author: Judge Hitchcock;

text:
    William and John Hogg v. Zanesville Canal and Manufacturing Company.
    Where a dam is erected across a stream that is navigable within the terms of the ordinance, though the erection of the dam was authorized by the legislature, upon certain terms and conditions, if loss be sustained by navigators in consequence of the dam, the owners are responsible, though all diligence was used to prevent the dam creating obstruction to the navigation.
    A dam erected across a navigable stream, under the sanction of a legislative act, if not kept in the condition required by that act, may be regarded as a nuisance, and persons injured may maintain an action as in the case of ánjury by a nuisance.

      Declaration alleging that boat was wrecked in passing over the dam, proof that in crossing the dam the boat was rendered unmanageable and was-wrecked upon the pier of the bridge below, no variance.
    In actions fo,r torts the jury may calculate interest on the damages actually sustained and add it to their verdict.
    This case was reserved in the county of Muskingum.
    The declaration contains two counts:
    The first count sets forth that the Muskingum river is a navigable stream, and a common highway for all citizens. That at or near the town of Zanesville there was a certain dam across the river,, and a lock, through which lock it was the right of all citizens-to pass free of expense and without delay. -That by a certain act of the legislature of Ohio, of February 24, 1816, the defendants were required, within one year therefrom, to erect said dam and lock agreeably to an act in favor of John McIntyre and his associates, passed February 21,1812, by which last-named act the dam. and lock were particularly authorized and described; and the-proprietors required, at all times, to keep said lock in good repair,, and upon application to open said lock without delay or expense. And should they so erect said works, or suffer the same to get out of repair, as that the convenient navigation of the river should be impeded or rendered dangerous, that they should be liable to the civil action of any person injured. . That the said plaintiffs, on. April 29, 1828, were possessed of a certain Orleans boat and loading, and were passing down said river and wishing to pass through *said lock, applied to and requested the defendants to pass-through without delay, etc. That the dofendents have availed themselves of the privileges óf said acts and assumed the obligations therein required. That the waters of the river were, at the. time, sufficiently deep to pass a loaded boat over the ripple. Yet the defendants, well knowing, etc., although, etc., did not nor would, not open the said locks, but wholly neglected and refused; by-means whereof the said plaintiffs were obliged to pass over said dam of defendants, and by means whereof the navigation of said river was impeded and rendered dangerous, and in so passing the boat was wrecked, etc.
    The second count recites that the Muskingum is a navigable stream, emptying through the Ohio into the Mississippi, and a common highway, and that the defendants have built a dam across, said river, and obstructed and rendered dangerous the navigation; that the plaintiffs, being citizens, etc., on April 29, 1828, had a right to navigate and pass along said river, etc.; that the defendants, well knowing, etc., with intent to injure, etc., did erect said dam and obstruct, etc., and in passing down said river with a certain Orleans boat and loading, plaintiffs were constrained to pass their said boat over the said dain of the defendants, by means whereof the said boat was wrecked and lost, etc.
    Plea, not guilty.
    On the trial of the cause it was proven that, in February or March, 1828, a. boat of the plaintiffs, with valuable loading, was passing down the Muskingum river from some of its head waters, under the care of one Rogers as supercargo; that when arriving at a point one mile or more above the dam of the defendants the boat was stopped in order to ascertain whether it would be passed through the lock. Upon examination, it was found that the lock was so filled and blocked up with sand and driftwood that it could not be opened, and that there was no prospect of opening it until the water should fall. This drift wood and sand had accumulated in and about the lock in consequence of the unusually high state of the water in January and February of that year. There was evidence to show that the wing dam and the main dam were not of the same height, the consequence of which was *to create a strong counter current at the angle made by the junction of the two. The tendency of this counter current was to increase the accumulation of sand and drift about the lock.-
    It being impossible to pass the boat through the lock, it was concluded to go over the dam, and. Rogers employed two skillful and experienced pilots and boatmen to take charge of the boat, and having «taken out as much of the loading as was deemed necessary to enable the boat to pass over the dam, and the pilots having made such other arrangements as they deemed necessary, started with the boat from a point higher up the river than they had been accustomed to start from when taking boats over the dam, with a view of getting as far out into the river as possible. A strong wind was blowing from the west, which was believed to have prevented them from getting as far out into the river as could have been wished, and they crossed the dam near the angle made by the.wing dam. The counter current before alluded to turned the boat upon its broadside, and in that situation it went over the dam. Although every exertion was made, they were not able to right her until she struck against the pier, of a bridge, some little distance below, and was stove in pieces. That the piers of the bridge were ninety feet apart, and the boat might have passed in safety had it not been for the dam.
    It was in consequence of the misdirection given to the boat by the counter current on the dam that the boat struck the bridge. But for the dam the navigation would have been safe. It would have been more safe could the boat have passed over the dam at a point further west, but with every exertion a point further west could not be reached. One of the boatmen thought it possible that the stern might have been thrown down the river, and the boat righted in that way in time to save it, but the pilot, who had the chief command, thought otherwise. Not more than twenty seconds intervened between the passing of the dam and striking the pier. On cross-examination one of the boatmen stated that a man of ordinary care would not, in his opinion, have taken the boat over the dam, at that stage of water, with so much loading; h&d it been his boat he should have delayed until the lock could have been opened, or taken out all the loading *and gone with the boat empty. It appeared, however, that it was not an unusual thing to pass boats over the dam. It was also proved that the load could all have been taken out and hauled round the obstruction, reloaded below, and the empty boat taken over the dam at a comparatively small expense and loss of time.
    The Muskingum river was proved to be navigable, and there was evidence to show that previous to the erection of the dam, at the same stage of water with that at the time the accident happened, it was a smooth sheet, and that the boat was managed as well as could be done. „
    There was also proof in the case that the dam and lock were constructed substantially according to the description contained in the acts of incorporation, etc. The lock sometimes got out of order, and was sometimes injured by high water. A slope had been originally constructed at the junction of the wing and the dam, as required by the act of 1812, but was carried off by high water during the first year.. It was also in proof that the lock was cleaned at as early a day after the subsiding of the high water as possible, and that a second boat of the plaintiffs, which came down the river three or four weeks later, passed through the lock ■in safety.
    It was agreed on trial that the defendants .were an incorporated ■company, and were authorized by the law of Ohio to erect a dam and lock in the place where this was, and that the lock, at the time of the arrival of this boat, was not opened, and could not be 'by reason of the drift, etc.
    The following acts of assembly were read and considered to be in evidence: _
    An act to enable John McIntyre and his associates to erect a dapi .across the Muskingum river, passed February 21, 1812.
    An act to incorporate the stockholders of the Zanesville Canal and Manufacturing Company, passed February 24, 1816.
    An act to amend the act entitled “an act to enable John McIntyre and his associates to erect a dam across the Muskingum river,” passed January 27, 1823.
    The case was finally submitted to the jury for the assessment of damages, subject to the opinion of the court on the questions at law arising in it.
    *The jury returned a verdict for the plaintiff, and assessed ■damages, at one thousand six hundred and seventy-one dollars, the actual loss sustained, together with four hundred and sixty-five ■dollars and seventy-seven cents interest on the same, amounting in the whole to the sum of two thousand one hundred and thirty-six dollars and seventy-seven cents.
    The case was argued at great length by Culbertson, Gfoodenow, and H. B. Curtiss, for the plaintiffs, and by Goddard, Stillwell, and Spangler, for the defendants.
    It was deemed unnecessary, however, to insert the arguments, ■as the points made are, solar as they relate to the principle upon which the case is decided, referred to in the opinion of the court.
   Judge Hitchcock;

delivered the opinion of the court :

The two leading questions which require the consideration of the court are:

1. From the facts disclosed in this case have the plaintiffs a •right of action against the defendants ?

2. If they have such right of action, then can they in this form of action recover?

That the plaintiffs have sustained a loss is clear, and it would seem to be equally clear that this loss was sustained in consequence of the erection of the dam by the defendants. It is also-clear that the plaintiffs had the right of the free navigation of the Muskingum river; and if obstructed in the exercise of this right by any individual or individuals, without lawful authority, they are entitled to a compensation in damages.

The defendants insist, however, that they are protected under the several acts of the legislature which were read to the jury and considered in evidence.

The first of these acts is found in 10 Ohio Statutes, 173. It commences by setting forth in a preamble that, “whereas it has been represented to this general assembly by John McIntyre and his-associates, that by erecting a dam across the Muskingum river, at a certain point above its confluence with the Licking creek, ,and' conducting the water by a canal to a point below the falls of said Muskingum river, very great advantage for water-works can be secured, and the navigation of said river very *much improved.” The preamble then goes on to state that McIntyre ancb his associates have applied to the general assembly to have a special law passed authorizing, them to construct a dam and canal as aforesaid, upon such terms as shall be deemed just and reasonable.

I have been thus particular in noticing the preamble, for although-it is no part of the statute it furnishes the means by which it may be construed. It is a true indication of the intention of the legislature. This intention was not to obstruct, but to improve the navigation of the Muskingum river. Acting as the guardian of the public weal, they supposed they possessed this power. Had it been supposed that the navigation would have been in the least obstructed, it is not probable that any legislative action would have taken place. McIntyre and his associates represented that the navigation would be improved, and at the same time great advantages of water-works secured. If this double object could be obtained, it was desirable it should be. Having this in view, the-act was passed.

