source: Caselaw Access Project

author: Judge Burnet :

license: Public Domain

text:
    Heirs of Waldsmith v. Administrators of Waldsmith.
    When defendants in the suit are named as administrators, evidencemay.be given to charge them in their individual character.
    Cause of action defectively set out can not be supplied by proof.
    The distributees of the personal estate of an intestate can not join in an action against the administrators for their distributive share. '
    This cause came before the court by adjournment from the Supreme Court of Hamilton county, upon a motion to set aside a nonsuit and grant a new trial.
    It was an action of general indebitatus assumpsit, in which the plaintiffs claimed as heirs of Christian Waldsmith, and charged the defendants as his administrators. In the declaration the plaintiffs described themselves as “ children of John Waldsmith, deceased, and heirs of Christian Waldsmith.” Besides the usual money counts, as for money received by the defendants after the death of an intestate, the declaration contained a count alleging a settlement by the administrators with the court of common pleas, and a balance being found in their hands due to the plaintiffs, “ in consideration whereof they assumed,” etc. The defendants pleaded the general issue, and upon the trial the testimony offered by the plaintiffs was objected to upon the ground that it went to prove a personal liability in the administrators only, upon which they could not be sued as administrators. The court rejected the testimony, and the plaintiffs having suffered a nonsuit, moved the court to set it aside upon the ground that the opinion rejecting it was incorrect.

      Guilford, in support of the motion.:
    The plaintiffs’ counsel insist that in all cases, where the promise in the declaration is alleged to be made by the administrator, the judgment and execution must be de bonis propriis, and that it is only where the promise is alleged to have been made by the intesteste, that judgment is de bonis testatoris. *This distinction between a promise made by the intestate and one made by the administrator, or rather where the cause of an action accrued in the lifetime of the intestate, and one which originates with the administrator is taken in 4 Term, 347, and clearly established.
    The reason assigned for this distinction is this, that where the cause of action originated in the lifetime of the intestate plene administravit may be pleaded, and the judgment must be de bonis testatoris; but where the cause of action arises from the promise of the administrator plene administravit can not be pleaded, and the judgment must be de bonis propriis.

    The same distinction is recognized in 1 Term, 691; 1 H. Black. 108 2 Bos. & Pul. 424.
    „.e heirs of Christian Waldsmith had no cause of action against their ancestor, and the declaration states the promise to have been made by the administrators.
    Storer, for defendants :
    The defendants are sued in a special character. The process; as well as the declaration, describes them to be administrators; and it is contended the judgment, if any can be given by the court, must follow the pleadings. It is believed no case can be found where a judgment has been rendered, de bonis propriis, in the first instance, against executors or administrators, when they are sued as such. The universal practice, even in the English courts, is to grant judgment de bonis testatoris, and compel the party to resort to his scire facias against the defendants before a personal liability can be imposed. Rodgers v. Jenkins, 1 Bos. & Pul. 383; 8 Term, 416; 2 Tidd’s Practice, 842; Farr v. Newman, 4 Term, 648.
    In the present suit, the several counts charge the defendants with personal liabilities only. The account stated is between the defendants, as administrators, and the court of common pleas, sitting as a court of probate. The other counts charge the defendants with moneys had and received by them to the plaintiffs' use. To admit evidence to support this declaration, therefore, would not only be variant from the first principles of pleading, but it *would introduce the greatest laxity in practice. It would dispense with the usual formalities of process, as the plaintiff could discharge the defendants personally, no matter in what relation they are sued, and, e converso, charge the defendants in a special character, when declared against as individuals. The decisions on this point do not conflict; they unite to establish the proposition urged by the defendants, to its fullest extent. 1 Ld. Raym. 437; Nicholas v. Killigrew, 4 Term, 374; Jennings v. Newman, 1 H. Bl. 108; Rose v. Bowler, 2 Bos. & Pul. 424; Brigdon v. Parkers, 2 Saund. 329, in note; Centre v. Phelps, 8 Johns. 440.
    The character in which the defendants are sued entitles them to file the plea of plene administravit, a notice of which is to be found in the record of the cause; and it is believed there is no precedent of a judgment absolute de bonis propriis, over that plea, even if it should be found against the defendant. Again, the statute of Ohio (22 Ohio Laws, p. 128, sec., 16), has given to executors and administrators the privilege of appeal, without bail, from all judgments rendered against them in that relation; and the whole benefit of this salutary remedy would be lost if the plaintiffs’ position should be sustained, that under this declaration the defendants can be personally charged.
   Opinion of the court, by

Judge Burnet :

At the trial of this cause, it was proposed, on the part of the plaintiffs, to prove that they were children of John Waldsmith, and heirs of Christian Waldsmith, deceased — that the defendants were the administrators of C. Waldsmith, and that on settlement of their accounts before the court of common pleas, a large sum was found in their hands belonging to the heirs. This testimony was rejected, and a judgment of nonsuit entered.

On a motion to open the nonsuit; and grant a new trial, the question was, whether the court erred in overruling the testimony. In examining this case, it is necessary to look at the declaration. The defendants are charged as administrators of C. Waldsmith, deceased; the plaintiffs are described as “children of John Wald-smith, deceased, and *heirs of C. Waldsmith, deceased.” It is averred, “that the said defendants, administrators of C. Wald-smith, deceased, accounted with the judges of the court of common pleas, of and concerning the goods and chattels, moneys and effects, which were of said Christian at the time of his death, and which, before that time, had come to their hands to be administered; and, upon such accounting, the said defendants were then and there found to be in arrear, and indebted to the said plaintiffs in the sum of two thousand three hundred and fifty-eight dollars and seventy-four cents, and being so found in arrear and indebted, they, the said defendants, in consideration thereof, undertook and promise,” etc.

The declaration also contains the common money counts, in which the defendants were not named as administrators.

It was contended by the defendants at the trial, that the judgment against them, on this declaration, must be de bonis testatoris, while the facts charged, if they rendered them liable at all, made them so in their individual capacity.

The plaintiffs insist, first, that the judgment must be da bonis propriis; and secondly, that the facts charged, supported by the proof they offered,, are sufficient to entitle them to such a judgment.

These propositions must be separately considered. There appears to be some discrepancy between the authorities relating to the first point, which, on a superficial view, would seem to create a doubt.

It is true, as a general proposition, that in actions against executors or administrators, the judgment must be de bonis testatoris, and'that it is necessary to resort to a sci. fa. in order to charge them with a personal liability; but this is to be understood as applying to cases in which they are liable only in that capacity, and not to those in which there is an individual liability. If the action is founded on a promise, made by the testator or intestate, in his life, the defendant must' be sued in his representative character; he may plead plene administravit, and the judgment must be de bonis testatoris-, but, if the plaintiff rely on a promise by the executor, after the death of the testator, it is not necessary to name the defendant as executer, yet this may be done; they may be named as administrators by way of description, or for the purpose of showing the circumstances of the transaction, *and the origin of the liability; but the defendants can not plead plena administravit, and the judgment should be de bonis propriis. In such cases, the plaintiff is at liberty to describe the defendants as executors or not, at his election. The form of the judgment is not necessarily con-, trolled by that description, where it sufficiently appears that it is given merely as a descriptio persones, and not as an indication of the capacity in which the liability attaches. If the declaration presents a claim, to which the defendent is liable in his representative capacity only, as on an obligation executed by the testator, he must be sued as executor, and the judgment must be de bonis testatoris; but if it present a demand, which originated from the acts of the defendant, in his capacity of executor, but for which he has become individually liable, as if he should settle a debt due from the estate, and give his own note in the character of an executor, he may be described in the writ and declaration as executor, or that description may be omitted, and in either case the judgment would be de bonispropriis. So in the case before us; the property of the intestate was received and disposed of by the defendants, as administrators; the money claimed in this suit was obtained, and is now held by virtue of their power as administrators, but having closed the estate, and settled their accounts, by which thé net amount is ascertained, they hold that amount for the use of the heirs, and are liable in their individual capacity. Their liability, however, does not depend on the simple fact that they are administrators, but on the subsequent transactions which have brought the estate into their hands.

As regards creditors, the right of action against the intestate is converted, by operation of law, into' a right against the administrators. They are liable to the creditor, because the intestate was so liable, and as the remedy must pursue the right, it must charge them in their representative capacity. But not so in the case of heirs; no right of action vested in them against their ancestor, and consequently none has been transferred against the repre. sentative. Their right had no existence till after his death, and it was then contingent, depending on the result of' the settlement *of the estate. It was, in fact, the right of' the ancestor, transferred by operation of law, and not a right against the ancestor.

