author: Wright, J.,

text:
    Charles W. Gazzam v. Cincinnati Insurance Company.
    In a policy of insurance upon the body of a steamboat upon time, the insurer is not chargeable with the wages of the crew while the boat is stranded’ within the time insured.
    The insurers are liable for the entire expense of repairing the injury, though-only part of the repairs were effected at the first port made after it occurred, and the remainder at another port.
    The running of the boat while unseaworthy, after the injury complained of, does not avoid the policy,
    The assured have no right, in such case, to have the items of loss analyzed, to ascertain, if upon each separately, the amount is equal to that for which the assurers have become liable.
    The court in bank, as a general practice, will only consider those questions which are submitted in the county, and there reserved for decision.
    Reserved from Hamilton. Assumpsit upon a policy of insurance-on the steamboat Trenton, which, by distress of weather, ran on the rocks at the falls of the Ohio. On trial, the jury found the following special verdict, viz: “The jury, upon their oath, do find ■that the defendant did undertake and promise, as the plaintiff in his declaration has alleged, and that the following items of loss *,re made out by the evidence, that is to say:
    “1. For the expense of repairing the steamboat Trenton at .Louisville, one hundred dollars; for expense of repairs of same at Pittsburg, five hundred dollars, which reduced one-third, for new work, leaves chargeable upon the insurance four hundred dollars.
    “ 2. The boat’s average for extra expense of labor, etc., in getting her off the rocks, seven hundred and sixty-nine dollars seventy-two cents.
    “ 3. The boat’s average on jettison of cargo, seven hundred and twenty-four dollars thirty-four cents.
    “4. The boat’s contribution for wages of the crew while on the rocks, three hundred and ninety-eight dollars.
    “Making, in all, the sum of two thousand two hundred and ninety-two dollars six cents; one-half of which sum is chargeable 72] upon the policy offered in evidence in this case. *But the jury, being unadvised which of said items are in law chargeable under the policy, refer that matter to the court; and if the court •shall be of opinion that the whole of said items are a proper charge upon the insurers, then the jury assess the plaintiff’s dam.ages to one thousand two hundred and eighty-three dollars fifty-five cents, that being one-half' of said sum, with interest from May 1, 1831; but if the court shall be of opinion that anyone or more ■of said items is not a loss chargeable on said policy, the amount so rejected, with interest, shall be deducted from said damages, and the jury assess the damages of the plaintiff to the remainder of ■said sum.”
    The plaintiff moves for judgment on this verdict.
    Caswell and Starr, for the plaintiff,
    cited 7 Pick. 259; Phil, on Ins. 331; 3 Kent’s Com. 185, 189; Ab. on Ship. (Story’s) 342, 350, n. 1; 9 Johns. 9; 5 Ohio, 305, 315, 317; Hughes’ Ins. 217, etc.; 3 Mau. & Sel. 182; 3 Barn. & Cress. 805; 4 Mau. & Sel. 141; 1 Term, 127, 132; 3 Term, 107; 4 East, 34; 7 East, 24; 3 Bos. & Pul. 479; 7 Mass. 363; 14 Mass. 74; 8 Johns. 307; 11 Johns. 315; 4 Dall. 246; 2 Bin. 547; 2 Wash. C. C. 226; July No. Amer. Jurist, 115; 2 Caine, 263.

      Storer and Fox, for the defendants,
    cited Phil. on Ins. 485; Stew, on Av., pt. 4, p. 211; Hughes on Ins. 284; 2 Term, 407; Park on Ins. 89, 207; Marsh, on Ins. 539; 4 Mau. & Sel. 141; 4 Mass. 548; 7 Mass. 365; 2 Caine, 262, 274; 10 Johns. 487; 2 Day, 243; 5 Ohio, 306.
    They also argued a motion for a new trial, and cited many authorities, which are omitted, because the court refused to consider ■that motion.
   Wright, J.,

delivered the opinion of the court:

The policy insures six thousand dollars, agreed value, upon one-half the steamboat Trenton, from twelve o’clock at noon, on October 11, 1830, until noon on May 11, 1831, to navigate the usual western waters, exclusive of the lead trade, with privilege, during the time, to proceed, touch, and stay at any ports or places, if thereunto obliged, by stress of weather or other unavoidable accidents, or for the purpose of receiving or discharging freight or passengers, or to take in wood, without prejudice to the assurance. It was also agreed, in the policy, that the insurer should not be liable for any partial loss, nor for any *general or particular [73 average, unless the loss or average shall amount to ten per cent, on the value.

It is obj'eeted to the item for the wages of the crew, while on the rocks, that it is not chargeable under this policy. The assurance here is on the body of the boat, for a specified time, and is like that in Perry v. Ohio Insurance Co., 5 Ohio, 306. In that case, this court held that “the ordinary wages of the crew and their subsistence are only the common expenses of the boat, and are neither increased nor diminished by the accident insured against.” It is “ charge resting on the assured at any rate. The claim is, not that their pay and subsistence was extraordinary, resulting from the accident, but that their labor was not as productive of profit to their employer as it otherwise would have been.” The boat, in this policy, is privileged to navigate the western waters, etc., for seven months; but the insurers nowhere stipulate that she shall be so employed, or that they will make good any loss of wages while she remains idle. If, in case of accident, the crew be retained under their original engagement, their wages are not an extraordinary expense, and as the crew were not employed, in consequence of the accident, their wages and subsistence did not result from it, and can not, in our opinion, be chargeable upon the insurer. This item, therefore, will be deducted from the verdict.

The defendants claim that the item for repairs at Pittsburg: must be rejected, upon the ground that the boat was bound to-New Orleans, at the time of the accident, and the repairs were not made until after she changed her destination, and had made several trips from Louisville to Pittsburg. That the removal of her from Louisville, when partially repaired, was allowable, only because it was necessary to remove her for the purpose of completing the repairs; and if it was necessary to remove the boat from Louisville, that the assured were bound to complete the-repair at the first convenient port. If, it is contended, the condition of the boat was such as to render her seaworthy when she left Louisville, after the partial repair, she was bound to resume her voyage to New Orleans, and the breaking up the voyage, without abandoning to the underwriters, exonerates them; and if, on the contrary, the boat was unseaworthy, from the time of her rescue from imminent peril until she was completely repaired at Pittsburg, and that was the proper port for, repair, the policy terminated, and the liability of the underwriter was at an end, 74] the moment she left the latter place *without repair, as the law holds the assured to a continued warranty oí the seaworthiness of the boat. However forcible this reasoning might be, if the assured were attempting to recover for an injury to the boat after she ceased to be seaworthy, we do not recognize its force or application in the case actually before us. And as to the allegation of the boat’s making several trips between the time she left Louisville and her complete repair, the answer is: 1. The fact forms no part of the case before us; 2. If it did, the insurance is upon time, and not upon any particular voyage.

It is further objected to the item for repairs at Pittsburg, that it does not amount to ten per cent, upon the sum insured, and can not be added to the repair at Louisville, in order to make that amount. In Brooks v. Oriental Insurance Company, in the Supreme Court of Massachusetts, 7 Pick. 268, it was held that “the master had a right to exercise a sound discretion upon that matter, and that the defendants are liable for the expenses of the temporary repair, etc., which are to bo added to the complete repairs, etc., which sums, together, are to be considered the-■expenses of repairing the damages.” This rule is obviously just. 'The real question is, what was the expense of repairing the injury? A boat is so crippled at Louisville, that she can not move at all •without some slight repair, but the expense of repairing there is much greater than at Cincinnati — is the master bound, or would he act in good faith to the underwriters, if he made the whole repair at the most expensive place, instead of only doing there what was necessary to enable him to run thd boat to one less expensive for a thorough repair ? It is true all these things require the exercise of good faith ; and we think it equally true that the want of it can only be urged to the jury, which is the proper ■tribunal to determine that question.