By its provisions, McIntyre and his associates are authorized to erect a dam. The place where, and the manner in which it is to be built, are pointed out. They are required to build a slope and keep the same in repair, and also construct a lock through which boats may be passed with safety, and “ without delay to open said lock,” that persons wishing to pass through “may pass free of expense.” Throughout the whole act the legislature seem to have been particularly cautious to secure the free navigation of the-river. So that that could be done, they were willing that McIntyre and associates should take to themselves the advantage of all water power for propelling machinery. Arid that there might be no mistake, no room for controversy, they close the statute with the following proviso: “ That if at any time the said John and his-associates,-or his or their legal representatives, should so erect said works, or suffer the same to get so out of repair as that the convenient navigation of said river should be in anywise impeded or rendered dangerous, the said John and his associates, or his or their legal representatives, shall be liable to the civil action of any person injured.”

*By the act of February 24, 1816, 14 Ohio L. 293, the associates of John McIntyre are incorporated by the name of the “ Zanesville Canal and Manufacturing Company.” All the privileges and immunities conferred upon McIntyre and his associates,, by the act of 1812, are conferred, and all their duties are imposed,, upon this company, except that the company are to complete the-lock in one year and the canal in ten years.

The third act read in evidence makes no material change so far as respects the case under consideration, unless in that clause-which inflicts a penalty of ten dollars per day for each day any person may be obstructed from passing through the lock. To the-validity of these statutes, as affording a protection to the defendants, the plaintiffs object on the ground that they interfere with the “ordinance for the government of the territory of the United States northwest of the river Ohio.” Ohio L. L. 252. Article 4, page 256, contains this clause: “ The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the-same, shall be common highways, and forever free, as-well to the inhabitants of said territory as to the citizens of the United States andthose of any other state that maybe admitted into-the confederacy, without any tax, impost, or duty therefor.” This portion of the ordinance of 1787 is as much obligatory upon the State of Ohio as our own constitution. In truth, it is more; for' tho constitution may be altered by the people of the state, while-this can not be altered without the assent both of the people of this state and of the United States through their representatives.. It is an article of compact, and until we assume the principle that ■the sovereign power of the state is not bound by compact, this ■clause must be considered obligatory. Certain navigable rivers ” •in Ohio are “ common highways.” Of this character is the Mus■kingum river. Every citizen of the United States has a perfect -right to its free navigation. A right derived, not from the legislature of Ohio, but from a superior source. With this right the legisJature can not interfere. In other words, they can not, by any daw which they may pass, impede or obstruct the navigation of this river. That which they can not do' directly they can not *do indirectly. If they have not themselves the power to obstruct or impede the navigation, they can not confer this favor upon an individual or a corporation. But it does not follow that laws may not be enacted to improve the navigation of these rivers. ■Nor does it follow that their-waters may not be used for hydraulic purposes, where it can be done without injury to the navigation.

In passing laws to improve the navigation, care should be taken that that which was intended as an improvement shall not operate as an obstruction. The legislature, in enacting the law of 1812, seem to have been influenced by these considerations. They understood well their own power and the rights of the citizens. They grant the license prayed for, but they annex to it the condition contained in the proviso before recited. In effect, they say to McIntyre and his associates, you may build your dam, construct your lock and canal. You shall do it in a particular manner. But you do it at your own peril. If you “ so erect said works, or -suffer the same to get so out of repair, as that the convenient navigation of said river should be, in any wise, impeded or rendered dangerous,” this act shall not screen you; you “shall be liable to -the civil action of any person injured.” In this view of the statute, and it seems to me this is the proper construction, it is not in- • consistent with the ordinance. If, however, the statute is to be regarded as an absolute grant of the right, to erect these works, ■although the erection should obstruct or materially interfere with -the navigation, it would clearly interfere with the ordinance. •Evfery legislative act ought, if possible, to receive a construction • consistent with the constitution. For it is not to be supposed that 'this body would intentionally violate that instrument. Should they, however, do it, their act would be void, and of no binding /efficacy.

The counsel for defendants contend that if the legislature had the power to pass this law, or to make the grant, as they term it, the defendants can not be answerable for the consequences. That the only proper inquiry is, have the defendants complied with the. requisitions of the act. This is giving to the act an effect beyond that intended by the legislature, for, as we have already seen, by-the proviso at the close, *Mclntyre and his associates were to be liable, if the erection should prove injurious to the navigation. Let it be remembnred that the public interest was not the sole or principal object in view with those persons. Their great object was to acquire the control of the water power. . In order-to do this, they were willing to undertake that -the navigation-should not be obstructed, or if it was, that they would be answerable for the consequences.

Besides, were we to carry out the argument of defendants’ counsel, what would be the consequence ? Even had these works, instead of improving the navigation, impeded or entirely obstructed it, yet the defendants would have been protected. And thus the -effect of the ordinance would have been entirely defeated.

It is further urged by the defendants’ counsel, that the plaint-iffs can not recover in this 'case, because, as they allege, it was-owing to want of care on their part, and on the part of those whom they employed, that the property was lost. And the case of Butterfield v. Forrest, 11 East, 60, is cited. The ease is not without difficulty upon this point. If it was through the carelessness of the plaintiffs that the property was lost, although in-consequence of an obstruction created by the defendants, still the defendants ought not to be answerable. If an individual will voluntarily cast himself upon an obstruction of this character, when-he can, by ordinary care, avoid it, if he sustains an injury it is in consequence of his own folly and he must bear it. This was a question peculiarly proper for the consideration of a jury. It does not seem to have been much considered upon the circuit. So-little so, in fact, that the parties agreed to let,the jury assess the damages, without inquiring particularly into the facts of the case, leaving it for the court to settle the law. Had the jury, upon an examination of all the facts, returned a general verdict for the plaintiffs, a new trial would not have been granted'upon this part of the case, unless, in the opinion of the court, that verdict was against the evidence. As it is, this is, in truth, the only proper point of view in which to consider it. If, from the evidence, the jury might, with propriety, have found for the plaintiffs, then the verdict should not be disturbed.

*From the evidence, then, it appears that when the lock was out of repair, people were in the habit of passing boats over the dam. That the plaintiffs employed two experienced pilots to -■manage their boat. That the boat passed over, but not in a proper ■ direction, owing to the counter current. That every effort was made within the power of those on board to save her,-but in vain. In consequence of the direction given to her by the counter current, she was forced against the pier of the bridge and lost. And that but for the dam, she would have passed down in safety. One -of the pilots stated that, in his opinion, “ an ordinarily careful man would not have taken the boat over the dam at that time, with that amount of loading. Had it have been his boat he would ■have either delayed, until the lock could have been opened, or he would have taken out all the loading and gone with the' boat ■empty.” Whether this opinion was communicated to the supercargo of the boat does not appear. With these facts before them, might not the jury have inferred that the loss was in consequence ■of the dam, and not through the negligence or willful presumption of the plaintiffs or their agents? At the trial it did appear to me that the jury not only might, but that they ought to, make this inference. That there was more danger in passing this dam than in the ordinary navigation of the river, there can be no doubt. In consequence of this increased danger, the plaintiffs, or rather their agents, employed, not only one, but two experienced pilots, residents in the neighborhood, and well acquainted with all the difficulties. .What inore could have been required of them? 'True', one of these pilots now says that he thinks it was imprudent. Whether this was an opinion formed at the time, or whether it was formed subsequent to, and in consequence of, the disaster, does not appear. From the apparent and acknowledged character of the witness, I should incline to the opinion that the latter was the case. Had it been previously formed, it would have been communicated to the agent of the plaintiffs. And if communicated, the experienced counsel of the defendants would not have failed to have had a fact so material in evidence. All these circumstances evidenced, the court are of opinion that there *was not that want of ordinary care in the plaintiffs which ■ought to induce a jury to find against them.

It is again insisted that the defendants can not be made liable in this case, because the case shows that they made use of sufficient ■care and diligence to keep their works in repair. And that it was owing to the act of Providence, to the successive floods, and the peculiar nature of the season, that they were not able, at this time, to open the lock. To me, it seems that in this particular they err, in consequence of mistaking the true nature and effect of the authority, grant, or license under which they assumed to act in the erection of the dam and other works. If from the erection of the works, or in consequence of their being out of repair, the navigation of said river should be in anywise impeded or rendered dangerous,” the act does not protect them. No matter as to the cause. Before they engaged in this business, they knew the condition, and were willing to assume the responsibility. To decide diffoiently, would be'to decide that the legislature. had the right to confer upon others the privilege of obstructing in some measure, .and for a time, a navigation, to the free enjoyment of which the ■ordinance intended to secure a right in each and every citizen of the United States.

To sustain them on this ground of defense, counsel have referred to the case of Townsend v. The President, etc., of the Susquehannah Turnpike Road, 6 Johns. 90. But there is a clear and manifest distinction between that case and the one before the court. A turnpike company construct a road, and from travelers they receive toll. If is intended for the double purpose of accommodating the public and of securing to the company pecuniary gain. In such case, if, through the neglect of the company, the road gets out of repair, in consequence of which an individual .sustains a loss, it is right that the company should remunerate him. But if care and diligence is exercised to keep the road in repair, it would be wrong to make them liable.

How is the case before the court? Here was a public highway, made, not by the “ Zanesville Canal and Manufacturing Company,” but by the Supreme Creator of all things. The plaintiffs had a right secured tef them, by the supreme law of the land, to. travel this highway, and to transport their property *upon . it, without the let or hindrance of any man or body of men. This right was obstructed by the defendants, or in consequence of their acts originally done. This obstruction they, at the time, would have been glad to have removed, and made efforts to remove, but could not, owing to circumstances not within their control. But they voluntarily erected the works which were the first cause of the obstruction, and must be liable for all consequences. It may be a hard case for them, but it would be equally, nay, more hard, to throw the risk upon those whose constitutional rights, secured by compact, had been interfered with.

After mature deliberation, and after full consideration of all 'the facts, the court are unanimous in the opinion that the plaintiffs-have a right of action against the defendants.

The next question to be considered is, whether the plaintiffs can recover in this form of action ? The declaration contains two counts.

The first was intended to be framed under the statute, but owing to some difficulty about the proof, this was. abandoned on the trial.

