text:
    *Roe, for the use of Jonas, v. Bank of the United States.
    Writ of error can be sustained in the name of tbe casual ejector.
    This was a motion to quash a writ of error, issued in the name of the casual ejector, after judgment against him by default, in a case where the tenant in possession did not enter into the consent rule. The writ of error was prosecuted by the person claiming the interest as landlord. The motion was made to quash the writ of error, and adjourned for decision from the county of Hamilton.
    Storer, against the motion:
    The question submitted for decision is, can error be sustained on a judgment in ejectment, brought in the name of the casual ejector, where the tenant in possession has not entered into the consent rule, and the judgment is rendered by default against the casual ejector.

      In support of the affirmative of this proposition, I will examine the reasons given in the books, if they ean be termed reasons, why error should be supported. The first ease I can find reported is that of Roe v. Doe, ex dem. Humphreys, in Barnes, 181, which is this-: “Adney, an attorney, brought a writ of error in the name of the casual ejector, which he was ordered to non pros, at his own expense and pay costs, but was excused from further censure, it appearing that he had been informed by some of the eursitory clerks that such a writ of error might be brought.” No reason is here given, and no authority cited for the decision. Morgan, in his Vade Mecum, 291, states the principle generally, and quotes Barnes alone to support it. Mr. Rose, in his notes to Comyn’s Digest, gives the same rule, and refers to Barnes, and George, ex dem. Bradley, v. Wesdom, 2 Burrows, 756. Now, the only principle decided in the case in Burrows is, “that if cause for setting aside execution in ejectment is not shown in time, the court will not afterward set it aside.” At the end of the case, and as no part of the opinion of the court, the reporter adds: “ Note.—It was agreed on all hands that a writ of error could not be taken out in the name of the casual ejector.”
    There is a note to the second volume of Bacon’s Abridgment, 454, to the same effect, and the same dicta are quoted. In *Adams on Ejectment, 312, it is said : “ A writ of error will not lie in ejectment in the name of the casual ejector; and consequently it will not lie till after verdict; for before appearance the casual ejector is the only defendant in the suit; and after the appearance the new defendant is bound by the terms of the consent rule to plead the general issue.” To support the first branch of this principle, the case in Barnes, just referred to, is quoted.
    Here, then, we have the whole law on the subject. It appears to me, however, that there is no soundness in the rule, as applicable at least to our practice.
    1. Because the action of ejectment is but a string of fictions, and the remedy is aptly called in Adams on Ejectment, 158, “ p child and creature of the court.” Hence, as these fictions are intended to promote the ends of justice, it is in the power of the court so to construe them as to effect that object. There is no greater absurdity, under the modern practice, to bring error in the name of the casual ejector, than there is to sue out an ejectment in the name of John Doe. In the one case, the person on whose demise the action is founded, is liable for costs, and is considered the real party interested; and certainly, in the other, the person for whose benefit the writ of error is prosecuted, may be considered as standing in a similar situation.
    2. Because, if the rule should prevail, this anomaly would be presented, that there might be a final judgment that a court of error could not re-examine or control, no matter how improperly or illegally it might have been obtained. If the casual ejector can not bring error, the tenant in possession certainly can not. But rights of third persons are affected by such judgment; a citizen may be deprived of his freehold, and be driven to his cross ejectment to recover his possession.
    But there is a necessity that the remedy by error, in such cases, should exist in favor of the casual ejector or the tenant in possession. A tenant may collude with one holding an adverse title, agree to accept a declaration in ejectment from him, refuse to notify his landlord of the suit, surrender up his term, when judgment is rendered by default,- and thereby prevent, if possible, the payment of rent, or attorn over to a ^stranger, and defeat for a time the rights of his landlord. All this may be done, and it is against such abuses of the legal process of our courts that we wish to be protected. The tenant, as in the present instance, was served with process a short time previous to the term at which judgment was rendered by default, and was directed to appear on a given day within that term. A final determination was then made of an important suit in less than--after process was first served.
    This writ is prosecuted for the benefit of the landlord, to be restored to the possession of premises which have been taken from him against his consent, and without his knowledge. And what deeper interest, I would ask, can a party have than is attached to him? His property has been the subject matter of legal adjudication, and yet he has not been heard, nor been notified that he would be heard. He has been literally casually ejected from his freehold. A legal fiction has ousted him from his estate, and he is now denied, if the defendants are correct, the aid of the same legal fiction to reinstate him in the possession of his property.
    It is settled law, that no person can bring a writ of error, “ unless he is injured by the judgment, and is to receive advantage by the reversal of it.’1" 2 Bacon’s Abridgment, 454. So, if the plaintiff recovers in an “ tjectione firmcej’ by confession, nihil dicit, non sum in

      formatus, etc., a writ of error lies before a writ of inquiry of damages executed; for if th q defendant were to be hindered from bringing a writ of error, it might be in the plaintiffs power, by refusing to execute a writ of inquiry, to delay the defendant forever. 2 Bacon’s Abridgment, 454. “And the writ must go against him who was party to the judgment, although he had nothing in the land, and not against the tenant.” 2 Bacon’s Abridgment, 457. Nowin the case quoted, the casual ejector, let him be a nominal person or not, is the only party to the suit, and it appears strange that this should be held to be the correct doctrine, and not be applied to the present controversy.
    A thorough examination of the indexes to all the American Reports has resulted in one solitary decision on the subject, which is directly in favor of the present action. In Walker v. Badger, 3 Bibb, 433, the court of appeals in Kentucky ^decide “that the writ of error must be brought in the name of the casual ejector, where the judgment is by default, and the tenant in possession can not sue the writ in his own name.”
    This case I conceive to be decisive of the point, as there is both reason and common sense to be found in.it. It will be recollected that Barnes, to say the least of him, is a very loose reporter, and Heath, Justice, in Borrowdale v. Hitchener, 3 Bos. & Pul. 246, remarks, “ that many of the cases reported in Barnes are not law.”
    Yet the lecture that was read to the unfortunate attorney, Mr. Adney, is the only real point decided by the court, in the leading case to which the elementary writers and digest makers have referred. It will also be remembered that there is no legal adjudication of the point in any other book than Barnes. The note in Burrows is that of the reporter; and the compliment that was paid by the great English judge to Sir John Comyn, “ that all the cases he quoted were good law,” does not apply to his annotator.
    Fox, in support of the motion :
    The question to be decided in the present case is, whether a writ of error can be sustained in the name of the casual ejector, brought by a person who was not in possession of the property at the time the suit in ejectment was commenced, but who claims to be landlord of the tenant who was in possession of the property, and upon whom the declaration in ejectment was served.
    The tenant does not wish the present suit prosecuted. He has made oath that the writ of error was commenced without his consent, and that it is now prosecuted against his wish.
    We contend, in the first place, that there is nothing in the record which goes to show that Joseph Jonas, for whose benefit this suit is said to be brought, has any interest whatever in the premises described in the declaration. Surely, it will not be contended that any man can bring a writ of error, unless he can be affected by the operation of the judgment. *None can complain but those who are injured by the alleged error.
    Inasmuch, then, as it does not appear, either by the record, affidavit, or in any other way or manner, that Joseph Jonas is or can be affected by the unjust judgment complained of, the present writ of error can not be sustained. 2 Bac. Abr. 456, title Error; 1 Bibb, 294.
    But even if it did appear that Jonas had an interest in the property, as, for instance, if it appeared that he was landlord to the tenant in possession, we contend that no writ of error can be sustained by the landlord, as the judgment is no bar to the new action by him. He can, by instituting his action of ejectment, recover the possession of the premises immediately, if he has the best title; and if he has not, he ought not to be permitted to sustain a writ of error for defect in matter of form, which his tenant was willing to waive.
    If he has been injured by the omission on the part of his tenant to inform him of the commencement of the suit, he has his remedy •against his tenant, and he can recover his rents of the party who has remained in possession of his property.
    But the authorities, what there are on the subject, are directly against the right to sustain a wit of error by the casual ejector. In 2 Bac. Abr. 454, title Error, in note a, it is laid down that, “ if the defendant do not at the trial confess lease, entry, and ouster, according to the rule, he can not have a writ of error, because, in ••such case, the judgment is against the casual ejector, and error can not be sued against the casual ejector, neither can it be sued in such case in the name of the defendant, for he has not made himself party to the récord.” In George v. Wisdom, 2 Burrows, 757, in the note, it is said, “It was agreed on all hands that a writ of error could not have leen taken out in the name of the casual ejector.”