It is further contended for the defendant, that as jettison and general average are both specially insured against, when amounting to ten per cent, after the valuation, or six hundred dollars, the claims arising under these heads must be analyzed to find if the damage from each amounts to ten per cent.; and, therefore, that inasmuch as neither one-half of the average found for salvage, nor one-half' of that found for jettison, amounts to ten per cent., both those items are to be excluded ■from the verdict. To establish the justice of the point contended for, counsel supposed the case of ua vessel injured in her hull, ■the subject primarily insured, to a very small amount; but a jettison has occurred, which compels a contributionand insist -^that “if the trifling injury to the ship can be tacked to the [75 jettison, the most flagrant injustice would follow.” The flagrant injustice of the hypothetical case arises from the circumstance that the argument loses sight of the object of the jettison, which is the safety of the ship, and the liability of the assurer to contribute to the jettison in proportion to his interest, is alone what exonerates him from responsibility for a total loss. The insurer can not be permitted to complain of an injustice which relieves him from paying a greater sum, by holding him liable to a less. But counsel is mistaken in the assumption- that jettison or general average are especially insured against in this policy. In terms, it assures the boat for seven months to navigate the usual western waters. Jettison is nowhere named in the policy; and general average is only alluded to in the clause which authorizes the assured, their factors, servants, and assigns, to labor, in case of loss or misfortune, for the safety, defense, and recovery of the boat, without prejudice to the assurance; and stipulates to contribute to the charges thereof in proportion as the sum insured is to the whole sum at risk. Whatever of force there may be in that objection, in a proper case, therefore, it has no application to this case. Noi are we able to discern either the justice or the legal obligation of the claim to separate into moieties the items objected to, before we determine the liability of the defendants. They stipulate that if the whole loss is ten per cent, or six hundred dollars, they will pay one-half of it. They do not contract, that if one-half the loss shall amount to ten per cent, they will pay the whole of it; if they did, there would be some force in the argument. The case at bar is not within the rule laid down in Stephens on Average, pt. 4, art. 3, p. 211, “ that if several articles be insured together, free of average, under five per cent., and average be claimed upon the whole, the claim should be analyzed to find if each be damaged five per cent.; and unless the average on each of them, separately, amount to five per cent., the claim must be substantiated as only ■ one of them.” Here is no insurance of several articles together ; the policy is confined to one, the boat.

The counsel for the defendants have argued at length a motion for a new trial in this case, predicated upon a supposed error of the court in its direction to the jury; and amotion for a new trial is certified by them as found among their papers, which was prepared by them before the special verdict was reduced to form. The record shows that the only question reserved for decision here, was the “ motion for judgment on the special verdict.” 76] *In this state of things, the counsel for the plaintiff object to the consideration of the motion for a new trial, because it is not. properly before the court. The first section of the act to establish a court in bank, 29 Ohio L. 93, makes it our duty “ to hold a court in bank, for the final adjudication of all such questions of law as may have been reserved in any county for decision." It is questionable whether, as a court in bank, we have authority to entertain original motions of this kind; but however that may be, it has not been our practice to consider motions not submitted in the county and reserved for decision; and we see nothing in this case to require a change of practice. The arguments for a new trial, therefore, have not been examined.

Deducting from the verdict one-half of the item of three hundred and ninety-eight dollars, with the interest thereon, the boat’s contribution for the wages of the crew while on the rocks, which we think not chargeable on the assurer, the plaintiff is entitled to judgment for the remainder of the damages assessed by the jiiry, viz: one thousand and sixty-two dollars and sixty-seven cents, with costs.


source: Caselaw Access Project

author: Judge Wood

license: Public Domain

text:
    Mary Dunseth v. The Bank of the United States.
    ■Widow to he endowed according to the value of the ground at the time of assignment, excluding increase of value from improvement, hut including increased value from other extrinsic and general causes.
    In chancery; adjourned from Hamilton. The whole case is stated in the opinion of Judge Wood.
   Judge Wood

delivered the opinion of the court:

The complainant, widow of Andrew Dunseth, filed her petition in the court of common pleas of Hamilton county, claiming dower in certain lands in the city of Cincinnati.

The lands were alienated by the husband, and finally passed to the Bank of the United States.

The complainant obtained a decree in the court of common pleas, and the defendant appealed.

All the facts necessary to establish the complainant’s right to dower in the lands in question, viz : that they can not be divided without injury; that the complainant can not, therefore, be endowed *in kind; and her consequent right to be endowed of [77 one-third part of the rents, issues, and profits of the land, according to their value, are admitted by the parties ; and the only question submitted for our determination is, at what time shall the value of these lands be ascertained?

This, it is conceded, is an important inquiry, and it is believed there is at this time a diversity of opinion upon it among the members of the bar. This is the first time it has been presented to this court for decision, and we extremely regret the counsel for the deiendant have not furnished us that aid, in pursuing our inquiries, their research and reflection are so fully competent to afford. We are not only denied the assistance of their argument but also a reference to a single authority on which they rely! Principles esteemed so important as to require the deliberation of the whole court, ought always to receive the most free and liberal discussion.

We have endeavored, however, to give this case the most mature and deliberate consideration, and are unanimously agreed in the conclusions to which our minds have been led.

Dower is a claim flowing from marriage, and marriage is so highly regarded as to be a valuable consideration for the settlement of property on the wife. It is a right founded on law, and favored by courts both of law aud equity. 5 Serg. & Rawle, 290. By marriage, the husband becomes entitled to the services of his wife. He has the control and custody of her person. If she is seized of an estate of inheritance in land, the husband becomes seized of the freehold, jure uxoris, and he tabes the rents and profits during their joint lives. Coke’s Littleton, 355. The husband may reduce to possession the choses in action of the wife, and by operation of the law, they are his own. He, by the marriage, succeeds to the personal property of the wife. It vests immediately and absolutely in the husband; he can dispose of it at pleasure; and, .n case of his death, it goes to his representatives. These are some of the disabilities which, by the marriage, the law casts upon the wife.

In return for these, to provide for her support, and to enable ber to nurture, sustain, and educate her children, in case she survive the husband, the law gives her one-third part of all the lands of which her husband was seized as an estate of inheritance during the coverture, during her life. It is a claim sanctioned by long-established usage, so ancient that its origin is now lost in doubt 78] and uncertainty. In 2 Bl. Com., tuck. ed. *130, it is said that dower is possibly the relic of a custom of the Danes; but, however this may be, Lord Coke informs us, it is one of the three favorites of the common law. Kent, in the fourth volume of his Commentaries, 36, calls it a “humane provision,” which has continued unchanged in the English law to the present times, and, with some modifications, has been everywhere adopted as part of the municipal jurisprudence of the United States.

The statutes of the several states, in relation to dower, it is believed, have constantly received a most liberal and beneficial con* struct]on, and have been considered as entitled to the favorable consideration of all courts of justice.

The law favors the assignment of dower by metes and bounds, but where that assignment can not be made, dower is to be assigned of one-third part of the rents, issues, and profits of the lands, according to their value. Here, then, we are brought back to the inquiry, “ at what time shall the value of the lands be ascertained?”

The statute of 1823, vol. xx, 249, under which this claim is made, so far as it is necessary to be considered, is but a recognition of the common law principles, and is similar to the statutes of Massachusetts and Pennsylvania. The identical question now before us is discussed by Chancellor Kent. 4 Kent’s Com. 67. Ho says the better and more general doctrine is, in this country, that the improved value of the land from which the widow is to be excluded, in the assignment of her dower, even against a. purchaser, is that which has arisen from the actual labor and money of the owner, and not from that which has arisen from extrinsic or general causes. The same principles were laid down by Chief Justice Parsons, in the case of Gore v. Brazier, 3 Mass. 544.

