly the patent of 1813, it does not follow that it is not valid, •for the residue. The compositions of matter, and the mode of application to the case of particular diseases, are distinctly stated, and can be separated. It would not be a parallel case with that in which the patent issues for the right of a machine, previously discovered and in use, setting forth an improvement, without distinguishing the original machine from the same as improved. In Thompson’s patents, each medicine and its specific application are distinctly stated. On the presumption in favor of innocence, the court would infer that the acts mentioned in the agreed case were pursuant to the valid part of the patent rather than to the void. Sentence of condemnation will not pass, on a defendant, where the case submitted to the court may be true, and the defendant innocent.
    That the act of Congress does admit patents to issue to the-extent above stated, is apparent from its language and expressions.
    The right of the state to tax the property thus patented, or to levy a tax on the income of the patentee and his assigns, produced by prescribing and vending those medicines, need not be disputed in the investigation of this case.
    The power is not denied the state legislature to levy a revenue from patented machinery or its products. We do not contend that flour manufactured in the mills where Evans’ elevator is used, or the whisky manufactured in patent steam distilleries, are exempt from state taxation. We only contend that it is not in the power of the state government either to prohibit the use of those inventions, or to impair the value of them, by limiting their sale, by the grant of the monopoly of purchase, and lucrative use of a few individuals.
    The counsel for the defendants in error did not recollect, while inveighing against monopolies, that he was contending for the exclusive and profitable practice of the healing art of a privileged few; that to the certain and definite grant of vesting monopolies delegated to Congress, he was adding another monopoly, to be granted by the State of Ohio, concerning the same subject matter— the state legislature granting a monopoly of a monopoly.
    *It does not appear that the plaintiff in error received compensation for other acts than those authorized by the patent of selling to individuals, sick or in health, the medicines therein prescribed, and informing them of the expected effects to be produced by those medicines. This is a duty constantly performed, by unlicensed merchants and apothecaries, in the sale of patent pills and drops, either orally, or frequently by delivering to the invalid purchaser a printed paper or pamphlet, containing the prescription and certificates, exemplifying the wonderful cures to be effected by their nostrums. This was never considered as a violation of the penal law of Ohio. Should the agreed case be considered as an admission of the reception of a compensation for words and deeds, in attending the sick, other than selling to them the medicines and informing them of the cure to be effected, as stated in the patent, and this business should -be considered worthy of reward (and the contrary can not surely be presumed), this gain annexed to it, having its existence exclusively as an incident of the patent, of right must belong to the patentee and his assigns, and can' not be subject to the control of state legislation.
    That the state legislature is vested with the power of prohibiting and punishing those who introduce poisons as medicines, or introduce, within their jurisdiction, immoral prints or books, whether patented or unpatented, can not be denied.
    Whether the use of those specified patent medicines, by Thompson and his assigns, be promotive of or deleterious to the health of our citizens, we are as ignorant as were our ancestors with respect to the use of mercury as a medicine, which was introduced by a celebrated empyric and impostor, condemned for more than one hundred and fifty years by the licensed physicians, and brought into general use by the persons denominated quacks by the learned.
    Lowe
    submitted an argument on the same side.
    Wicher, for defendant in error:
    The only question which seems to present itself in this case is: Has the plaintiff in error practiced physic or surgery *contrary to a constitutional law of the land? The second clause of the sixth article of the constitution of the United States says that, “ This constitution and the laws of the United States, which shall be made in jmrsuance thereof, etc., shall be the supreme law of the landand in the schedule of powers belonging to the Congress of the United States, we learn that Congress has power “to promote the progress of science and useful arts by securing, for a limited time, to authors and inventors, the exclusive right to their respective writings and discoveries.” Hence, the plaintiff in error would infer that a state in the Union has no right to pass a law regulating the practice of physic and surgery which shall' conflict with an interest which he says is secured to him by patent, in pusuance of a law of Congress; therefore the law regulating the practice of physic and surgery in Ohio, so far as re.gards him, is unconstitutional.
    To refute this reasoning it is only necessary to state that a patient to secure to an author or inventor, etc., confers on him no right that he did not possess without a patent, except a right of monopoly. An inventor has the right to use his invention, in common with every other citizen, as well before as after the date of his patent. A patent is an abridgment of the rights of the citizen, and secures to the patentee a monopoly of all the benefits arising from the lawful use of his invention, against all other persons wishing to use the same commodity. “ A monopoly,” says Lord Coke, “ is an institution, or allowance by the king by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of, or for the sole buying, selling, making, working, or using of anything whereby any person or persons, bodies politic or corporate, are sought to be restrained of any freedom or liberty that they had before, or hindered in their lawful trade.”
    After the statute ot James was passed Hawkins defined a monopoly thus: “A monopoly is an allowance by the king, to any person, for the sole making, selling, etc., anything, so that no person be restrained in what he had before, or in using his lawful trade.”
    But in order to examine the whole ground which the case may, by possibility, occupy, we will examine the patent, and *the laws under which he seeks to support it, in all their bearings. In the year 1813, the patentee, under whom the plaintiff in error claims exemption from the laws of Ohio, obtained a patent for a pretended new discovery in the principles and practice of physic In consequence of a decision, by some court of justice in Massachusetts, against the validity of his patent, he, in 1823, took out a new one for some pretended new discovery. An inspection of the specifications attached to each patent will show the identity of the discovery. The following are the patents of 1813 and 1823:
    SPECIFICATIONS OF 1813.
    No. 1. Lobelia for emetic.
    No. 2. Cayenne.
    No. 3. Marsh rosemary, two parts; the bark of tne roots of barberry, one part; or sumach bark, leaves, or berries, or raspberry leaves, may be substituted.
    No. 4. Balmony, barberry bark, and poplar bark.
    No. 5. To strengthen the stomach and restore the digestive powers, after cases of dysentery and other weakening disorders: Make a syrup of peach kernels, or cherry stones, gum myrrh, hot water, and sugar.
    No. 6. High wines, gum myrrh, camphor, cayenne, and spirits of turpentine.