The property was received, and converted into money for their use. The defendants became liable as agents, in the same character in which they would have been liable to the intestate, had they disposed of the property in his life, and by his authority. In other words, they are under an individual liability, on which an action could be sustained against them in that character. The words “ as administrators,” in the writ and declaration, may be considered as descriptive of the persons sued, and not of the character in which they are sued, or they may be treated as surplusage. No person can read the declaration, and notice the manner in which the liability of the defendants arose, without discovering at once the character in which it is intended to charge them. As administrators of the deceased, they received and disposed of the property, paid the debts, and settled with the court. These transactions were authorized and required by the letters of administration ; they form a part of the plaintiffs’ title, and it was proper to set them out in the declaration, but as they show an individual liability, the judgment must be de bonis propriis. This conclusion seems to follow from the authorities on the subject. The case of Wallis v. Lewis, Ld. Raym. 1215, was by an executrix, on a promise made to herself, as executrix. On a motion in arrest of judgment, the court decided that the declaration being grounded on a promise to the executrix herself, the naming her executrix was but surplusage. This point, however, was ruled differently in Elwee’s executrix v. Mocater, in the same book, page 865, but it was decided in the same way, in Nicholas v. Killigrew, 1 Ld. Raym. 436, which was indebitatus assumpsit, by an administrator to recover money paid to a third person, after the death of the intestate, for the use of the plaintiff as administrator. In Jenkins and wife v. Plume, 1 Salk. 207, and 6 Mod. 92, which was assumpsit by executors for money had and received by the defendants, to their use, as executors, the action was held to lie, and that the naming themselves executors was only to deduce their right, and *set it forth ah origine. Marsh v. Yellowly, 2 Stra. 1106, was decided on the principle, that on a promise made, or a wrong done to the executor himself, he may sustain an action in his own name, or as executor, and it was held that in either case he was liable for cost. In Hooker v. Quilter, Ib. 1271, the declaration contained three counts, as executrix, and one for the use and occupation of the plaintiff’s house. There was judgment by default, which was reversed on error, for, said the court, there being no verdict, they could presume nothing but that the fourth count was, as it appeared, in her own right, which could not be joined with the others. In the final determination of Jenkins and Plume, as reported in 6 Mod. 181, the court says, “ The plaintiff needed not have named himself executor, it being on a contract with himself. His saying that it was to his use, as executor, is true, and therefore no harm, but rather better, for it shows how the right came.” The cases cited from 4 Term, 347, and 2 Bos. & Pul. 424, do not meet the question before us. It was decided in those cases, that counts on promises made, by the testator in his life, could not be joined with counts on promises made by the executor, as such, because they admitted of-different pleas, and different judgments; but it seems to have been understood that separate suits might have been sustained against the executor, on those promises, naming him as executor, and that on the latter, the judgment would have been de bonis propriis, although the defendant was named as executor. The same remark applies to the authority from 2 Saund. 328. The cases there referred to relate to the doctrine of joinder of actions, and were cited for the purpose of showing that money claimed by, or from executors, in different rights, could not be united in the same declaration, which is a question altogether different from the one now under discussion. We should not expect to find the present question determined, in cases of that character, but as far as they have a bearing on it, they seem to support the declaration before us. The author of the note admits, that a count, or an account stated, with an executor, for money due from the testator, may be joined with a count on a promise made ■ by the testator; and though he ^strongly doubts the doctrine in Petrie v. Hannay, 3 D. & E. 659, in which it was laid down that several counts may be joined, for money had and received by the defendant, to the use of the testator, and to the use of the executors as such, yet Buller, Justice, confidently affirms that such was the constant practice. The case of Hooker v. Quilter, before cited, seems to imply the same thing.

In Carter v. Phelps’ administrator, 8 Johns. 440, it was admitted that a count charging an executor as being liable in his own right, on a cause of action arising after the testator’s death, can not be joined with one on a promise made by the testator in his life; but it was decided that a count, on a promise made by an executor or administrator as such in which he is not charged as personally liable, may be joined with a count on a promise made by the intestate, and by a parity of reasoning, a count, on a promise by an executor, in which he is named as executor, but charged as in his own right, may be joined with a count on a promise in which he is not named as executor. In both cases the demand is made in the same right, and the plea and judgment are the same in both. In Myer v. Cole, 2 Johns. 350, the cause of action stated in one count, arose after the death of the testatrix, and the promise was not alleged to have been made by the executors, as such; but the point decided in that case does not arise in the case before us. It is, however, plainly to be inferred, from ,the language of the court, that in an action against executors, for a cause arising after the death of the testator, and for which they are personally liable, they may be named as executors, as a mere descriptio personae, and consequently that the judgment, notwithstanding they are so named, will be de bonis propriis. In Hooker v. Quilter, as reported in 1 Wils., the chief reason against the joinder was, that the court could not say what damages the plaintiff was to have, as administrator, and what in proprio jure. The reason of the decision, therefore, has no application to the present case. It was also stated in that case, that if an executor name himself executor, when he may sue without, as in an action for rent, both in the life of the testator, and after his death, it is but surplusage, and this is the most that can be said in the present case. *It was not necessary to sue the defendants, as administrators, for although their liability arose from their acts as administrators, yet they were responsible in their individual characters, and the naming of them as administrators is merely a descriptio personae. It may be treated as surplusage, or as intended to show the nature and origin of their liability. It can not affect the form of judgment:

The case of Barry v. Rush, 1 Term, 691, cited by plaintiff, does not bear on this case. The point there settled was, that an administrator, by entering into an arbitration bond, admitted assets and could not afterward plead plene administravit. The case of Farr v. Newman, 4 Term, 621, cited by both parties, appears equally inapplicable. The point discussed and decided in that case was, that the goods of a testator, in the hands of his executor, were not liable to bo taken and sold, on an execution, for the private debt of the executor, to the exclusion of judgments for the proper debts of the testator. The same remark applies to the case of Rogers v. Jenkins, 1 Bos. & Pul. 383. The point there settled by Eyre, Chief Justice, was, that if process issue in the name of one plaintiff, and a declaration be filed in the name of him and another, judgment will be set aside for irregularity. In the marginal note to this ease, it is stated that in Canning v. Davis, Yates, Justice, decided that though a plaintiff style himself executor, or give himself any other superfluous description, it will not hurt, for the demand is still the same. Section 16 of the act defining the duties of executors and administrators has also been referred to on the part of the defendants. On a careful examination of that section, the true construction of it will be found to be this, that the judgment of the court against executors, or administrators, in all cases in which it is properly rendered de bonis testatoris, shall only subject the defendants to the amount of assets in their hands unadministered, whatever may have been the form of pleading. It can not, therefore, affect the present question. It contains no direction as to the description of cases in which the judgment shall be de bonis testatoris, although it appears to have been cited for that purpose.

The best view we have been able to take of this subject, ^conducts us to the conclusion that there was no impropriety in describing the defendants as administrators — that that circumstance does not preclude them from taking their judgment de bonispropriis, and that there is nothing incompatible in the different counts contained in the declaration.

The second proposition is, that the facts stated in the declaration, supported by the proof offered at the trial, were sufficient to entitle the plaintiffs to a verdict.

It is a well-settled principle that every declaration must set out a good title. It must show such facts, as, if true, entitle the plaintiff to a judgment. The omission of a material averment can not be supplied by testimony at the trial. The plaintiff’s evidence must correspond with his case — he can not extend it to aid a defective title; and although the evidence offered may present a clear case for the plaintiff, yet, if it be not the same case found in the declaration, the court will reject it, although the consequence may be a nonsuit.

Evidence, being that which ascertains and illustrates the point in issue, must be confined to that point. Without an observance of this rule uncertainty and confusion would ensue. The records of adjudged cases would not show, with any degree of certainty, the grounds on which recoveries were had; nor would it be possible to conduct judicial proceedings with that precision and certainty which is justly ascribed to the science of special pleading, and is so essential to a safe and uniform administration of justice. It can scarcely be necessary to refer to books in support of these principles — they are found everywhere.

The plaintiffs in this case claim as heirs at law to the intestate, and the suit is brought for their distributive share of the personal estate. It is not pretended that any express promise has been made. The action is grounded on the legal liability of the defendants, and the implied undertaking which the law infers from it. The fact that the plaintiffs are children of John Waldsmith, deceased, does not constitute them heirs of C. Waldsmith; nor does it, in connection with the other fact, that the defendants, as administrators, have settled the estate and retain a residuum, show any liability to these plaintiffs, because that fact may *be true, and the plaintiffs be destitute of any right to recover. To show the existence of that right two additional facts are necessary, viz: that they are grandchildren of the intestate, and that the intestate survived their father. It is not stated that John was the son of Christian, nor does it appear which was the survivor. The former of these facts constitutes the foundation of the claim, and the latter is equally important; for if the father survived the grandfather he was the heir; the right vested in him at the death of the intestate — it continued in him till his death, on which it descended to the plaintiffs, who -must claim it as a part of their personal estate, through his executors or his administrators, and not as heirs at law to their grandfather — which would be presupposing that the right, at the death of their father, revested in their deceased grandfather for the purpose of descending to them, which would be an absurdity. As the declaration describes the plaintiffs to be the children of John Waldsmith, it is not enough to add “and heirs of Christian Waldsmith;” that does not follow as a consequence of the fact stated.