We are of the opinion that these principles stand upon reason and justice for their support. If the lands diminish in value, subsequent to the alienation, the widow is, it is conceded, subjected to the loss; and if they rise in value from any other cause than the acts of the alienees, such as the general prosperty of the country or neighborhood, it would seem to be the most consummate injustice not to permit the widow to partake of the general prosperity.

Chief Justice Tilghman, in 1819, in the case of Thompson v. Morrow, 5 Serg. & Rawle, 289, in a very learned and elaborate opinion, reviewed the English decisions, including those contained in the year books, and declares there is no principle of *the [79 common law that will exclude the widow from the increased value of the lands arising from other causes than improvements made by the alienees, and that the decisions in Massachusetts and New York sustain him in his opinion. He concludes his remarks in this case by saying, that he has consulted all the authorities which bear upon the question, and he finds himself at liberty to decide according to what appears to him to be the reason and justice of the case; which is, that the widow shall take no advantage of the improvements of any kind made by the purchaser; but. throwing those out of the estimate, she shall be endowed according to the value, at the time her dower shall be assigned to her.

This question was again discussed, in 1824, by Mr. Justice Story, in the Circuit Court of the United States, for the first circuit, in Massachusetts, and decided, under the laws of that state in relation to dower. All the cases, English and American, were again reviewed. The judge cites the above opinion of Chief Justice Tilghman; accedes to his reasoning; declares the doctrine stands on solid principles and the general analogies of the law. Powell et ux. v. Monson S. B. Manf'g Co. 3 Mason, 375.

Opposed to these authorities, is the dictum of a dissenting judge on a point not made in the cause: that the value of the lands-was not to be ascertained, at the time of the alienation, had been determined in the case of Ewing v. Stanbery. However much we may respect the opinions of that very learned and distinguished judge, this mere dictum, in relation to a circuit decision, can not be claimed as an authority. We choose rather to-adopt the opinions of Kent, Parsons, Tilghman, and Story, “ that the widow should be endowed of the rents, issues, and profits of the lands, according to their value, on the assignment of her dower,. excluding all increase of value from the money or improvements of the alienees, and including all increase from other extrinsic and general causes.” Let a decree be drawn accordingly.


text:
    *Daniel Green v. John Dodge and Eli Cogswell.
    Chancery will not relieve against a judgment at law, and grant a new trial, where the matter complained of arose in any way from the negligence of the complainant, or because the parties relied upon the promise of the judges to see the proper entry made.
    "When a security receives from the principal debtor demands, for the purpose of discharging the debt by their transfer to the creditor, or by payment of the money collected, he holds the claims, or their proceeds, as trustee of the creditor.
    In chancery from Washington. The bill of the complainant makes this case : That in February, 1821, one Sydney Dodge was indebted to Kim in the sum of sixteen hundred dollars, and an arrangement was entered into between the complainant, the said' Sydney, and the defendants, John Dodge and Eli Cogswell, that if the complainant would forbear the payment of said debt, one-half for fifteen months and the residue for two years, that Sydney Dodge should give his notes payable at those times, and the defendants should indorse the notes and guaranty the payment, which was accordingly done. The notes were given payable to-the complainant alone, and were indorsed by the defendants in blank, as guarantors of the payment. No part of said notes has-been paid except five hundred and seventy-seven dollars and sixty-eight cents, received on July 15, 1823, from John Dodge, one of the defendants, which is credited on the note that last became due. A judgment was recovered against the said Sydney, and he became insolvent, leaving complainant no other reliance for his money than the guaranty of the defendants, who had full notice-of the non-payment. That to indemnify the defendants from their liability, John Dodge, one of them, received from the said Sydney notes, accounts, and judgments sufficient to pay the notes. The-complainant, with a view to collect the money due by Sydney Dodge, placed the notes in the hands of counsel for prosecution,, who filled up the blank indorsement as follows: “We, the undersigned, bind ourselves as security for Sidney Dodge, for the payment of the within note, according to the tenor thereof, to Daniel Green, the obligee in said notebut in affixing the date to the indorsement on the note payable in fifteen months, he by mistake-wrote it February 21,1823, instead of 1821, which was the true date. Suit was brought on the notes, and in the declaration the indorsement last aforesaid was denied, as of the erroneous date. The-cause was brought to trial before the Supreme Court in bank, in 1826, upon an agreed state of facts as above, and also “ that no consideration passed from Green to Dodge and Cogswell, on account of said notes;” whereupon, the court found for *the defend- [81 ants, and rendered a judgment accordingly. That said judgment was, through mistake of the court or their clerk, entered so as to become a bar to any subsequent suit, whereas, the grounds of the judgment were the want of an averment in the declaration of any consideration for the undertaking of the defendants, or of a demand of them, or of notice to them of the non-payment, or any valid excuse for omitting such demand and notice, or evidence of a waiver of the demand and notice, or other legal liability; although, in fact, the consideration was the forbearing the debt to the said Sydney; and in fact, also, a demand was made of the defendants, and they were notified of the non-payment. That the complainant’s counsel, who drew the declaration, was of opinion no averment of the consideration, or of non-payment, or demand and notice, was in law required in the declaration.
    The defendants did not demur to the declaration, hut plead the general issue, and for the purpose of a trial entered into the agreement as to the facts as stated. The pleadings, on that account, did not contain a true state of the facts in the case, but only the artificial case drawn by the attorney; that at the court in bank, before the decision, the plaintiff’s counsel was informed by the court that the declaration would be held insufficient; and he immediately requested of the court leave to amend, which the court refused, observing that the plaintiff would be put to a new action, and the judgment would be so drawn as to be no bar to another suit. The counsel was called from court by sickness in his family, and did not return till after jts adjournment, nor discover until then that, in the hurry of business, the judgment had been •entered so as to be a bar. At a subsequent term of the court in bank, counsel moved the court to amend the judgment, which was refused, because of the want of power in the court to amend. He has since sued the defendant, John Dodge, on said guaranty, but he pleaded the said judgment in bar, and the plea was adjudged good. And so, while in the prosecution of a fair and honest •claim, without laches of himself or his counsel, he has been deprived of his rights by accident and misfortune. Upon this case he prays for a new trial and general relief. See 2 Ohio, 439, and 3 Ohio, 486.
    The defendants demur to all this bill, except the allegation of the receipt of the fund for indemnity. As to that, J. Dodge and Cogswell answered, denying all fraud and the receipt of any fund as indemnity, but admitting that in July, 1823, Sydney .82] *Dodge placed in John Dodge’s hands sundry demands, to be handed over to the complainant, in payment of the notes, which he offered to the complainant, who selected two demands, .amounting to five hundred and fifty-three dollars and eighty-oce .cents, and rejected the residue; and that the defendant, John Dodge, has since collected two hundred and twelve dollars and two cents, and no more, which has never been demanded of him.
    Nye and Goddard, for defendants,
    cited 4 Ohio, 469; 2 Ohio, 7, 311; 1 Ohio, 429; 4 Ohio, 327, 239, 241; 3 Johns. Ch. 351; 6 Johns. Ch. 87, 194, 479; 2 Johns. Ch. 557; 1 Johns. Ch. 97; 14 Johns. 63; 3 Pet. 520.
    H. H. Hunter and H. Stanbery, contra,
    cited Mit. Pl. 206, 208, 195, 200, 102, 106; 2 Vern. 146, 190, 232, 378, 419, 437; 1 Eq. Cas. Ab. 240, 377, 378; 2 P. Wms. 424; 2 Tent. 351; 4 Ohio, 175; & Johns. Ch. 479; 7 Cranch, 69; 1 Serg. & R. 241.
   Wright, J.,

delivered the opinion ot the court:

Two points are made on this demurrer:

I. That the matters set forth in the bill are of exclusive legal cognizance, and have been tried and determined at law.

2. That no fraud or accident within the jurisdiction of the court is shown in the bill; but, on the contrary, it is shown that if the complainant ever had a meritorious case against the defendants, he-has lost it by his own negligence or that of his agents.