    Again in 2 Bac. Abr. 411, title Ejectment, treating of judgment •against the casual ejector, it is said, “ on which judgment the defendant can not bring a writ of error, for he was no party thereto; and if he bring such a suit in the name of the casual ejector, the casual ejector being a friend to the ^plaintiff’s lessor, may either release the errors, or upon a motion for a non pros., the court will order it to be entered.”
    In Adams on Ejectment, 312, it is laid down that “a writ of error in ejectment can not be brought in the name of the casual ejector, and consequently it will not be until after a verdict; for before appearance, the casual ejector is the only defendant in the-suit, and after appoarance the now defendant is bound by the terms of the consent rule to plead the general issue. If also the defendant refuse at the trial to confess, etc., he will be precluded from bringing error, because the plaintiff will then be nonsuited as to him, and the judgment will be entered against the casual ejector.”
    All of the authorities, then, which treat upon this subject, are against the plaintiff in error, and the very principle upon which writs of error are founded is against him. This court have decided that in order to enable a party to sustain a writ of error, the error complained of must be prejudicial to the person complaining. 2 Ohio, 344.
    It is also settled, a party can not sustain a writ of error on a judgment of nonsuit, whore a judgment for costs has not been rendered against the plaintiff. 2 Johns. 8, 9; 2 Bac. Abr. 452.
    Here is no judgment for costs against Jonas. ' He is not entitled, therefore, to bring error.
    In an action against the bail, the principal can not bring a writ of error, although he may be affected by the decision; the reason is, the parties are perfectly distinct. 2 Bac. Abr. 461.
    But the plaintiff’s counsel say that the decision in 3 Bibb, 433, is directly in favor of the present suit. Now, I contend that nothing is decided in that case which can affect, in any manner, the present case. There the writ of error was prosecuted in the' name of the tenant in possession, who had neglected to appear and defend, and the writ was quashed. But the court say, “the writ oí error must be sued in the name of the casual ejector,” and what is remarkably singular, they say this distinction is founded upon the general rule, and is supported by the books which treat of this subject,' and refer to Bac. Abr., title Ejectment, let. 6, and title Error, let. a. Although it has been before shown, the rule. is there laid down *that no writ of error can be sustained in the name of the casual ejector.
    It is clear, then, that upon authority, the present suit can not be sustained. Not a case is to be found in the books, except in-Barnes, where the question has been made, and that case is directly opposed to the doctrine. With the decision in that cause, the profession appear to have been satisfied, and I can see no good reason why a different rule should now be adopted. It is impossible for a person who wishes to obtain possession of land, to ascertain who claims to be landlord of the premises, unless the tenant thinks-proper to inform him.
    He presumes himself to be owner, and all the law requires of him is to give notice to the person occupying the premises of his-intention to oust him. If the tenant should be disposed to collude with the holder of an adverse title, as Mr. Storer supposes, and agree to accept a declaration from such a person for the purpose of injuring his landlord, he can do it without submitting to. the tedious and formal process of an ejectment; he has nothing more to do than merely give up the possession to the claimant,, and thereby the landlord is put to his cross ejectment, and thus, he effectually accomplishes in a few minutes what Mr. Storer supposes he might do by suffering himself to be sued.
   By the Court:

We are unable to perceive any reason for the doctrine that a writ of error can not be sustained in the name of the casual ejector. He is not more a nominal person, nor less interested than the nominal plaintiff or lessee, in whose name the proceedings are conducted. The adverse claimant may be prejudiced in the progress, of a suit as much as the plaintiff’s lessor, and there seems to be-just the same reason for one to be at liberty to use’the name of the fictitious party as the other. The doctrine appears to have-originated, and, indeed, to continue, in mere dicta. We do not know that it has before been agitated in this state, and we feel at. liberty to establish the principle, as to us appears consonant with justice. The motion is overruled, and the cause remanded for further proceedings.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    *Jonas Smith v. William Bing.
    Principal and security make an obligation. Special hail of principal, compelled to pay the money, can not subject the security to pay any part of it.
    This was an action of assumpsit, for money paid, laid out, and -expended ; plea, non-assumpsit. It was adjourned from the county of Gallia, and the facts of the case were as follow:
    Bing, the defendant, had executed a bond with one Watkins, in fact, as security, but that did not appear upon the face of the bond. Suit was brought against Watkins and Bing, in Yirginia, .and Watkins only arrested, and, upon a return that Bing was not found, the suit abated as to him. Smith became appear.ance bail for Watkins, and was subjected to the payment of a large portion of the debt, and to recover this from Bing was the object ■of the present suit. At the trial, Bing offered evidence that he executed the bond only as security for Watkins, without offering .any proof that Smith, at the time he became bail for Watkins, had knowledge of this fact. The plaintiff objected to this evidence, but it was admitted, and a verdict passed for the defendant. The plaintiff moved for a new trial, upon the ground that the court ■erred in admitting the evidence.
    Brasee, for plaintiff:
    The bond executed by William Bing and Russell Watkins, being unconditioned, and joint and several, McCulloch could have recovered the amount of it, either of Watkins or Bing, wherever he ■could find them, or either of them. They were both primarily liable to the payment of the money. It was forced from Smith by legal process; by the payment, both Bing and Watkins were •discharged from all legal liabilities under the bond; ex quo et bono, Smith should have recovered of those, or either of them, to whose benefit he had been compelled to pay, and whose obligation was discharged by that payment. It may, and probably will be objected, that, between Smith and Bing, there is no privity of contract. We ask, where is the privity of contract in the case of Exall v. Partridge, 8 Term, 308, which is regarded as analogous in principle ? Or where is the privity existing between co-sureties,, jointly and severally bound in a bond, when one *pays the whole debt, and brings his action of assumpsit against the others, and recovers of each his distributive share, which is every day’s practice, both in our own and in the English courts? Here is no more privity than in the case at bar; these recoveries are had, not upon any contract existing between the sureties, nor between Exall and the original lessees, but upon a principle of equity and natural justice. It is true, they are sometimes said, in the ele- • mentary books, to rest upon an implied assumpsit, but this implication is substituted for that equity and natural justice upon whicht. it rests, by reason of the implied knowledge and universality of those principles. This is an equitable action, and if, upon the broad principles of natural equity and justice, the plaintiff showed himself entitled to the money paid upon defendants’ bond, the charge of the court was erroneous, and a new trial should be granted.
    If Smith, by being compelled to pay this debt, acquired any legal right to call upon Bing to refund, we believe it will be conceded that the admission of parol testimony to vary or destroy that right was erroneous — it not appearing upon the face of the bond that either Bing or Watkins was the surety of the other; nor by evidence that Smith knew of such relation between them, which creates the fair presumption that Smith placed himself in that situation which rendered him liable to pay the money, as much upon the responsibility of the one as the other.
    King and Yinton, for defendants :
    The defendant opposes the claim oí plaintiff on the ground, that as to him he is a mere volunteer, having made himself liable, and paid a claim for which defendant was also responsible, without. his knowledge or assent.
    It is a well-settled principle of law, that no man can, by a voluntary payment of the debt of another, make himself that man’s-creditor, and recover from him the amount oí the debt so paid. 2 Comyn on Contracts, 151; Child v. Marley, 8 Term, 613; Exall v. Partridge and others, 8 Term, 310.
    It.had been decided, that if a third person, at the request of one joint obligor, pay the debt, he will be entitled to call *upon all to refund. This doctrine goes upon the principle, that it was the present duty of all the obligors to do the act done by such third per■sons for them, to wit: to pay the debt; and hence the law raises an implied promise in his favor against all the obligors, and places him in the same situation as though one obligor, without the request •of the other obligors, had paid the debt. But in the present case, the plaintiff undertook that Watkins, the original obligor, should •do an act fbr which Bing, the present defendant, and co-obligor of Watkins, was in no way bound, to wit: that Watkins should appear in court at the suit of McCulloch, the original obligee. This was a distinct and independent undertaking, to which Bing was no party, and on the non-performance of the condition of the appear.ance bail bond, the penalty of the bond attached against Smith, Watkins’ bail. Smith undertook nothing for Bing, and as Smith and Watkins only are parties to this transaction, it would seem, upon all principle, that Smith must look to Watkins for any consequences that may have resulted from Watkins’ breach of the ■condition of the bail bond. As regards Bing, therefore, Smith is .a mere volunteer, and it is believed could not call upon him for indemnity, even if Bing were the real debtor, instead of security, .as he in fact was.
    In addition to the foregoing remarks, the fact that Bing was himself only a surety for Watkins in the original claim, is, it is thought, conclusive of the present case. The action of assumpsit is an equitable action, and, while the plaintiff seeks to recover ■upon equitable principles, the court will look into the relative situation of the parties, and adjust the claim accordingly. In this aspect of the case, it is quite evident it was for Bing’s interest that the suit against Watkins should be prosecuted, and if .Smith had not bailed Watkins, and thus enabled him to escape, it is by no means certain that Watkins would not have paid the debt himself; and surely it is a matter of no moment to Bing, whether Watkins discharged the debt himself, or got Smith to do it for him, as a consequence of his (W.’s) non-appearance at court, on the .return of the writ. If the law will raise an assumpsit by Bing to Smith, it must be upon, at least, equitable principles. *In the absence of an actual promise, the equity of the case is clearly with Bing.'
    | It is supposed the plaintiff relies for his recovery upon the case of Exall v. Partridge, 8 Term, 308. In that case, three persons were joint lessors, two of whom had assigned their interest to the other. Exall put his carriage on the leasehold premises in the care of the assignee, and it was there distrained upon a process of distress issued against all the lessors; he paid the debt to relieve his property, and brought suit against the lessors who had assigned the lease, as well as against the assignee. It was contended that the latter only was liable to Exall, he having had notice of the assignment at the time he left his carriage on the premises. All the defendants were held to be liable. The court expressly recognize the doctrine, that the voluntary payment of another debt' gives no right of action; but they say that the plaintiff, Exall, paid upon compulsion, and for this plain reason, that a distress in England is in the nature of an execution, which was directed against all, and in paying he discharged the execution of all who were also all principal debtors. The secondary contracts among themselves in no way changed or affected their liability of relation to their landlord. That a distress partakes of the nature of an execution, the court are referred to 3 Black. Com. 9; Hutchens v. Chambers, 1 Burr. 588, 589. In the case of Hutchens v. Chambers, the court, in speaking of the nature of a distress, use this language: “ That the seizing under the 43 of Eliz. and such like acts of Parliament is but partly analogous to the common law distress (as being replevisable, etc.), but is more analogous to the common law execution; like a fieri facias, where the surplus after sale shall be returned.” In other parts of the same opinion, Lord Mansfield more than once says, that a distress under the statute is in the nature of an execution. It is believed that in England the statutory remedy of distress, on account of its efficiency, has long since, in practice, superseded the distress at common law, so that the latter is almost, if not wholly obsolete.
    The distress in the case of Exall v. Partridge, being against all the defendants, they stood upon the footing of judgment debtors against whom an execution may have ^issued, and a levy made upon the property of one only, who thereupon pays off the execution to release his property from execution. In this view of the case, the payment by Exall was anything but voluntafy.
    Nye, in reply:
    1. The evidence to prove that Bing was the surety of Watkins in the original obligation, was, as is thought to be quite clear, improperly admitted; for if Smith would be entitled to his action against B. in case that fact had not existed, he is equally entitled still; since it was not disclosed by the obligation, nor brought to-his knowledge, by other means, at the time of his becoming bail, or paying the money: It Smith was not then conversant of that, fact, evidence of its existence offered after the fact which constitute his claim to recover of JB. transpired, can not, and ought not, to-alter the case; he must be supposed to have relied upon the legal liability of both Bing and Watkins, apparent upon the face and character of the instrument. Admit that Smith would be entitled to resort to Bing, had not that fact existed, and it seems to follow, as a perfectly logical conclusion, that without a knowledge of it, he stands as if he did not. It is difficult to conceive how his right or conscience can be affected by a fact unknown by him at the-time of the transactions.
    2. Is Smith, then, entitled to recover, the fact of Bing’s security-ship being aside from the case ?