The second is a count for a common nuisance.

.There is some controversy between the counsel as to whether the first count was or was not abandoned; but according to the recollection of the judges who heard the case upon the circuit, this was done. Subsequently some evidence was introduced which might have conduced to sustain this count, but ought not to be considered under the circumstances.

The real question then is, does the evidence sustain the second-count?

Had there been no legislative action upon the subject, there can be no doubt but the dam of the defendants was a common nuisance. Such is the character of every unlawful obstruction of a public highway, whether that highway be by water or by land. But the defendants’ counsel contend, inasmuch as these works-were erected in pursuance of a legislative act, that under no.circumstances could they be treated as a common nuisance. But that if a person sustained an injury in consequence of their erection or being out of repair, compensation must be recovered, either under the act of 1823, for delay, or under the act of 1812, for ^improperly erecting the dam and lock, or for suffering the same to get out of repair.

The act of 1823 gives to the party delayed a penalty of ten dollars for every day’s delay, to be recovered against the corporation^ It never could have been the intention of the legislature, that this should be the only remedy which a party aggrieved might have. Or if such was the intention it was one which no court could consistently regard. It would be granting to the legislature the power to grant an individual or a corporation the privilege or right of obstructing the navigation of a river upon the payment of this penalty to a person injured. The question is not whether the penalty would be sufficient, but whether the legislature possess the power. To me it seems clear they do not.

And it is equally clear that the penalty in some cases would, in fact, be no compensation. It is well known that the navigable rivers which empty into the Ohio, and through it into the Mississippi, can only be navigated in particular stages of water. The farmer or other citizen who would adopt this mode of conveyance to transport his property to market, must embrace the opportunity when a proper stage of water will enable him to proceed, and the delay for-a single day might cause a delay for weeks and perhaps for months. These plaintiffs might have delayed unt'il the lock could be opened, and have recovered this penalty, but they were-not bound to do it. To require it in all cases might, and probably would in some, prove ruinous.

If a plaintiff do not go for the penalty, is it necessary that he should predicate his action upon the statute, and claim damages on the ground that the dam and lock were improperly erected or that the same wore suffered to get out of repair ? He may do this, and perhaps it would be the more proper mode of proceeding, but in my view of the law it is not absolutely necessary that he should.

The right to navigate the river is a right secured to the citizen by the ordinance of 1787. It is a right of which he can not be deprived unless by agreement between the people of the United States, through their representatives in Congress, and the people of Ohio, through their ^representatives in the general assembly. This right has been violated by the defendants, and they seek to protect themselves under a law of the state. Under this law they are protected as long as the navigation of the river remains unobstructed, but' so soon as in consequence of their works it becomes obstructed, the law ceases to protect them.

Without the law this dam would be a nuisance. But under the law it is no nuisance so long as the lock remains in a situation that boats may be passed through, because the navigation is pot obstructed. But so soon as it is out of repair so that bqats can not be passed through, it becomes a nuisance because the navigation is obstructed. It is only upon condition that the navigation is at all times kept open, that the defendants can protect themselves under the statute. Upon this point, although one member of the court doubts, still a majority believe the action is well brought.

It is objected further to the recovery, that admitting the action to be well brought, still the proof is variant from and does not sustain the declaration. The allegation in the declaration is, that the plaintiffs “ were constrained to pass their said boat, loaded as aforesaid, over the said dam of the said defendants, by means whereof the boat was wrecked,” etc. The evidence shows that the boat was not wrecked immediately upon the dam, or in passing, but that she held together until she struck the pier of the bridge. Although the evidence is clear that the dam was the cause of the loss, it is urged that the fact that the boat was driven against the bridge should have been stated, and that the loss did not happen in the manner set forth in the declaration. To say the least, this exception is extremely technical. What was the cause of the-loss of the ■boat? The testimony in the case answers the question. It was the dam. And whether the boat was actually wrecked while upon the dam, or immediately after by striking against a rock, a log, or the pier of a bridge, is immaterial. The charge is made with suf'ficient precision to give all necessary notice to the defendants, and is sufficiently sustained by the evidence. ' '

Another question made in this case is, whether the plaintiff’s are entitled to receive interest upon the value of the property lost, the jury having found the value of that property, ^and also the amount of interest.' So far as respects the plaintiff's there is nothing unjust in this. They have been deprived of this property from which they might have made gain, equivalent, or more than equivalent to the interest. But interest is allowed, not only on account of the loss which a creditor may be supposed to have sustained by being deprived of the use of his money, but on account of the gain made from its use by the debtor. The law connected with the subject is peculiarly applicable to those who stand in the relation of creditor and debtor. The statute of this state fixes the rate of interest at six per cent., but it has explicit reference to this relation of creditor and debtor. In actions of trespass, trover, or case where property was the subject matter of dispute, I have always supposed ' dhe value of the property taken or destroyed was the rule of damage. The jury in assessing damages might take into consideration the length of time that a person had been deprived of his property in assessing these damages, and the court would not be disposed to interfere. But to compute interest, as such, I had considered not allowable. This has been done in the present case, with a view to submit the question of law to the- court. My own opinion is that this interest ought not to be allowed, and that the recovery should be for the value of the property only. In this, however, the other no embers of the court differ from me, and think that the interest is .a proper item of charge against the defendants. And were it not that I have long considered the principles of law to be different, I should concur with them; for even with this the plaintiffs will receive but an inadequate consideration for the loss actually sustained.

Judgment will be entered upon the verdict in favor of the plaintiffs, for the sum of two thousand one hundred and thirty-six dollars and seventy-seven cents, the value of the boat and loading lost; together with the interest as returned by the jury.


source: Caselaw Access Project

author: Judge Hitchcock Wright, J.

license: Public Domain

text:
    *Jacob Welsh v. Rezin Welsh.
    Where, under a parol contract for land indefinite in its terms, a party enters into possession, and makes large improvements, for his own use and account, and is dispossessed by the vendor, he can not recover for his labor in an action of assumpsit at law ; -but must seek relief in equity.
    This case was reserved in the county of Jefferson, upon a motion to set aside a nonsuit and order a new trial.
    It was an action of assumpsit for work, labor, etc., and the declaration contains three counts:
    1. For work and labor in and about the erection of a certain fulling mill and carding machine for the defendant at his request, and for materials found.' 2. For work and labor in and about the erection and building a certain fulling mill and carding machine for the defendant, and also for materials found, and also for boarding, lodging, victuals, and drink furnished by the plaintiff to the defendant for himself, his laborers, etc., at his like request. 3/ For money paid, laid out, and expended by the plaintiff for the defendant’s use, and also for money had and received by the defendant to the plaintiff’s use.
    The declaration contains no special count.
    The counsel for the plaintiff, in opening the cause to the jury, stated the facts which he expected to prove, and upon which he should rely for a recovery. Evidence was offered to prove these facts, but was objected to by the defendant, and the objection sustained by the court, and a nonsuit ordered.
    The plaintiff, by his counsel, then moved the court to set aside the nonsuit and order a new trial.
    The facts which the plaintiff offered to prove were the following : A parol agreement was made between the plaintiff and defendant (they being brothers), that the plaintiff should grant to the defendant by lease or purchase, as should subsequently be agreed between them, a piece'of land, being mostly wild, of about five acres, for the purpose of the plaintiff’s erecting a fulling mill and other necessary buildings, to carry on the business of dyeing; fulling, and manufacturing cloth, etc. In pursuance of this agreement the defendant gave the plaintiff possession of said land, and the plaintiff went on and erected, with the knowledge and permission of the defendant, a fulling mill and other buildings appurtenant thereunto, and a dwelling house, stable, etc., to a large ^amount, say one thousand dollars. After these things were done by the plaintiff, the defendant sold and conveyed away the said land, with all the erections and buildings, without the consent or knowledge of the plaintiff, turned him out of possession and put his grantee in, and put in his own pocket the entire avails of the labor, money, and expenses of the plaintiff on the said premises.
    G-oodenow, for the plaintiff,
    insisted that upon these facts being proven, the plaintiff would unquestionably have a right to recover.
    Here was a contract between the parties which had been put an end to by the defendant, by his putting it out of his power to-comply with it. And whenever a contract or purchase was rescinded in consequence of an act of the vendor, the vendee might recover back the money or other property paid, or for the labor expended upon the thing sold, in an action of assumpsit, declaring in the common counts. To sustain his points he cited the following, among other authorities: 12 Johns. 271; 11 Wheat. 451, 451; 7 Term, 177; 1 Ohio, 363; 4 East, 291; 5 East, 449; 5 Johns. 85, 272. These cases all have reference to the doctrine of rescinding contracts.
    He further stated, if the question is what damages have been sustained, you must declare upon the special contract. If you go for the original consideration paid you rescind, and may rely on the common counts. 1 Term, 133.
    D. L. Collier, for the defendant,
    did not controvert the principle contended for by the plaintiff’s counsel, that where a vendee had the right to rescind a contract, he might elect to take that course, and recover back in this form of action the money paid, or' the value of other property paid, or even for work and labor done and performed in the pursuance of the contract. But he insisted that that principle could not apply in the present case. The work and labor was not done in pursuance of the contract; it was not done in part payment for the land; it was not done for the use of the defendant, but for the use of the plaintiff himself. If the plaintiff can ^recover anything, it must be damages for the non-performance of the contract, and damages can be recovered only in an action upon the contract. 1 Term, 133.
    He further argued that the authorities cited by the opposite counsel were not applicable to the present case unless those cited from 5 Johnson were, and that these wore clearly in favor of the defense.
   Judge Hitchcock

delivered the opinion of the court:

The question for the consideration of the court is whether, upon the proof of the facts stated, the plaintiff would have a right to recover in this form of action.