This court has determined, in Leiby v. Parks et al., 4 Ohio, 492, that it is not proper for a court of equity to inquire whether a court of law, in a matter within its jurisdiction, erred in opinion, nor whether a fair and impartial trial has been had at law, unless the complainant clearly shows that he had a good defense, and was prevented by fraud or pure accident, without any fault or negligence of himself or his agents, from availing himself of it. The present chief judge, in giving the opinion of the court in that case (page 493) uses the following language: “Should this court enjoin this judgment, and order a new trial at law, because a fair trial had not been had, it must order a new trial in every case, where the defendant may, in general terms, allege fraud in the-plaintiff in obtaining the verdict against him, and that there existed evidence which would probably change the verdict. Prom, their feelings, defendants would do this with a pure conscience in most cases where verdicts *are against them. Hence, courts [88 of chancery, before they order a cause to be reheard at law, require that the complainant shall show that he used due diligence in preparing and conducting his defense at law, and that he was-prevented from making them by circumstances beyond his control.”

The same doctrine is recognized by the Supreme Court of the United States, in Marine Insurance Co. v. Hodgson, 7 Cranch, 336. Chancellor Kent, in Duncan v. Lyon, 3 Johns. Ch. 356, lays it down as “ a settled principle, and one by which he intends to continue to be governed, that a party will not be aided after a trial at law, unless he can impeach the justice of the verdict or report, on facts, or on grounds of which he could not have availed himself, or was prevented from doing it by fraud or accident, or the act of the opposite party, unmixed with negligence on his part." In Curtis & Williams v. Cissna, 1 Ohio, 435, this court determined it not to be a subject of inquiry in chancery, whether the decision of a court of law, upon a subject within its jurisdiction, was or was not correct. In that case, it is said that “ a court of chancery does not act as a court of errors to examine or reverse the judgments of a court of law.” And again, “ where courts of law and of •chancery have concurrent jurisdiction, and a party electing to pursue his remedy in one fails, he shall not be permitted, as a general rule, to re sort to the other.” This court also, in Buell v. Cross 4 Ohio, 330, determined that where a party has remedy at law, in the prosecution of which he has been defeated by an erroneous decision, he can not be aided in equity. “If he properly failed,” say the court, “his rights are at an end; if improperly, his remedy was by error.” With these decisions upon the point, one would suppose the profession would consider the question settled; at any rate this court is satisfied with the decisions, and is not disposed to alter them.

It is insisted by the counsel for the complainant that these matters will not avail the defendants on demurrer, but should have been set up by plea; and that they can not even be pleaded without a denial of the fraud, or other circumstances. Eeliance, for this, is had upon Mit. Pl. 206-208; whereupon it is urged that inasmuch, as in this case, there is no denial of the circumstances and mistake, they are all admitted by the demurrer, and so are to be held available. We do not apply the law as the complainant’s counsel do. The true inquiry is, are the circumstances admitted •84] by the demurrer, such as, according to *the course of proceeding in chancery, to entitle the party to relief? Apply this ■rule in the present case. No fraud is alleged, except the fraud of ■the court. This court found a verdict, acting as a jury, against the complainant, according to his own agreed state of facts submitted to it; judgment is rendered upon this finding, according to the practice of the court. It is complained of this that the case set forth in the declaration was not the true one, but fictitious, and so made by the complainant’s attorney, because he thought it more •convenient to state his facts in that manner, and that he stated all the law required ! If this be the mistake, or circumstance relied upon, it is the fault of the complainant, for which this court will not afford him relief.

Again, it'is complained that the ground of the judgment was the want of an averment of consideration in the declaration, when in truth there existed a consideration that might have been averred. The agreement of facts set forth in the bill admits “that no consideration passed from Green to Dodge and Cogswell on account of said note.” Did the complainant admit a falsehood to get his cause tried, and does he now ask to be relieved from his false admission?

It is still further objected that the court, before it gave judgment, assured the attorney that it should be so entered as not to operate as a bar, when, by mistake, the judgment was otherwise entered. It is believed this is the first application to chancery to •set aside a judgment at law, because of fraud or misrepresentation in the court rendering that judgment. But what are the alleged circumstances? The court refused leave to amend after the cause was submitted, and observed to the counsel asking leave that the judgment would be entered in a way not to operate as a bar 1 The parties voluntarily submitted their cause upon agreed facts to the court; on the facts, the court found a verdict for the defendants (see 2 Ohio, 439); upon which judgment followed, of course, and now the plaintiff asks to set aside the judgment, because the defendant did not choose to move for a nonsuit, or in arrest of judgment; because his own counsel stated a fictitious, instead of the true case; and because the court, without motion in conversation, undertook that the judgment should be entered, so as not to be a bar 1 And because, upon some unknown ground, the court overruled a motion to amend the judgment at a subsequent term. See Ohio, 486. These facts, it is claimed, are to be *taken as true, because admitted by the demurrer. A de- [85 murrer admits only what is well pleaded or set forth. A court acts upon uiatters before it; it can hold no conversation — it enters into no contracts to do business, and it can only speak by its record. The legal maxim is, that they import absolute verity, and can not be contradicted; hence, a claim to set up facts in opposition to the record, as in this case, has no legal effect, even if demurred to. The conversation, if any, in this case, must have been with a judge of the court, not the court; and if he undertook to take care of the complainant’s rights, it was as his agent, and his laches, like that of other agents, are chargeable upon the-principal.

The analogy claimed to exist between this case and that of Oliver and Baum v. Pray, 4 Ohio, 175, is not perceived by us. The judgment, in that case, was deemed unconscionable, and the mistake on which relief was given, was that of the clerk, in the discharge of his duties as an officer or agent of the law, in taking the appeal bond, when the complainants, so far as they were in pursuit of their legal rights, acted “ with perfect good faith and with all reasonable diligence.” Id. 194. That case goes as far as we are disposed to go. The demurrer is, therefore, well taken.

On the merits the case made lays no foundation whatever for a decree against Cogswell, and as to him it is dismissed with costs. John Dodge, it appears, received from Sidney Dodge, certain claims to be applied to the extinguishment of the complainant’s debt, a part of which only have been so applied. He admits the receipt of two hundred and twelve dollars and two cents, which, remains unapplied; and he holds this money and the uncollected demands in trust for the complainant. The exact state of the outstanding demands is not made known to us; nor are we advised when the two hundred and twelve dollars and two cents were received, or might have been paid over. A master will, therefore, unless the parties agree, be required to take and state an account of this fund, showing the amount received, the date of the receipt, and the timo when it might have been paid over; also, the present condition of the remaining claims, and if any, what portion of them have been lost by the negligence of John Dodge. The cause 'must be continued for further proceedings.


author: Judge Lane

text:
    *H. and G. Bixbee v. State of Ohio.
    Two indicted of a joint offense, court may order a joint trial, though a separate trial be demanded by one.
    Where several defendants are indicted of a joint offense, and all put upon a joint trial, each must be allowed his separate peremptory challenge of jurors.
    This was a writ of error reserved for decision in the county of Huron. The original case was an indictment containing several counts, charging H. and G. Bixbee with shooting R. Prior and P. McCormick, with intent to kill and wound. When the cause was called for trial, the accused claimed each a separate trial, which the court refused to allow. In selecting the jury, G. Bixbee challenged one juror, with w'hich juror, H. Bixbee declared himself content, and insisted upon retaining. ' The challenge was allowed. H. Bixbee-then challenged another juror, whom G. Bixbee insisted to retain. This challenge also was allowed. Both the accused then united in challenging a third juror, and claimed to be allowed two peremptory challenges for each; but the court decided that they could only have two peremptory challenges between them. They were tried, found guilty, and judgment rendered against them, to reverse which this writ of error is brought.
    The case was submitted without argument.
   Judge Lane

delivered the opinion of the court:

There are certain offenses which can not be committed by more than one individual, consequently two can not be presented of such, in one indictment. , 1 Chit., Crim. L. 267. But wherever offenses may be committed by several, they may be united in the same accusation. Id. 270. When the joinder is permitted the court is authorized, at its discretion, to try them together or separately, as will best advance the ends of justice. But in the exercise of this discretion the court will be careful that the rights of the prisoner are not jeopardized by the joinder. In the casa before us the court directed a joint trial, and we can not interfere with this discretionary power unless some injury be shown to have followed. The record furnishes no proof of error in this particular.