      SPECIFICATIONS OF 1823.
    No. 1. Lobelia infiata for emetic.
    No. 2. Cayenne, capsicum.
    No. 3. Barberry bark and hemlock bark, or sumach bark, leaves, or berries, or red raspberries, or witch hazel leaves, or marsh rosemary and pond lily roots, or either of them.
    No. 4. Balmony, barberry bark, and poplar bark.
    No. 5. To make syrup for dysentery, promote digestion, and strengthen weak patients: Take poplar bark, the bark of the barberry root, sugar, peach meats, or cherry stones and brandy.
    Eo. 6. High wines, gum myrrh, cayenne, to be given internally ; when applied externally, add spirits of turpentine.
    * Yap or Bath.
    None of which he states, in both specifications, hath been known, or used, before this application !
    The court will not close their eyes against the absurdity of these declarations, made by the same person, with an interval of ten years between the times of making them; nor will they require to be informed by me, what they are already informed of from history — ■ that both statements are utterly false; and if false, the patent is void.
    The act of Congress, passed in 1793, entitled “ an act to promote the progress of the useful arts,” provides “ that when any person, or persons, being a citizen of the United States, shall allege that; he, or they, have invented a new or useful art, machine, manufacture, or composition of matter, not known or used before the application, and- shall present a petition to the secretary of state, signifying a desire of obtaining an exclusive property in the same, and praying that a patent may be granted therefor, it shall, and may be lawful, for said secretary of state to cause letters patent to be made out in the name of the United States, etc., granting to such petitioner, or petitioners, his, her, or their heirs, administrators or assigns, for a term, not exceeding fourteen years, the full and exclusive right and liberty of making, constructing, using, and vending to others to be used, the said invention or discovery.”
    The statute of James leaves to the crown the right to grant letters patent for “ the sole working or making of any manner of new manufactures to the true and first inventor.” That of the United States authorizes letters patent to be issued to any person who has invented “any now or useful art, machine, manufacture, or composition of matter, not known or used before the application.” These clauses are respectively the foundation upon which the law of patents rests in the two countries; and although the phraseology differs, they are in substance the same. There is a remarkable coincidence in these fundamental provisions of the two acts “ Any manner of new manufacture,” is equivalent to “ any new or useful art, machine, manufacture, or composition of matter.” The judicial expositions, therefore, of each will be mainly applicable to the other. The clause of our statute *just recited preBents for our consideration the term “ new.” The “ art, machine, manufacture, or composition of matter,” for which a patent is claimed, must be “new.” In relation to this point, the British statute has received a construction, which seems to me, to be at variance with its whole scope and object, and can not be justified, by any rules of construction applicable to the English language. It has been decided that a manufacture, brought from abroad, if new in England, is a new manufacture', within the meaning of the statute. The words are, “the sole working, or making any manner of new manufacture, within the realm; ” not manufactures new within the realm. The working and making must be new within the realm, and the manufacture new — new everywhere. What kind of a new manufacture is that which is known the world over, though not yet introduced into England ? What sort of a new machine is it, that has been in use for centuries in a neighboring kingdom ? And what sort of an inventor is he who makes a trip across the channel to get it? But he must be an inventor; for the statute allows patents to issue only to the “true and first inventors.” A patentee, therefore, must be an inventor, and he must swear to it, too, to bring himself within the act, or the king will withhold the grant. The received opinion, then, of the statute of James appears to me to involve gross absurdities, and to be a palpable perversion of the terms and plain meaning of the act. It is a departure from its spirit, and defeats its avowed object. It is everywhere said that' this prerogative power was left in the crown, for the purpose of rewarding the personal merit of ingenious men — to stimulate their inventive powers. But this alleged object ot the act is at war with its practical application, and places the plagiarist and the original inventor upon the same footing. This construction is given to the statute, in the case of Edge-bury v. Stevens, the first reported decision upon the statute of James, and has its origin, I have reason to believe, in the policy of the government. Expediency, and the policy of the state, have, no doubt, contributed to uphold it. It has been uniformly adhered to, and is everywhere laid down as established law; but I have nowhere seen it supported as the true and grammatical eonstruction of the language of *the act. The policy may be good ; but it ought to have been supported and authorized by a legislative provision; and not founded on a judicial perversion of the language of the law.
    But fortunately our own statute is not liable to the ambiguity upon which I have remarked. It allows patent monopolies to those who have invented “any new and useful art, machine, manfacture, or composition of matter not known or used before the application.” This clause of the act of 1793 is plain and explicit It is not obscured by an artificial arrangement of words, gener ating doubts to be resolved by policy or expediency. The art, etc.., must be new; not new in one place and old in another, but new both at home and abroad. A patentee must be the “ inventor,” and the subject of the patent must be the result of his own labors and ingenuity — not for a stolen or borrowed product. If the act of 1793 left room for a doubt, which it does not, that of 1800 would remove it. That act very clearly develops the policy of the legislature. Its provisions, and the oath it proscribes, show, too obviously to admit of doubt or misconception, that it did not mean, in any case, to grant patents or monopolies for imported or borrowed novelties, but to leave their introduction to the enterprise of the public.
    While, therefore, in England, it is deemed enough if the manufacture, for which the patent is claimed, be new within the realm, here, I hold it most clear that the art, etc., must be absolutely new. It must not have been “known or used before'the application,” and if it were, that the patent, if obtained, would be void.
    I can not so much undervalue the good sense of this court as to use an argument to show that the art, etc., must be new at the time of the application; section 3 is conclusive on this subject [read section 3], If the act does not refer to the time of the grant of the letters patent, but to the time of the invention, why are all those descriptions necessary? The date of the discovery, then, must be determined by the date of the patent; for the discovery must have been new and not used when the patent was issued. And, in the language of the statute, “ every patent which shall be obtained, etc., for any invention, etc., which it shall afterward appear, *had been known or used, previous to such application for a patent, shall be utterly void.”
    If, then, the defendant shows, that the thing pretended to be secured, by patent, was in use, or had been described in some public work anterior to the date of the patent, he shows that it was sc anterior to the supposed discovery by the patentee; for the discovery must be coetaneous with the patent.
    Another objection to the plaintiff’s patent is, that ho has not, in his schedule, “furnished a written description of his invention, in such full, clear, and exact terms as to distinguish the same from all other things known before, so as to enable any person skilled in the art, etc., to make, compound, and use the same.” If he does not communicate it so that it can be understood, what matters it whether the concealment be the result of fraud or negligence? In either case the public receives no equivalent for the benefit conferred upon him. It must be borne in mind that the patent or monopoly is granted in consideration of the full, fair, and intelligible disclosure. What a man has invented or discovered, it is fair to presume he can describe intelligibly; and defects in the specification, in all cases, avoids the patent. How is the design to be proved? It seldom, if ever, can ; and the public may, oftentimes, after much wealth has been accumulated by the individual, and the patent expired, be left as ignorant as before it was granted.
    It has been shown, then, I think, satisfactorily, that the subject of a patent must be both “ new ” and “ not known or used before the application.” It must also be Uuseful.” This term has been defined to mean such an invention as is not frivolous, or injurious to the well being, good policy, or sound morality of society. Such an invention as may be applied, to some beneficial xise in society, in contradistinction to an invention which is injurious to the motáis, the good health, or the order of society — not mischievous to the state.
    What can be less useful than a patent that interrupts the practice of an art, etc., commonly known? What more pernicious to the state than the monopoly of a medicine or manufacture already in use?
    But, says the plaintiff, inasmuch as the patent is issued it *is presumed it is conclusive evidence that the patent was rightfully issued, and, consequently, that the several states of this Union must refrain from the execution of any law made for the protection of their citizens. But it can not escape the attention of this court, that patents are issued, as a matter of course, to all who will apply for them, swear they are inventors, and pay thirty dollars. The letters patent, it is true, when prepared, are sent to the attorney-general, who, however, never inquires into the merits of the subject, but merely takes care that the instrument is in due form.
    Still I can not perceive that the argument, to which the above is an answer, has anything to do with this case. We do not seek to abridge the plaintiff of any right which he can legally enjoy. We do not wish to use his patent. The plaintiff has no more right to complain of our statutory regulation of the practice of physic, nor claim exemption from its penalties, than the patent whisky makers have from those laws which impose regulations for the sale of that article, or commodity, or composition of matter. Tet, I believe, this is the first time that any person, because he was a patantee, claimed to be above the cognizance and jurisdiction of state authorities, notwithstanding there are patents for everything we suffer to enjoy, for everything that comes within the scope of legislation.
   Opinion of the court, by

Judge Lane :

The ease presents two questions: 1. Whether the evidence sufficiently shows that the defendant practiced medicine; and 2. Whether section 11 of the statute, imposing a penalty for practicing medicine by persons not members of any medical society, is inoperative on him, by reason of Thompson’s patent.

On the first point, the case shows that Jordon prescribed and administered medicines to two sick persons for fees. The stipendiary character of the service forbids the belief that it was an act of neighborly kindness, or the execution of a moral duty. Administering medicine may be the office of a nurse; but prescribing medicine to the sick, implies the exercise of skill in the discrimination of diseases, and the ^selection of fit remedies; to acquire which skill is the object of medical education, and to exercise which, for fees, is but another name for the practice of medicine. In the absence of explanation, we believe the -statement sufficiently shows that Jordan, in these cases, acted in the character of a physician.