The contract or agreement stated by the plaintiff’s counsel is •one of no ordinary character. It is not one by which the parties •agree to sell or lease land, but that they will, at some future period, agree that one or the other shall b.e done. The terms are not specified, but are left for future arrangement. No price is fixed, no length of time for which a lease shall run, should a lease be agreed upon, no time in which payment shall be made. Nothing, in fact, but that the plaintiff shall go into possession^ proceed with his works, and subsequently all shall be made right. The reason why the business was thus transacted is to be found probably in the fact that the parties were brothers. But.notwithstanding the loose manner in which this agreement was made, I can not doubt that a court of chancery would compel the defendant to do justice. The circumstance that there was no writing could make no difference in such court. Possession was taken of the land, labor was performed, money expended, and it would be-a fraud on the part of the defendant not to comply with the contract. The statute was made not to encourage but to prevent frauds.

It does not follow, of course, that because chancery might relieve in a case like the present, therefore that law will in an action of assumpsit.

This action is founded upon the supposition that there was a contract which the plaintiff had a right to rescind in consequence of the conduct of the defendant. From the facts proposed to be proved, there can be no doubt the plaintiff *had a right to-rescind this contract. The defendant had put it out of his power to comply by disposing of the property to a third person. After this he could not hold the plaintiff to fulfill on his part. But what right accrues to the-plaintiff by rescinding? The law is well settled that where a vendee has a right in consequence of the conduct of the vendor to rescind, he may do it and recover back, in an action for money had and received, the amount paid upon the contract. 1 Term, 133; 5 Johns. 85. Upon this point there is no controversy. The principle is admitted by the defendant’s counsel. It would be immaterial whether the payment was made in money, or made in merchandise, or in work and labor. In either case ’the amount paid might be received; and upon the principle that the consideration for which the payment was made had failed.

In the present case the object is not, however, to recover for anything which was paid upon the contract, for nothing was paid. 'It is to recover for work and labor done by the plaintiff for his-own use and benefit while he was in possession of the property. A payment made to a vendor is for his benefit. But when this-labor was performed it was not for the benefit of the vendor, nor. supposed to be for his benefit. It was done with his knowledge- and approbation, but intended alone for the use of the plaintiff. Although done with the knowledge of the vendor, it was not done-even at his request. I can not see, then, upon what reason the principle which authorizes a vendee to recover back money paid upon a contract which is afterward rescinded, can be applied to this case. It seems clear that it is an effort to extend this principle to a new class of cases. No authority precisely in point has been cited, and I presume no one favorable to the plaintiff’s claim can be found. The case of Gillett, Adm’r of Clemens, v. Maynard, 5 Johns. 85, is somewhat analogous to the one now before the court. In that case, however, money had been paid upon the contract, and the action was brought, not only to recover back this money, but also to receive pay for the improvements made while the intestate was in possession of the land. It was held by the court that the contract being rescinded, the plaintiff was entitled to recover back the money paid, with interest, but not any damages for *the labor he had bestowed, or the improvements he had made. Upon this part of the case the court say: The plaintiff, however, ought not to have received any compensation for the improvements. There was no express or implied undertaking by the defendant to pay for them. When the work was done by the intestate it was for his own benefit; and if he voluntarily abandoned his contract, without any stipulation for the improvements, he must be deemed to have waived all claim to them.” From the latter clause counsel infer that if the plaintiff’s intestate had not abandoned the contract, he might have recovered compensation for the improvements. Upon an examination of the case, however, I see no evidence of abandonment except the death of the vendee, unless the circumstance of suing to recover back the money paid, furnishes this evidence. If the case of Gillett v. Maynard be law, I think it must be decisive of this case. Here the work, when done, was done for the plaintiff’s benefit. There is no proof of any express promise, nor is there any implied promise on the part of the defendant to pay for it.

Further, the counsel for the plaintiff says: “ If the question is what damages have been sustained, you must declare on the special contract; if you go for the original consideration paid, you rescind and may rely on the common counts,” and in support of this position cites Towers v. Burrel, 1 Term, 133. Apply this principle to the present case, and it defeats the action. The plaintiff does not “go for the original compensation paid,” for no such consideration was paid. The-real object is to recover compensation in damages for the labor performed. The plaintiff seeks to rescind the contract, and then to recover over and beyond what, according to the rules of law, as I have heretofore understood them, he has a right to recover upon that rescission. And no good reason can be assigned why he might not, with equal propriety, recover to any extent damages which he may have sustained in consequence of the failure •of the contract.

Had there been any express promise proven to pay for these improvements, the case would have been different. I conceive that there would be a moral obligation to constitute a sufficient consideration for such promise. The Supreme Court of the State of New York, in the case of *Frew v. Hardenburgh, 5 Johns. 272, hold differently. But in that case the plaintiff took possession of the land without the consent of the defendant, and held that possession until ousted by an action of ejectment. As there is no express, so neither is there anything from which to imply a promise, unless we establish -the broad principle that where there is a contract for the sale of land, and the contract fails in consequence of an act of the vendor, the vendee can recover pay for the improvements made, in an action for work and labor. I am not willing to establish this principle. It is not necessary for the furtherance of justice. The law provided a complete and adequate remedy in an action upon the contract; and I can not consent to give a new remedy for the purpose of saving this action.

No difference can be made in conseqence of this contract having been by parol. This is not the fault of the law but of the parties. If the plaintiff has been improvident in entering into the contract, the court can not with propriety change any known rule of law to hejp him out of his difficulty.

• I am aware that it is said that the action of assumpsit is a3 broad as a bill of equity. But it does not follow that if a plaintiff could have redress in a court of equity, he can therefore have redress in a court of law, provided he sues in assumpsit. Nor does it follow that because a plaintiff has an equitable claim against the defendant, he can enforce this claim if he sues in assumpsit. If he prosecutes his suit in a court of law, he must in assumpsit, as well as any other form of action, show that he has a legal right of action. When this is shown, the action will be governed by equitable principles.

As it would seem to be just that the plaintiff should receive a -compensation for his improvements, we have reflected whether he might not recover upon the money counts, upon the ground that the defendant had received money for the improvements made by plaintiff, with which he might be charged as having received it to his use. But in this view of the case there is great, and, as it appears to me, insuperable difficulty.

The interest of the plaintiff in the premises is an equitable ^interest. Of this interest the defendant could not deprive him unless with his own consent. The legal estate alone was in the defendant, and if he transferred the land, it must be subject to the plaintiff’s equity, especially if transferred to a person having notice of this equity. Now the case shows that when this land was sold the plaintiff was in possession. The purchaser, then, must be chargeable with notice of all his rights. If so, then this equity may still be enforced. The plaintiff has been deprived of nothing but the possession, and to be restored to this, he must apply to the proper tribunal in the proper way. He may apply to a court of chancery for a specific performance of the contract, and if there has been no laches on his part I see no difficulty in his obtaining a decree, either in a specific performance, or for a compensation, as the merits of the case when presented may seem ■to require.

Upon the whole a majority of the court are of opinion that the nonsuit was properly ordered, and that the plaintiff take nothing •by his motion.

Wright, J.

My opinion does not accord with that of my brethren in this case. If the evidence offered was admissible under the issue, the nonsuit should be set aside. It is admissible if it tend to prove the issue. The declaration is for work, etc., in building a fulling mill, etc., for the defendant, for board, etc., furnished and paid for self and hands, for labor generally, for money paid and had and received, and on account stated. Issue is taken upon non assumpsit.

The plaintiff offered to prove that the defendant agreed with him to grant him, on a lease or purchase, as should be subsequently settled between them, about five acres of land, for the purpose of erecting a fulling mill, etc., and other buildings for manufacturing ■cotton, and put the plaintiff into possession under the agreement; and that the plaintiff built, with the knowledge and permission of the defendant* the mill, and other buildings to the value of one thousand dollars, which, he paid two workmen for; whén the *defendant without the consent or knowledge of the plaintiff sold the land and improvement, received the pay for them, turned the plaintiff out of possession, and put the purchaser in. The labor and expenditures by the plaintiff were on the defendant’s-land. A jury would be warranted in inferring from the fact of the work being so done, that it was done for the defendant, and to oblige him to pay what they were worth. The evidence offered conduced directly to prove the issue, and should have’been re-, ceived. Whether the work was done and the money paid under a special agreement, which was open and subsisting, was a matter of fact to be proven before the jury. The ability to prove that state Of things would not have the effect to exclude evidence proper when offered. That there had been a special contract between the parties upon the subject of the suit, would not destroy the right to recover, in the common counts, unless open and.subsisting, and the suit were to recover damages arising out of a breach of the contract. But when a defendant refuses to execute a special contract, he is not permitted to set up that as a pretext-for retaining what he has received in payments under it; in such-cases the plaintiff may hold the contract abandoned and recover-on the common counts. 12 Johns. 275; 7 Johns. 132; 1 Ohio, 363; 7 Term, 177.

So where defendant has been guilty of fraud as to the special contract, the plaintiff may consider it void and recover on the common counts. 15 Johns. 475; 6 Johns. 110; 1 Com. on Con. 36; 1 Esp. 283; 2 Esp. 640.

So, also, where the contract is rescinded, or has been executed by .the plaintiff, or put an end to by defendant, the plaintiff may disregard the contract, and resort to the common counts in assumpsit to recover what he has paid. 7 Cranch, 299; 4 Bos. & Pul. 351; 6 Term, 136; 5 Johns. 84; Bull. N. P. 139; 18 Johns. 455; 11 Wheat. 250; 10 Johns. 37; 2 Mass. 415; Com. on Con. 317; Newman v. McGregor, 5 Ohio, 349; and it is not necessary to-give positive evidence of monej’-had and received, but when from-the facts proved it may be fairly presumed' the action is maintained. Doug. 137. The action, says Lord Mansfield, Cowp. 807, “ is *gaverned by the most liberal equity. Neither party is allowed to trap the other in form.”