The rule that plaintiffs, who claim as heirs, must show how they are heirs, applies in this case, and it is understood that this relates to the declaration as well as the evidence given at the trial.

. If the defendants are liable in this action, it is on the concurrence of a variety of facts, which, taken together, constitute a title in the plaintiffs, but can not be proved unless they are relied on and stated in the declaration. A good title, defectively set out, may be supplied at the trial, but not so where the title itself appears to be defective.

It can not be pretended that a plaintiff who sues as an heir, and simply avers that he is an heir, sets out a good title, and yet this is the amount of the declaration in the present case. Without showing any privity, or liability, or any ground of an implied undertaking on the part of the defendants, it is averred that they accounted with the judges of the court of common pleas, and were found in arrear and indebted to the plaintiffs. Their indebtedness to the plaintiffs, in any amount, depends on the fact of heirship, which is not shown; and the amount of that indebtedness ^depends on the number of heirs, their respective degrees of consanguinity, and the total amount of residuum, ascertained by the settlement, respecting which the declaration is entirely silent. If the plaintiffs be heirs of the intestate, they take per stirpes, and the share to which they have a claim depends on the number of children who survived the intestate, or who might have died before him, leaving issue.

It was proposed to supply all these omissions by proof at the trial, or, in other words, to make out a title before the jury, which was not found in the pleadings. We are of opinion that this could not be done. But there is another inquiry involved in this branch of the case, equally decisive. On what principle of law have the plaintiffs joined in this action? We learn, though not from the pleadings, that they are the grandchildren and a part of the heirs of C. Waldsmith, among whom the administrators are directed by the statute to distribute, in equal shares, that portion of the personal estate of the intestate that their deceased father would have inherited, had he survived him.

In regard to real estate, parceners have but one entire freehold, and must join in real actions; but this claim rests on different grounds — as between the plaintiffs there is no joinder of contract, or of interest; their rights are separate and distinct. The defendants are answerable to them severally, and each of the heirs has a right to demand and receive his separate share of the residuum. In order to sustain a joint action, in any case, there must be a joint interest, as the proof must sustain the case made out in the pleadings. If two or more unite in one suit, they can not sustain it by proof of distinct, unconnected claims, and perhaps a case could not be selected better calculated to illustrate the position than the one in hand. C. Waldsmith died intestate, leaving several children and grandchildren. The plaintiffs are the children of his son John, whom he survived, and the defendants are his administrators. The suit is brought to recover, in one entire sum, the distributive shares of the personal estate, claimed by three of the heirs. The bare statement of the case shows that they have not one entire claim, but that their claims aro *separate and distinct. Were it otherwise, the unity of interest would extend to the whole estate, and require all the heirs to join. It will not be pretended, that the administrators have not a right to settle with the heirs separately, and take from them releases, without affecting the rights of other heirs; and it is well known to be the constant practice for administrators to make partial advances to the heirs, from time to time, as they may require it, which necessarily leaves unequal balances due.

In a joint action this inequality can not be regarded. The plaintiffs can not obtain separate judgments, nor can the judgment designate the amount due to each; it must be for an entire sum, in which they will have an equal right. On this principle, each heir would be bound by the acts of his co-heirs, who might receive and release to the administrators the whole personal estate. But the language of the statute seems to put this question at rest. It enacts, “that if any person shall die intestate, leaving any goods, chattels, or other personal estate, such goods, chattels, or other personal estate, shall be distributed agreeably to the foregoing course of descents.” The right of the plaintiff is derived from this statute, which directs the administrators to distribute, or pay to each of them the share designated in the preceding sections.

Inasmuch, then, as it is made the duty of the administrators to pay to each heir the share designated by the act, and as the right of the heir to demand arises from the duty of the administrator to pay, the right must follow the duty ; of course each heir must have a separate, distinct, and independent claim, to his distributive share. Such claims can not be joined in one suit, without violating the plainest rules relating to the joinder of actions.

Motion overruled.

       Note bt the Editor. — Surplusage, when, vii. 268, part 1; vi. 92. When coparceners, etc., must join in suits concerning their common estate, see vii. Ill, part 2; x. 442.


text:
    *Case and Davis v. Mark.
    Distinction between case and trespass: Whenever the injury is direct and immediate, trespass is the proper action.
    Where trespass is the proper action, plaintiff can not at his election bring case.
    This cause came before the court upon a writ of error to the common pléas of Hamilton county, and was reserved for decision here by the Supreme Court of that county.
    It was an action on the case, and the declaration contained a single count, in which it was charged, that the defendant “ so carelessly and negligently navigated his steamboat upon the Ohio river, that he run foul of, and struck the flat-boat of the plaintiffs, by means whereof it immediately sunk, and was lost to the plaintiffs.”
    A verdict was rendered for plaintiffs upon trial; the defendant moved in arrest of judgment, upon the ground that the facts stated in the declaration constituted a direct trespass, for which an action on the case would not lie. The court of common pleas arrested the judgment, to reverse which, error was brought, and the general error assigned.
    J. W. Piatt, for plaintiff in error :
    The action is properly brought upon two grounds:
    1. Case is always the correct form of action where the injury is done by vessels running foul of each other, at sea or in rivers.
    2. In cases like this the plaintiff may elect to waive the trespass, and go only for the consequential damages.
    The following authorities sustain the first position: Ogle v. Barnes, 8 Term, 188; Huggit v. Montgomery, 2 New Rep. 446; Nicholas v. Murray and Syms, 15 East, 384; Turner and others v. Hawkins and others, 1 Bos. & Pul. 472; Cooper’s Justinian, 628, 629; 2 Chitty, 283.
    The injury, in the cases cited, would seem to have been direct, inasmuch as it proceeded from the direct contact of the vessels; yet case was held to lie.
    In support of the position, that the plaintiff may, in certain casos, waive proceeding for the immediate injury or force, and form his action to recover consequential damages, the following cases are cited: 1 Chitty, 127; Pitts v. Gaines and others, 1 Salk. 10; Slater v. Baker, 2 Wils. 359; Scott v. Shepherd, 2 W. Black. 897; Swift’s Digest, 539-541, 551, 552; Ogle v. Barnes, 8 Term, 188; Rogers v. Enbleton, 2 New Rep. 117, 118; Huggit v Montgomery, Id. 447, note 1; Blue v. Campbell, 14 Johns. 432; Percival v. Hickey, 18 Johns. 288.
    T. Hammond, for defendant in error:
    The terms used in the plaintiffs’ declaration, that the boat “ immediately sunk," are the same always used by the courts in distinguishing trespass from case. Where the injury is immediate, trespass alone will lie; and whether the act be committed willfully or negligently, is immaterial. Tayler v. Rainbow, 2 Hen. & Mun. 423; Leane v. Bray, 3 East, 593. The ancient doctrine was the same. 2 Ld. Raym. 1402; 1 Strange, 634; 5 Term, 649; 6 Term, 130.
    Covel v. Laming, 1 Camp 497, was a case of one vessel running foul of another, and very similar to this. ' Lord Ellenborough was clear that trespass only could lie.
    Upon his second point, the. authorities cited by the plaintiffs’ counsel, do not support the position taken. In Swift’s Digest, 541, this doctrine is noticed as having been advanced, but is declared to have been overruled, and 3 Conn. 64, is referred to. There is some apparent contradiction in the cases as to the facts that constitute trespass, or upon which case must be brought; but upon examination it will be found, they all agree that where the act is direct and immediate, trespass only can be sustained.
   Opinion of the court, by

Judge Burnet :

The error assigned in this case is, that the court of common pleas arrested the judgment, on the ground that the facts amounted to a trespass vi et armis, and that this action could not be sustained. It became necessary, therefore, to ascertain the distinction between trespass and case, and apply it to the facts and circumstances set out in the declaration.

The plaintiffs charge that the defendant was the owner and commander of a certain steamboat, called the Congress, navigating the Ohio river — that he so carelessly navigated, managed, and steered the said steamboat, that he run her foul of, struck, and broke a certain coal-boat, downed and navigated by the plaintiffs, by means of which the said coal-boat immediately sunk, and was lost.

The-plaintiffs contend that the injury here described was consequential and not direct; but if direct, that it was the result of negligence, and that in either event, the action ought to be case.