      Express assent is not in all cases necessary. If a right of recovery, or reimbursement, accrued to Smith at all, on payment of the money, it seems to have accrued against the parties whose-legal liability was discharged by the payment. In this view, Bing, as to Smith, was as much liable as Watkins. He was liable toMcCulloch, in solidum, for the debt; the process issued against both, and was running against both, when Smith undertook for the appearance of Watkins; and his liability for the debt was discharged by the payment of Smith; nor is there, here, any express agreement to counteract the implication of law. Suppose the ease of a negotiable accommodation note, signed by two (not as parties), and to give credit and security to the paper for the benefit of the *drawers, one of the drawers should apply to a third person to indorse, who thereby should be compelled to pay the amount of the note, would the other drawer be exempt from liability to the indorser? “ The defendant’s assent is implied in all cases where the plaintiff is under legal obligation to pay the money through the default of another. Now, Bing remained liable for the payment of the money, due by the obligation to McCulloch, until the payment of the money by Smith, and the consequent discharge of Bing; Smith’s undertaking for the appearance of Watkins neither discharged Bing, nor prevented his discharging himself from his liability for the debt by a payment to McCulloch. It was not a necessary consequence of Smith’s undertaking, that he should be compelled to pay the debt; that was a contingency which might not have occurred, as in every case of suretyship. The inception of all such undertakings is, of course, voluntary. After the undertaking of Smith, Watkins and Bing were still liable; the debt was not thereby discharged nor was that the immediate object of the bail bond. The unconditional liability of Smith to pay the debt accrued, or was consummated afterward, by a contingency which might not have happened. The payment of the debt, by S., was compulsory. This is not the case , of a, voluntary payment of the debt of another. In Exall v. Partridge et al., 8 Term, 308, the act of putting the carriage on the premises, by the plaintiff, whereby it might be liable to a distress, was as much voluntary as the act of S. here; and there the original lessees had assigned or underlet to the coachman, who, alone, was in possession; the plaintiff had no communication, nothing to do with them ; there was no assent of theirs to Exall’s putting his carriage in a situation to be distrained, to pay rent for which they were liable, and liable merely by the original covenants; had he not -done so, the tenant might have paid, or his property been distrained for the rent; and he was the person immediately liable to Exall, if the language of the defendant’s counsel here be correct; it is also to be observed, that there the plaintiff knew of the assignment, and the assignee only was in possession ; yet, in that case, the original lessees were recovered against, not because of any assent, for there was none but that which the law implied from their *logal liability for the rent. What privity, then, was there in that case more than in this? The inceptive act in both cases was voluntary ; the positive liability or the compulsion to pay, occurred afterward; and the plaintiff had as little to do with the lessees there, in the first instance, as Smith with Bing here. Indeed, the third paragraph of the argument for the defendant (by Mr. Yinton) seems to concede the whole ground on this point. That “if a third person, at the request of one joint obligor, pay the debt, he will be entitled to call upon all to refund;” and that “ the doctrine goes upon the principle that it was the present duty of all the obligors to do the act done by such third person for them, to wit: to pay the debt.” If, in that case, the plaintiff, at the request of one joint, etc., debtor, would, as is conceded, be entitled to recover against all, a fortiori, it would seem the plaintiff here is entitled to recover for the money paid by compulsion, in consequence oí undertaking at the request of Watkins, one of the joint and several obligors; for it was then, and at all times, “the present duty of Bing, as well as Watkins, to pay the debt to McCulloch.” As to Smith, it has already been shown, that Bing, as well as Watkins, stood in the situation of a principal. Accordingly, it has been decided that “where money is paid by a surety for two principals, the law implies a promise by each principal to reimburse the surety for the whole amount of debt.” Duncan v. Keffer, 3 Bin. 126.
    As to the objection for the want of privity, it might, with equal force, have been made in cases where, notwithstanding, recoveries have been had.
    In the case of Davis v. Tupper (Sup. Court, Washington county, before Judges Pease and Sherman, 1824), the plaintiff recovered on these facts: J. Holden had a mortgage, elder, from Yail, on land for his security. Vail owed Davis, who recovered a judgment against him and took a mortgage from Vail on the same land to secure it. He laid by and never prosecuted his mortgage nor process on his judgment. Tupper, in a subsequent term, recovered judgment against Yail; and (H. having pi’osecuted sci.fa. on his mortgage) had his execution in the sheriff’s'hands, with Holden’s, on whose execution the land was sold, and the surplus, over the satisfaction of Holden, on a sale, was paid by the sheriff to T. (D. having *no execution out.) In the action D. recovered that money of T. There, what privity was there between D. and T.? The court adjudged for D. on the ground, that by his mortgage he was ■ entitled to the surplus. So here, though the order is inverted, the ,;principle is the same: the debt of Bing was discharged.
    III. If Smith be not entitled to recover the whole sum paid, it ¡is submitted that he would be entitled to recover a moiety from Bing (2 Bos. & Pul. 268), if B. is to be treated as a surety; or he ¡is entitled to be substituted to the right of McC. against Bing, .as an original debtor for the whole. Or, -as between S. and B., ■ Smith has the same right to recover a moiety from Bing, as a joint ■debtor with Watkins would have were they both principal debtors; (for Smith stands as if they were, not having known the relative ■ character of B. and W. as between themselves.
    A reply to a remark by each of the defendant’s counsel will «conclude. Mr. Y. says that B. was not a party to the suit against Watkins, in Y.rginia, and would be precluded here (by a recovery) ¡from a defense to the original demand, by the record from Yir.ginia. This is not correct. The. execution of the obligation by B., and his original liability, were matters to be proved by the plaintiff here, if they had not been admitted. The recotfd could not conclude him, nor was it so contended as to that fact. Though, in cases of outlawry (and the case in Virginia was analogous), in an action on a joint undertaking, the execution of the instrument or promise of the outlawed party must be proved in the action against the party in court. Mr. King says, that B. could show his character as surety by virtue of our statute. This is deemed incorrect. This is not an action by the payee of the obligor, nor is it founded immediately upon that. It is but mediately the spring of liability, growing out of the discharge of that by its payment by the plaintiffs. The fact of suretyship, if admitted at all, must go to the very question of any liability to S. In that view, it would relate to the contract and not to the remedy; and the lex loci contractus hero being Virginia, our law does not apply.
    *In conclusion, it is respectfully insisted that the court erred in the points ruled at the trial, and that, therefore, a new one ought to be granted.
   By the Court :

The relation of principal and security, where the obligation itself imports a joint debt, is universally recognized by courts of justice, and parol proof admitted to establish its existence. In this case, therefore, the evidence was properly received unless the fact proved did not constitute a legal defense.

It is urged, for the plaintiff, that the execution of the bond created a joint duty which each obligor was bound to discharge, and the plaintiff, having been coerced to discharge it for them, has a remedy against each. But the conclusion does not follow the premises. When the plaintiff became special bail for Watkins, it was at the request of Watkins and for his benefit alone. The defendant had no beneficial interest in it. The undertaking was personal for Watkins, and the party making it can only look to him for compensation should he be prejudiced. He can acquire, through his connection with Watkins, no interest against third persons, which Watkins himself did not possess. Had Watkins been security, and Bing the principal, the payment of the dobt by Watkins would give him a legal right to demand it of Bing, and perhaps equity would, in such case, have permitted the bail to succeed to the right of Watkins and recover of Bing. This would be no more than transferring to the bail the same rights which the principal would have had upon the payment of the money. But, in the case before us, if Smith is allowed to charge Bing, he acquires, upon a separate undertaking for Watkins, rights which Watkins did not possess. We know of no principle of contractor doctrine of equity which would warrant a result of this character.