Whether there was, in fact, a special contract between these parties at all, or one still open, or that had originated in fraud by defendant, or which he had pu-t an end to or rescinded, or whether the plaintiff had fulfilled, and whether anything had been paid by the plaintiff upon it in money, labor, or board, were, in my' opinion, questions of fact, and should have been left to the jury upon the proof, on broad and liberal principles of equity. 11 Wheat. 250. I am, therefore, on that ground, for opening up thenonsuit and allowing a new trial. I incline to go much farther-than is necessary to decide this case, and to hold that wherever' one man has availed himself of the labor, goods, or money of another, recovery may be had in this form of action, for just what in equity and good conscience the party is entitled to, all things considered; subject only to this limitation, that where there was a contract price no recovery shall be had for a greater sum than the one stipulated for. I can see no evil or inconvenience that would result from this. A recovery in this form would be as perfect a bar to the subsequent action, as if had in a suit upon the special contract, and each party may obtain a full statement of the real cause of action,'by demand for a bill of particulars under our-law. The proceeding is a simple one, and looks directly to the attainment of justice. Why, then, in such cases turn a plaintiff round into a court of chancery, or to a suit upon the special contract ?


author: *Wright, J.,

text:
    Lodwicks & Kennedy v. Ohio Insurance Company.
    Insurer does not insure against loss resulting from the negligence of the assured, or those employed by him.
    Master and mariners are agents for the assured.
    Navigators of flat-boats on the Ohio river, that are insured, are agents of the-assured, and are bound to all care and diligence. (¿wcerc, if bound in all cases to keep a watch at night ?
    New trial granted for further investigation.
    This action is brought on a policy of insurance upon a quantity of corn, laden on board two flat-boats, bound from Louisville to* New Orleans. The perils covered by the policy are, in the usual. terms of marine insurance, against “ rivers, *fires, enemies, pirates, rovers, assailing thieves, and all other perils, losses, and misfortunes, which shall come to the damage of said produce, according to the true intent and meaning of said policy.”
    On the trial in Hamilton county, the facts proven by the plaintiffs were, in substance, as follows : The boats were both landed in dhe evening in an apparently safe place. The evening was calm, •but the river was falling, and did fall about a foot during the ■night. In the evening all the crew and hands retired to rest, leaving no watch. About five o’clock in the morning the crew were -awakened and found one of the boats sinking. It went down so rapidly that the hands escaped with difficulty, and without ascer.taining the cause.
    Upon this proof the defendants asked the court to instruct the jury that “ if they were satisfied that the boat was landed and fastened to the shore at night; that the place of landing was apparently a safe one; that the night was calm; that the river was .falling, and did, in fact, fall a foot or more, and that no watch was kept upon this boat, but that all the hands went to sleep, then the boat was not sunk within the perils of the policy, and the plaintiffs can not recover.” The court refused to instruct the jury as ■required, but instructed them “ that if they were satisfied that •those in charge of the boats used due care to ascertain that the place of landing was a safe one, it was not indispensable to the plaintiffs’ right to recover, that a waking watch should have been kept up.” A verdict was taken for the plaintiff, and a new trial is asked upon the ground of error in the court in giving the case to the jury. The decision of the motion was adjourned to this court.
    N. Wright and Hammond, in support of the motion,
    cited Phil, on Ins. 124, 223, 225; 1 Condy’s Marshall, 241; 1 Johns. Cas. 346; 13 Johns. 457; 5 Mass. 1; 8 Mass. 321; 7 Term, 505; 14 East, 392; 5 B. & P. 339; 8 Serg. & R. 533; 2 Wend. 327; 3 Pet. 222; Story on Bail. 323; 2 Kent’s Com. 472.
    Benham, for plaintiffs.
   *Wright, J.,

delivered the opinion of the court:

The real questions' to be decided are, what is the meaning of tbe general clause in this policy of insurance, and what constitutes such negligence in the navigators as will excuse the insurer?1

The meaning of the general clause in marine policies, by which insurers undertake to indemnify for damage resulting from all other perils, losses, and misfortunes, or against any peril whatever, has been fixed by judicial construction. These terms are used in reference to established rules of law, and must be expounded by those rules. Grim v. Phenixon & Co., 13 Johns. 460. All the perils assumed in the policy are subject to one limitation : that although the loss be directly occasioned by the peril insured against, yet if that peril, in causing the loss, is occasioned by conduct of the assured or his agents, which are not insured against, .the insurer is not liable. Eor instance, if the insurer take upon himself the risk of the sea, but not of the negligence or misconduct ol the agents to whom the insurer intrusts the property, and it is sunk by the negligence or misconduct of such .agent, the insurers are not answerable for the loss. It is esteemed .certain that no underwriter has ever been held, under any contract of insurance, in whatever form, to be answerable for losses directly and evidently occasioned by the fault of the assured himself; and no doctrine is better settled than that the insurer is not liable, under the common clause of the policy, for losses resulting from the negligenco of agents employed by the insured. Phil. Ins. 224;. 14 East, 482; 8 Mass. 321; 2 New R. 336; 9 Johns. 21. In all such cases the-insured is held in law impliedly to warrant that those persons he employs shall be careful and diligent, and that everything shall be done, to prevent loss, within the reach of ordinary human agency. This principle pervades the whole subject of marine insurance; and if loss happen through the want of care and dili-• gence, it is held not to be within the intention of the parties to-the contract that the insurer shall be accountable. 8 Mass. 322; Phil. Ins. 156; 2 Johns. Cas. 180; 1 Johns. 460; 5 Mass. 1; 7 Term, 505; 5 B. & P. 339.

*Are the master and mariners the agent of the assured or the insurer ? The owner is the agent for the shipper for transporting the goods, and employs, in the conduct of the business, other agents, the masters and mariners, for whose conduct in that employment he is accountable to the shipper. Marsh. Ins. 225. The captain and mariners navigating vessels in which insured property is laden are, in legal contemplation, the agents of the assured in-reference to the goods insured. They are liable to their immediate employers for their negligence or misconduct, and the owner is liable to the shipper for any loss resulting therefrom as common carriers. Phil. Ins. 225; Marsh. 241; 8 Mass. 321; 13 Johns. 459; 2 Wend. 327; Story on Bail 323; 2 Kent Com. 472.

The captain and crew of the boats on which this insured corn was laden were bound to the use of ordinary diligence in its preservation. The establishment of that fact is essential to a recovery against the insurer. Does the case made exhibit the use of such diligence? The place where the boats were made fast being, ■apparently, a safe one, all hands went to rest, leaving no watch. Owing to some cause not known one of the boats sprung a leak in the night, and when the hands awakened in the morning, she was so far gone that they could not discover the cause, and went down so quick as to render their escape difficult. If this boat had been run foul of, or wrecked by the collision of any other body with her, the shock would probably have awakened the crew; if, owing to the fall of the water, she settled upon a snag and bilged, in all probability the cause would have been discovered. The cause of the disaster, whatever it was, operated silently and without violence upon the boat, and must have progressed gradually. The' mere statement of such a cause indicated as the course of diligence .and common prudence, that a watch should be kept up. The earlier promises to keep safely, and is bound that a safe and secure place is selected for landing; that the crew is competent; and that they will be diligent and careful in guarding and protecting the vessel and freight from accident. The common law rule determines all these things negligence which do not proceed from the enemies of the state or the *aet of God. These latter are technical terms, the meaning of which is settled by repeated judicial decisions. Acts denominated acts of God-are natural and unavoidable ones. If proper care and diligence would ■ have avoided the act, it is not excusable as the act of God. 8 Serg. & R. 533; 2 Wend. 327; Story on Bail. 323.

At the trial the court refused to instruct the jury that the opiis•sion to keep a waking watch on the boat was itself an act of negligence, but did instruct them that the keeping such a watch was not indispensable to the plaintiff’s right to recover. Cases upon policies of insurance are new to the country; but few have ever .been brought to trial in this state, and we are pleased to have an opportunity to re-examine decisions made upon the circuit in the hurry of a trial before a jury. Upon re-examination and reflection in this case, we are satisfied that neither the charge the court was asked by the defendants to give to the jury, nor that actually given, in the terms asked or given, were in strict accordance with law. It should have been left to the jury to ascertain, as a fact, whether the loss resulted from the negligence of the hands, and the usage of the river as to the keeping watch might have been proven and submitted to them. Although we are not able to say precisely what influence the charge of the court may have exerted upon the finding of the jury, we feel disposed to grant a new trial, to afford opportunity for a more careful investigation.