The first part of this proposition certainly can not be sustained. The terms consequential and immediate are well understood. That is immediate which is produced by the act to which it is ascribed, without the intervention or agency of any distinct, immediate cause, but the effect of an intermediate cause is sometimes considered as a trespass, produced by a preceding cause, when the former is the immediate effect of the latter. Thus, the effect of pulling the trigger of a loaded gun is the production of fire, which causes the powder to burn, which gives motion to the ball, by which the injury is produced ; here the whole transaction is con sidered as one act, and the trespass is ascribed to the pulling of the trigger, though the injury is the immediate effect of an intervening cause, which gave motion and force to the ball. So in the case of the lighted squib, although it would have been harmless to the plaintiff, without the agency of Willis and Ryal, yet as they acted in self-defense, to avoid the danger produced by the agency of the defendant, their conduct was ascribed to him. All that was done subsequent to the original throwing was considered as a continuation of the first act, and the putting out of the plaintiff’s eye, was declared to be the immediate effect of that act. In this case the defendant was at the helm, directing the course of his boat — the steam which gave it motion was under his control; the boat therefore received its motion and course from the defendant, by which it was made to strike the plaintiffs’ boat, so that it was broken, and immediately sunk. Here there was no distinct intermediate agency. The injury was the breaking and sinking of the coal-boat — the cause of that injury was the act of the defendant, in running the steamboat against her. The injury, therefore, can not be considered as consequential — it was direct and immediate.

The second part of the proposition is equally untenable. The ^defendant could not shelter himself under the plea of negligence, and the plaintiffs are not at liberty to force on him an apology of which he could not avail himself. The character of the transaction, in reference to the form of the suit can not be affected by the presence or absence of negligence. That circumstance may, in some cases, have an impression on the amount of damages recovered, by varying the degree of malice, but it can not change the nature of the act. If it has the ingredient that stamps it with the character of a trespass, it must be treated as such. If a man shooting at game, does it so carelessly and negligently as to wound a person happening to be in the vicinity, the fact that it was done carelessly, and without design, will not protect him from an action of trespass. So if a man in self-defense, aims a blow at another, and by negligence or want of care strikes a third person, it is a trespass.

The proposition set up by the plaintiffs that where there is negligence, although the injury be immediate, the party may waive the immediate injury, and claim the damages only which is the consequence of the injury, amounts to this, that he may take up ■ an entire, connected transaction by parts, and rely on as much of it as will answer his purpose, to the exclusion of the residue. This would be a convenient privilege, as it would .often save a plaintiff from the unpleasant consequences of a nonsuit; but it would destroy established distinctions, and introduce an uncertainty in judicial proceedings which would be inconvenient and injurious. One of the reasons given for not sustaining actions on the case, where the circumstances amount to a clear trespass, and vice versa, is the necessity of preserving the boundary of actions, by which I understand the rules that prescribe what particular action or form of suit, shall be brought for each particular injury. These rules can not be uniform, if plaintiffs are permitted to garble their cases, so as to convert an unequivocal trespass, into trespass on the case. Were this permitted, I can not conceive of any trespass that may not be sued for in the form of case. What are the ordinary concomitants of a severe battery ? They are plain, bodily and mental — incapacity for business — the expense of medical aid, and disgrace in the public estimation. *If under the pretense of waiving the immediate injury, which is pain, the party may go for the consequential damage, which is the incapacity for business, expense, etc., it will be a matter of but little moment whether he sue in trespass or in case, as the only difference in the result would be the portion of damage that might be allowed for the pain inflicted. If this be conceded, the boundary between trespass and case is at once broken down — courts have no control over it — it is in the power of every plaintiff, and may be varied as the convenience of the moment may require. Should a party mistake his remedy, and sue in case for an undoubted trespass, he has only to turn on his opponent, and say, I waive the immediate injury, and he is perfectly safe. I have looked into the authorities cited to this point, and although some of them seem to be in opposition to the general tenor of the cases on the subject, I can not believe that they .sustain the plaintiffs. Turner v, Hawkins, 1 Bos. & Pul. 472, was a writ of error, after verdict. The court put the case entirely on the ground of a nonfeasance, which they said made it a complete action on the case. They referred all the circumstances alleged, to the not slackening of the rope, by the defendant’s servants, as they were bound to do, and having done so, they declined looking into the cases cited to show the distinction between trespass and case.

In Pitts v. Gaince, etc., 1 Salk. 10, the question settled was, that the captain of a vessel lying in port, not being the owner, may maintain case against an officer, who unlawfully detains her in port, for the particular loss he has sustained, by the detention of the voyage, or may bring trespass, founded on his possession, as the bailiff of goods may.

In Slater v. Baker, 2 Wils. 359, the injury complained of proceeded from ignorance and want of skill, in the defendants, who had been employed as surgeons by the plaintiff. After verdict, the court refused to look with eagle’s eyes, to see whether the evidence applied exactly to the case or not, but they settled no point relative to the distinction between case and trespass, or the right of a party to waive a direct trespass, and bring case for consequential damage.

Huggit v. Montgomery, 2 New Rep. 446, was an action *of trespass against the master of a vessel for an act of the pilot, done while the defendant was on board but not by his order. The court do not give the reason of their opinion, but from an observation of Chambre, Justice, it appears to have been that the master was not liable to an action of trespass for the act of the servant, done without his order.

In Rogers v. Enbleton, Id. 117, the marginal note cited, and relied on by the plaintiff, does not appear to be supported by the text. The'distinction, however, between trespass and case, was not agitated, nor do the court refer to it in their opinion. The editor has taken it for granted, that it was an action on the case, but the defendant’s counsel did not so consider it, or they would not have assigned, as a cause of demurrer, the omission of the words vi et armis, and contra pacem, nor would the court have gravely decided that because the injury was alleged to have arisen from mere negligence, the words vi et armis and contra pacem were not necessary in an action on the case. Those words have no place in such a declaration — their presence would have been a cause of demurrer, rather than their absence.

Ogle v. Barnes, 8 Term, 188, has also been cited. At first view it would seem difficult to reconcile this case with the mass of cases reported on the same subject, or with the rule adopted by the chief justice, in the case itself, which was, that if the act occasion an immediate injury to another, trespass is the proper remedy, but if the injury be not immediate but only consequential on the act done, case must be brought. But a careful examination, after reading the explanation given of it in Leame v. Bray, will remove the difficulty. It could not have been the intention of the court to shake the rule established by so many preceding cases, because they expressly recognize it, and because they have put their decision on a different ground, to wit: that it did not appear that the injury proceeded from the personal acts of the defendants, or that they were even on board of the vessel at the time.

The passage referred to in Chitty does not lay down a general rule. It merely states that the party injured has sometimes an election, which is all that can be gathered from the cases he cites, most of which I have noticed above. *The case of Blin v. Campbell, 14 Johns. 433, appears to go the whole length contended for by the plaintiffs; and although that decision was recognized as being correct, in Percival v. Hickey, 18 Johns. 288, on the authority of Chitty, and the cases cited by him, yet we can not adopt it for the government of this case. Some of the references in Chitty do not touch the point, others are equivocal, and as far as they go to establish the doctrine contended for, they are opposed by others, which we think they ought not to control.

The uncertainty that exists in cases of this character, may be ascribed, in some measure, to the decisions that have been made in case for running down ships, where the force that causes the injury does not always proceed from the agency of the person having the management of the vessel. Winds, waves, and currents may counteract his designs, by moving the ship in a course he has endeavored to avoid. It may be easy to determine the presence of this agency, but difficult to ascertain the extent of its effect. On a supposition that the defendant’s vessel has been taken to the point where the injury was done, without his agency, or in opposition to his efforts, honestly made to prevent it, it would be hard to declare him a trespasser. The impossibility of knowing with certainty the real extent of this extraneous cause, and-how far it might have been in the power of the defendant to counteract it, or whether his efforts by miscalculation or design, did not co-operate with it, renders it difficult to apply a uniform rule. But this difficulty can not be found in eases that receive an unequivocal character from the certainty of the facts on which they depend.

Something may also be ascribed to the reluctance with which courts yield to the necessity of deciding against a just claim, on a technical objection, or of turning a party round, because he has mistaken his remedy. In some instances this feeling has induced judges to avail themselves of circumstances in support of a case, having justice and equity on its side, that do not form a legal distinction, or bring it within any established rule. The same circumstances are relied on in other cases, which tends to render *the law apparently doubtful. For example, in some cases we find the lawfulness or unlawfulness of the act much insisted on, from which an inattentive reader might conclude that that circumstance formed the rule of distinction between trespass and case; but it is well known that acts strictly lawful frequently amount to trespass, while those that are not unlawful are attended with injuries, for which trespass can not be sustained. Thus, if a man shooting at a target, which is lawful, miss his aim and wound another, trespass will lie; but if he dig a pit in the highway, into which a traveler falls, trespass will not lie, although the act was unlawful.

In some cases, great stress is laid on the force that accompanies the act, by which an injury is done, but this is not a distinguishing fact — it forms no criterion by which to decide the character of the injury, or of the remedy. This will appear from the very familiar case of the log: if it be thrown into the highway with great force and violence, and afterward a traveler falls over it, he can not have trespass; but if it be laid very gently on his foot, by which he is injured, trespass will lie., So if a man quietly enters tho inclosure of his neighbor and picks up an apple, trespass will lie; but if he should, by forcible and violent effort, obstruct a watercourse, whereby the water is caused to flow back on his neighbor’s land, it would not be a trespass — he would be liable only in an action on the case.