In discussing the second question, I choose to divest the case of all matters, except those arising from its simplest merits. For present purposes, therefore, I assume that the right of prescribing and administering medicines, is a proper subject for a patent, and that the patent of 1823 is to all purposes regular and effective. I proceed to consider, whether the patent conveys such a right that the authority of the state may not control its exercise.

A large portion of the duty of the lawgiver, in every civilized community, consists in regulating the conduct of individuals, in different matters, for purposes of general welfare. Some acts of this nature are the objects of penal legislation. There is no moral turpitude in vending tickets of lotteries from other states, or in selling spirituous liquors to Indians; yet the good of society demands their prohibition. Other and the larger class are, in various forms, regulated by law. Thus, the act of keeping tavern is a lawful trade; yet, because it is of public concern that the convenience of travelers be secured, and because it is conducive to public morals that intemperance be suppressed, the legislature have forbidden its indiscriminate practice, and have placed those engaging in it under the watch of the court. And for reasons in some respect similar, peddlers and ferrymen are placed under the same supervision. The exercise of police powers by municipal corporations, the laws concerning the inspection of provisions, and the fixing of rates of toll for turnpikes and bridges, are examples of similar powers. So the business of grinding grain, a work strictly private, interests so many persons, that the legislature have deemed it proper to fix a price for labor. So the profession of law is of so public a nature, that its practice is wholly forbidden until after a reasonable demonstration of ability, and until after an opportunity has been offered to learn the morals of the practitioner. And the profession of medicine is regarded, by the legislature, as of a similar character, so that policy requires an examination ^should be instituted into the professional capacity of the practitioner before he shall be permitted to operate upon the health of citizens. In all these cases the interpretation of the law given, is justified by the obvious principle, that although a man’s rights to his own are absolute and indefeasible, yet these rights must be so used as not to infringe the rights of others, and may be so regulated as to promote the general good.

But the plaintiff in error, without denying these matters to be the suitable and ordinary subjects of legislation, insists the power of the legislature is limited in this case, because the patent, securing to Thompson the exclusive right of preparing and mixing medicines, emanated from the general government, under the authority of the constitution, and that its full effect can not be had unless it be holden altogether exempt from state control. This leads us to consider the nature and extent of such l’ights as accrue from letters patent for useful discoveries. Although the inventor had, at all times, the right to enjoy the fruits of his own ingenuity in every lawful form of which its use was susceptible, yet before the enactment of the statute he had not the power of preventing others'from participating in that enjoyment to the same extent with himself; so that, however the world might derive benefit from his labors, no profits ensued to himself. The ingenious man was therefore led either to abandon pursuits of this nature, orto conceal his results from the world. The end of the statute was to encourage useful inventions, and to hold forth as inducements to the inventor the exclusive use of his inventions for a limited period. The sole operation of the statute is to enable him to prevent others from using the products of his labors except with his consent. But his own right of using is not enlarged or affected. There remains in him, as in every other citizen, the power to manage his property, or give directions to his labors at his pleasure, subject only to the paramount claims of society, which requires that his enjoyment maybe modified by the exigencies of the community to which he belongs and regulated by laws which render it subservient to the general welfare, if held subject to state control. If the state should pass a law for the purpose of ^destroying a right created by the constitution, this court will do its duty; but an attempt by the legislature, in good faith, to regulate-the conduct of a portion of its citizens, in a matter strictly pertaining to its internal economy, we can not but regard as a legitimate exercise of power, although such law may sometimes indirectly affect the enjoyment of rights flowing from the federal government.

Judgment affirmed.


author: Judge Brush :

text:
    Lessee of George N. Hunt v. Nathan Guilford.
    Question of boundary of tbe out-lots of Cincinnati.
    Alleged revocation of a submission to arbitration left to tbe jury upon evidence.
    An agreement to submit a question of boundary to arbitration defeats tha operation of tbe statute of limitations.
    This cause was adjourned here for decision from the Supreme Court of Hamilton county. It came before the court upon a motion for a new trial made by the defendant, where the plaintiff had obtained a verdict in an action of ejectment. The ease is stated in the opinion of the court.
    Fox for the new trial.
    Pendleton against it.
   Opinion of the court, by

Judge Brush :

The ground in controversy, in this action of ejectment, was about fifty-nine and a half feet wide at one end of out-lot No. 12, in the city of Cincinnati, and forty-six and a half feet wide at the other end and west end of same lot on the north pait of the lot; which ground, by mistake, had been inclosed within the fence, made round out-lot No. 13, adjoining No. 12 on the north. Plaintiff’s title was niade out-as follows :

First. A deed from John Cloves Symmes to Jesse Hunt, for out-lot No. 12, dated February 21, 1809.

Second. A deed from Jesse Hunt to the lessor of the plaintiff, for the same lot (No. 12), dated August 20, 1820.

*TMrd. An agreement in writing, as follows, viz:

“Whereas, doubts and uncertainty exist respecting the distance which each out-lot of the town of Cincinnati ought to extend north, from the northern boundary of Seventh street or Northern Row, agreeably to the plan and records of the said town, and in order to do away all doubts and disputes that may hereafter arise respecting the same, know ye, that.we, the undersigned owners of out-lots, do agree to submit, and by these presents do submit, the matter in doubt and uncertainty to the judgment and award of Martin Baum, William Lytle, O. M. Spencer, John S. Gano, and John S. Wallace, commissioners to settle and fix a true line of each of said out-lots, who are hereby authorized to call witnesses before them, or such other testimony as they may deem necessary. And it is agreed that their award shall be final and binding on the parties hereunto subscribed. Dated April 10, 1816.” Signed by twentyeiglit persons (one as the guardian of heirs). Among the rest, by Jesse Hunt, the person under whom the lessor of the plaintiff claimed title, and William Woodward, under whom defendant claimed title. A report and award, in writing, as follows :

“We, the undersigned, having been chosen by D. E. Wade, Abdeel Coleman, Daniel Symmes, James Ferguson, and others, as appears by the annexed instrument or submission, owners of out-lots in the town of Cincinnati, to fix the true lines of said out-lots, having caused an accurate survey of said out-lots, by Joel Wright, town surveyor of said town, which said survey or plat is hereto annexed, and having fully examined said plat, and being convinced that it is the most correct and equitable plan of establishing the boundaries of said out-lots, do award and determine that the lines or boundaries shall be established and fixed according to said plan, making the width of said out-lots, from northwardly to southwardly, about four hundred twenty-six and a half feet, and extending eastwardly and westwardly half the distance between the present streets, and now running from toward the Ohio northwardly. We do further award and determine that the principle or standard on which the annexed plat is made, shall be to divide the distance from the north side, Northern Row, along the east side of Yine street, *to the northern boundai*y line of said out-lots, as lately established, into eight equal parts, and from the points made by such division to run lines eastwardly and westwardly, parallel to Northern Row, as far as the plan of said out-lots extends, which lines shall be the northern and southern boundaries of said out-lots.

“ Given under our hands, at Cincinnati, this 15th day of February,

“ Martin Baum,
O. M. Seencer,
John S. Wallace,
William Lytle, #
John S. Gano.”

Upon the plan or map referred to in the above award, as an* nexed thereto, the said surveyor certifies thus: “ I hereby certify that I have surveyed Cincinnati out-lots, agreeably to the construction of the commissioners, which is further exhibited by this map, and the distance that each lot extends northwardly is stated, on the east line of Yine street; and the area attached to their respective numbers. Second month, 1817. Joel Williams, T. S;’ and underwritten on same, “ Recorded, March 20, 1817, in book R, page 23, Thomas Henderson, recorder of Hamilton county, Ohio.”

On the trial, the plaintiff objected to the admission of the above agreement, award, and map or plan of that part of the town, as not legal and competent evidence in this action of ejectment.