New trial ordered, costs to abide the event.


author: Judge "Wright

text:
    *John Morrison v. The State of Ohio.
    In prosecution for concealing a horse-thief, it is not competent for the prosecutor to prove the confessions of the alleged thief, in the presence of the defendant, to establish the fact that a horse was stolen.
    Writ of error to the court of common pleas of Jefferson county, returnable to this court. Morrison was indicted for that one Driskell, on January 1, 1829, stole a certain gelding, the property of a person to the jurors unknown, and that he (Morrison) on January 2,1829, did conceal said Driskell in his (Morrison’s) dwelling house, knowing him to be a horse-thief. Section 27 of the act for the punishment of crimes, 29 Ohio JB. 141, provides that if any person shall conceal any horse-thief, knowing him to be such, he shall, upon conviction, be imprisoned in the penitentiary not more than fifteen nor less than three years. . The bill of exceptions with the record.in this case shows that during the trial, upon the issue of not guilty, the state, in order to prove that Driskell had stolen the horse mentioned in the indictment, called a witness to detail his confessions made in the presence and hearing of Morrison. This was objected to for the prisoner, but admitted. It shows also that the prisoner, by his counsel, insisted to the court that in the trial of this indictment, before Morrison could be convicted legally, the prosecution was bound to prove that Driskell had been-convicted of the crime of stealing the horse mentioned in the indictment, which objection was overruled by the court. The prisoner was found guilty, sentenced to eight years’ imprisonment, and is now in the penitentiary.
    To this record four objections are taken — two to the indictment and two upon the proceedings at the trial, viz :
    1. That it is not charged that Morrison knew Driskell had stolen the horse described in the indictment.
    2. That there is no averment that pursuit was made aftei Driskell, or any attempt made to arrest him for his offense at tbe time Morrison concealed him, nor any fact to show that he was' concealed to assist his escape from justice, or to aid him in committing the offense.
    3. That the confessions of Driskell were improperly admitted to prove that he stole the horse.
    *4. That the court erred in ruling it unnecessary to the conviction of Morrison, to prove that Driskell had been convicted of stealing the horse described in the indictment.
    Marsh, for the plaintiff in error,
    cited 3 P. Wms. 493, 502; 1 Chit. C. L. 138, 217-219; 2 Chit. C. L. 6; 2 Hawk. C. L. 29, secs. 26, 32, 43-46; Com. Dig., tit. Justices; 2 Inst. 183; Arch. C. Pl. 154, 402, 403,; 1 Hale P. C. 619; 1 Leach, 232, 418; 3 Camp. 264; 2 Russ. on C. 253, 259, 589, 652, 708; 1 Phil. Ev. 33, 76, 87; Kel. 18; Gilb. Ev. 124; 2 Stark. Ev. 53, 401, 411; 4 Car. & Payne, 215, 221, 250 2 Price, 299; 3 Mass. 126.
    J. Collier, for the state,
    cited 2 Russ, on C. 589, 708; 1 East, P. C. 37, ch. 2; 1 Stark. Ev. 401, 411; 6 Term, 528; 1 Blackf. 429.
   Judge "Wright

delivered the opinion of tht court:

The charge in the indictment is, that Driskell had stolen a horse, the property of some unknown person, and that Morrison, the plaintiff in error, afterward concealed him, knowing him to be a horse-thief. On the trial, it is claimed that the court of common pleas illegally admitted proof of Driskell’s declarations to Moraúson to establish the allegation that Driskell had stolen the horse described. The question is, were the confessions or declarations of Driskell competent evidence against Morrison to prove the fact

Any voluntary confessions of one accused of crime is evidence against him at common law. 2 Stark. Ev. 51. But such confessions are only evidence against the person himself who confesses, not against other persons, although they may have been proven to be his accomplices.” 1 Phil. Ev. 77; Kazer’s case, 5 Ohio, 280. The allegation in this indictment that Driskell had stolen the horse was material, and to be proven by the prosecution. That fact, and the prisoner’s knowledge of it, imparted to the alleged concealment of him its 'criminal character. The efforts of the counsel for the state, in the argument to assimilate Driskell '-|:and Morrison to conspirators, in order to open the door for proof of the acts of each against both, and of the declaration of one made at the time against his fellow, are not in our opinion well grounded. Though the authorities cited sustain the positions assumed, yet they do not relieve the case from the objections taken. The case made does not rest on the position that Driskell and Morrison combined together for an illegal purpose, npr is the confession of Driskell of an act done in pursuance of a preconcerted plan, and in reference to a common object. The concealing a horse-thiefr knowing him to be such, is a distinct, independent offense, both upon principle and under the provisions of our statute. 29 Ohio L. 141; 1 Blackf. 429. The thief must be named in the indictment against the receiver, if known; and, before conviction, he is a competent witness against the person concealing him. 1 Leach, 418; Arch. C. Pl. 154. If the record showed that proof had! been introduced to satisfy the jury that Driskell had stolen the horse mentioned in the indictment, and upon that the prosecution had sought to establish Morrison’s knowledge of the guilt when he concealed him, proof of what Driskell told Morrison would have been both competent and sufficient, unless the communication was attended by circumstances to induce a disbelief of the tale. This case is different. The proof here was not directed to make out a scienter in Morrison, but the fact of Driskell’s having stolen the horse. In this view it appears to us the court admitted the declaration of one not a party to the record, nor a confederate, to sustain the material allegation, that said third person was a horse-thief in general terms; and that, too, without any proof that a horse had in fact been stolen by or from any person known or unknown. Such declarations, for such a purpose, we think clearly incompetent. See Daniel v. Patten, Moody & R. 501.

This opinion requires of us to reverse the judgment, to set aside the proceedings subsequent to the issue, and to award a new trial. The other questions discussed it is unnecessary to examine at this time, and we leave them wholly untouched.

*This decision will be certified to the clerk of the Supreme Court in Jefferson county to be there recorded, and the keeper of the penitentiary will be directed to remove the prisoner to that ■county for trial.


author: Wright, J.,

text:
    Aaron Wright, Jr., v. Harvey Munger, Paymaster.
    In suits before justices to recover militia fines, appeal lies to the court of common pleas.
    This is a certiorari to the common pleas of Warren county, and was reserved in that county for decision in bank. The transcript returned shows that an action of debt was commenced by-Munger, paymaster of a militia regiment, against Wright, before a justice, on which judgment was rendered against Wright for debt and costs. Wright appealed this judgment to the common pleas and entered bail regularly, and docketed the appeal. The transcript filed, described the action before the justice in general terms as debt, but did not show how the cause of action arose, except what could be doduced from the description of the plaintiff as paymaster, etc. Munger moved the common pleas to quash the appeal, because the suit was for a fine assessed by a court of inquiry under the militia laws of the state, from which no appeal is provided. In support of this motion, an affidavit was received by the court to show that the action before the justice was to collect a militia fine which was excepted to. The appeal was quashed, .and to reverse the order for quashing this certiorari is brought.
    A. Harlan, for plaintiff in error.
    J. M. Williams, contra,
    cited sections 1 and 2, of article 8, of the Ohio constitution; 22 Ohio L. 50; 29 Ohio L. 57, 177, 205, 208 392, 490, 509, and the militia law of Ohio of 1831.
   Wright, J.,

delivered the opinion of the court:

*The plaintiff in error insists that the common pleas erred: 1. In receiving evidence out of the justice’s transcript to show what the cause of action was. 2. In quashing the appeal. We limit our inquiries to the last error assigned. The act of assembly of March 14, 1831, 29 Ohio L. 171, 189, defining the powers .and duties of justices, etc., gives them cognizance of actions for “any sum not exceeding one hundred dollars,” except actions of trespass involving the title to real estate, actions of assault and •battery, malicious prosecution, ejectment, replevin, slander, libel, upon real contracts, and against officers for miseondct in office. The act allows an appeal from the final judgment of the justice, except judgments rendered by confession. 29 Ohio L. 178.

The militia law of 1831 provides, page 36, for the organization of a regimental court of inquiry in each regiment, to be composed of the major and commandants of companies, for the assessment of fines. Section 37 gives to the person aggrieved by the decisions of the court of inquiry a right of appeal to the court of appeals, a military tribunal composed of the field officers of the regiment and the senior captains, or any two of them. When the fine remained unpaid after notice by the paymaster, section 39 requires of the paymaster to lodge the list of fines with a justice, who is to proceed against the delinquent, making the paymaster plaintiff, “ as in other cases of debt,” to judgment and execution for the unpaid fine and costs, unless the delinquent can satisfy said justice that he was not liable to be fined, or that the fine against him ought to have been remitted by the court of appeals.

The counsel for the defendant in error has discussed the several questions raised in this cause with great ingenuity and ability, and insists that the appellative jurisdiction of the court of common pleas from justices’ judgment extends only to civil cases; and he denies their jurisdiction in this ease, because it is not civil; neither arising ex contractu nor ex delicto, but being, in his own language, “peculiarly like nothing else but itself, a militia case.” The general clause, allowing appeals from justices, has been uniformly construed to embrace all cases in form civil, where no express prohibition is interposed to the contrary by the legislature. It has been held to ^include. penal actions, and in Bittle v: Hay, 5 Ohio, 269, was held by this court to embrace a ease brought for a penalty in obstructing a highway. Counsel insist that this construction is unsound, and cites a variety of statutes providing for summary proceedings before justices, where appeals are allowed in express terms, and thence, and from the silence of the-legislature in the militia law, deduces that no appeal was intended in this class of cases. We do not perceive how the allowance of appeals, by express provision in special cases, can be understood' as expressing the intention of the legislature to restrict the usual and fair operation of the general clause allowing appeals.