It has also been contended, as it is in this case, that when the act from which'the injury proceeds, was done willfully, trespass is the proper remedy; but not so when it is the effect of carelessness, or negligence. But this.distinction can not be sustained, as will be evident from á little reflection. In the cases before mentioned, the log was thrown into the highway, and the water-course was obstructed intentionally, and it might be, to produce the very injury that ensued, but trespass could not be maintained. On the other hand, if, while a person is carelessly handling a loaded gun, he should unintentionally cause it to go off and wound another, trespass would lie, although the act was not willful, and the injury was the effect of negligence. So if a man should carelessly throw a brickbat from the scaffold and ^unintentionally wound .another, trespass would lie. In Leame and Bray, it was proved .that the accident happened from negligence, and not willfully, yet it was decided that trespass was the proper action. So in Weaver and Ward, where the defendant, exercising in the trained bands, .fired .his musket, and by accident hurt the plaintiff, it was trespass; and where a person suddenly turning round knocked another down, unintentionally and without seeing him, trespass was holden to lie.

The true distinction unquestionably is, whether the injury be immediate, or consequential, as will appear clearly from the authorities.

Taylor v. Rainbow, 2 Hen. & Munf. 436, was trespass on the case, for shooting off a gun in a place where many people were assembled, so carelessly and negligently, though without any design-to injure the plaintiff, that the contents of the gun struck his leg, and wounded him, in consequence of which wound his leg was amputated — he was unable to attend to his business, and put to great expense, etc. It was contended that the plaintiff had mistaken his action, and that the defendant could be made answerable only in an action of trespass vi et armis. The whole court were of that opinion, on the ground that the injury was immediate, being occasioned by the discharge of the gun. Judge Roane remarked, that there was no position in the law more clearly established than this, that wherever the injury is committed by the immediate act complained of, the action must be trespass. Covel v. Laming, 1 Camp. N. P. 497. In this case the defendant was the owner of a ship: being on board, and standing at the helm, he unintentionally, and through ignorance and want of skill, run her against the plaintiffs ship in the river Thames. The action was trespass. It was contended for defendant, that the action could not be sustained, unless the act were willfully done, and that it was willfulness alone that could determine the nature of the act. Lord Ellenborough declared he had always been of opinion, that the only just and intelligible criterion of trespass and case, was, whether the injury complained of arose directly, or followed consequentially from the act of the defendant. That as the defendant at the helm guided his ^vessel, the winds and waves being only instrumental in carrying her along, the force proceeded from him, and the injury was the immediate effect of that force.

Reynolds v. Clarke, 2 Ld. Raym. 1399, was an action of trespass for putting up spouts to the defendant’s house by which the water was collected in great quantities, and thrown onto the plaintiffs land, by reason whereof, etc. The question was, whether case or trespass was the proper action. The court decided the distinction in law to be, where the immediate act itself occasioned a prejudice, or is an injury to the plaintiff, or where the act itself be not an injury, but a consequence from that act, is prejudicial to the plaintiff; that in the first case, trespass vi et armis will lie; in the last, it will not. And in remarking on the case of Preston v. Mason, cited at bar, from Hard. 61, the court observed, that case might be law, because it was laid, that the defendant made the water to run; which was the same as if it had been laid, that the defendant poured the water; in which case trespass would have lain, because the immediate act of pouring would have been a trespass. In the report of this case, as we find it in Stra. 634, the chief justice is represented as saying, if the action in the first instance be unlawful, trespass will lie; but if the act be prima facie lawful, and the prejudice to another is not immediate, but consequential, it must be an action on the case;'but the chief justice, in his own report of the case lays no stress on the lawfulness, or unlawfulness of' the act.

Savignar v. Roome, 6 Term, 125, was an action on the case, for driving willfully against the plaintiffs carriage, whereby it was injured. After verdict, judgment was arrested, because the injury was immediate, and the action, if any could be sustained,-should have been trespass.

In the case of Scott v. Shepherd, as we have it reported in 2 Blac. and 3 Wils., where there was no diversity of opinion as to the rule, that where the injury is direct and immediate, the action should be trespass. The disagreement was as to the proper inference to be drawn from the facts of the case. Judge Blackstone considered the injury as proceeding from the person who last threw the squib, and not from the defendant. The other judges considered that after the first *act of throwing the squib, the different directions which it received from other hands was a continuation of the first act of the defendant, and that the injury was the immediate consequence of that act, and on that ground the action of trespass was sustained.

In Howard v. Banks, 2 Burr. 1114, the distinction between trespass and case was recognized to be this : immediate damage to the plaintiff’s property is a ground for trespass, consequential damage to it is a ground for case. The court decided that the damage was consequential, and sustained the action.

In 1 Swift’s Digest, 540, it is laid down, that the criterion is not whether the act was accompanied with force, or whether there was an intent to do the injury, or whether the injury was occasioned by negligence; but the question always will be, whether the injury was the direct and immediate effect of the act complained of, or whether it was merely the consequence of some act or omission.

In Leame v. Bray, 3 East, 593, the whole court recognized the rule laid down in Scott v. Shepherd, that where the injury is direct and immediate, the remedy is trespass; where it is mediate and consequential, it is case. This was said to be the rule dedueible from all the authorities, ancient and modern; and Le Blanc, Justice, declared that in all the books the invariable principle to be collected is, that where the injury is immediate on the act done, then trespass lies; but where it is not immediate, but consequential, then the remedy is case.

On the whole, we are well satisfied that whatever may be the apparent discrepancy between the cases, the rule is clearly and judiciously settled, that where the injury is direct and immediate, the action must be trespass, whether the act were done willfully oi-by negligence and want of care; and as the facts set out in the declaration show that such was the character of the injury complained of in this case, the judgment of the common pleas must' be affirmed.

       NoTE bt the Editor. — Case how lies for all personal injuries in which trespass at common law was a proper form of action, 42 Ohio L. 72, sec. 4. Eor the common law distinction between trespass and case, see vi. 144, 147; vii. 211, part 2; v. 444. When case a proper remedy, see x. 159; ix. 163, 165; xi. 372; xiv. 147; xv. 5P0, 659, 726.


author: By the Court :

text:
    *Gilbert Gibbs v. John A. Fulton.
    Transcript from an appellate court is not proper evidence of proceedings- in the court below.
    This was an action of assumpsit, in which the plaintiff claimed to recover money paid by him as bail for the defendant. The cause was brought from the Supreme Court of Ross county.
    At the trial the plaintiff, to prove the fact that he had been bail for the defendant, produced and offered in evidence a transcript of a record, duly certified from the common pleas of Chester county, Pennsylvania. This transcript contained a proceeding upon a certiorari, at the suit of Gilbert Gibbs v. Samuel McClean. This certiorari brought into the court of common picas a transcript of a proceeding before a justice of the peace in a suit between Samuel McClean, plaintiff, and John Fulton and Gilbert Gibbs, his bail. Judgment had been rendered against Gibbs only, and this judgment upon the certiorari was affirmed.
    When this transcript of a record was offered in evidence, the defendant objected to it as inadmissible, being but the copy of a copy. His objection was overruled, and a verdict found for the plaintiff. The defendant moved for a new trial upon the ground of error in admitting the evidence, and the decision upon the motion was adjourned.
    Leonard, in support of the motion:
    The nature of the plaintiff’s case is this — he claims that judgment being rendered against the defendant, before a justice of the peace, in Pennsylvania, the plaintiff becomes bail before such justice for the payment of the money, and was compelled to pay it. This entering of bail was in the nature of a judicial proceeding before a judicial officer, of which an official written memorandum was judicially made by that officer. The evidence offered to prove the fact is not a transcript or copy of the original proceeding, but a transcript of proceedings in a different tribunal, in the nature of a writ of error, in which a copy of this proceeding was certified and acted upon. This is so distinctly and manifestly the copy of a copy, that there would seem no just ground of deliberation as to its inadmissibility.
    *Had the certiorari removed the original documents or papers into the court of common pleas, instead of a transcript, the case would be wholly different. In that case the transcript certified would be in fact a copy from the original, and the original being on file in court, the clerk would be the proper officer to certify it.
    Bond, for plaintiff:
    The dockets of justices of the peace can not be considered records, nor are they preserved and treated as.such. They are rather private papers, and loft to be preserved by individuals. After a lapse of twenty years it would be impossible in many cases to trace or find them. The rules applicable to public records should not be extended or applied to them.
    The writ of certiorari required the justice to certify his proceedings. In obeying this writ he acted officially and judicially. By his return his proceedings became matter of record in the court of common pleas. Upon a writ of error from the Supreme Court to that court, nothing would havé been required but the record in that court; and it would seem clear that a record for one purpose must be a record for every purpose.
   By the Court :

The plaintiff could not recover against the defendant without proof that he became his bail. This fact he was bound to prove by the best, not by secondary evidence. The best evidence was a transcript of the proceeding against Fulton, and the undertaking, as bail, founded upon it, whether that undertaking was made by a recognizance signed by Gibbs, or by a judicial acknowledgment made before the justice and entered by him.