The case of Exall v. Partridge, 8 D. & E. 308, cited and relied upon by the plaintiff’s counsel is not analogous to this. There all the parties subjected wore originally liable for the rent as principal lessees, and the subcontract between themselves could not change the nature of their liabilities to third persons. In this case, if the debt had, in its origin, been the *joint debt of Watkins and Bing, and so existed at the time the bond was given, and, by subsequent agreement between themselves, Watkins had assumed the payment of the whole, the cases would have borne Some resemblance to each other, though it might not then follow that the bail of Watkins could subject Bing. But the original liability of Bing being only that of security, is a material circumstance in respect to the analogy, and places the two cases on totally different grounds. In our opinion, the claim of the plaintiff to subject the defendant is supported by neither precedent nor principle; the motion for a new trial is consequently overruled. '


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    Zerby v. Wilson.
    Subscribing witness to written agreement can not be dispensed with and confessions of the party substituted.
    This was an action of assumpsit, founded upon a written agreement. At the trial, before the Supreme Court of Richland county, the plaintiff offered the written agreement in evidence, and to prove its execution, offered parol evidence of the confession of the defendant that he had executed it. There was a subscribing witness to the agreement, but he was not called nor his absence accounted for. The court rejected the evidence, and a verdict passed for the defendant. The plaintiff moved for a new trial, on the ground of error in rejecting the testimony, and the decision of the motion was adjourned here.
    H. B. Curtis, for plaintiff,
    cited Hall v. Phelps, 4 Johns. 451, as in point that the evidence was admissible.
    Purdy, for defendant:
    It is an old and well-established rule of evidence, that the subscribing witness to an attested instrument, whether under seal or not, should be produced to prove its execution, or his absence should be accounted for, to pave the way for introducing other evidence. The parties themselves, by selecting him as the witness, mutually agreed to rest upon his testimony in proof of the execution of the instrument, and of *the circumstances which then took place. And the law, with good reason, presumes that he possesses a knowledge of facts which are probably unknown to others. He is, therefore, considered the best evidence. 1 Starkie’s Ev. 330; 1 Phillips’ Ev. 356; Rex v. Jones, East P. C. 822; Gray v. Smythes et al., Burr, 1173; 4 Maul. & Selw. 359.
    This rule is so strictly adhered to, that even an admission by the defendant, in an answer t,o a.bill filed against him for discovery, will not dispense with the testimony of the subscribing witness. Call v. Durming, 4 East, 53. The first attempt Ifind among the adjudged cases, to dispense with the production of the subscribing witness, and introduce the confession of the defendant in lieu thereof, is the case of Abbot v. Plumbe, Douglas, 216. On the trial, Lord Mansfield permitted the evidence of the defendant’s confession to go to the jury; but, on motion, the verdict, for that reason, was set aside, and the .plaintiff nonsuited, Lord Mansfield coinciding with the other judges. This question has subsequently arisen in several instances, in Westminster Hall, and has been uniformly decided in the -same way. 7 Term, 267; 2 East, 187; Johnson v. Mason, Esp. C. 89; Laing v. Raine, 2 Bos. & Pul. 85; Jones v. Brown, 4 Taunt. 46. The same rule as uniformly prevails in the courts of this country. Clement & Co. v. Eason et. al., 1 Hayw. 18; Johnson v. Knight, 1 Can. Law Rep. 93, acc; Pearl v. Allen, 1 Tyler, 4; 1 Dallas, 208. These numerous cases show that the question has frequently arisen, and this uniformity of decision establishes the rule too firmly to be shaken,
    The rule of law, as to the best.evidence, etc., is, that no evidence shall be admitted which, ex natura rei, supposes still greater evidence behind in the party’s power. This rule, as well as the reason of it, applies as well to unsealed as to sealed instruments. In the case of January v. Goodman, 1 Dal. 308, the court, respecting this rule, observes, “As no solid distinction between bonds and notes can be shown, upon principle, so none appears from the authorities."

    The case of Hall v. Phelps, cited and relied upon by the plaintiff’s counsel, presents the only exception to this rule. This single case should not disturb a well-settled rule of law, especially when it appears to be predicated on a distinction between sealed and unsealed instruments, which is not founded *in reason. But the case at bar differs materially from the case of Hall v. Phelps. That was a promissory note, which by that court is considered a parol contract, and in an action between the original parties, in many respects treated as such. Besides, it might have been given in evidence under the common counts, and the court appears to give great weight to the fact, that the defendant acknowledged his indebtedness. Not so in. this caso. The instrument is a special article of agreement, containing mutual engagements, and declared upon specially. If a seal were affixed, it could have no effect upon the construction of the instrument, or the introduction of parol evidence. If in this case the confession of the party can be given in evidence, and the production of the attesting witness be dispensed with, there can be no reason, from principle, to require his production in any other. This would be extending the rule beyond the case cited, and further than the court in New York has done. On sealed instruments that court still requires the production of the attesting witness. 3 Johns. 477.
    Curtis, in reply:
    It is true, that the rule requiring the production of the subscribing witnesses is an old one; but it has never acquired strength from time. On the contrary, we find that it has continually yielded to more enlightened and liberal jurisprudence. It was formerly doubted, whether, if the subscribing witness deny the deed, we could call other witnesses to prove it. This absurdity was at length laid by ; but still it was held, that in case of the absence or death of the subscribing witness, proof of his handwriting must be produced. 7 Term, 266. This, too, was soon found to be unsuited to the daily transactions of life. As written agreements and contracts became more common, there was nothing more frequent than for individuals contracting to call upon strangers, waiters, etc., to attest the execution of their contracts. Witnesses whose names they probably did not know, and whose persons they would, probably, never again see; thereby placing themselves in the situation, that they would bo unable, either to produce the subscribing witness, or prove his handwriting. To guard against this *evil, we find the rule further relaxed; Cunliffe v. Septon, 2 East, 183, where evidence of the handwriting of an absent subscribing witness to a bond was dispensed- with. And the counsel for defendant seems to' reserve it for the honor of New York first to take the distinction between sealed and unsealed instruments, and with regard to the latter, wholly dispense with the rule. This, however, is not strictly the case. The rule has never been applied, even in the English courts, as unhesitatingly in eases of unsealed instruments as in those of sealed. Nearly all the cases cited by the counsel for defendant have not only the objection of' being old, and in many respects contradicted by later authorities, but are generally cases on bonds and instruments under seal. Such is the case of Abbot v. Plumbe, upon which all the other cases cited seem to hang. In the case of Barnes v. Trompowsky, 7 Term, 165, on a charter party not under seal, the court did indeed require the production of the subscribing witness, or due diligence for that purpose, before they would admit evidence of the handwriting of defendant. The correctness of the rule, that the law requires the best evidence the nature of the case admits of, is not denied. But it is claimed, that in a case situated like the present, such was the evidence offered by the plaintiff. “As persons interested are utterly removed from being evidence, for want of integrity, so, on the other side, the voluntary confession of the party in interest, is reckoned the best evidence.”. Gilbert’s Ev. 137. The case of Cole v. Dunning, 4 East, 53, does not support the position for which it was cited. In that ease, the fact to bo proved was the execution of the bond; and the plaintiff attempted to do this, not by the voluntary confession of the defendant, but by an extorted answer to a bill of discovery, filed for that purpose, when, at the same time, there-was a subscribing witness to the bond, whose attendance had never been sought after.
    So far as I have examined the cases cited by defendant’s counsel, I find them distinguishable from the case at bar. The case in 1 Dal. 208, approaches nearest. This, however, was an action of assumpsit, brought upon a specialty. The instrument was offered in evidence, with proof of the defendant’s handwriting-, without calling upon the subscribing! ^witness, or showing his absence. Upon a. point reserved, the court decided that the action could not be sustained, in consequence of the instrument offered in evidence being under seal. The court then go further and say, if it were a promissory note, that the production of the subscribing witness was necessary, or some account given of him, to entitle the plaintiff to recover. But as the case was clearly not sustainable upon the first point, the further decision of the court should be considered as but dicta, and not of sufficient weight to overturn the latter and higher authority cited from Johnson’s Reports. That case, Hall v. Phelps, is directly in point, and strictly analogous to the present case. The authority of the New York Reports is of the highest rank in our country; and the authorities cited by defendant’s counsel are of older date, and not so strictly adhered to in our courts.
    The distinction attempted to be made between a promissory note, and an agreement not under seal, is not well taken. They are both denominated contracts by parol, and the rules of evidence concerning them are substantially the same. 1 Com. Con. 1; Rann v. Hughs, 7 Term, 350, n. a.

    Nor is the position tenable that an article of agreement not under seal is subject to the same rules of “ construction and evidence” aS an instrument under seal, for by the gentleman’s own showing, the courts of New York require the production of the attesting witnesses, in cases of sealed instruments; aliter in cases of instruments not under seal. 3 Johns. 471, cited by defendant’s counsel.
   By the Court :

The plaintiff relied upon a written contract, or lease in writing not under seal, as the foundation of his action. By his plea, the defendant put the fact of executing, or making the writing in issue, and the plaintiff to prove it, offered the confessions of the defendant in evidence, without calling the subscribing witness, or accounting for his omission to do it. The court overruled the evidence, and this motion is now made, upon the ground that in so overruling it, the court erred.

*No rule of evidence is better established than that which requires the subscribing witness to a written instrument to be produced when its execution is put in issue, and is to be tried. Or if he can not be produced, to show some legal reason why this is impracticable, as a foundation for the admission of secondary evidence. The plaintiff’s counsel rely upon the case of Hall v. Phelps, 2 Johns. 451, as establishing and sustaining a different doctrine. It is unnecessary to say how far we should be governed by that case as an authority, did we consider it full in point, because we do not so consider it. In a subsequent ease, decided in the same court, Fox v. Reil, 3 Johns. 477, the same question again came up, and the grounds of the first case, and the extent of the decision, are examined and explained in such manner as much to weaken its authority. Hall v. Phelps was a case upon a promissory note; Fox v. Reil was debt upon a bond. In the latter case, the confessions were rejected, and in giving the opinion of the court, Kent, Chief Justice, states distinctly, that he concurred in the decision in Hall v. Phelps, upon the ground that it was a case of commercial paper, and that the English rule was exceedingly inconvenient, when applied to that description of written obligations. He says he recollects no case where it was ever applied to a specialty.

The case before us is not a specialty, but it is not, nor does it bear any resemblance to commercial paper. It is a contract in relation to the realty; it conferred upon the lessee a qualified interest in land, and the solemnities of execution are in their nature as important as the execution of a bond for the payment of money, or of any specialty, short of a deed for the conveyance of land. It is a ease much more strongly assimilated to that of Fox v. Reil than that ot Hall V. Phelps, and we are of opinion that it falls within the rule of the latter case.' The evidence was properly rejected, and the motion for a new trial must be overruled.


author: By the Court:

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    *Heirs of Ludlow v. The Heirs of Kidd, Bank of the United States, and others.
    The Bank of the United States can not remove a causo from a state to a circuit court, under section 12 of the judicial act of 1789.
    The heirs of Ludlow, having upon a bill of review obtained the reversal of a decree pronounced against them, in favor of Kidd, 2 Ohio, 372, proceeded against the other parties who had become interested. The Bank of the United States appeared, and presented a petition to remove the cause to the Circuit Court of the United States. The decision of the motion was adjourned here, by the Supreme Court sitting in Hamilton county.
    Caswell, for the motion.
    Hammond, against it.
   By the Court:

The charter of the bank contains no provision authorizing the removal of a cause, upon the application of the bank, from a state to a circuit court. Section 12 of the judicial act of 1789, extends this privilege to parties who are particularly enumerated. The bank is not one of them, and can not claim what the law does not provide for it.