The action is debt. It is brought upon the judgment of-a military court of competent jurisdiction, to determine the subject.. Debt upon judgments of foreign courts upon penal statutes of foreign countries, have been sustained in our courts, upon the-principle that after judgment the ti-ansaetion no longer retained its penal character. Indiana v. John, 5 Ohio, 219; 1 Ohio, 259. It does not change the situation of the case, that the legislature has allowed the jurisdiction to look behind the proceedings of the court of inquiry. The law holds the decision of the court of inquiry only prima fade evidence. It is not bur province to inquire-why the legislature took from these military tribunals the right of executing their own sentences by the ordinary means of military courts, or omitted to authorize them to issue execution, and to levy and sell as upon executions from the common law courts. Nor is it material to inquire why.it was thought necessary to have a suit and judgment for fines before a justice of the peace, after the decision of a proper military court, or why, after that again, an-appeal should be allowed, and another trial had before the common-pleas. If such are the provisions of the law, and we think so, it is our business to apply them to cases as they arise. We think an appeal in this case within the provisions of the law, and that the-court of common pleas erred in quashing it. For that cause the-order of the common pleas quashing the appeal must be reversed, and the cause remanded, with instructions to reinstate the appeal,, and proceed.


author: Wright, J\,

text:
    *Edward Williams’ Administrators v. Isaac Williams’ Administrators.
    Action of assumpsit within the statute of limitations of 1810.
    Statute of limitations liberally construed.
    Where security pays a whole debt voluntarily, action accrues against principal, from the time- of payment, without notice or demand.
    Payment by surety or co-obligor in small sums, at different times, does not give a right of action for each separate payment without notice or demand.
    This is an action of assumpsit for money paid. Issue is taken •upon the pleas of non assumpsit and non assumpsit within six years. The case was submitted to the court in Pickaway county, on an agreed statement of facts, and adjourned for decision here. The material facts agreed are, that Edward and Isaac Williams entered into a joint and several bond to one Heath, for twenty-two hundred and nine dollars, which fell due on September 14, 1817. Each was to pay a moiety of the debt. After the bond fell •due, though more than six years before the suit commenced, Edward paid the obligee a small sum, more than one-half of the ■principal and interest then due on the bond. Several years subsequent to this payment, suit was brought on the bond against both obligors, and judgment recovered against both. Shortly after this judgment, Isaac died, and Edward paid the whole amount. To recover back the money so paid with interest, this suit is brought. If the court, on these facts, is of opinion that any part of the plaintiff’s claim is barred by the statute of limitations, it is agreed he shall have judgment for fifteen hundred and seventy-five dollars and eighty-eight cents; but if no part is so ’barred, then he shall have judgment for sixteen hundred and seventy-three dollars and eighty-seven cents and costs.
    G-. Swan, for plaintiff,
    cited 8 Ohio L. 62; Terms de lay, 12; 1 Chit. Pl. 86, 87, 286; 2 Chit. Pl. 664; 5 Ves. 792; Jeremy’s Eq. 516; 2 Term, 370; 2 Sch. & Lef. 634; 2 Coxe, 173; 1 Atk. 89; 2 Com. Dig. 414, Contribution, S. 2; 1 Taunt. 572; 2 Taunt. 323; 20 Johns. 586; 3 Esp. 159, 160.

      No argument was presented for the defendant.
   Wright, J\,

delivered the opinion of the court:

Four questions are raised by counsel for our decision in this case-

1. Whether the action of assumjisit was limited at all by the act of 1810, which was in force when these payments were made.

2. *Whether this class'of cases does not so far relate to the execution of a trust as to be without the statute of limitations.

3. From what time the statute begins to run; whether from each payment of a part; from the payment of the entire sum only, or from the period when the original obligation would be barred.

4. Whether the action accrues to one paying money without coercion for a co-obligation, until notice be given, or demand is made.

1. The act for the limitation of actions of -1810, 8 Ohio L. 352,, limits “all actions upon the case” to six years. Although the act does not limit the action of assumpsit by name, yet it has been uniformly held that action was embraced in the general terms “actions-upon the case.” This construction has obtained in our courts of justice, and is not now to bo disturbed.

2. Trusts are sometimes excepted from statutes of limitations by express provision of law, but more frequently by judicial construction. It is well known that courts have formerly made great progress by multiplying exceptions from the enactments, toward a total repeal of statutes of limitation ; but latterly the course of decisions are more in conformity with the obvious meaning of such-laws. We think such statutes should be enforced, like every other-legislative act, according to the intention of the law-maker as expressed in the act itself. But inquiry upon that point is unnecessary, in this case, as we are of opinion the agreed facts do not establish a trust within any known exception to statutes of limitation.

3. Where one under legal obligation for another pays money for him, the law supplies the request, and because it is the duty of the person thus benefited to refund, implies a promise to do it, and this implied promise is enforced by the action of assumpsit. It is-not necessary that he who is thus bound for another shall wait until he is sued and coerced to pay by judgment and execution. If the money for which he is hound is due, he may pay without suit and have his action. In Cole v. Saxby, 3 Esp. 160, Lord Kenyon is reported to have said “ there had been a case in which a very considerable *law authority had been of opinion thatsueh a debt was entitled to the same limitation as the deed itself,” the original obligation. We have not been able to find the “ law authority’’' referred to in that report, but the question and this doctrine of Lord Kenyon have been fully considered by the Supreme Court of Massachusetts, in the case of Penniman v. Vinton et al., 4 Mass. 276, and the position held not to be well founded. Chief Justice-Parsons, in giving the opinion of the court, says : “ The action is-not founded on a bond, but on the promise or simple contract (although the execution of the bond, as to a surety, is the consideration of the promise), and the breach of the promise is the not indemnifying against the payment of the bond, and is not the nonperformance of any contract to which the principal was forced by deed to the surety.” The case in Massachusetts differs from the one at bar, in this, the payment here was by a co-obligor, in that it was by a surety for his principal. In principle, so far as-regards the question before the court, no material difference is perceived between the cases. The authority is conclusive against, the assumption that in cases where one pays money for another on a bond, the action for the money so paid is limited only by the time-the right of action on the bond would be limited. The statute in all such cases begins to run from the time the cause of action accrued, without reference to the limitation provided by law on the-original obligation.

4. But we are unwilling to admit the proposition that a co-obligor may pay in small installments, and without demand or notice have a suit for each sum so paid. In this class of cases we hold notice to the person for whom the money is paid, either actual or constructive, essential to perfect a right of action in the party paying, and it follows that until such notice the statute does not begin to-run upon such claims. 20 Johns. 586; 1 Taunt. 572; 2 Taunt. 323. There is not anything in the facts agreed in this case, which shows, that Isaac Williams ever had notice of the first payment by Edward. Nor is there anything from which such notice may be fairly inferred, until the rendition of the judgment-against both for the balance, deducting the sum so paid. *If the statute is held to begin to run at that time, six years had not elapsed when this suit was brought, and upon the agreed case, we hold that the statute then began to run. As to the other payments, there is no pretense of their being barred.

Upon the agreed case, therefore, the plaintiff is entitled to judgment for the one thousand six hundred and seventy-three dollars and eighty-seven cents and costs. But inasmuch as the cause of action for the first payment was not complete until notice, no interest should have been computed beyond that time. The plaintiff deducted the interest, and judgment was rendered for the balance.


author: Judge Lane

text:
    Newcomb’s Lessee v. Christopher Smith.
    Order for sale of decedent’s real estate, made in 1813, can only be proved by the record. If such order be not entered on the minute-book of the court, as required by law, it can not be valid, and parol proof, or other memorandum in writing, to show that it was in fact made, can not be received. '
    In 1813, order for sale of real estate, by administrator, is to be made after return of the appraisement.
    Sale of decedent’s real estate, made by administrator, upon joint application with guardians, not to pay debts, but to maintain children and improve the property, is invalid.
    This was a motion for a new trial, in an action of ejectment, reserved from the county of Hamilton.
    On the trial the plaintiff exhibited a connected legal title to lot No. 40 in Cincinnati. The defendant’s title depends on the validity of a sale of the lot by the administrators of Jesse Newcomb. The sale was proved by the administrators’ deed. To prove the right to sell, the following documents were offered in evidence:
    1. A paper from the files of the common pleas of Hamilton county, indorsed, “A petition for the sale of real estate of Jesse Hewcomb, deceased, April, 1813,” a copy of which is as follows:
    . “To the honorable judges of the court of common pleas, Hamilton ■county:

    “We, your petitioners, who being appointed administrators of the estate of Jesse Newcomb, and guardians of the children of said Newcomb, deceased, humbly showeth that we are anxious for the welfare of his widow and children, take this means to acquaint the honorable court with the situation of the property, consisting -of a lot of ground in Cincinnati, situate on Sycamore street, being part of lot No. 40 in said town plat, being thirty-three feet in front and one hundred and ninety-eight feet *deep, with the walls of a brick house twenty-four by eighteen feet, and shingled in, and a small frame building back, together with a work-house thereon ; that the property is now 'in the situation it was at the death of said Newcomb, and there is no funds belonging to said ©State to finish it, nor for the support of the .widow and children. We therefore pray the honorable court to grant us a‘ permit to sell the real property.
    “ William Dynes, Administrator.

    Ann Newcomb, Administratrix.

    Christopher Smith, } Guardians-

    “ Cincinnati, April 14, 1813.”
    On the back of this is written, in the handwriting of one of the associate'judges of that court: “Allowed. John Wood, John ■Crone, James Hicks, appraisers.”
    2. The following document, under the seal of the court: ■“Whereas, by a petition to the honorable the court of common pleas of Hamilton county, at April term, instant, close in these words” (recites the foregoing petition). “Which petition being read, and all and singular the premises aforesaid being seen and fully understood, upon mature deliberation the court do order that the above-described property be sold and conveyed by said petitioners, and they appoint John Wood, John Crone, and James Hicks to appraise said property agreeably to the statute in such -case made and provided, and that you in all things observe and bo governed thereby.
    “ By order of court.
    “ [l. s.] In testimony whereof I have hereunto set my hand, .and affixed the seal of our said court of common pleas, at Cincinnati, this 15th day of April, 1813.
    “JohnS. Gano, Clerk.”

    This paper is indorsed thus: “ Order of court for the sale of real estate of Jesse Newcomb.”
    3. The original appraisement is as follows: “ We, the appraisers chosen by the court.of common pleas in the county of Hamilton to value the real property of Jesse ^Newcomb, deceased, after viewing the premises, do value the same at one thousand one hundred dollars.
    “John Crone,
    James Hicks,
    John Woods,
    “Appraisers.