On the subject of the challenge it is the right of each individual accused of a crime, that the tribunal to whose adjudication his rights are submitted, shall be impartial. It is not the right, that any 87] particular set of men shall be his triers, but that *those selected for the office shall be such as possess the requisite qualifications of impartiality. This right seems sufficiently maintained, by allowing the power of exception, without yielding to him the privilege of insisting that the persons shall compose the jury who may be first called by the sheriff. This principle, when applied to this case, would be sufficiently maintained by conceding to each defendant the power of exercising all his challenges, both peremptory and for cause. The statute evidently contemplates this power. It gives, by section 14, the peremptory challenge in civil cases to each party; but, by section 15, every defendant may exercise it in criminal trials. 29 Ohio L. 98. As the court did not, in this case, allow every defendant his two peremptory challenges, we believe they committed an error.

The right of separate trial, in ordinary cases, does not appear to ns to be a consequence of this right of separate challenge. In capital cases, where the panel must be laid before the prisoner, before the trial, and the jury must be composed from it, except for cause, it would perhaps be difficult to secure each his privileges, except by a separate trial, if demanded. But in other iudictments, all is granted which the prisoner can justly claim, by the concession of the privilege of exception.

Judgment reversed.


text:
    The Lessee of Hart’s Heirs v. Thomas Johnson.
    Lease of school lands under the law directing leases to be granted for ninety nine years, renewable forever, reciting the law under which it was executed, is to be construed a lease according to the statute, though in terms it imports a conveyance in fee.
    A defendant in ejectment having purchased a lessee’s interest, as for a forfeiture, can not impeach the validity of the lease against the heirs of the original lessee.
    Judgment and execution in the name of the treasurer of the township, instead of the trustees as directed by law, can not be held void, but voidable only.

      An entry to forfeit leasehold estate for non-payment ofrent, must proceed for the entire tract of ground leased, without reference to sub-leases of part.
    Where the whole case is before the court, and in its opinion a plaintiif has rightly recovered, a new trial should not be granted, though at the trial a point of law had been incorrectly ruled against the defendant.
    This cause was tried on the last circuit in the county of Perry, .a verdict found for the plaintiff, and reserved for decision in this court on a motion for a new trial.
    *The ancestor of the plaintiff’s lessors, Thomas Hart, on [88 November 16, 1816, received a lease of the northeast quarter of section 16, granted by Congress, for the use of schools, in 1802. This quarter section contained one hundred and fifty-eight acres? then situated in the township of Pike, in the then county of Pair-field, now county of Perry. The lease to Thomas Hart was executed by the trustees of said Pike township, under the provisions of section 3 of the act, entitled “an act authorizing the trustees of the original surveyed townships in the county of Fair-field, to grant permanent leases for their reserved section, No. 16, within said county,” which, among other things, authorizes and requires the trustees to grant permanent leases of said section, when laid off into lots, for ninety-nine years, renewable forever. Thomas Hart, on April 19, 1819, conveyed to John Hume fifty acres of the said quarter section. The lands in controversy are one hundred and eight acres, the residue of the said northeast quarter section, to which the plaintiff’s lessors claim title, as heirs at law of Thomas Hart, under the lease of November 16, 1816. The heirship of the plaintiff’s lessors, and the possession of the defendant, were admitted on the trial.
    H. Stanbery, for the plaintiff.
    W. W. Irwin and J. B. Orton, for defendant.
   Judge Wood

delivered the opinion of the court:

The plaintiff’s counsel, in evidence to the jury, in support of the plaintiff’s title, offered to read the lease. The defendant’s counsel objected to this evidence: 1. Because the lease conveyed an estate in fee simple, and not for ninety-nine years, renewable forever, in the words of the act; 2. Because the plaintiff had not shown the performance of all the conditions which the law imposed, before the trustees were authorized to make the lease, to-wit: that the consent of a majority of the inhabitants of Pike township had been obtained, in writing, and delivered to the county commissioners; 3. That the commissioners appointed three freeholders, who laid off the section into lots, and returned a plat of the survey to the clerk of the township; 4. That the freeholders appraised the lots, and returned their appraisement to the trustees, and that it was recorded by their clerk.

*To determine the first point it is only necessary to refei to the terms of the lease and the statute under which it was made. The lease recites the act, and contains these words : “ Commencing on May 1, 1816, agreeably to the above-described, act, subject, however, to all the provisions in the before-recited act contained,” The statute itself is by the parties referred to and made part of the-lease. As such, it will restrain or control its meaning and operation. Id certum est, quod cerium, reddi potest, is a maxim which may, with propriety, be applied to this conveyance; and although it may, at first view, appear to pass an estate in fee simple, yet when, by the agreement of parties, we take the act under which it was made as a part of the lease itself, it requires no very great penetration to discover that the estate conveyed is only a freehold' for ninety-nine years, renewable forever. This objection has been-separately noticed, because it does not exist in fact. Counsel have-mistaken the terms of the conveyance. The other objections, which have been ably urge d to the admissibility of this lease in evidence, in our opinion, have no application here.

The defendant claims title to the premises under a sale of the same made by the trustees of Pike township, for the non-payment of the rent by the ancestor of the plaintiff’s lessors. The ancestor’s legal, quiet, and peaceable possession under the lease is not denied. If the ancestor, therefore, had no title the defendant took nothing by his purchase, and the ancestor having the prior legal possession, the plaintiff is entitled to recover. The defendant claims, then, under the ancestor’s lease. It is said in the books a party is estopped from gainsaying a title which is recognized in a deed under which he claims. Cox, 432. It is also said that where both parties claim title, even under the same defective survey in ejectment, the defendant shall not take advantage of the defect. 3 Caine, 188. It would therefore appear, if such be the law, and it is supported by high authority, that whether the conditions, on which the trustees were authorized and required to execute the ■lease to the ancestor, were performed or not; indeed, however defective that title may be, the defendant claiming under it is, in this suit, estopped from denying its legality. It follows, then, as our opinion, that no error intervened in admitting this lease to be read in evidence to the jury.

The defendant, to prove his title, then offered in evidence the ■transcripts oí two judgments of a justice of the peace, *ob- [90 tained in the name of the treasurer of the township of Pike, the •first in 1822, the last in 1824, against the ancestors of the plaintiff’s lessors, for the non-payment of the rent; an entry on the transcripts, that execution was issued and returned nulla bona; .and a copy of the records of the township of Pike, in which was ,an entry, that the trustees had given the notice and sold the interest of the said Thomas Hart to the one hundred and eight' acres of land to Thomas Johnson, the defendant.

The plaintiff objected to the admission of the transcripts in evidence, on the ground that the judgments were entered in the name of the treasurer of the township of Pike, and not in the name of the trustees, as required by the act, which objection was -•sustained. Did the court err in rejecting this evidence?