Besides, the bank is one of many defendants. It has been the settled construction of section 12 of the law of Congress of 1789, that the privileged defendant could not extend his privilege to his co-defendant. In this case, there is no pretense that any of the other defendants are entitled to litigate the matter in dispute, in the federal court. The motion must be overruled.


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    *State of Ohio v. Common Pleas of Hamilton County.
    This case came before the court, upon a motion for a rule to show cause why a mandamus should not be issued, requiring them to certify to the Circuit Court of the United States, an action of-ejectment commenced before them, in which the Bank of the United States had been admitted defendant, instead of the casual ejector. The motion was made by the bank, who had filed the petition, and tendered the security, but the common pleas refused to make the order.
    Caswell, for the motion.
    Hammond, against it.
   By the Court:

This case involves the same principle decided in the case of Heirs of Ludlow v. Bank United States, Kidd's heirs, and others.

The motion must be overruled.


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    Catharine Wilkins and others v. John Philips.
    Where one party to a writ of error is within the saving clause of the statute of limitation, the case is saved to all the parties.
    This was a writ of error to a decree in chancery pronounced by the court of common pleas of Delaware county, on March 10,1818. The writ was issued February 17, 1826. The plaintiffs in error were the same persons against whom the decree was pronounced, as heirs at law of John Wilkins,, deceased, and were numerous. The defendant in error pleaded three several pleas in bar, which were in substance the same, and presented the fact that more than five years had elapsed between the rendition of the decree and the emanation of the writ of error. To each of these pleas, the plaintiffs in error replied, that Catharine Wilkins, one of the plaintiffs in error, at the time of pronouncing the decree, was an infant, and remained an infant under *twenty-ono years of' age until and after the time of suing the writ of error. To these replications, the defendant in error demurred, and the plaintiffs joined in demurrer. The question upon the demurrer was adjourned here for decision, from Delaware county.
    O. Parish, in support of the demurrer,
    cited 4 Dun. & East, 516; 7 Cranch, 156, and argued that these cases were decisive of the point in controversy.
    Atkinson and Leonard, for plaintiffs in error,
    cited 4 Day, 265, 310, 465; 2 Bibb, 371; Hardin, 365; Coke Litt. 163, B, and insisted that the principle of the cases they relied upon, was entirely distinct from that of the cases cited by the defendant’s counsel. They cited also 2 Wheat. 316.
   By the Court :

The case of Marstiller and others v. McLean, 7 Wheaton, 156, was decided upon the authority of the case of Perry and others v. Jackson and others, 4 Term, 516. In the latter case, Lord Kenyon asserts, that it is the first time the question had been brought up for decision, whether, where the saving clause of the statute of limitations protected only a part of those joined in the action, all the plaintiffs could claim its protection. It is decided against the protection, but upon grounds by no means satisfactory to us. The case was one of partnership, which, we think, was sufficient, ot itself, to have warranted the decision made. This is in part relied upon, and the decisjon is in part put upon the ground of the grammatical construction of the statute. The Supreme Court of the United States ground themselves upon this authority. Highly as we respect the opinions of. this tribunal, we can not adopt them, in the construction of our own statutes, where they are at a variance with our own judgments. We consider the reasoning of the courts of Connecticut and Kentucky, cited by the other side, as'more consonant to the general advancement of justice. It is our opinion that if any one of the parties, who sue a writ of error, is within the proviso that takes the case out of the statute of limitations, the case is saved for all the parties. The demurrer to the replication is overruled, and the cause remanded for further proceedings.


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    *Ira Rhodes v. Silas Lindly.
    Note payable “to A. B. or bearer, in good merchantable whisky, at trade price,” oan not be sued by assignee dr bearer in his own name.
    This was an action of assumpsit, upon a note of hand given by the defendant, to Hezekiah Rhodes or bearer, promising to pay fifty dollars, at a day subsequent, “in good merchantable whisky, at trade price. The declaration set forth, in terms, an assignment and delivery of the note to the plaintiff, and claimed to recover as bearer. The defendant demurred, and assigned as a cause of demurrer, that the note was not negotiable. The court of common pleas in Trumbull county, gave judgment for the plaintiff, and the defendant obtained this writ of error, which was adjourned here for final decision.
    "Webb, for plaintiff in error.
   By the Court :

At the common law, this paper was not assignable; neithor is it assignable under our statute. The plaintiff admits this; but claims to recover, on the ground, that being made payable to bearer, any person, who is the actual bona fide owner, may maintain the action as bearer. Were it a note for money, this position would be a correct one. But that doctrine has never been applied to executory contracts for the delivery of property, or for the performance of any particular act.

The case of Geddings v. Byington, decided upon the circuit, at Ashtabula, 2 Ohio, 228, is supposed to have settled this doctrine differently. This inference is deduced, not from the point decided, but from some remarks of the judge in giving the opinion. These were only intended to apply to a note for the payment of money, made payable to a payee or bearer. It- was only to that point that the attention of the court was directed in argument. The negotiable character of the note was not made a subject of inquiry by either party. The plaintiff in error claimed a reversal, on the ground that the right of the original payee did not appear, by the declaration, to have passed to the holder, by assignment, delivery, or otherwise, and that ground being considered sufficient for the purpose, the judgment was ^reversed without further examination. In this case, the direct question is presented, whether such a contract as this can be so transferred as to authorize a third person to maintain a suit in his own name. Our unanimous opinion is, that no such right can be transferred. The judgment must be reversed, and judgment be given for the defendant.


author: *By the Court .

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    David Richards v. James Foulke.
    Justice taking examinations in a criminal prosecution can not, in a subsequent action for malicious prosecution, testify to the facts testified before him.
    This cause came before the court, upon a writ of error to the ■court of common pleas of Harrison county, and was adjourned for decision here, by the Supreme Court of that county.
    The original action was for a malicious prosecution, and the plaintiff in error was the plaintiff in the cause. The plea was, not guilty; and at thé trial, a bill of exceptions was taken, by the plaintiff, to the opinion of the court, admitting certain evidence offered by the defendant, which is thus stated : “ The plaintiff introduced Samuel Dunlap, Esq., the- magistrate who received the complaint of the defendant against the plaintiff, issued his warrant, and recognized the plaintiff, as stated in the declaration, to prove the want of probable cause, who being sworn and examined in chief, the defendant offered to prove by said witness, on his cross-examination, the facts testified by other witnesses than the defendant, on the examination by him held as a magistrate, on the complaint of said defendant, upon which he ordered the plaintiff to recognized.” To this evidence the plaintiff objected; but the court received it, and signed the bill of exceptions. There was a verdict and judgment for the defendant. To reverse which, the plaintiff brought this writ of error.
    Goodenow and Bostwiok, for plaintiff,
    cited 2 Phil. Ev. 112; Peake’s Ev. 288; 1 Term, 493; 7 Cranch, 195; 4 Cranch, 76; 1 Mun. 288, 291; 2 Wash. 281.
   *By the Court .

The evidence admitted in this case was clearly inadmissible. The witnesses who testified before the justice, should have been called to testify to the facts that they narrated before him. His recollections of what they stated'upon oath, was of inferior authority to their own statements to the jury. The question to be decided was, not the guilt or innocence of the plaintiff, but whether there existed a probable cause for the prosecution commenced against him by the defendant. This the jury were required to decide, not upon the evidence given before the justice, but upon the facts of the case, and the defendant’s knowledge of these facts. Of these facts they could best judge by hearing the witnesses themselves. To substitute the relation of the justice, as to their testimony before him, was a violation of the plainest rules of evidence, that the best evidence within the power of the party should be given, and that secondary evidence shall never be admitted, unless it is made manifest that that which is better can not be obtained. The judgment must be reversed, and the cause remanded to the court of common pleas for further proceedings.


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    Wright v. Burchfield.
    Jurors separate after agreeing upon a verdict, without leave, not ground for new trial.
    This cause was adjourned from Stark county, upon a motion for a new trial, by the defendant, on account of the misbehavior of the jury. The misconduct complained of was this: This jury was sent out in charge of an officer. They agreed upon a verdict, but the court having adjourned, they.wrote their verdict, and then separated without leave of the court. In the afternoon, when the court met, the jury came in and gave the written verdict to the clerk, but it was not received or read. They were then called, as in other cases, and rendered their verdict from the box. The motion was made for a new trial, on the ground of this misbehavior.