The objection was overruled, and the evidence admitted as proper to show the character and nature of plaintiff’s possession, whethor adverse or not, and to furnish some evidence where the original line was actually run, thereby to show that the fence to which the defendant claimed was on the lot No. 12, and included part of it within the inclosure round No. 13.

Fourth. General William Lytle, one of the commissioners, testified that the principle by which the commissioners ascertained and established the lines between the out-lots, was as stated in the award; that they, or the surveyor, stuck stakes at the corners of the lots, and at every corner *on the streets from Seventh street, or Northern Row, north to the northern boundary line of the town. That Seventh street was agreed to be the southern boundary and base of the award. That Yine street was that by which Ludlow laid off the town, and made the original plat or plan as recorded (which was in evidence), and that the ground for the out-lots was divided into eight equal parts. And that persons generally were satisfied with the division made by the commissioners. Gross-examined: he has no recollection that Mr. Woodward made any objections, or revoked the authority of the arbitrators.

Joseph Gest testified, that in running the line between the lots Nos. 12 and 13, agreeable to the new survey, he found it on Broadway (the east side of the ground in controversy), to be fifty-nine and a half feet north of the defendant’s fence, and on Sycamore (west side of the ground in controversy), forty-six and a half feet north of the fence.. The streets now laid out and improved are agreeable to this new survey. That the streets north of Seventh street, running east and west, have all been laid out since 1816 by the proprietors. That there are more than four acres of ground in each of the out-lots so established ; that there is no street laid out east and west, east of Main street, and north of Eleventh or Canal street. That the sycamore tree is at the west end of the fence at the southwest corner of No. 13, as inclosed and claimed by plaintiff, and he has understood it has been called a corner.

For defendant, Wm. Woodward testified. He thinks it was in 1793, when he purchased the lot No. 13. The deed is dated 1795. Captain Benham and James Dement owned No. 12 at that time. It was planted with a peach orchard. Fifteen or sixteen years ago, the present fence between the lots was built. Mr. Henderson run the line, and carried it about thirty feet north of the old line. The sycamore was then the corner of No. 13, the southwest corner. Henderson’s line runs east from that tree, so far north of the fence on the east side, as to have thirty feet between it and the fence, leaving out of my lot a triangular piece of groupd. I went before they (the commissioners) had dispersed, and told them I must revoke what I had done. I could *not consent to alter my fences, but must continue to hold as I had done. Some person, one of the body, said, then if I do n’t sign it, it will be of no use to record it. Mr. St. Clair said, yes, by God, we will record it. I have occupied out-lot No. 15 more than twenty-five years. The south fence of No. 13 did not run the course of the lines between the lots.

R. R. Williams testified, he was in the room where the commissioners were — Mr. Woodward stepped up and put his hand upon the paper, and said he would revoke what he had done. It was soon after they had gone into the house. Mr. Hunt was in the room I think/ General Lytle, Mr. St. Clair and others were present.

Mr. Henderson presumes he did not find any old traces of old lines. One corner which he found agreed with the new lines, and one did not, but varied a little. My impression at that time was, that the out-lots were intended to contain, and did actually contain, four acres, strict measure. He surveyed a good deal there for Judge Symmes and Joel Williams.

There is not a general satisfaction by the claimants in the new survey. The north line of the town is a section line. Originally and now those out-lots extended to the section line.

Defendant then gave in evidence :

A deed from J. C. Symmes to said William Woodward for fraction north of No. 8, dated September 7, 1804.

■ A like deed for out-lot No. 8, same date.

A like deed for out-lot No. 13, dated October 1, 1795.

Another deed from Levi Woodward to William Woodward for out-lots Nos. 21 and 22, and fraction north of Nos. 21 and 22.

Plaintiff’s rebutting evidence:

Oliver M. Spencer testified- He was one of the commissioners, and has no recollection that Woodward revoked the submission. Does not know that any one attempted to act upon the submission or award.

Colonel John S. Wallace, one of the commissioners, testified: He does not recollect that there was any objection made by Mr. Woodward to the submission or award, or that he pretended to revoke the same. That there were stakes set *down for the corners of the-out lots, and people occupied, and .improved, and fenced accordingly. Cross-examined : David Logan inclosed the lot No. 13, and assisted my father to inclose the lot No. 14. Logan inclosed the lot No. 13 in 1791 or 1792.

Defendant’s counsel then gave in evidence a deed from J. C. Symmes to John Machín, for out-lot No. 15, dated January 6, 1799. There was a verdict for plaintiff, and a motion for new trial, reserved for decision, etc.

The reasons, as stated, are: 1. Because plaintiff did not show any sufficient title to make an entry, on the premises described in his declaration.

2. Because said verdict is contrary to evidence.

3. Because the statute of limitations was a bar to the plaintiff’s recovery.

4. Because the court mistook the law in charging the jury.

To the first objection, or reason assigned, it may be sufficient te say that the plaintiff proved a perfect legal title in his lessor, which has usually been considered a sufficient right of entry to maintain an action of ejectment, prima facie. Again, the award if found by the jury, to have been made, before revocation of the authority of the commissioners, or arbitrators, establishes a right of entry sufficient to entitle him in whose favor made to recover in ejectment. Sellick v. Adams, 15 Johns. 199; Doe, Morris, and others v. Rossu, 3 East, 15; 2 Caine, 199, 320.

If by the second reason assigned (that the verdict is contrary to evidence), is intended that there was not evidence that defendant was in possession of the premises at the time the declaration was served upon him, the answer that he relied so much upon the fact, that he was so in possession, and that he, and those under whom he claimed title, had been so in possession, from the year 1793, might reasonably be considered sufficient, without any formal proof of that possession. The chief ground of his defense being, the bar which the statute of limitations interposed in such cases, would have no foundation in fact, unless such possession was proved or admitted. In this case, it was not disputed, and was considered by the court, as yielded on all sides, at least by the *plaintiff; and was most strenuously maintained by defendant’s counsel. The matters litigated at the trial, and which only are entitled to consideration, were, first, the‘true boundary between the two lots Nos. 12 and 13. If that was found to be any considerable distance north of plaintiff’s fence and possession: then, secondly, was that possession adverse to plaintiff’s title, or subordinate; thirdly, did it continue adverse twenty years, from the taking effect of the statute of limitations, June 1, 1804, before the commencement of this action, November 8, 1824. Or did its adverse character cease, by the acts of the parties, in entering into the submission and agreement aforesaid, and the making the award above set forth ? Both, or either ?