This is an attempt to divert an estate for & forfeiture, and every ■step which is taken for such a purpose is required to be in strict conformity with the law. It is true there is a class of cases of a , different description, and where the court have established a different doctrine. Barrell v. Reed, and Miller v. Commissioners of Montgomery County, 1 Ohio, 272, are cases where a bond was .given, in each case, to an officer different from what the law required. In these cases, however, the suits instituted were to enforce the contracts the parties had made, on a good and legal consideration. To enforce them was compelling the defendants to perform that only which they had agreed to do. This case, it is ■claimed, is different. The lease of Thomas Hart was with the trustees of Pike township. They were the persons required by the act to be plaintiffs in a suit for the rent, and the only persons to whom the promise was made. There is no privity of contract between Thomas Hart and the township treasurer. There is no statutory provision nor common law principle which would enable him to maintain the action. Thomas Hart did not, however, take ■advantage of the illegality of these proceedings. He stood by, suffered judgments to be obtained, and the trustees to avail themselves of the judgments. The court is of opinion it is now too-late to question their legality. Those transcripts, therefore, were, in our view, admissible evidence.

The plaintiff, then, objected to the admissibility of the township-records to prove the security, notice, and sale of the land in controversy, to the defendant, because the trustees.did not enter on, give notice of, and sell the whole northeast quarter leased to the 91] said Thomas Hart, and not one hundred and eight acres *only, which objection was sustained by the court. Let us inquire if the court erred in overruling this testimony ?

The act provides that section 16 shall be laid off into lots of' not less than forty, nor more than one hundred and seventy acres-each. In leasing these lots, there is no provision in the statute by which they may be subdivided. They are to be leased in-whole lots, as they are laid off. The whole lot is liable for the payment of the rent. When the rent is not paid, the trustees, after suit brought and execution returned nulla bona, are to-enter on the lands, and to sell the right of the lessee in such lease.. They are not authorized to sell a part of the lessee’s interest, nor to enter on a part of the land. The law clearly negatives-the idea of any subdivision of the interest of the lessee. Thomas Hart was the lessee of the whole one hundred and fifty-eight acres. The trustees could take no notice of the lease by Hart to-Hume; that was between the parties to the lease. It was, therefore, the duty of the trustees, if the rents were not paid, to enter upon and sell the whole one hundred and fifty-eighty acres, or-the whole of the lessee’s right to it, and not his interest in the one-hundred and eight acres only. Not having done so, their proceedings are contrary to law, and convey no title to the purchaser, the defendant. This evidence offered, then, was properly rejected.

The question only then remains, ought the court to grant a. new trial? It is a general rule that when evidence competent, and which would conduce to prove the issue, has been rejected, a new trial shall be granted. But is not this case an exception to the rule. The defendant’s counsel has disclosed all the evidence he has, or ever can have, on the trial of this cause, to prove his title. It consists, not only of the transcripts which were rejected, but of the subsequent proceedings to consummate the sale to the defendant. Suppose a new trial granted, and the transcripts read in evidence to the jury, would it aid the defendant ? It certainly c<|uld not. The court must still reject the evidence of the sale, and without this, the defendant has no color of title. For what purpose, then, shall a new trial be granted?. Shall it be to admit the transcripts? to reject the subsequent proceedings? to instruct the jury that the defendant has no title in law? and finally to produce the same result which has already taken place— a verdict for the plaintiff — and which must inevitably follow 1 It would be idle in the extreme.

Motion denied.


author: Judge Wright

text:
    *H. D. Howard’s Administrators v. Gregory Powers.
    In suits against administrators, a count upon an indebtedness and promise by the administrator, as such, may be joined with one upon an indebtedness and promise of the intestate, provided the consideration of the demand spring from or was connected with the estate.
    Error to the common pleas of Portage. Powers declared in the court below, in three common counts in assumpsit.

    1. Upon an indebtedness by the intestate, and a promise by him.
    2. Upon a like indebtedness, and a promise by the administrator.
    3. Upon an indebtedness of the administrator, as such, and a promise by him, as administrator.

    On a general demurrer to this declaration, the court below gave judgment for the plaintiff. To reverse which, this writ is brought.
    V. R. Humphrey, for the plaintiff in error,
    contended there was a misjoinder in the case ; the first two counts seeking to charge the plaintiffs in error, in their representative character, and the third, in their private capacity. He made three points:

      1. A “plaintiff shall not have an action against another to charge him as executor, and also in his own right; for the judgment in one case is de bonis test at or is, and in the other de bonis propriis.”

    As to this point he cited 2 Saund. 317, n. d; 1 Chit. Pl. 205; 4 Term, 347; 2 B. & P. 424; 12 Johns. 349; 7 Cowen, 58; 17 Mass. 464.
    2. That the misjoinder is not helped by the allegation, in the third count, that the defendants become indebted as administrators, and promised as administrators, because an indebtedness accruing after the intestate’s death, must be upon their individual contract, upon which they can only be liable in their private capacity.
    3. The party may avail himself of this misjoinder upon a writ of error.
    G. Powers, Jr., contra,
    cited Judge Burnet’s opinion, in 2 Ohio, 163.
   Judge Wright

delivered the opinion of the court:

The question of misjoinder is the only material one raised upon. 93] this %ecord; and we think if, in any case under our laws, an administrator can be held liable in indebitatus assumpsit, in his representative character, upon a promise by him, as such, where the consideration arises after the death of his intestate, then there is no misjoinder in this declaration. It is not our purpose to go into a full examination of the authorities referred to, or to attempt a reconciliation of conflicting ones.

The Supreme Court of Pennsylvania, in 13 Serg. & R. 441, adjudged it no incongruity to join a count upon an assumpsit of the intestate, in his lifetime, with one on an undertaking of the administrator, after his death, when the same judgments can be given in both. Chief Justice Tilghman in that case says: “ The rule of law is, that the judgment is the criterion as to joining of counts. There can be no different judgments in one action, but counts which require the same judgment may be joined.” If this is the true test, and we think it is, the provision of our statute, that in all cases against an administrator the judgment shall be of the assets of the intestate, would seem to favor this joinder. The same court, in 12 Serg. & R. 99, sustained an action on an implied promise by an administrator, as such, for money paid, laid out, and expended, for his use as administrator, in consequence of a payment by the plaintiff after the death of the intestate. The court say: “An implied promise arises out of, and follows the nature of the consideration, which in this case was the actual payment of money to the administrator, as such, and there is, therefore, no great technical absurdity in implying a promise by him in the character in relation to which the money was paid to his use.”

It has long been the practice for an administrator to join, in the same suit, a promise to his intestate and a promise to himself, and also to join a count, upon an indebtedness and promise to the intestate, with one upon an indebtedness to the intestate, and a promise to the administrator. Remembering that the promise is the gist of the action, it is difficult to distinguish the legal consequences of such a case from the one at bar. If the recovery must, in all cases, follow the undertaking, it would, in the latter case, be in favor of or against the administrator, in his individual and not in his representative character. It is said, however, this is allowed to avoid the statute of limitations ! Then it would seem to follow that you may lawfully violate a principle of the common law in order to defeat the operation of a statute of repose, while you are restrained from ^varying a rule of mere practice, when by so [94 doing you reach the ends of justice! The principle in the two cases, in our opinion, is the same, and ought to be applied accordingly. We concur with Chief Justice G-ibson, in Pennsylvania, 12 Serg. & R. 100, that “ the same convenience which requires such a form of declaration to be supported, where it is employed to elude the statute of limitations,, equally requires it to be supported in cases like the present. At all events it is entirely within the power of this court to establish a precedent for itself.”

An administrator may sue, in his representative character, in all cases where the money, when recovered, would be assets. 1 Term, 487; 3 East, 104; 3 Term, 659; 1 Saund. Pl. & Ev. 606; 6 East, 405; 6 Taunt. 453; Salk. 207. So in Beall v. Palmer, 2 Levinz, 165, it is held that “as to contracts entered into with themselves, they may sue in all cases where the money, when recovered, would be assets.” Will not the rule hold equally good that the administrator may be sued, as such, in all cases where the assets of his intestate are directly or indirectly sought to be charged ? At any rate, it seems to us the administrator has no* ground to object against a recovery of him, in his representative character, that the judgment should have been against him in his individual character.