      *Goodenow, in support of the motion :
    I have found no authority, directly in point, in support of the motion for a new trial, and, perhaps, no jury ever misbehaved in the like manner, or to the same extent. Nor is it of much consequence how the case itself is disposed of, though I consider the verdict most manifestly illegal and unjust. Yet the question involved in the motion is of vital importance in practice, and must be so considered in relation to the purity of trial by jury. Why is the question reserved ? Only that it is important; and it important, how? Except it be on the position that a jury trial, to be pure and wholesome to the people, should be not only free from corruption, but it should seem so; and should be preserved from every deviation which might even tend to suspicion. I do not contend for the rigid doctrines of olden time, when jurors were not allowed even light; nay, not even for the strictness of more modern days, when one was not permitted to leave the box or to step aside from his brethren, for a moment, without an officer. I would contend for no restriction upon their free range of person and mind, unless an avenue were thereby opened to lead them from the true path of inquiry and deliberation, or to embarrass and distract them with incompetent and interested counsel. Nor do I think the court ought to wait for a case where evil has actually resulted, before they decide the question now presented. For in so doing they remove all landmarks, and leave a jury without any guide, and, of course, not answerable for any misconduct, unless actual corruption, and consequent evil, shall unite to condemn them.
    The facts upon which this motion is founded, show to the court here that the jury, contrary to all known practice, separated on leaving the court-house, and mixed with the multitude during the adjournment of court; came into court promiscuously, and when called, one drew from his pocket a loose piece of paper, with this memorandum on it: “We, the jury, do find that the defendant is not indebted to Cole and Sidney, the original defendants in attachment,” signed by none of them. The parties not being entitled to poll the panel, no means were afforded to either party to know, in fact, what was the opinion of the twelve. Should *the court say that this conduct of the jury does not vitiate the verdict, I would inquire, whether, should a jury be sent from the box with a cause at nine o’clock p. m., and immediately separate, and meet in the morning, in a tavern or ball alley, and agree that A. B. should write a verdict for them, such as he might think suitable, and deliver such a verdict to the court, it would be good? I am aware that I shall be answered — no; because here is a state of facts made known, which it would be highly improper to sanction as the foundation of a verdict. Yet the very facts now before the court show, as far as they go, a course equally as loose and as censurable.
   By the Court :

We think there is no sufficient'reason to set aside the verdict in this case. Nothing is more common than to consent that the jury may separate after they agree upon a verdict, and before it is rendered in court.

The sanction given by the parties and by the courts to this practice is conclusive that it is not considered, in its nature, dangerous to the right administration of justice. Nothing of a mischievous tendency could be so frequently indulged toward a jury. It has never been thought safe that jurors should be permitted to converse with strangers before the verdict was given, or that one or more of the jurors should leave his fellows, or even that the jury should separate before they were agreed, unless some special order, was made to that effect. But the mere consent of the parties has usually been received, to warrant such a separation as this. The misbehavior of jurors in a civil case, which would render it necessary to disturb the verdict, should be of such character as to evidence bad intention, which is not pretended in the case before us. The motion for a new trial is overruled.


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    *Jacob Hoover v. B. W. Morris.
    Written memorandum that the plaintiff will allow the defendant credit for a certain debt due defendant from a third person, is not within the statute of frauds. It is not a promise to pay, but an acknowledgment of preexisting liability.
    This cause was reserved for decision here, in Tuscarawas county. Ifc was a motion on the part of the plaintiff for a new trial, upon the following case:
    At the trial the defendant offered, as a set-off, a writing in the following words: “I agree that Dr. Morris’ account against Samuel Miller, amounting to about twenty-six dollars, shall be offset, and applied on my claims against Dr. Morris now in suit, and that I will pay the same. Jacob Hoover.” Upon this paper the defendant claimed the offset of twenty-six dollars. The plaintiff’s counsel objected to the admission of the paper in evidence. But the court overruled the objection, and the jury allowed the credit to the defendant. The plaintiff moved for a new trial, on the ground that “it was a promise to pay the debt of a third person, and that, therefore, the consideration ought to be in writing, as well as the promise.”
    No argument was presented for the plaintiff.
    Goodenow argued for the defendant.
   By the Court :

The written memorandum which was admitted in evidence, and :the admission of which the plaintiff complains of as error, stipulates that a certain sum of money, due from Miller to Morris, ■should be charged to the defendant and credited to Morris, in a particular transaction. The memorandum is silent as to the consideration upon which the agreement is founded. Nor is it neces■sary to the validity of the agreement that the consideration should ibe specified. It is nothing more than an admission, that a stipulated sum of money is due from the plaintiff to the defendant, for which the latter shall have credit. It is not an undertaking to .pay the debt of Miller, but an acknowledgment of a pre-existing ¡liability to pay it. Prima facie it was obligatory upon the pi aintiff, .and was, therefore, competent evidence. In this view of the case, which we deem the correct one, it is not touched by the statute of ■frauds. Motion for new trial overruled.


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    *Lessee of Devacht v. L. Newsam.
    In ejectment, plaintiff may recover on possessory title alone. Tenant, or those coming in under a tenant, can not controvert landlord’s title, but may show that it was determined after the making of the lease on which tenant entered.
    This was a case adjourned from Gallia county, upon a motion for a new trial, in an action of ejectment, where the jury found a verdict for the defendant.
    At the trial the plaintiff gave in evidence that he rented the lot in question, No. 59, in the town of Gallipolis, to one Cooper, by parol, in the year 1822, who took possession under the lease, and afterward rented the same lot to the defendant, and put him in possession, under a like parol agreement to perform the conditions of the lease from Devaeht, the plaintiff’s lessor.
    The defendant then proved to the jury that in the year 1796,' one Quieffe owned the lot No. 59, and died in possession of it. That one Maguet, administrator of Quieffe, took possession upon his demise, and afterward made an agreement with Devaeht to exchange the possession of the lot No 59, with Devaeht, for a lot owned by him, each to pay the taxes on his own lot, and the change of possession to remain as long as it should be found mutually convenient. The possession of the respective lots was changed by this agreement until the death of Maguet, when Devaeht inquired of the son and heir of Maguet, whether he was willing to continue the change of possession, who assented to it.
    Newsam, on the expiration of Cooper’s lease of 1822, refused to restore possession to Devaeht, who prosecuted against him a forcible detainer, iti which the jury found for the defendant. After this, Devacht applied to Maguet to pay rent for the lot No. 59, which he refused to do, when Devaeht told him he should rent his own lot, occupied by Maguet, to some other person, and in May, 1824, did accordingly make a written lease to one Workman, who took possession under it. Maguet, after the conversation with Devaeht respecting rent, made a lease to Newsam for lot No. 59, upon which he claimed to maintain his possession. To the admission of the testimony establishing these facts, the plaintiff’s counsel objected at the trial, and the objection was overruled.

      The plaintiff then offered evidence to prove that Quieffe was never the legal owner of the lot No. 59, and the plaintiff *had been in peaceable possession for twenty-five years before the possession was divested out of him. But upon the suggestion of the defendant’s counsel, the court rejected tho evidence, and charged the jury that if they should find from the evidence that the agreement between Maguet and Devacht had been put an end to by the parties, and tho possession restored to Maguet before the suit was commenced, the plaintiff could not recover. The verdict was for the defendant and the motion for a new trial was founded on the allegations that the court erred in receiving the evidence offered by the defendant, and in rejecting that offered by the plaintiff respecting the original title of Quieffe and the possession by himself, and that the verdict was against evidence.
    Nye, in support of the motion:
    1. The court erred in admitting the evidence offered by the defendant to controvert plaintiffs title,
    2. They erred in rejecting the evidence offered by the plaintiff to rebut that of the defendant, and to show that Quieffe had no title.
    In support of the first ground, he cited 2 Black. 1259; 2 Phil. Ev. 177; 10 East, 353; 4 Maule & Selw. 347; 4 Barn. & Ald. 401; 2 Saund. 111; 4 Turn. 247; 1 East, 20; 2 Starkie’s Ev. 507; 9 Johns. 167.
    On the second ground, he argued that as no title was shown in any of the parties, the plaintiff should have been allowed to show that Quieffe, under whom Maguet took possession had no title to rebut the evidence given by defendant.
    Yinton, against the motion :
    The motion for a new trial of this case was made upon two grounds, to wit: that the court erred in admitting improper evidence of the defendant to go to the jury, and also in rejecting the plaintiff’s evidence.
    It is believed to be a well-established rule of law “ that the tenant can not dispute the title of his landlord, or of him under whom he claims or admits to hold.”
    Both of the questions made in this case depend for their *decision upon a correct application of this rule. The rule ends with the title of the landlord; and therefore proof of the extinguishment was admissible, as the landlord’s title forms an exception to the rule, or rather does not fall within its principle.
    It was, therefore, competent to the defendant to prove that Devacht’s interest in the land in controversy was at an end before the commencement of this suit. The case of Syburn v. Slade, 4 Term, 682, fully establishes this exception. See also 1 Caine, 190, note n; 4 Johns. 483.
    If the defendant’s testimony was properly admitted, then the plaintiff’s offer to prove that Maguet, the defendant’s witness, or his (Maguet’s) father never had any title to the land, comes directly within the rule insisted upon by plaintiff, for the exclusion of defendant’s testimony.
   By the Court :

Both the plaintiff and defendant, in this case, claim upon a possessory title; neither of them pretend to be invested with the original right. The lessor of the. plaintiff being in possession, made a lease of the lot for one year, and the defendant came into possession under the lease. The plaintiff, therefore, insists upon the benefit of the rule, that a tenant, or person coming in under him, shall not be permitted to dispute the title of the landlord, or set up any objection to the right under which he entered. The defendant answers this position by claiming the benefit of another rule, equally well established, and forming an exception to the general operation of the first, which is, that where the landlord’s title expires subsequent to the demise, the tenant may show that fact to defeat an ejectment by the landlord.

The plaintiff’s counsel do not controvert the existence of the latter rule, but they insist that the evidence does not bring the ease within it; because no right or possession is shown to have been in Maguet. We think otherwise. Maguet was in undisputed possession; Devacht contracted with him for that possession, and entered under him. The possession of Devacht was, therefore, the possession of Maguet, and after his death, Devacht recognized the right, of possession to have been cast upon his son, and again agreed with him to continue it. Parol evidence was properly admissible *to explain the possession of Devacht, when that possession was not connected with any written title. As the possession of Devacht originated in parol, and was terminated by parol, no other evidence could exist to establish the one fact or the other. We conceive that there was no error in admitting the evidence.