The question whether the submission, and the authority by it vested in the commissioners to make the award, was revoked by Mr. Woodward before the award was completed, or not, was left to the jury, being matter of fact, proper for their determination. They were advised that it was incumbent on the defendant to satisfy them that the power had been so revoked, before the award was completed, else the award would be valid against Woodward, and all claiming under him — that the law not only allowed parties, to settle amicably their controversies, and in this way, but favored such settlements, and when they so appeared, slight proofs should not destroy them. It ought to be strong and convincing. The jury, upon the evidence stated above, have found this matter in favor of the plaintiff, and the court are satisfied with their verdict. I should be very unwilling to believe those commissioners had allowed that document to be recorded, without noting on it the fact that Woodward had revoked the submission, if he had actually done so, before it was completed. Three of them now testify, they have no recollection of it, if ho did. His own testimony leaves the impression that he did not announce his intention to revoke, until too late, after the commissioners had finished, and no longer could control their doings in that respect; when nothing remained to be done but to record the instrument. -The testimony of Williams makes the same impression : he says Mr. Woodward stepped up and put his hand on the paper, and said he should revoke, etc. Neither of these *witnesses, or any other, state any act done by the commissioners, or either of them, as signing the award, after Mr. Woodward spoke of revoking their authority. The award being thus properly established by the jury, its effect is decisive, in this action, and npon this motion for a new trial, which accordingly should be overruled. Were it necessary, in this case, I should feel at liberty to-say that the agreement ought, and would have the effect in law, to preclude Woodward, and all claiming under him, knowing it, from insisting on the bar of the statute, or that his possession was adverse. In 9 Johns. 104, it is said: “ This possession has continued nearly forty years, and would be conclusive, unless the agreement said to have been made in 1790, should be sufficient to-take the case out of the statute of limitations.” In Doe v. Rossu, above quoted, 3 East, 15, the court say: “The award can not have the operation of conveying the land. But there is no reason why the defendant may not conclude himself by his own agreement, from disputing the title of the lessor in ejectment.” 5 Dane’s Abr. 137, ch. 141, art. 7, sec. 9. “The defendant is concluded by his own agreement from disputing the title of the lessor in ejectment.” 2. Caine, 320. If, then, the award did not bind the defendant, the agreement did, and then it would be a question of fact for the jury, where was the true line between the two lots? It was so left to them, and they have found, and correctly, upon the evidence, that by that lino the plaintiff is entitled to a piece of the ground, as part of No. 12, which is included within defendant’s fence, as part of No. 13. Upon no principle is the verdict, contrary to evidence; nor do I think the defendant can rely on the statute as a bar. As to the charge, I concur with my brethren, that it was nothing erroneous or against law.


author: By the Court : *Judge Brush

text:
    *Charles C. Paine v. Jacob French and John Ford.
    Assignment of debt secured by mortgage, and delivery of mortgage deed, good transfer of the mortgage.
    Before the act of 1818, seal of justice was not required to an acknowledgment of deed, except in a case of feme covert.

    Holder of a recorded mortgage does not act fraudulently, if he prepare, as counsel, a subsequent mortgage and remain silent as to his own.
    Allegations and proofs must correspond.
    This was a suit in chancery, to subject to sale certain mortgaged •premises, and was reserved from the county of Geauga. The bill was filed by Charles C. Paine, as administrator, with the will annexed, of Samuel W. Phelps, and set forth that' on June 8, 1818, the defendant French, who then owned the premises in controversy, mortgaged the same to one Daniel S. Coit, to secure the payment of five hundred dollars, which mortgage was duly re■corded, and afterward, on May 18, 1819, was duly assigned by Coit to the defendant Ford. This assignment was also duly recorded. On September 27, 1814, .French mortgaged the same lands to one Gaius Pease, to secure the payment of a note of the same date, for the sum of nine hundred and ninety-seven dollars and twenty-nine cents, payable in one year. This mortgage was recorded September 29, 1814; but there was no seal attached to the certificate of acknowledgment by the justice of the peace. -On November 11, 1814, Pease assigned his mortgage to Phelps, of which assignment French had notice, and'on January 20, 1816, paid Phelps upon the mortgage four hundred and fifty dollars. On November 16,1818, French conveyed the lands in controversy, with general warranty, to Ford; the deed was recorded on December 18,1818, and was absolute in its terms, but intended merely as security for advances made by Ford. On March 19, 1827, French gave Ford a quitclaim deed for the same premises, under which Ford took possession, French having always occupied previous to that time. Phelps died on July 1, 1826. The complainant prayed that the mortgaged premises might be sold, subject to Ooit’s mortgage, and the proceeds applied to the payment of the .mortgage assigned by Pease to Phelps.
    The defendant, Ford, answered, and denied all knowledge of the note and supposed mortgage given by French to Pease, but admitted that after the deed to himself, of November 16, 1818, he had heard of said supposed mortgage, but insisted *that it could [819 not operate as notice, in consequence of the want of a seal to the acknowledgment. He also denied all notice of the supposed mortgage at the time he took the assignment of Coit’s mortgage. He further alleged, that on November 16, 1818, he purchased the premises of French for the sum of four thousand five hundred dollars, and was at that time entirely ignorant of any mortgage on the same, except Coit’s mortgage; that Phelps had full knowledge of this purchase, and the payment of the consideration money; that this defendant and French applied to Phelps to draw the deed, who did so; and was not only silent as to any claim he might have on the land, but told defendant that there was no mortgage or other lien on the same, except Coit’s mortgage. This defendant neither admitted nor denied that the deed of November 16, 1818, was intended to secure advances made by him to French.
    The defendant, French, admitted all the material allegations in the bill, and stated further, that at or just before the time of the execution of the deed of November 16, 1818, he gave Ford notice of the mortgage to Pease, and also stated that the deed was intended only as security for advances, and that Ford gave him an instrument of writing to that effect.
    It appeared from the exhibits and testimony, that the note given by French to Pease for nine hundred and ninety-seven dollars and twenty-nine cents, was assigned by Pease to Phelps, by an indorsement on the back of the note; but there was no actual assignment of the mortgage, which was given to secure the note. It was admitted that the deed of November 16, 1818, was drawn by Phelps, and in his own handwriting. It was also in proof, that some time in the spring, or in the month of June, 1826, Phelps told the witness that he had advised Ford to give French further time to pay his debt, and assigned as a reason that Ford had a clear title to the farm, or that there was no claim on the land except Ford’s; and that there was an agreement between French and Ford, giving further time to pay, which was written by Phelps, but was afterward canceled.
    *Phekps, for the complainant.
    Webb, for defendants.
   By the Court :

1. It seems to be settled law, that an assignment of a note in writing, and delivery of the mortgaged deed, transfers all the rights secured by the mortgage. 1 Johns. 580; 3 Johns. Cas. 322; 2 Sw. Dig. 110; 4 Johns. 41; 1 Gallison, 155; 1 Ohio, 320.

2. Is the mortgage to Pease defective, for want of a seal to the acknowledgment of the justice of the peace? No seal, or other ceremony, in the acknowledgment of deeds, executed by a, man, or by an unmarried woman, was required by any law of this state, until the statute of 1819. Vol. xvi. 192. The law adopted from Pennsylvania, in 1795, required that all deeds executed by husband and wife should be acknowledged in a certain manner, and such acknowledgment should be certified, upon the deed, under the hand and seal of the judge, or justice of the peace.

This distinction between deeds executed by husband and wife, and other deeds, was maintained in the statutes of 1802 and 1805, and it was not till 1818 that the distinction was annulled,.and a seal required to the acknowledgment of all deeds.

The seal, and other ceremonies, in the acknowledgment of deeds by husband and wife, were doubtless intended to protect the rights of married women; and were originally introduced into our law to supply the place of the common law formalities, in the conveyance of real estate by femes covert.

The mortgage in question having been executed in 1814, by French alone, no seal was required to the acknowledgment; it was, therefore, well recorded, and conveyed notice to Ford.

3. The mortgage having been duly recorded, Ford’s subsequent purchasefwas necessarily subject to the rights of the mortgagee,, or his assignee, unless there was such a fraudulent suppression of the truth, or suggestion of falsehood, by *Phelps, as to authorize a court of equity to postpone or annul his mortgage. If, at the time of Ford’s advancement or purchase, Phelps denied, or stood by, and when questioned, concealed his own title, he practiced a fraud, and has no right against Ford. 4 Johns. Ch. 65.