Suppose (and it is urged that the case supposed is the real case before the court), that the intestate contracts to sell land, to re ceive his pay by installments, and to make a deed when the payments are completed. Some of the installments fall due in the life of the intestate, and are paid to him, others, falling due after his death, are paid to his administrator, and it is subsequently discovered that the intestate’s title is defective. The purchaser has a legal right to abandon the contract, and recover back the purchase money and interest. Was not the money paid to the administrator received by hi m, in his representative capacity, for the use of the purchaser, and can he be made liable in law to refund in any other capacity than the one in which he received it? If the estate is insolvent, and the administrator has disbursed these assets in the due course of administration, can he be made liable as an individual, when in that capacity he has done nothing ? A rule of law that would so subject an administrator, without fault, would be palpably unjust, yet he would be so liable if the transaction be held his personal contract. In the case supposed, the money was 95] received by the individual as administrator; as an individual he had not a shadow of claim to it; he paid it away again under the direction and sanction of the law, with the superadded obligation of his oath of office. Upon no principle of equity or justice can he be holden, as an individual, to answer for it.

But it is urged that the declaration, in this class of cases, should be special, and contain a full statement of the facts relied upon for a recovery. Why should this case be an exception from the general rule ? Doubtless, a plaintiff in assumpsit may set forth his whole case in the declaration with particularity, taking care to show a valid promise as the basis of his claim. Yet the liberal principles which govern the action dispense with that particularity in cases where, upon a general state of fact, the law raises an undertaking, leaving the particulars to be disclosed by proof, on the trial. It is sufficient to set forth such facts, as, when proved or admitted, will warrant the court in drawing the legal inference in favor of the plaintiff. It will be obvious to the skillful pleader, that the common count in assumpsit, with the facts necessary for its support proven at the trial, secure to the plaintiff as perfect a right to judgment, as if the same had been first particularly set. forth in the declaration, and then proved at the trial. And this-general mode of declaring can not take the adverse party by surprise, or be productive of injury; for he has a right to demand and receive, before he can be compelled to disclose his defense, a full-bill of the particulars which are relied upon against him. On the other hand, to compel the plaintiff to declare specially upon his contract, might involve him in difficulty, and lead to great injustice. In the case supposed, if the plaintiff counted upon the special contract, he would be under the necessity of fully'completing the-' contract on his part, in order that he might aver performance in the declaration, and prove it on trial, as essential to his recovery; and if the defective title of the vendor was discovered before all the purchase money was paid, he would be required to pay the-balance of the purchase before he could resort to his action to recover it back. And if, in such case, the estate should prove insolvent, he would thus be compelled, unjustly, to contribute to a-fund for the general creditors, having a right to recover back only a fro rata dividend. Why should the law work such injustice^ and that, too, in an action where it is said you may recover according to the very right and justice of your case? Again, if, in ordinary cases, a purchaser *may rescind his contract when the [96-title fails, and resort to the common count in assumpsit, to recover back the purchase money paid, what good reason can be urged for a change of rule, increasing the difficulty of recovery after one-of the parties is dead, and his interest intrusted to a representative,, necessarily less familiar with it ?

It appears to us that justice will be promoted by sustaining this-practice — that its sanction violates no legal principle, and can work no injury. We accordingly hold that a demand, the consideration of which springs from, or is connected with the estate of an intestate, though arising after his death, may be joined in the same-suit with a demand, the consideration and promise of which was. complete in the lifetime of the intestate. The judgment of the court of common pleas is affirmed, with costs.


text:
    Executor of O. Bigelow v. Administrators of E. Bigelow.
    Declaration avers indebtedness in .1818. Plea of the statute of limitations. Replication, demand in 1827. Demurrer to replication. Held, that cause must be decided on the pleadings, and that the statute operates.
    Pact that plaintiff, as executor, was trustee, can not, at law, take the case out of the statute.
    ■Causes of action accruing under laws repealed, if barred by those laws while in force, continue barred by them; if not barred during their continuance, shall nevertheless be limited by them..
    This was an action of assumpsit, adjourned for decision here from the county of Licking. The writ bore test, March 28, 1831, and the declaration contained two counts. The first for money had and received, as follows: That on November 25, 1818, the said Elihu Bigelow, as the administrator of the said O. Bigelow, was indebted to said plaintiff in the sum oí one thousand dollars, for so much money by the said Elihu Bigelow, as administrator as aforesaid, before that time had, received to and for the use of said plaintiff, as executor as aforesaid ; and being so indebted, he, the .said Elihu, as administrator as aforesaid, afterward, to wit: on the day and year last aforesaid, promised to pay said plaintiff, etc.
    Second count, for money lent; similar to the above.
    *Breach. That the said Elihu in his lifetime, and the said defendants since his death, have refused to pay to plaintiff, etc.
    Pleas: 1. General issue.
    2. Statute of limitations, as follows: And for further plea in this .behalf, the said defendants, by leave, etc., say, that the plaintiff, as ■executor as aforesaid, ought not to have or maintain, etc., because, they say, that the said Elihu, deceased, did not at any time, within .six years next before the commencement of this suit, undertake And promise in manner and form, etc.
    The replication to third plea is as follows: That the said plaintiff, as to the said plea thirdly, etc., saith, precludi non; because, he saith, that within six years next after the said several causes of action in the said declaration mentioned, accrued to him, the said plaintiff, to wit: on May 28, 1827, he, the said plaintiff, demanded the said several sums of money, in the said declaration .mentioned, of and from the said defendants, then being administrators as aforesaid; and then and there requested them to pay the same unto him, the said plaintiff; but the said' defendants did' not nor would then pay the same, or any part thereof, to the said plaintiff, but then and there neglected and refused so to do;' whereupon, the said plaintiff, afterward, and within six years next after the demand aforesaid, to wit: on March 28,1831, at the county of Licking aforesaid, sued out his writ of summons aforesaid, to recover the moneys above demanded, last aforesaid; and* this he, the said plaintiff, is ready to verify; wherefore, etc.
    General demurrer to this replication!
    Goddard and Dille, for plaintiff.
    H. Stanbert, for defendants.
   Judge Lane

delivered the opinion of the court:

We have not deemed it necessary to notice minutely the form-of the pleadings in this case, but have directed our attention to the facts appearing on the record. The plaintiff’s caséis contained in his declaration and replication. He avers that the indebtedness accrued in 1818, and alleges the demand to have been made in 1827.' The plaintiff was not bound to rely and repose upon the dates set forth in his pleadings. He might, by *a different [98 course of.pleading, have set forth facts to show that there was no interval of six years without some act intervening to interrupt the operation of the statute. In the absence of any such allegation, the court must take the case as the existing pleadings present it, and inquire, if upon the facts stated, the statute of limitations cut off his right to recover.

The statute of limitations of 1810 was in force at the time this' action accrued. In express terms, it binds the right of the plaintiff, unless the suit was commenced within six years. ■ We must-find something in the case which prevents the statute operating,, or the defense prevails.

It is claimed that this is a trust against which the statute of limitations does not run. We understand this to be the doctrine in a court of equity; but no effect can be given to it in a court of law, where the statute binds by its direct application. In a court of equity, the statute has no binding force by its own effective force, but is only adopted and applied by analogy to cases within-what is considered its reason. Chancery has held it not to apply to direct trusts, as beyond the analogy and reason of the statute. Bat no operative effect can be given to this principle in a court of law, because it can take no cognizance of the trust. If relief were asked in equity we might then apply the principle; but at law the statute is inoperative.