The next error complained of, is the rejection of the testimony-offered by the plaintiff by way of rebuttal. Supposing the fact proved that Devacht entered under Maguet and held possession under him, proof that Quieffe had no title could not be admitted, upon the very rule urged by the plaintiff himself. It would be to permit Devacht who held under Maguet to dispute Maguet’s title. If the fact of Devacht holding under Maguet was not proven, then Quieffe’s title was immaterial, because the plaintiff would be entitled to recover in virtue of his own possession. That part of the evidence offered was properly rejected. With respect to the evidence offered of twenty-five years’ possession, that, too, was immaterial, unless intended to establish a possession adverse to that of Maguet, which was not pretended, consequently it was rightly overruled.

It is alleged that as to the fact of the expiration of the estate or interest of Devacht before the suit brought, the jury found .against evidence.

The suit was commenced early in the year 1825. Nearly twelve months before this time, Devacht called upon Maguet to pay rent for the lot which he possessed as an equivalent for Devacht’s possession of the lot No, 59, and notified him that if he did not agree so to pay rent, that Devacht would rent his own lot to some other person. Accordingly, in May, 1824, he resumed the possession of his own lot, thus, by his own act, putting an end to the agreement for the exchange of possession. The law would not permit him, in such a case as this, to violate his part of the agreement, and at the same time enforce it against the other party. He can not be allowed to allege that such was his intention. The jury rightfully inferred that the agreement, and the right under it, was at an end. The motion for a new trial is overruled, and judgment given for the delendant.


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    *Bank of the United States v. C. Schultz.
    íáCcond injunction in the same cause upon new matter can not be allowed, if the matter subsisted when the first bill was filed.
    Court of equity will not interfere to turn plaintiff in execution at law upon a fund evidently not liable to satisfy his debt.
    Party can not travel out of the matter alleged in his bill to make a ground of relief.
    This was an original bill filed in the Supreme Court of Hamilton county, and is between the same parties, and relates to the same transaction, and hadthesame object with that reported in 2 Ohio, 471.
    In October', 1820, the defendant, Schultz, obtained a judgment against the Bank of Cincinnati, which operated as a lien upon the real estate of the bank, from the 28th day of August of that year. Execution was immediately sued out and levied upon real estate, which was valued at a sum sufficient to satisfy the debt, at two-thirds of .the valuation. Executions to effect a sale were prosecuted, with unremitting diligence, to August, 1824, when the first valuation having, been set aside and a new one made, the propert}1levied on was sold for a small sum, leaving a large balance due upon the judgment. An alias fi.fa. was then sued out, and levied upon property, sold and conveyed to the Bank of the United States, in October, 1820. The bank filed a bill and obtained an injunction to stay the sale, upon the ground that the property was not subject to the lien of the judgment. This injunction being dissolved, and the bill dismissed upon a final hearing, Schultz was again proceeding to sell the property upon execution, when the bank filed this bill and obtained a second injunction on the ground of a new equity, which was founded on an allegation that subsequent to the sale and conveyance of the property in question to the complainants, the Cincinnati Bank owned lot 155, which ought to be first subjected to the payment of Schultz’ judgment. The defendant answered and alleged, that the lot 155 had been so disposed of that it could not now be subjected to his judgment, and denying the equity of the bill. A statement of facts was agreed between the parties, from which it appeared that the lot 155 had been taken in execution as the property of the Bank of Cincinnati, upon a judgment rendered against it in August, 1821, and sold in virtue of the levy in October, 1822. The statement embraced several other pieces of property, but it is not material to the point decided to enumerate them. The cause was adjourned here foi decision, from Hamilton countv
    ^Caswell and Fox,’ for complainants.
    Hammond and Storer, for defendants.
   By the Court :

When a second bill is filed to obtain a second injunction, in relation to the same transaction, and between the same parties, it is not enough to allege new ground of equity, not suggested in the former bill. It must be shown that the new matter alleged did not exist at the time the first bill was filed, or that, if it existed, it was unknown to the complainants. If this rule were not enforced, there might be no end to litigation. A bill might be filed and an injunction obtained in succession, upon separate and distinct grounds, every one of which ought to have been included in the first bill. It is unnecessary to point out the inconvenience, vexation, and injustice of such a practice.

In this case, the new ground of equity stated in the bill existed when the first bill was filed, and existed in such manner as to make it the duty of the complainants to be conversant with it. No allegation is made that they were ignorant of it. For this reason the new bill ought not to be sustained.

Again : The lot No. 155, which, it is charged, the respondent must first resort to, it appears, has been seized in execution, and legally sold under a subsequent judgment. As Schultz did not set aside his levy under the act of 1822, he has, according to the decision of this court, lost his lien against a subsequent judgment creditor. Were we to turn him round to pursue lot No. 155, it would be with a perfect knowledge that his pursuit would be unavailing. This, a court of equity would never do. The property from which it is sought to remove the levy, is liable to the satisfaction of the judgment; that to which we are asked to transfer it is not. On this ground the prayer of the bill must be refused.

In the agreed case, facts are stated as to other property not specified in the bill. The respondent’s counsel object to an inves tigation with respect to any other property than that stated in the bill. We are of opinion that this objection is well taken. It is, therefore, unnecessary to inquire into anything further than the rights of the parties as to lot 155. The injunction is dissolved, and the bill dismissed.


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    *State of Ohio v. Hibbard.
   This cause came before the court, upon appeal from the common pleas of Athens county. It is an action of debt, to recover the tax assessed upon the'defendant, as a practicing attorney and counselor at law. No argument was adduced on either side, and judgment was given for the plaintiff sub silentio.


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    State of Ohio v. Proudfit.
   This case was the same as the above, except that the defendant was a physician. There was no argument, and the judgment was for the plaintiff.


author: *By the Court :

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    Thomas Ross v. John Gilmore.
    Question of fact upon rml tiel record.

    This was a writ of sci.fa. to revive a judgment rendered in the Supreme Court of Fayette county, in favor of the plaintiff, against the defendant. The defendant pleaded in bar, that after the rendition of the judgment, he prosecuted a suit in chancery, in the common pleas of Fayette county, and obtained a final decree, enjoining all further proceedings upon the judgment, concluding with a profert of the record. The plaintiff replied that there was no such record, and upon this issue the cause was submitted, and adjourned here for decision.

      The transcript of the record, produced in support of the plea, set out a bill in chancery, prosecuted by John Gilmore against Thomas Ross, R. Curtain, and A. Dillon. It charged, that in August, 1799, the complainant executed to Dillon three notes for money, payable, one August 6, 1800; one August 6, 1801;. one August 6, 1802; that after these bonds became due, the defendant Curtain, and the defendant *Ross, had them in possession, and that suits were commenced upon them, and judgments recovered in Ross county, Ohio; that one of the notes had been paid, before the judgments were had, but that complainant could not prove the payment; that the complainant paid off said judgments, but that afterward, October 12, 1810, the defendant, Ross, took advantage of Complainant’s indigence, and induced him to give a due bill for seventy-one dollars and twenty cents, with his son as security, for an alleged balance due on the judgments in Ross county; that suit was brought upon this due bill, and judgment recovered in .Fayette county. The bill then alleged, that the judgment was obtained upon the due bill, because complainant could not prove that it was given for a balance due on -the judgments in Ross county ; made the usual suggestions, that relief could only be had in equity, prayed that each of the defendants might answer specially, to certain matters propounded, embracing the various allegations of the bill, as they related to each defendant. Relief was then prayed, in these terms :
    “Your orator prays your honors enjoin said proceedings at law, until your orator can be heard on the equity side of this court, and on a final hearing, to enjoin said proceedings perpetually, freo your orator irom the judgment now in favor of said Ross, grant to your orator the writs of subpena and injunction, for the purpose of obtaining the relief herein prayed for, and such further and complete relief, in the premises, as will meet your orator’s case, and the money paid said Ross, unless he show a right to it, order to be paid back to your orator, with,” etc.
    There was no appearance ever entered, or pleadings or answer put in. The decree was pro confesso, and in these words :
    “It is therefore ordered and adjudged by the court, that the plaintiff’s said bill be taken as confessed, and the prayer thereof decreed accordingly, and that said defendants be perpetually enjoined from further proceeding against said judgment at law.”

      Douglas, for plaintiff.
    Bond, for defendant.
   *By the Court :

We are of opinion that the plea is not supported by the transcript of the proceedings adduced to sustain it. The bill is very in artificially drawn. It sets out several judgments obtained in different counties and in behalf of different parties. It prays that “proceedings ” may be enjoined without confining the prayer to any of these proceedings specially, or to any of the parties.- The decree is that “ said defendants be perpetually enjoined from further proceedings on said judgment.” We can not say what defendant, or what judgment is referred to; consequently we can not say that the judgment, upon which the sci. fa. in this case is founded, is the one. It might, with equal propriety, upon the terms of the decree, be referred to any one of them. The judgment upon this plea must, therefore, be given for the plaintiff


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    Urbana Bank v. Josiah Baldwin.
    Judgment confessed during the return term, upon process issued on the first day of the term, is a lien from the commencement of the term.
    This cause came before the court upon a motion made by purchasers under Baldwin, to set aside a levy upon real estate, conveyed by Baldwin to them, and levied on, as liable to the judgment of the plaintiff. It came up on an agreed case before the court of common pleas of Clark county, and was brought by appeal to the Supreme Court, and adjourned here for decision. The facts were as follow:
    Baldwin was indebted to C. and E. B. Cavalier, and they had commenced suit against him to August term, 1820. After the commencement of the November term, Baldwin compromised with the Cavaliers, and conveyed them the estate in question, in payment of the debt, and their suit was dismissed. The deed bore date November 21,1820. The term commenced upon the 20th of that month, on which day the Urbana Bank commenced suit against Baldwin and others, by summons returnable forthwith. This Summons was returned served, as to Baldwin and one other defendant, on the 25th, and not served as to the others. On the same day declaration was filed, and judgment confessed by Baldwin and the other party summoned. The suit was prosecuted to judgment against the other defendants, and various process issued, the particulars of which it is not material to state. On September 4, 1826, a fi.'fa. et. lev. fa. was levied upon the real property conveyed to the Cavaliers, and the motion was made to set asido the levy by the Cavaliers, as parties interested.
    Alexander, in support of the motion.
    Anthonv, against it.
   By the Court :

The case may be a hard one, but the law is clear in favor of the plaintiff’s lien. The suit was pending on the first day of the term, and when that is the case the judgment relates back to that day, no matter on what day oí the term it was confessed. There can be no reason for the court to restrain the words of the statute in this case that would not apply to every other. It does not follow that the lien must extend to the first day of the term if no process was then pending. It is sufficient, however, to decide that case when it comes up for decision.