Suit was brought against G-ibbs, upon this undertaking, and judgment rendered against him. To this judgment he obtained a certiorari, and in his return the justice embodied all his proceedings, and upon this return the judgment was affirmed. We do not perceive upon what principle a judicial return can be made where proceedings in one cause are required, embodying in it an official and judicial ^return in a different cause. As to the latter, if it were a judicial act, still, the original record remaining where' it was first made, it should be resorted to as better .and higher evidence than the transcript of it, certified into another court.

If special bail be entered in a suit in the court of common pleas, and the bail be fixed with the debt and judgment rendered against him, in a suit upon the recognizance, in the common pleas, and removed into the Supreme Court upon writ of error and affirmed, it would hardly be contended that a transcript of the record in the Supreme Court, certified by the clerk, would be proper evidence to establish the recognizance of bail. The plain course would be, to obtain from the court of common pleas transcripts of the original suit in the common pleas, and also of the suit against the bail, with the certificate of affirmance upon error from the Supreme Court. The cases are the same in principle. The evidence ought not to have been admitted, and there must be a new trial, the costs to abide the event of the suit.

      NoTE by the Editor. — Eor justices’ records, see note to case on page 16, vol. ii. When judicial records admissible as evidence, ii. 334, 348; iii. 271, 487; V. 136, 280, 283, 447, 545; vi. 251, 409; vii. 88, 212, part 1; viii. 405; ix. 108, 131; xiii. 209; xvii. 156, 365; xviii. 469.


text:
    Steele and others v. Worthington.
    Other consideration than that expressed in a deed may he given in evidence under particular circumstances, and where it does not contradict the consideration expressed.
    Register of land office might legally purchase lands at public sales, under the act of Congress of May, 1800.

      What terms in a will give executor full power over the testator’s estate.
    Where parties understand their rights, and make an agreement to adjust a question of property between them in a particular manner, a very strong case of imposition must be made out to induce a court of equity to interfere.
    What is not such a case.
    This cause was reserved for decision here by the Supreme Court in Eoss county. It was a bill in equity, brought by the residuary legatees of Eobert Gregg, deceased, to set aside a conveyance made by the executor under the will, upon the ground of fraud and imposition.
    The bill charged that the executor of the will of E. Gregg had conveyed the land in question, one hundred acres, to the defendant, without consideration and without authority. It charged that the consideration expressed in the deed was one dollar only, and called upon the defendant to answer whether any other and what other consideration was given.
    In his answer, the defendant admitted that no money consideration passed, and that the sum expressed was nominal *only. He stated the real transaction to have been this: At the sales of public lands at Chillicothe, in 1801, a section and fraction of lands, of which the land in controversy was part, was purchased in the name of Eobert and Nathan Gregg, upon an agreement that the defendant was to be one-half owner with them; that the first installment was in fact advanced by the defendant, and the agreement was, that each party should pay half the purchase money, and when the patent issued, Greggs should convey to Worthington half; that the section and fraction contained a large surplus, and that, after some time, it was agreed between the parties that Worthington should receive back his money advanced, and accept of the one hundred acres of land in question, as a compensation for his interest in the contract. A bond was. given for the conveyance accordingly, and to take up this bond the conveyance was executed by the executor.
    The facts stated in the answer were substantially made out in proof, in the progress of which it appeared in evidence, that at the time of the sale the defendant was register of the land office, and one of the persons who were required by law, and, in fact, did superintend and conduct the sale.

      Creighton and Bond, and Atkinson, for complainants, contended :
    1. That the consideration expressed was not sufficient to sustain the deed, it being made by a trustee, and that another and different consideration could not now be set up. 1 Johns. 139; 3 Johns. 506; 7 Johns. 341; 2 Sho. & Let. 500; 1 Ves. 127; 3 P. Wms. 203.
    2. That the consideration set up, in this case, is illegal and void, being in contravention of the law of Congress authorizing the sales of public lands, which inhibited the register from purchasing. The contract would be void at common law, it being contrary to public policy that an agent appointed to sell should be concerned in the purchase. Sug. Vend. 391-393; 1 Com. Con. 31-37; 6 Johns. 194; 2 Johns. Ch. 254.
    3. The executor was invested, not with the title, but with a naked power to dispose of the land. This disposition he *could not make without good consideration. The defendant having full notice, by being a party, is affected to the whole extent. Fonb. Eq., book II., chap. 7., sec. 1, note a; Ibid., sec. 2, note c.
    4. The case made in defendant’s answer is one of imposition; and, admit that Greggs were particeps criminis in the fraud upon the government, yet equity would relieve in their favor, because they must be considered as the least criminal. Fonb. Eq., book II., chap. 1., sec. 1, note c; 1 Hen. & Mun. 33.
    Mr. Scott, for the defendant, maintained:
    That, in respect to the first ground taken, the consideration expressed in the deed was a good one, and sufficient to sustain the conveyance. That the other consideration alleged in the answer was also a good one , and, not being in contradiction to that expressed in the deed, was fully admissible upon the principle of the authorities cited upon the other side.
    On the second point, Mr. Scott went into a minute and critical examination of the acts of Congress regulating the sale of public lands, to prove that the defendant was not by the letter or spirit prohibited from purchasing at the sale in question.
    As to the third point, he contended that the executor was clothed by the will with full power over the real estate, and over all tho concerns and contracts of the testator; that, therefore, the conveyance was executed proporly and legally, and in a faithful discharge of the trust.
    The fourth point assumes, in fact, the same ground taken in the second; it is nothing if the conduct at the sale was legal.
    The counsel for the complainant submitted an elaborate argument in reply, especially as to the construction of the act of Congress,, the just interpretation of which, they maintained, rendered it illegal for the register to be concórned in making purchases when superintending the sales; and they enforced their former position, that such conduct was illegal upon the common principles of law and equity.
   ^Opinion of the court, by

Judge Burnet :

The complainants insist, that the deed, executed to the defendant, by N. Gregg, for himself, and as executor of the last will and testament of his brother, R. Gregg, ought to be set aside on the following grounds : 1. That it was wholly without consideration. 2. That the contract between the. defendant and the Greggs, for the purchase of the land from the government at the public sales, was in direct contravention of the act of Congress, and therefore fraudulent and void, and that it was also a fraud at common law. B. That the executor was not authorized by the will to execute the deed, and that by doing so he has attempted to practice a fraud on the complainants. 4. That if the executor was authorized to convey, the answer and exhibits show such a case of imposition on the executor, that a court of equity will relieve against it.

1. It will be recollected that the consideration mentioned in the deed is one dollar. This is, prima facie, a good consideration, and, until it be impeached, is sufficient to sustain the deed. But the complainants have cast on it the imputation of fraud. They declare it to be fictitious, and allege that the conveyance was wholly without consideration. They have called on the defendant to answer that allegation, and to state what the real consideration was, if any existed. The answer sets out ah agreement, by which the defendant and N. and R. Gregg pur-chased a section and fraction of land, at the public sales; that the defendant advanced the first payment; that the certificate of the purchase was taken in the name of the Greggs; that some time after the Greggs purchased out his equitable right, and gave him a title bond for one hundred acres of the land, being the land now in controversy, and that after the death of R. Gregg, N. Gregg, in good faith, executed the deed in question, agreeably to the condition of the title bond. The proof, as far as it goes, corroborates and confirms the answer. The certificate, signed by N. and R. Gregg, establishes the equitable interest of the defendant in a moiety of the whole tract. It declares that he was jointly concerned in the purchase, and that bis conduct in the whole of the transaction was correct and honorable. It also admits that the first ^payment was advanced by him. The deposition of William Creighton corroborates the answer, in relation to the title bond. The whole answer is responsive to the bill. It is not impeached by any part of the testimony, and as far as the want of consideration is involved, it satisfactorily rebuts the charge.

But it is alleged that the defendant has no right to avail himself of the facts disclosed by the answer, because they show a consideration different from that expressed in the deed. Why, then, it might be asked, was the defendant required to state them ; and why did not the complainants rely on the evidence within their power ? They seem to have taken it for granted, that the deed, prima facie, was good — that it was sufficient to convey the estate— and that they must fail in the object of their suit, unless they can impeach it. It was for that purpose that they called for the disclosure. If they avail themselves of it as evidence, it purges the transaction of fraud, as to the consideration. If they reject it, they stand as they were, and the deed remains unimpeaehed. It is believed, however, that this objection applies to deeds that have been actually impeached, and which can not be sustained without explanatory proof, and that in such cases it goes no further than to exclude evidence of a consideration, .inconsistent with the one expressed; but that a party may aver another consideration, provided it be consistent with the one expressed in the deed. This seems to be the rule in Phillips’ Ev. 424, 425, and in the cases there referred to.

If the objection should be applied to all cases in which there is charge of fraud unsupported, and extend so far as to prohibit-proof of any variance between the real consideration and that expressed, much inconvenience and injustice would result, because however fair and upright the transaction might be, an omission to state the exact consideration would prove fatal to the deed.