Ford, in his answer, alleges that Phelps drew up the deed, and was not only silent as to his own claim, but asserted that there was no mortgage or other lien on the land, except Coit’s mortgage. This allegation is not responsive to any charge contained in the bill, but is new and distinct matter, set up in the answer, to avoid a pre-existing right in Phelps, and must therefore be proved. Z Johns. Ch. 62; 2 Vesey, 587; 1 Johns. 580. It is agreed between the parties, that Phelps drew up the deed from French to Ford; but this circumstance neither proves nor disproves the charge of fraud. It is not sufficient to postpone a prior mortgage, that the mortgagee assisted in the execution of a second mortgage; but it must appear affirmatively, that the first mortgagee denied or fraudulently concealed his title. The mortgage of Phelps being duly recorded, was notice to all the world, and the fact that he acted as a scrivener in drafting a subsequent mortgage, can not, per se, operate as a forfeiture of his rights. There is no evidence that Phelps, at the time, either concealed his title or denied its existence.

The only testimony in the cause is the deposition of the younger Ford, and that refers exclusively to a transaction in 1826, a few days before the death of Phelps, and nearly eight years after Ford’s purchase or advancement. This testimony, taken in its strongest sense, amounts to no more than an admission by Phelps that the mortgage money had been paid. But Ford, by his pleadings, does ■not rest his rights-upon this ground. He does not pretend, in his .answer, that the mortgage was paid in 1826, or at any other time, but insists that Phelps shall be postponed, by reason of the alleged fraud practiced in 1818. His proof does not correspond with, or support his allegations. A defendant can not set up one defense in his answer, and upon the final hearing rely upon another. His allegations and his proofs must correspond.

Decree for complainant.

*Judge Brush

dissented:

The testator in his lifetime, to wit: November 11,1814, obtained from G-aius Pease, the assignment to him of a note of hand for nine hundred and ninety-seven dollars and twenty-nine cents, payable one year from date, and dated September 27,1814, made by defendant, Jacob French, to said Peaise. January 20, 1816, said French paid testator four hundred and fifty dollars; the receipt of which was indorsed on the note, as a credit or receipt of so much that day on the note. To secure the payment of' that note, defendant French had given to said Pease a mortgage on three hundred and two acres of land, lying in Geauga county, bearing date, and no doubt executed and delivered on the same day of the note, September 27, 1814. It is said in the bill, and admitted in French’s answer, that this mortgage was assigned and transferred by Pease to the testator, by the assignment of said note. There is nothing in the note, or assignment thereon, which refers to the mortgage in any way ; nor is there any assignment or transfer in writing, of said mortgage, by Pease to testator. French, before the execution and delivery of the above mortgage by him to said Pease, had given a mortgage for the same land to Daniel L. Coit, bearing date June 8, 1813, to secure the payment of five hundred and six dollars. This last mortgage was sold and transferred, by assignment in writing, May, 1819, by Coit’s agent, Perkins, to defendant Ford. Before that time, to wit: November 16, 1818, defendant French sold and conveyed to Ford the same land, for the consideration of four thousand five-hundred dollars. This deed was written for the parties by the-testator, Phelps; that is, a printed blank deed was filled up by him, at the request of the parties thereto, said French and his wife, of the first part, and defendant Ford, of the second part.

The bill states, and the defendant, French, admits, that he gave to Ford a quitclaim deed for the same land, March, 1827. Defendant, Ford, says nothing about this quitclaim deed, in his answer, probably because he considered it unimportant in the controversy, as it undoubtedly is.

*Phelps, the testator, died in 1826. His administrator, with the will annexed to his administration, now brings this bill setting forth the above conveyances and incumbrances upon said farm and tract of land, and insists on the right of his testator and his right, as personal representative, to have the premises sold to pay him as such administrator the balance due on said note, after satisfying the prior incumbrance, created by the mortgage to Coit, now belonging to defendant Ford; and that after deducting the said sum of four hundred and fifty dollars, paid and indorsed on the said note, the balance thereof is due.

The above deeds were all duly recorded in Geauga county, and each of them is still entitled to preference, according to its date, unless the defendant, Ford, has alleged in his answer, and proved sufficient to postpone and bar the mesne incumbrance to Pease, of 1814, which intervenes between the Coit mortgage of 1813 and Ford’s deed of 1818; and the plaintiff will be entitled to the relief he seeks if he has sufficiently shown his right to the mortgage from the defendant, French, to Pease, and has the proper parties before the court to enable them to decree.

Ford’s answer denies explicitly more than once all knowledge (that is, all actual knowledge) of the existence of the mortgage and note from French to Pease at the time he received the deed from French to him, and paid for the land the consideration therein expressed. He states, in his answer, that testator Phelps had full knowledge of the purchase by him from French and the-consideration; and that he, Phelps, was applied to by both to-draw the deed, and did draw it; that it is in his handwriting, and that he, Phelps, then told him, Ford, that there was not any mortgage, claim, or lien on the land except his, Ford’s, and charges the-fraud of concealing the mortgage to Pease, etc.

Plaintiff’s counsel admit, in writing, that the deed from French to Ford, dated November 16, 1818, is in the handwriting of Phelps, except the printed part, the signatures of the grantors, and witnesses. The deposition of Seabury Ford, defendant’s son,, proves the confession of Phelps, made in 1826, that he “had advised defendant, Ford, to give time of payment to French for his debt, assigning as a reason *that he, Ford, had a clear title to the farm, or that there was no claim on the land except his, or similar words conveying the same idea; and it being so clear was a sufficient security for the debt.” In answer to a question by counsel, “If Phelps told the time he had this conversation, and gave this advice,” witness answers: “ I do not recollect that he did, but I suppose that it was a few months before, as an agreement was made between said French and Ford, giving further time to pay; and said agreement was written by Samuel W. Phelps, but was afterward taken up and canceled.”

The bill states that Phelps died July 1, 1826. Defendant Ford could not, therefore, by interrogations in his answer, call for any confession of the matters stated by him. There is not, and consequently could not be, any denial of those allegations. Yet the plaintiff must prove them, but is not bound to the extraordinary proof of two witnesses, as in case of a denial by a party under oath, or of one witness with circumstances corroborating his testimony.

The ground of defense, upon the merits in this case, is that if Phelps was the real owner of the mortgage from French to Pease, he fraudulently concealed from defendant Ford the knowledge of the fact, or that any such claim rested upon the estate in controversy at the time when it was important for him, Ford, to» know it, and when he, Phelps, was bound in conscience to disclose-,

I know of no legal reason why I may discredit the witness, Seabury Ford, although he is the son of defendant, for whom he testifies. There is no denial of the matters he has related, or -evidence against his character. His evidence harmonizes, in every respect, with the uniform conduct of the testator, sustaining the honesty and fairness of that conduct, which, otherwise, it would be impossible to reconcile with integrity and honor.

. Are we not bound to believe that a witness, uncontradicted, tells the truth when he proves the adversary party honest, rather than presume the contrary without any proof? There is no evidence that Phelps ever claimed the mortgage of Pease as a security for the note assigned to him ; he might, therefore, well say there was no other lien upon the land but Ford’s, and persuade Ford to give time of payment, *and write for the parties an instrument •stipulating such extended credit, which, in this instance, had the •effect in law to convert the absolute deed into a mortgage. The witness was not informed by Phelps, when he gave the advice, to give time of payment. What, then, is our duty but to infer that the time was when the act done would have the effect intended, and which the witness says it had ? The object and purpose of the statement of Phelps, and his advice to Ford, was to procure time of payment for French. The motive of Phelps may be altogether immaterial, but it is difficult to imagine any other than a favor to French, or to advance his own interest, or both. The latter might be effectually accomplished by the delay, which might ■enable French, in the meantime, to raise the money to pay off Phelps’ debt, if he owed him any at that time on that note, or on any other account. Whatever the motive or object, the effect of those statements and advice was to change the nature of the title . which Ford had to the land, from an absolute to a conditional fee, ■extending the equity of redemption to French a considerable length oí time, and thereby enlarging his rights. This, in law, ■happen when it would, is sufficient to postpone and bar the lien •of him who procures this to be done by denying his own title, if he has any at the time, and persuading thereby his adversary to •change his. And more so, if this was done (and I feel warranted,' •from the evidence and all the circumstances of the case, to find it was) at the time when the absolute deed was made. It seems to me there is better reason to believe it was done at that time than ,any other. That it was done there is no reason to doubt, unless there be good reason to discredit the witness. As I understand the case, the actions of the parties, and the circumstances of the entire transaction, corroborate the witness in every particular, so far as he undertakes to speak with any certainty. The testator acquired his right to that lien, if at all, when the note was assigned to him, and by that act — that was 1814. A payment was made to him in 1816 of four hundred and fifty dollars. Is it not remarkable he did not assert his right to this security and coerce payment of this debt during his life, if he had the right, and the debt subsisted from 1814 or 1816 until 1826? In the meantime deny his own right and assure his ^neighbor Ms was perfect 1 I can not overcome the reluctance I feel to set it up at this late day.