The motion must be overruled.


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    David Richards v. James Foulks.
    In action for a malicious prosecution, the declaration contained two counts One.alleged that the defendant charged the plaintiff with committing an offense on the-day of-, 1824, the other on or about May 24. 1824. Affidavit containing the charge states the offense to have been committed on or about May 16, 1824: Held, admissible evidence.
    This was a writ of error. The original action between the same parties was for a malicious prosecution. Tho declaration contained two counts. The one set forth' that the defendant had falsely and maliciously, without probable cause, made complaint against the plaintiff before a magistrate, and procured him to be arrested upon a charge of felony. The other set forth the same grievance, varied *so as to allege that the defendant made the complaint, and instituted the prosecution against the plaintiff and two others.
    At the trial the plaintiff offered in evidence a certified copy of the affidavit, made by the defendant at the commencement of the prosecution. In this affidavit it was stated that the alleged offense was committed “ on or about May 16, 1824.” The first count of the declaration stated the charge to have been, that the offense was committed “ on the-day of-in the year 1824.” The second count, that it was committed “on or about May 20, in the year 1824, last aforesaid.” The court rejected the evidence, and the plaintiff excepted.
    The plaintiff then examined one of the grand jurors, who found the bill of indictment; and after his examination in chief, the defendant offered to prove by him, on cross-examination, what facts were testified before the grand jury, as well by other witnesses as by the defendant, in relation to the facts charged, and also in relation to the character of one of the witnesses examined by the grand jury. To this evidence the plaintiff objected; but it was admitted by the court and an exception allowed. A verdict and judgment was given for the defendant, for the reversal of which this writ of error was brought and adjourned from the Supreme Court of Harrison county for decision at Columbus.
    G-oodenow and Bostwick, for plaintiff in error, objected:
    1. The rejection of a certified copy of an affidavit, set forth in the bill of exceptions, on account of variance.
    The allegation in the first count in the declaration is, that the defendant went and appeared before S. D., Esq., a justice, etc., on, etc., “and charged the plaintiff with having on the-day of---, in the year 1824, feloniously stolen and carried away,” etc.
    In the second count the allegation is, that the defendant appeared before the said justice on, etc., and “ charged the said plaintiff (together with one Otho Richards and one Arthur Kerr), with having, on or about May 20', in the year 1824, last aforesaid, feloniously stolen, taken, and carried awav.”' etc.

      *The language of the affidavit, wherein the variance is said to exist, is in these words; “That on or about the 16th day of May last;” the affidavit being made, and bearing date July 31, 1824.
    On this assignment of error we will merely cite authorities which so entirely and conclusively dispose of the question of variance as to make it seem rather impertinent to argue the question. Jn neither of our courts have we undertaken to set out the affidavit,.or to speak of the charge as existing even in writing.
    In Pope v. Foster, 4 Term, 590, the declaration stated the proceedings on the indictment, and the trial was on February 25, 1790; the record produced stated the trial to have been on a different day, and at different sittings of the court. For this reason the court (Lord Kenyon presiding) nonsuited the plaintiff. But ten years afterward, in the case of Purcel v. Macnamara, 9 East, 157, when the question of variance arose on a like state of facts, as to the day of trial in a former suit, and a nonsuit had been granted on the authority of Pope v. Foster, Lord Ello'nborough, on a motion to set aside the nonsuit, observed : “This nonsuit proceeded on the authority of Pope v. Foster; if that case be law the nonsuit ought to stand; if not, both that case and this nonsuit must fall together. There are two sorts of allegation: the one of matter of substance, which must be substantially proved; the other of description, which must be literally proved. The question is whether this be an allegation of the former sort. The allegation is that the plaintiff was prosecuted “ until afterward, viz; on the morrow of the Holy Trinity, in the forty-sixth year aforesaid, etc., she was in due manner acquitted.” The substance of the allegation is no more than that the plaintiff was acquitted upon that prosecution; and to support this action, it must also appear that she was acquitted before the action was brought. The day of acquittal is not alleged with a prout patet per recordum; the averment is that the acquittal took place on the morrow of the Holy Trinity, when the record produced states that it took place on Tuesday next after Easter Term; and certainly there would be a repugnancy between the allegation and the proof, if it were to be considered as a specific allegation of time; but *if it be only taken as a substantial allegation of the fact of the acquittal, as of a time which is shown to have been before the action brought; then the repugnancy is immaterial, and the proof in substance supports the allegation. And so it appears to me to do. If it had j;one on to state that the acquittal was on a certain day, as appears by the record that might have been considered as descriptive of the record, and then the variance .would have been fatal. The ground, therefore, on which I consider that the case of Pope v. Foster ought not to bind us, is that this is an allegation of substance and not of description.” Lawrence, J., observed“ Where the day laid is made part of the description of the instrument referred to, which instrument is necessary to be proved, the day laid must be proved as part of that instrument. But where the day laid is not material in itself, and need not have been proved as laid, supposing the proof to have been by parol; if the fact proved will support the declaration, I see no ground for any distinction between making such proof by matter of record or by parol.” And Le Blanc, J., added, among other remarks, that, “ I can not see any reason why, where a fact is not material to be alleged on the exact day, and need not be proved exactly as laid, and the allegation of the day is not particularly of the record referred to, that it should become material, because it appears by matter of record instead of by parol evidence.”
    We only ask, in the words of Lord Ellenborough, is our allegation anything but “a substantial allegation of the fact” of the defendant’s making the charge of larceny against the plaintiff before the magistrate ?
    The second error assigned in this case is the admission of the testimony of one of the grand jurors who found the bill of indictment, on his cross-examination, to prove what facts were testified before the grand jury on that bill, by three witnesses other than the defendant; and also, what evidence had been given before the Baid grand jury in support of the character of one Winchel, a witness before them. On this assignment of error we will content ourselves without an argument, merely referring the court to the argument we have submitted on the same question in the other 'cause between these parties.
   *By the Court :

The declaration did not profess to set out in so many words the original affidavit made by the defendant. It only stated the substance in general terms. This was sufficient for all the purposes of justice. The particular day upon which it was alleged- that the offense was committed was not material for the defendant’s defense, and the paper offered in evidence comported substantially with the allegation in the declaration. It was not a ease of technical nicety, but of substantial accordance. The paper ought to have been received in evidence, and it was error to reject it.

The other testimony was improperly received, as has been already decided in a case between the same parties. 3 Ohio, 66.

The judgment is reversed, and the cause remanded to the court of common pleas for further proceedings.


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    Samuel Potts v. John Rider.
    Plaintiff in covenant describes himself in the covenant as acting as agent, but covenants as in his own right, and defendant enters and enjoys. Action maintainable.
    This was an action of covenant, adjourned here for decision from the county of Columbiana. The question arose upon the construction of the covenant, and was presented by a general demurrer to the plaintiffs declaration.
    In describing the parties to the covenant at its commencement, these words were employed : “ By and between Samuel Potts, acting as agent for Nathan Harper and Co., of the one part, and John Rider on the other part, witnesseth.” Throughout the whole covenant, all the stipulations were personal to Samuel Potts, and on his part personal to the defendant; and Samuel Potts executed the covenant in his own individual character.
    The declaration alleged that the defendant had entered into the premises leased, and enjoyed them, and claimed to recover for the occupation.
    The defendant demurred.
    Coeein, in support of the demurrer:
    *The questions arising on this demurrer are:
    1. Can an action be sustained on this article of agreement or 1 ease ?

      2. If the instrument is not void, and an action can be sustained thereon, can a suit in the name of Samuel Potts be sustained ?
    1. When an attorney executes a deed or other writing in his own name, though stated to be for and in behalf of his principal, it is void, and no action can be sustained thereon.
    1 Swift Dig. 31; 2 Ld. Raym. 1481; 9 Coke, 77; 1 Strange, 705; 6 Johns. 94.
    2. An action on a contract must be brought by the party in whom the legal interest is vested. 1 Chit. 3; 8 Term, 332; 1 Hen. & Mun. 471.
    A mere servant or agent, with whom a contract is made on behalf of another, can not support an action thereon. 1 Chit. 5, and the authorities there cited; 3 Bos. & Pul. 147.
    D. L. Collier, on the other side, cited 11 Mass. 27, 54, 288, 292; 12 Mass. 137.
   By the Court :

There has been some diversity of opinion amongst us upon the question presented in this case, but a majority of the judges have come to the conclusion that the action may be sustained by the present plaintiff.

The defendant contracted personally with the plaintiff to de certain things, and accepted the personal agreement of the plaintiff as an equivalent. Of this contract the defendant has ha,d the benefit. He entered and enjoyed the leased premises, and there is no justice in permitting him now to say that the contract was.void. The recitation in the covenant that the plaintiff acted in the character of an agent, does not of necessity control the other parts of the agreement. The fact is inconsistent with the personal covenants between the parties, which assume for Potts a different character; and it were safer to consider the words in reference to the agency as surplusage than to give them the effect of rendering void the contract. By adopting this construction, effect is *given to everything respecting which the parties contracted, and injury is done to no one.

The demurrer is overruled, judgment entered for the plaintiff, and the cause remanded for further proceedings.