The proposition seems to amount to this, that a variance between the true consideration, and that expressed, is a fraud per se, that can not be purged or explained by proving the truth. It sometimes happens, in an exchange of property on which no cash value has been fixed by the parties, *that a nominal sum is stated in the deeds bearing no comparison with the value of the property conveyed. This is innocently done for the purpose of convenience ; no person is, or can be injured by it, yet on the proposition advanced by counsel, the deeds are fraudulent; they may be avoided by the creditors or heirs of the grantors, and the grantees are without remedy.

The cases cited on this point do not sustain the complainants. The one in 7 Johns. 341, was a suit at law, brought on articles of agreement. The plaintiff offered parol proof of an agreement, not contained in the articles, in addition to the covenant expressed, which was not admitted. The court remarked, however, that if the deed were contrary to the truth, the party might have relief in equity.

The ease cited from 1 Johns. 139, is of the same character. It was an action brought on a parol promise, set up as additional consideration for the conveyance of personal property, which was not mentioned in the written contract.

In the case of Clarkson v. Hanway, 2 P. Wms. 203, the grantor was a weak old man, seventy years of age. The consideration expressed in the deed was an annuity of twenty pounds, which bore no comparison with the real value .of the premises. To repel the fraud, proof was offered that natural love and affection was a part of the consideration of the conveyance. The evidence was vague and contradictory, and was rejected as being incompatible with the consideration expressed.

Watt v. Grove, 2 Sch. & Let. 500, was a case of gross and complicated fraud. The deeds set up were impeached. The chancellor remarked, “That it would be dangerous to permit an impeached deed to be supported by evidence of considerations wholly different from those alleged in it.” “That the court might reform, the deed when the incorrectness does not go to impeach the general fairness of the transaction.” This is all the defendant asks. Having shown that the transaction was perfectly fair, that the incorrectness was of a nature not calculated to injure or deceive, and that the real consideration was altogether consistent with the one expressed, he insists that his deed is reformed, and ought to be sustained.

2. *The second ground taken in support of the bill is, that the original purchase of the land in question, at the public sales, was in contravention of the act of Congress, and contrary to the principles of the common law.

To decide on the first branch of this objection, it is necessary to examine the acts of Congress on this subject.

Section 4 of the act of 1796 directs that the land shall be offered for sale at public vendue, under the authority of the governor, or the secretary of the Western territory, and the surveyor-general.

By section 8, the governor of the territory northwest of the river Ohio is directed to cause books to be kept, in which shall be regularly entered an account of the dates of all the sales made; the situation and number oí the lots sold; the price at which each was struck off; the money deposited at the time of sale; and the dhtes of the certificates granted to the different purchasers. It is made the duty of the governor, or secretary of the said territory, at every suspension or adjournment, for more than three days of the sales under their direction, to transmit to the secretary of the treasury a copy of said books certified, etc.

Section 4 of the act of May, 1800, substitutes the register of the land office in place of the surveyor-general, and directs the lands to be offered at public vendue, under the direction of the register of the land office, and of either the governor or secretary of the Northwestern territory. It also provides that the superintendents shall observe the rules and regulations of the preceding act in classing and selling fractional with entire sections, and in keeping and transmitting accounts of the sales, and that all lands remaining unsold at the closing of the public sales may be disposed of at private sale by the registers of the respective land offices, in the manner thereinafter prescribed.

By section 7 it is made the duty of the register to receive and enter on books, kept for that purpose only, the applications of any person or persons who may apply for the purchase of any section or half section, and who shall pay, etc.

By section 9 it is made the duty of the registers of the land offices to transmit quarterly, to the secretary of the treasury and to the surveyor-general, an account of the several tracts applied for.

^Section 10 provides “that the registers aforesaid shall be precluded from entering on their boohs any applications for lands in their own name, and in the name of any other person in trust for them; and if any register shall wish to purchase any tract of land, he may do it by application to the surveyor-general, who shall enter the same on books to be kept for that purpose by him, who shall proceed in respect to such applications, and to any payments made for the same, in the same manner which the registers, by this act, are directed to follow in respect to applications made to them for lands by other persons.” These are all the provisions that appear to have any bearing on the question; and from a careful examination of them the following conclusions seem to result:

1. That at the time the land in question was sold the register and the governor, or secretary of the territory, were constituted superintendents of the public sales.

2. That it was the exclusive duty of the governor, as one of the superintendents, to cause books to be kept, in which should be entered an account of the proceedings at those sales.

3. That it was made the express duty of the governor or secretary of the territory to transmit copies of those books to the secretary of the treasury, and that the public sales were considered as being under the particular direction of the governor or secretary, as either might attend.

4. That the surveyor-general, under the act of 1796, was not required to take any agency in keeping the sale books, or transmitting copies, and that as the register was substituted for the surveyor-general by the act of 1800, which expressly requires the superintendents to observe the same rules and regulations in keeping and transmitting accounts of the sales as were prescribed in the act of 1796, as follows: That the register was not required to take any agency in keeping those books or transmitting copies.

5. That private sales are to be effected by application to the register, who must enter the same in a book kept for that purpose only, which must therefore be distinct from the book of public sales kept by the governor, and may be denominated the register’s sale book.

6. That the only prohibition as to the registers is that *they shall not enter on their books any application for lands in their own name, or in the name of any other person for their use.

If these inferences be correct, it must follow that the registers a^e not prohibited from purchasing at the public sales, because public sales can not be made on application, and are not entered on the register’s book, but on the sale book kept by the governor or secretary, and because the prohibition being confined to such sales are made on a pplications that must be entered on the register’s book, it can not embrace public sales that are not so entered.

It also follows from these premises that the public sales are so guarded by the agency of the governor, as to render the prohibition altogether unnecessary.

The government are as well protected from imposition at the public sales, by a faithful discharge of the duties assigned to the governor, as they are at private sales, by the vigilance of the register. It would be unreasonable to extend the prohibition beyond the letter of the statute, when no beneficial object would be gained by it, either in relation to the rights of .the government or of third persons. The construction set up by the complainants would effectually prevent the register from purchasing any part of the land disposed of at public sale,. because the provisions made in their favor by section 10 can not be resorted to till the public sales, at which every tract must be offered, have closed, and the private sales have commenced.

If it had been the intention of Congress to prevent them from purchasing at the public sales, in the ordinary way, it is a reasonable supposition that some other way would have been provided through the agency of the governor or surveyor-general, as has been done in relation to purchasers by application and entry. The privilege given to the registers, of purchasing by application and entry, was intended as a substitute for the right which is taken away in the preceding part of the section; we should therefore naturally conclude that it was as broad as the prohibition. But such can not be its operation, if the prohibition be extended to purchasers at public sales, for the very obvious reason that the public sales must have closed before the register can have availed himself of the substitute.

*It is not necessary here to resort to the technical meaning of terms, or the distinction of characters, in which the defendants acted, first as superintendent of the public sales, and afterward as register of the land office; for, if the terms used in section 10 had been sufficiently comprehensive to embrace both public and private sales, we should not have construed their meaning or restricted their operations on that ground.

But if the register had been guilty of a manifest fraud on the government, it is a question between the parties affected by the transaction. Government might have disavowed the contract and withheld the title, or they might have waived the objection and confirmed the sale. This they have done, and it does not lie in the mouth of a third person to complain. The party on whom a fraud is practiced may take advantage of it, or waive it. If he does the latter, and confirms the contract by executing a deed, third persons can not impeach it, much less can a particeps criminis be suffered to do so. If any fraud was practiced in this case, it was by the Greggs, who purchased the property in their names, for the joint benefit of themselves and the register. They were the persons who consummated the fraud, and to say the least of them, they were in pari delicto with the register. The objection, therefore, extends further than counsel would willingly follow it. If the statute contains such a prohibition as renders a purchase, made in the name of another, for the benefit of the register, a fraud on the government, such a purchase is not only void as to the register, but as to all others concerned with him. The act can not be purged by excluding the register. If fraud existed, the Greggs participated in it, and must be equally affected by it. The objection goes to the whole purchase, and taints it throughout. The same principle that would justify the court in deciding against the defendants, would restrain them from' decreeing in favor of the complainants. In all such cases equity refuses to interfere in behalf of either, and as the complainants claim in the character of devisees of R. Gregg, they stand in his shoes.

In regard to the second branch of this objection, it may be remarked that it is not necessary to resort to the common *law to determine the legality of this purchase. The powers and disabilities, the privileges and prohibitions of the register are regulated by the statute, and are to be decided by it. Congress having prohibited him from purchasing at private sales, by application in his own office, without including in the prohibition the right of purchasing at the public sales, the natural inference is that they intended to permit the latter. By including in the prohibition only one of the modes of purchase, they have' virtually excluded from it the other, thereby clearly indicating it to be their intention not to prevent him from purchasing at the public sales.