A sleeping mortgage, denied during all the life of the testator, to be set up after his death by his personal representative, and that with such a doubtful title to it, as here is manifested. It may sleep on for me. I can not lend my aid to give it force to take from that neighbor his estate, clear of every other embarrassment, and clear of this, if any faith may be given to the assurances of this testator, in his life and in his actions, neither of which in this respect did he ever contradict. It is due to his memory to believe, as he declared, that no such claim existed on the land. I should also be prepared to‘say, that as he acted as the agent of French and Ford, in preparing the deed from French and wife to Ford, being the scrivener, it would be fraudulent in him, if alive, to set up any claim to an incumbrance which he then held on the land, and forbore to disclose to Ford, who was giving a full consideration for it. Within the meaning of Chancellor Kent, in Brinkerhoff and others v. Lansing, 4 Johns. Ch. 70-72, I consider this employment of the testator to prepare for the parties the conveyances as equivalent to “ asking information,” and his 11 silence deceptive,” if indeed he could claim any title vested in himself, at that time, of the same land thus about to be exchanged by French for so great a price.

For him to insist on his title, under such circumstances, if not technically “active fraud,” within the chancellor’s meaning, it seems to me he would say it was most wickedly inactive deception, and treacherous ; against good faith, and pernicious in its consequences. In its features and circumstances there is really no analogy between that case and the present. It introduced the subject of this fraud ( by concealment of title when others were dealing), but made no case for relief. And the chancellor, in discoursing upon it, ran it down so eloquently that there would be room to question the precision or accuracy of his language as to this active-fraud, there considered necessary in all cases, if it could be made applicable to this case and its circumstances. On the whole, it is my opinion, that the bill ought to be dismissed ; and, at any rate, that no decree can be made for plaintiff *until G-aius Pease be made a party. Mallow v. Hinde, 12 Wheat. 193, 196; 9 Crunch, 25; 1 Peters, 243.


author: By the Court :

text:
    Timothy Buell v. Lucius Cross.
    Where a party has remedy at law, ia the prosecution of which he has Peen, defeated by an erroneous decision, he can not be aided'in equity.
    This was a suit in chancery, and reserved for decision by the Supreme Court in Washington county.
    The bill stated, that some time previous to May 14, 1817, the-plaintiff was treasurer of a certain company or association, existing in Washington county, and known by the name of the Luck Creek Bridge Company, which company, before that time, and. under an act of the legislature of Ohio, had erected, at a great expense, a bridge across Duck creek, and had been accustomed to receive tolls, authorized by said act. That on May 14, 1817, one William Hart and the plaintiff, as treasurer of said company," entered into an agreement by which Hart rented said bridge for the term of one year, for the sum of three hundred and thirty-seven dollars, to be paid quarterly. That to secure the payment of the rent, Hart executed to the plaintiff, as such treasurer, a joint bond with Obadiah Lincoln, Philip Abbott, and Timothy Stanley, as-securities. That no part of said rent has ever been paid by Hart, or any of his securities. That Timothy Stanley died sometime in March, 1819, leaving a will, and Abigail Stanley his executrix, who-made probate of the will. That on April 15, 1819, the plaintiff commenced a joint action of debt on said bond, against Hart, Lincoln, Abbot, and Abigail Stanley, as executrix of Timothy Stanley, and in lu y, 1819, a judgment, was rendered by default, against, all- the defendants, for the sum of five hundred dollars, the whole penalty of the bond — no breaches having been assigned. That after the rendition of said judgment, and before March 24, 1825, Abigail Stanley died, and the administration of her estate, as-well as that of Timothy Stanley, not fully administered upon, was committed to the ^defendant, Lucius Cross. On March 24, 1825, the plaintiff issued a scire facias to revive said judgment against Cross, as administrator de bonis non of Timothy Stanley, upon which Cross appeared, and on demurrer, a judgment was rendered against the plaintiff, in June, 1825. Since the rendition of the original judgment, Lincoln has died wholly insolvent, Hart and Abbott are both insolvent; and at no time since the rendition of the original judgment, could anything have been collected from Hart, Abbott, or Lincoln. Executions against them were returned, no property found.
    The prayer was, that Cross be decreed to pay the said sum of three hundred and thirty-seven dollars, with interest, to the plaintiff, as treasurer of the Duck Creek Bridge Company, and for general relief.
    The defendant demurred generally.
    Nte,
    in support of the demurrer, contended:

      First. That as against the defendant, the complainant has no' equity to be enforced; for that the obligation, on which it is sought to charge the estate which he represents, having been joint only, it was extinguished at law, as to Stanley, by his death; and equity will not give it new life against his representative, he having been a mere surety, liable only by the legal obligation rasied by the bond itself, and not by reason of any debt due from him, or-benefit accrued to him in the transaction, from which an independent, moral, or conscientious obligation, might have risen or existed. 2 Johns. Ch. 1; 2 Evans’ Pothier, 58; 1 Bro. Ch. 27; 2 Wash. 136; 2 Hen. & Munf. 124; 3 Ves. Jr. 399; 2 Johns. Ch. 585, 630, 651; 2 Atk. 31; 2 Ves. 101, 371; 1 Caine’s Cas. Err.; 3 Ohio, 33 ; 1 Fonbl. 161, 162 ; 4 Desaus. 148.

      Second. Whatever might have been the state of the question, anterior to the decision upon the scire facias, the complainant having brought his claim to a determination in that mode before a competent tribunal, is concluded by that determination.
    ^Goddard, contra:
    The authority, from 2 Wash. 136, is admitted to be in point for the defendant, but it is believed that no similar case can be found to sustain it. 4 Desaus. 148, is directly the other way. These two American authorities are directly opposed to each other, and .are the only cases found upon this subject. There seem to be sound reasons why the South Carolina decision should be adopted rather than the Virginia.
    It is true that the case in 2 Ves. 101, is liable to the exeéption •stated in Washington, viz : that there was a binding to both obligors. But this circumstance should not impair the weight of the ■authority, unless the chancellor limits his decree to the amount ..actually received by the testator, and no such limitation appears.
    It is clear that if upon the death of one obligor in a joint bond, the obligee can not compel any payment from the executors (the other and surviving obligors being insolvent), neither can one obligor who pays the whole debt, look to the executors of a deceased obligor for contribution. The whole doctrine rests upon the supposition, that where the bond is executed, the parties agree to take their chance of survivorship. This court has brushed away all the law on that subject relating to real estate. The present objection may as well share the same fate.
    The consequences resulting from a decision in favor of the defendant may be serious. Sheriffs and coroners, justices of the peace, county auditors, administrators, guardians, and parties apj)ealing from the court of common pleas to this court, are required by statute to give bonds, with two or more securities. In all these cases, .and numerous others, a joint bond will satisfy the requisitions of the law, and no doubt such has been taken. Are the court prepared to sanction a doctrine, which may render these bonds useless, or which may subject one surety to the entire loss, without a contribution from the estate of his co-security, who has luckily died first? Is not all discussion upon this point unnecessary, in a case like the present, where the parties to *the bond expressly bind themselves, their executors, and administrators ,?