      “ Cincinnati, April 16, 1813.”
    4. The settled account of the administrators of J. Newcomb.
    W. Dynes, sen., and Ann Newcomb, administrators of J. New-comb, deceased, in account with the estate of J. Newcomb, deceased.
    Dr. to divers items.....................................................$464 22'
    Cr. by divers items..................................................... 464 22
    Amount of sale of house and lot................. $1,590 00
    Interest on $1,060, 1 year.....:.................... 60 36 — $1,650 36
    Paid widow one-third amount of sale........... 530 00
    Paid interest on $1,060............................. 60 36
    Paid Dr. Douglas his bill........................... 10 00
    Paid widow for support of three children.... 60 00
    Paid for bank stock................................. 990 00 — $1,650 36-
    This account is indorsed, “Jesse Newcomb, dec’d, filed August 16, 1814. J. S. Gano, Clerk.”
    Mr. Gano, the clerk, testified that the journals of that and several other terms were originally kept in separate stitched paper books, which he had collected and bound. Some leaves appeared not to be present, and some entries were written on loose papers, attached to the book by wafers.. He knows no alteration or mutilation, but, as far as he knows, they remain as they were made by the court. That the petition was filed by him, and the order" of. sale made by the court, but no entry of it is found on the journals.
    The plaintiff objected to the whole of this evidence, but it was. received by the court, who directed the.jury to return a verdict for the defendant. The plaintiff moves the court for a new trial, assigning for cause, that the evidence was improperly- rejected,, which motion is reserved for decision in bank.
    *Longworth and Worthington, for plaintiffs.
    Storer and Fox, for defendants, insisted:
    1. That the proof shows an order made.

      2. That however improvidently or erroneously granted, it can not now he questioned, or its propriety investigated. 4 Dal. 451; 2 S. & R. 4; 11 S. & R. 431; 4 Wash. C. C. 657; 13 Mass. 166; 6 Johns. Ch. 387; 7 Wheat. 59; 2 Pet. 163; 3 Ohio, 257, 560; 4 Ohio, 130.
   Judge Lane

delivered the opinion of the court :

If the testimony does not prove that an order for the sale of the-property was made by the court, it ought to have been rejected, and the plaintiff is entitled to a new trial; for the -power of the-administrator to sell arises from the action of the court, and without it the sale is void. By section 102 of the judiciary act then in force, 8 Stat. 294, proceedings, orders, judgments, and decrees-are of no force or validity until entered on the journals and signed by the presiding judge; consequently the order of sale can only exist as a matter of record, and is only provable by its production. Heirs of Ludlow v. Johnston, 3 Ohio, 577; Goforth’s Lessee v. Longworth, 4 Ohio, 129.

The parol testimony must be rejected, for the fact can not be-proven by parol. An inspection of the journals afford no ground to raise the presumption that they ever contained such an order.. No probable evidence is presented that any part of the journals of that term is lost. The paper described as No. 2 shows no reason for believing such an order was entered on the journals. It is the certificate by the clerk of an act of the court, which can only be shown by the production of the record, or by making proof of its loss.

No act of the court, or of any member of the court, ajjpears in. any of this testimony, except the indorsement of the appraisers’’ names and the word “ allowed ” written on the original petition-by one of the associate judges. By the statute then in force, 8 Stat. 159, 332, on an application *by an administrator to sell lands, the court, on being satisfied of the necessity fora sale, were-directed to appoint appraisers, but no order for sale was to be made until the return of the valuation. 4 Ohio, 130. If the word “ allowed ” should be held to imply that the court granted the' prayer of the petition, the interpretation which we should attach to it, standing in its connection on this paper is, that the court, were convinced of the necessity of the sale, and assented to the-appointment of appraisers; not that they designed to make a premature order of sale, for an ambiguous phrase should be construed into that which the court could rightfully perform, rather than into an irregular exercise of power.

We therefore are led to the conclusion, that the testimony offered contains no legal evidence that an order of sale was made, .and it should therefore have been rejected.

Perhaps another reason exists for the exclusion of the testimony. I do not refer to the fact that Smith, one. of the guardians, and ■ one of the petitioners, was the purchaser, since perhaps this objection might not prevail, except in a court in equity. But the court of common pleas had power by section 32 of the statute to .authorize administrators to sell to pay debts. By section 34 the ■ court might authorize guardians to sell the lands of their wards “ for good cause shown.” This application to sell was by both administrators and guardians, not .to pay debts of the estate, but for the support of the widow and children, and for the benefit of their property. With these objects the administrators had no concern, the guardians alone could act; yet, if a due order of sale ■/was made in this case, it was executed, not by the guardians, but ■by the administrators, who were not capable of receiving any such .authority. 1 Pet. 340; 2 Pet. 157.

New trial granted. Costs to abide the event of the suit.


author: Lane, J.,

text:
    *Samuel McChesney’s Lessee v. William Wainwright.
    Deed describing the land conveyed, as half the tract granted to M., January 9, 1804, prima facie a good description.
    ■ Grantee bound by recitals in the title of his grantor.
    It is no defense in ejectment, that after the suit is commenced, the plaintiff takes possession of the premises in dispute.
    Motion for a new trial reserved from the county of Clermont. At the trial in the Supreme Court, the plaintiff proved that his lessors were the widow and heirs of Samuel McChosney. He pro- ■ duced a deed from John McDowell'and wife to Samuel McChes,ney, dated October 16, 1818, a patent to McDowell, dated January .9, 1804, and a plat and survey from the county surveyor.

      The defendant gave in evidence a deed from McChesney to-Joseph Kemp, and a deed from Kemp to him.
    To rebut this title, the plaintiff produced a mortgage deed from Kemp to McChesney, given him before his conveyance to Wainwright, with proof that when Kemp purchased of McChesney, he-gave back a mortgage deed as security for the purchase money,., which is still unpaid. The mortgage conveys the land by the folio-wing description: “All the east half of a tract of land, granted' to John McDowell on January 9, 1804; beginning at a black oak and gum, standing in the northeast corner of said original sur-vey, aDd runs from thence west one hundred and forty-two poles to three white oak trees, standing in the middle of the north bounds of said tract; thence south four hundred and sixteen poles ■ to a hickory stump, standing in the south bounds of said tract; thence east one hundred and forty-two poles to a sugar tree, in the southeast corner of said tract; thence north to the place of beginning.”
    The introduction of this deed was resisted by the defendant’s-counsel, because they alleged it contained no sufficient description to transfer any lands, but the objection was overruled.
    The defendant then offered to prove as a defense, that the lessors of th'e plaintiff had taken possession of the land, which-proof was rejected, and a verdict rendered for the plaintiff. This motion for a new trial is made for the two causes, the admission of the mortgage deed, and the rejection of the testimony offered by defendant. The decision of this motion is reserved for the-court in bank.
    ^Strait and Hawes, for plaintiff.
    No counsel appeared for defendant.
   Lane, J.,

delivered the opinion of the court:

The mortgage from Kemp to McChesney professes to convey the east half of a tract granted to McDowell on January 9, 1804,. and proceeds to recite the specific abuttals. We are without the benefit of a brief from the defendant,-and are left to-gather the objection from the written motion. If we do not mistake the point intended to be raised, it is that this deed conveys no land,., from the generality of its description, especially in its omission to designate the county, township, or water-course on which it is situate.

We know no rule of law, which requires the insertion of these points in the description, provided it is sufficiently identified, If the description in a deed be so imperfect that it can not be known what land was intended to be conveyed, the deed is void. 4 Mass. 205. But although it is necessary to the validity of a grant, that the thing granted should be capable of being distinguished from other things of the same kind, it is not necessary that the description should be such as to identify the object without the aid of •extraneous testimony. 5 Wheat. 359. And if a deed refer to another deed for the description of the land conveyed, and the land •can be ascertained by such reference, the description is sufficiently certain. 6 Pick. 450.

The land which the parties attempted to transfer by this mortgage, consisted of one-half the tract granted to McDowell on January 9, 1804. This reference adopts the description in McDowell’s grant; and if by combining them the jury can ascertain the land, the deed is effectual to transfer it. If it be said that the grant to McDowell is not sufficiently identified, that he might have had two grants of the same date, it is a sufficient answer that the two grants are not to be presumed, and that it will be early enough for the plaintiff to explain, when the testimony of the defendant shall render the intentions of the parties ambiguous.

Besides, Wainwright holds Kemp’s title, and is bound by all that binds it. Kemp purchased of McChesney, by a *deed bearing the same date with his mortgage; so that he and all who hold his title are bound by its recitals and admissions. 5 Ohio, 194. This deed from McChesney, which identifies the land with the land mortgaged, by employing the same description, recites that it was purchased of McDowell,- and lies in the county of Glermont. The defendant, by his acceptance of Kemp’s title, adopts this admission, and supplies that part of the description, which we understood him to allege is wanting in the mortgage. We are of opinion that the deed was properly submitted to the jury.

The second objection taken, arises from the rejection of proof, that the guardians of the plaintiff’s lessees had taken possession of the land during the suit. Proof of this suit was properly excluded, unless it proves a defense.

The rights of the parties to a suit are generally to be acted •upon, as they existed at its commencement. In ejectment these rights are founded on a trespass and eviction. To redress these the plaintiff is entitled to recover a judgment for the land, for •damages and for costs ; and this judgment enables him to obtain the mesne profits in another suit. If circumstances, occur by which one object can not or ought not to-be obtained, the plaintiff is still entitled to pursue the other. An alienation during the ■suit furnishes the defendant with no defense. 2 Ohio, 293, 304. And where the estate of the plaintiff’s lessee is for life only, and ■it expires during the suit, so that, there remains no right to possess the land, yet the plaintiff shall have judgment. 2 Str. 1056; 8 Johns. 507; 18 Johns. 302. The acquisition of the possession by the'plaintiff only accomplishes one object of the suit; he is entitled to judgment to recover his costs, and to aid in further .remedies.

The facts offered to be proved constituted no defense; but if they had been, they were not admissible under the general issue. There is no difference between actions of ejectment and other suits, in which matters of defense arising after issue joined must be brought forward by plea after the last continuance. 7 Johns. 194.

Judgment is entered on the verdict.