But waiving this inference from the statute, the authorities cited to show that the consideration is bad, and the sale void at common law, are not applicable to the case as between these parties.

The general doctrine in Sug. Law Vend., chap. 14, sec. 2, is that trustees, agents, etc., are not permitted to purchase the property to which their trust extends, except under certain restrictions; but as such purchases are merely mala prohibita, not mala in se, they admit of confirmation by the injured party, who alone can take advantage of them; and if the cestui que trust acquiesces for a long time, equity will not assist him to set aside the sale.

In this case, the cestui que trust has not only acquiesced more than twenty-five years, but has literally confirmed the sale. He is still satisfied with it, and the only complaint we hear is from third persons, who occupy the place of a particeps criminis. The doctrine is well established that the remedy for a breach of trust is exclusively with the party injured. The cestui que trust may apply for a new sale, or may confirm the former sale; and if the purchaser (the trustee) has sold at an advance, he may claim the excess.

In Davoue v. Tanning, 2 Johns. Ch. 252, the principle is clearly expressed that none but the party injured can question the validity of the sale. In that case, Chancellor Kent ordered the lot to be set up again and resold for the benefit of the cestui que trust, provided it would sell for more than the amount of the former sale, together with the sum expended in improvements and interest; but if it would not sell for more than that amount, that the first sale should be confirmed. .

*In Doolin v. Ward, cited from 6 Johns. 194, the claim of the plaintiff rested on a verbal promise that if the plaintiff would not bid against him at a public sale, he (the defendant) would purchase the articles, and divide them with the plaintiff. No consideration passed, nor was there anything obligatory on either party.

But if, as in the case before us, the plaintiff had paid the first installment of the purchase money, and the defendant having availed himself of that payment, had afterward given his obligation to the plaintiffs to deliver him a part of the articles, there would have been some resemblance between the eases, and the decision would probably have been very different.

3. The third ground is that the executor was not authorized to make the conveyance, and that in doing it he has attempted a fraud on complainant. From the phraseology of the objection, it might be considered as confined to the simple act of the execution and delivery of the deed; but as it is generally true that the greater power involves the less, the objection was, no doubt, intended to extend as well to the power of negotiating the contract, as to the right of consummating it by passing the title.

This branch of the case necessarily leads to the examination of the will of R. Gregg. After appointing his brother, N, Gregg, sole executor, the testator goes on to say, “I do invest him with full, ample, and complete power to dispose (after my decease), in such •manner as he thinks proper, all my estate of every description, real and personal, and invest him with full power to settle' ápd adjust all my worldly affairs, as he pleases; meaning expressly tó invest him with as full power to that effect as I might possess, not incompatible with the tenor and substance of this last will and testament.” It appears to me that language could not easily be selected better calculated to express the power claimed by the executor than that which the testator has adopted. The epithets .are strong and comprehensive; the power to dispose, and the manner of doing it, are limited only by the discretion of the executor, and it is extended to the whole estate, real and personal. He is also to settle and adjust all his worldly affairs as he pleases, and to prevent *cavil, and as if to make certainty more certain, ho declares it to be his express intention to vest in his executor the same power that he himself then possessed.

The unavoidable conclusion is, that the executor has power to sell the estate, and to settle and adjust all claims against it.

The executor being clothed with this power, the defendant presented the title bond, executed by the testator and himself. Being fully satisfied with the justice of the demand, he was bound in the faithful discharge of the trust to settle it by conveying the land, and taking up the bond.

4. The last ground taken by the complainants is, that if the executor was authorized to sell and convey, yet the answer and exhibits show it to be such a case of imposition that equity ought to relieve. The complainants undertake to maintain this ground by taking it for granted that the claim was against law, and without-consideration. The first part of this hypothesis has been dis* posed, of already, and it is only necessary to look into the answer and exhibits to ascertain that no part of it is supported by the facts. The defendant, as appears from the certificate of the Greggs, as well as from the answer, had an equitable right to the undivided moiety of a section and fraction of land in the vicinity of Chillicothe, purchased in the name of the Greggs at the public sales. It was ascertained that there was a large surplus in the tract — the defendant had advanced the first payment — the claim had been held in common upward of a year — the country was increasing at that time in population with unexampled rapidity, and although the land in the first instance might have been purchased at a fair price, it must have risen greatly in value during the period that the parties held it as a joint property.

This being the state of the case, an agreement was made between the parties by which the defendant was to relinquish his claim to the entire tract. The Greggs were to refund the money advanced by defendant, and convey to him, when the patent should be procured, one hundred acres on the side of the tract adjoining his other lands. The money was refunded, and a title bond given for the one hundred acres. From these facts it would seem that *the consideration was abundantly sufficient to support the contract, and that the advantage to the parties must have been about equal; but whether this was so or not, they were all men of prudence, equally acquainted with the situation and nature of the property, and of their respective rights in it. There was no misrepresentation or concealment of the truth, N. and R. Gregg must have supposed they were making a good bargain; there is no evidence to show they were not, and they seem to have been contented. With the exception of Mrs. McClean’s deposition, which, to say the least of it, is accompanied with very suspicious circumstances, there is no evidence that they at any time complained of their bargain, or wished to rescind it. But if that deposition be taken as true, the presumption is that the objection of R. Gregg, of which she speaks, was an after thought, originating, not from a belief that he had made a bad bargain, but from a hope that he might oust the defendant of all right, on the supposition that he could not become a purchaser at the public sales. On no other ground can the objection be reconciled with the certificate he previously gave in conjunction with his brother. But be this as it may, the contract appears to be fair, equal, and equitable. The suspicions cast on it by the bill are very naturally explained, and fully obviated by the answer, which is responsive, and is not contradicted but corroborated by the testimony. It is not the province of equity to weigh the mutual considerations leading to a contract with great exactness, in order, to ascertain if there be not some grains of difference, nor does it ordinarily limit the power, or control the discretion of the contracting parties, who are treated as free agents and left to the exercise of their own judgments. Whenever equity does interfere with a contract, or refuse its aid to carry it into execution for inadequacy of consideration, it is on the ground of fraud, which must either be clearly proved, or result irresistibly at the first view, and without calculation from the grossness of the disparity. -

The complainants do not present such a case. The most natural inference to be drawn from every thing disclosed, is that the disparity, if there be any, was in favor of the * Greggs. It was contended by the complainants’ counsel, that the defendant, by his certificate to N. and R. Gregg, that they were the purchasers of the land, was estopped from setting up a claim to any part of it. I do not see how such a consequence can result from that certificate as it contains nothing inconsistent with the existence of a trust. It frequently happens, for convenience, that one joint purchaser takes the title in his own name, at the request or on the express order of the other purchasers. Sometimes land is conveyed to an agent by an absolute deed, as the most convenient way of effecting a sale, but such a deed would not estop the owner from showing the trust and claiming the purchase money. The certificate in this case was prima facie evidence that the right was exclusively vested in the Greggs, but that inference was not inconsistent with the existence of a trust. A grantor is sometimes estopped by his own deed, but it must be in relation to a matter wholly incompatible with it; as, if a person holding an equitable title should sell and convey by deed in fee, with covenants of seizin and warranty, and should afterward obtain a legal title in his own name, his deed would inure to the benefit of his grantee, and he would be estopped by his covenants from setting up title in himself which would falsify those covenants and be wholly incompatible with them; for, if the covenants be true, the legal title passed by the deed. In this case the certificate of the defendant was compatible with an agreement, that when the patent should be obtained in the name of the Greggs they should convey a moiety or any other portion of the land to the defendant.

But, independent of all other considerations, if the facts set up by the complainants be true, and the legal inferences they draw from them be correct, they have a complete remedy at law. An examination of the case, as they present it, will show that on the death of their ancestor the legal title vested in them; that the defendant never had an equitable right to any part of the land; that the executor had no right to convey, and that the deed to the defendant was fraudulent and void. On that state of the case, which is the ground on which they have placed themselves, they have no necessity for the aid of chancery.

'*Again, as it has been decided that the acts of Congress do not prohibit the register from purchasing at the public sales, it follows that he had an equitable right to an undivided moiety of the whole tract, and that if the contract on which the title-bond was given be not valid that right has not been extinguished. And, as it is- a rule that he who asks equity must do equity, it would seem that if the complainants could get rid of that contract they would thereby establish the defendant’s right to the undivided moiety; consequently a decree for a reconveyance of the one hundred acres would be on the condition that they conveyed to the defendant his undivided interest in the entire tract on equitable terms.

The bill must be dismissed at the cost of the complainants.

      Note bt the Editor. — When a consideration of a kind different from that expressed in a deed maybe proved, see Wright, 755; v. 121; xvi. 438, and cases cited in the last case.
      Eor late decisions touching relief in equity, in cases of mistake of law and fact, see xi. 223; xv. 152; xvi. 490; xviii. 116. Equity will not correct a mistake in the deed of a married woman, xvii. 105, and cases cited. But see 47 Ohio L. 53.