    Several other points were argued by the counsel, upon which the •court intimated no opinion.
   By the Court :

The plaintiff, by his own showing, has a judgment now subsisting against the executrix of Stanley, and no good reason is assigned why that judgment does not embrace his rights. The doctrine, recognized by this court, in 3 Ohio, 305, is applicable to this caso: that however summary, or however irregular, the judgment of a competent tribunal can not be treated as a nullity. There is an explicit and formal judgment, and although the proceedings upon which it was predicated, may be unknown to our jurisprudence, still, as in all other judgments, they are not open for inquiry, except i-n a regular mode of re-inv.estigation, on writ of error or certiorari. The remedy of the plaintiff is purely at law; this-remedy he has attempted by the scire facias. If he properly failed, his rights are at an end; if improperly, his remedy was by error or appeal.

A person having an option of law or equity, after selecting one tribunal, can not resort to the other. 1 Ohio, 435 ; 2 Ohio, 268; 3 Johns. Ch. 356.

It is unnecessary to determine the question argued by counsel, whether, when the legal remedy against a surety is extinct, a court of equity will enforce the obligation. This court would hesitate, before they adopted the doctrines contained in the cases cited from 2 Wash. 136; 2 Hen. & Munf. 124.

Bill dismissed.


author: By the Court:

text:
    *Jacob Kerns v. Nicholas Schoonmaker.
    Statute of limitations commences to run so soon as the injurious act complained of is perpetrated, although the actual injury is subsequent, and could not immediately operate.
    This cause was reserved for decision by the Supreme Court in Hamilton county.
    It was an action on the case to recover damages of the defendant, for negligence and omission of duty, as justice of the peace.

    The declaration alleged, that on April 25, 1825, one John Stewart voluntarily confessed a judgment, in favor of the plaintiff, Jacob Kerns, before the defendant, as a justice of the peace, for the sum of one hundred and seventy-two dollars and sixty-nine cents. On April 28,1825, Stewart offered one Simon Elliot, as security, for the stay of execution upon this judgment, who was accepted by the defendant; but the entry upon his docket was se ■carelessly, negligently, and informally made, that Elliot was not legally bound thereby. Stewart died,-insolvent, before the supposed stay of execution expired. Theplaintiff prosecuted Elliot upon the informal recognizance, taken by the defendant, and such proceedings were thereupon had, that this court pronounced the supposed recognizance absolutely void; and Elliot was discharged. The plaintiff claimed the amqunt of the judgment, with interest, .and also his costs and expenses in prosecuting Elliot.
    The defendant plead, first, not guilty. Second, not guilty, within one year next before the commencement of this suit.
    The plaintiff joined issue upon the first plea. To the second, he replied specially, that on January 26, 1828, he brought an action of debt against Elliot, upon the supposed recognizance, in the court of common pleas of Hamilton county, in which a judgment was rendered against the plaintiff, at November term, 1828. The plaintiff appealed to this court, and at May term, 1829, this court gave judgment against theplaintiff, upon the ground ■that the supposed recognizance was altogether void ; which judgments are unreversed. The plaintiff further alleged that this suit was brought within one year after his rights were made known by the decision of this court, at the May term, 1829. This suit was commenced on December 12, 1829.
    *To this replication there was a general demurrer and joinder. The court below sustained the demurrer, and gave judgment for the defendant, from which the plaintiff appealed to this court.
    There was no argument in support of the demurrer.
    Caswell and Starr, contra:
    The only question presented upon the pleadings is, when did the •cause of action accrue? When the defendant took the security in 1825, or when Elliot avoided it in May, 1829 ? The cause of action can not be said to accrue until an injury is sustained. It was no injury to theplaintiff for the defendant to take the security in the form he did, unless Elliot took advantage of the defect.
    Instead of pleading, not guilty within one year, the defendant should have plead, that the cause of action did not accrue within one year. 4 Bacon, 474. Hence it was necessary to set forth, by way of replication, facts showing when the cause of action did accrue.

      If the plaintiff had sued the defendant soon after the security was taken, he would have recovered only nominal damages. He ■could not then have set forth the nature and extent of the injury.
    The principle seems to be settled in 12 Mass. 127; where it is laid down, that it would be an unreasonable construction of the statute, to say that the time of limitation began to run before the plaintiff could set forth, in his declaration, the extent of his injury
   By the Court:

The plaintiff insists that his right of action did not accrue until the termination of the suit in this court, in 1829 ; and unless he can sustain this position, he is too late in his action. For if the action accrued when the mistake was made, or when the supposed stay of execution expired, or when the suit was instituted against Elliot, more than one year had elapsed before the commencement ■of this suit.

It is unnecessary to determine the precise moment when the ^statute did attach, for we entertain the opinion that no later period can be selected than the institution of the suit against Elliot. Admitting that the plaintiff might reasonably expect Elliot to fulfill his supposed recognizance, and pay the debt, yet, when he evinced his intention not to be bound, the plaintiff’s remedy against the justice was complete.

It is, however, objected that only nominal damages could have been recovered, previous to the determination of the suit against Elliot. This objection seems to be removed, and, indeed, the whole case disposed of, by the decision of the Supreme Court of the United States, in the case of Wilcox et al. v. Plummer, 4 Peters, 172. It was a suit brought against an attorney for negligence. The plaintiffs placed a note in the hands of Plummer for collection. On May 7, 1820, he commenced a suit against the drawer, but neglected to do so against the indorser. The drawer proved insolvent. On February 8, 1821, Plummer sued the indorser; but in consequence of a misnomer, the plaintiffs were nonsuited in June, 1824. Before the nonsuit, the action against the indorser was barred by the statute of limitations. The suit against the attorney was instituted on January 27, 1825, to which was pleaded the statute of limitations of North Carolina, which interposes a bar after three years. Mr. Justice Johnson, in delivering the opinion of the court, uses this language: “When the attorney was chargeable with negligence, his contract was violated, and the action might have been sustained immediately. Perhaps in that event, no more-than nominal damages may be proved, and no more recovered; but, on the other hand, it is perfectly clear, that the proof of actual damage may extend to facts that occur and grow out of the injury, even up to the day of the verdict. If so, it is clear the damage is not the cause of action. This is fully illustrated by the case from 1 Salk. 11, in which a plaintiff having previously recovered for an assault, afterward sought indemnity for a very serious effect of the assault, which could not have been anticipated, and, of consequence, could not have been compensated, in making up the verdict.”

The cases are numerous and conclusive on this doctrine. As long ago as 20 Eliz., 1 Cro. 53, this was one of the points *ruled in the Sheriffs v. Bradshaw. And the case was a strong one, for it was altogether problematical whether the plaintiffs ever should sustain any damages from the injury. The principle has often been applied to the very plea here set up, and in some very modern cases. That of Baltley v. Faulkner, 3 C. & A. 288, was exactly this case; for there the damage depended upon the issue of another suit, and could not be assessed by a jury until the final result of that suit was definitely known. Yet it was held that the plaintiff should have instituted his action, and he was barred for not doing so. In Howell v. Young, 5 B. & C. 254, the same doctrine is affirmed, and the statute held to run from the time of the injury, that.being the cause of action, and not from the time of damage or discovery of the injury, (a)

Demurrer sustained.

(a) The recognizance taken by the justice was as follows:

Jacob Kerns ") Eecognizance bail, 25.

vs. Simon Elliot appears, and acknowledges him-

John Stewart, ) self bail in the above case.