It may, however, be insisted that the statute of 1810 is repealed, .and that its operation on causes already barred, is not saved by the reservations of the saving clause of the subsequent and existing statute, and, consequently, that the statute of 1831, not that •of 1810, must govern the case. The proviso in the repealing clause of the statute of 1831 is somewhat obscurely worded. We believe its interpretation to be, that all causes of action accruing under former acts, not barred at that time, shall be limited by those acts; and all causes of action that have been barred by those acts shall continue barred. If, then, this cause of action accrued in 1818, it was barred in 1824, and was not revived by a demand in 1827.

Judgment for the plaintiff on the demurrer.


text:
    *George Rumbarger v. Frederick Stiver.

      Scire facias against an executor to charge him personally, recites receipt by him of three thousand dollars, for which he had not accounted. Plea that defendant had fully administered, that he had no assets in his hand when sci. fa. was sued, and that he did not receive three thousand dollars as alleged in sci. fa. The plea adjudged bad on special demurrer, both as insufficient and for duplicity.
    This cause was reserved for decision here in the county of Montgomery.
    The scire facias issued in this case recites, that the plaintiff recovered a judgment in the Supreme Court for the county of Montgomery, at the June term, 1826, against the defendant, as surviving executor of Caspar Stiver, sen., deceased, for seven hundred and twenty-two dollars damages, and one hundred and two dollars and .seventy-wo cents costs of suit; that an execution was issued, which was returned “ no goods nor chattels, lands or tenements found, whereon to levy.”
    The scire facias next recites, that three thousand dollars came to the hands of the defendant, as executor of the said Caspar, deceased, which was more than sufficient to pay the plaintiffs judgment; that more than five years had elapsed, and the defendant had not settled the estate, but had wasted the assets, which came to his hands, as executor; and that the plaintiff’s judgment is unpaid and unsatisfied.
    The scire facias then prays for execution, de bonis propriis, of the defendant. The court of common pleas render a judgment by default, for execution, against the defendant, de bonis propriis; from which judgment the defendant appealed.
    The defendant, by consent, since the appeal, has filed a special plea, and, as a defense to the scire facias insists in his plea: 1. That he has fully administered. 2. That he had not any assets in his hands when the scire facias was sued out. 3. That the three thousand dollars mentioned in said sci. fa. never came to his hands, as executor, and that he had not wasted the estate of the testator.
    To this special plea, the plaintiff demurred specially, and the defendant joined in demurrer. The plaintiff assigned several causes of demurrer, two of which only were considered by the court: 1. That the defendant had not denied but what he received assets to a less amount than three thousand dollars, and sufficient to pay the said judgment. 2. That the plea was bad for duplicity.

    H. Stoddard, for plaintiff.
    * Crane and Sohenok, for defendant.
   Judge Wood

delivered the opinion of the court:

To make a good plea, it must be: 1. Direct and positive, and not argumentative. 2. It must be single, and contain but one matter, because duplicity begets contusion. 3. It must have convenient certainty of time, place, and persons. 4. It must be so pleaded as to be capable of trial. 5. It must answer the plaintiff’s allegations in every material point. 3 Bl. Com. 308.

Try this plea by these rules. The defendant denies that three thousand dollars came to his hands, as assets, but does uot deny that a less sum, and sufficient to pay the plaintiff's judgment, came to his hands. The plea, then, has not that certainty which the law requires. It does not answer the plaintiff’s allegations in every material point. It is not a sufficient answer for the defendant to say, I did not receive three thousand dollars, but he must aver that no part of that sum came to his hands; for he is as much liable under this sci. fa. for any amount which came to his hands, as for the gross sum stated.

It is a rule of the common law, that the plea should not be double. It is a rule, says Chitty, founded on principle. It would be vexatious and unnecessary to put the opposite party to litigate and prove two points, where one would be sufficient to establish the matter in issue; and although the statute permits several pleas, there is no authority for putting several distinct matters in the same plea.

This plea avers: 1. That the defendant has fully administered; 2. That he did not receive the three thousand dollars; and, 3. That he has not wasted the estate. As set forth and embodied in this plea, they are distinct substantive allegations, and the plea is, consequently, bad for duplicity. The demurrer is sustained.


text:
    *Smith et al. v. Heuston et al., Commissioners of Butler County.
    Individual holders of lots around a square conveyed to the county, for the use • of public buildings and a court-house, have not such individual interest in the ground as will authorize chancery, on their application, to enjoin county commissioners from leasing portions of the ground to individuals, reserving rent to the county.
    Such persons have no right to proceed in chancery to enforce the public right to such ground.
    In chancery, from Butler. The county of Butler was erected in 1803, and commissioners were appointed to fix the seat of justice -therein. Before the place of the seat of justice was agreed upon, the proprietor of the town pf Hamilton proposed to the commissioners, in writing, in case that town should be selected as the site, “to give, for the use of the county, a square for public buildings, agreeably to a plan of the town, etc.; also a square for the church and burying ground, consisting of eight town-lots, together with the commons in front of the town, for public uses, such as boatyards,” etc., and to “pay two hundred dollars toward erecting of public buildings or court-house.” The county seat was established at Hamilton and the two hundred dollars paid by the proprietor; but before the square for the public buildings was conveyed he died. A conveyance was afterward ordered by the court of common pleas, in execution of the contract; in pursuance of which the representatives of the proprietor made a deed to the commissioners of the county, conveying said square to them, for the use of public buildings for the inhabitants of the county of Butler.

    The bill, after setting forth the foregoing facts, alleges, that the-county commissioners have expended large sums of money in erecting a court-house, and other public buildings, in consequence-of which the lots near and around the square increased in value, when the complainants, relying on the good faith of the county commissioners, became interested in some of them. That the county commissioners, in order to injure the complainants, and to deprive the inhabitants of the benefit of the donation, have resolved to lease the corners of the square for a term of years, for private purposes, and advertised to receive proposals for such leases; that the leases, if made, will forfeit the whole square to the heirs of the grantor, and violate the public faith and individual right. The bill prays an injunction to stay the proposed leases.
    The defendants demur to the bill.
    *J. Woods, for the defendants, made the following points:
    1. That the defendants are sued as individuals, not as a corporation.
    2. That there are different injuries complained of in the bill,, which can not be joined.
    3. The injuries complained of are several to each of the defendants, for which each has his remedy at law.

      4. That no forfeiture will follow the leasing proposed.
    5. That inasmuch as the county commissioners have expended large sums in ornamenting and improving the grounds for the advantage of the complainants, the same power they had to do that authorized them to use the ground for tho benefit of the public, and to give leases, with a view to the public advantage arising from the rents.
    He cited 5 Ohio, 204, as conclusively showing the power to lease.
    A. H. Dunlevy, contra,
    cited 1 Cooper’s Eq. 40; 2 Mad. Ch. 144; Redes. Tr. 145; 3 Munf. 358; 29 Ohio L. 351.
   Wright, J.,

delivered the opinion of the court:

Unless the complainants have a right, as individuals, to interfere to protect county property conveyed to it for the use of public buildings, and restrain the county commissioners, the agents of 'the county, from using such property as in their judgment may best promote the object of the grant and the public interest, the bill must be dismissed. The right to interfere is sought to be sustained from analogy to the class of cases where one of many commoners or parishioners seek to restrain from infringing the common right, or to establish a general modus. The analogy, in our opinion, does not hold. In those cases the right to proceed depends on the fact that each commoner or parishioner is injured in ■his individual rights. In another class of cases, where a great number are separately interested in the same subject, one or more, for convenience, and to prevent delay, may litigate the right in ■chancery, for himself and all others interested; and the court, having the subject and the parties operating before it, will so control as to protect the rights of all concerned. The case before us .does not, in our opinion, belong to either of these classes.

The present is an attempt, by two or three individuals, to enforce the rights of the county, and guard the county property 103] *from forfeiture. This court, in Putnam v. Valentine, 5 Ohio, 189, has determined, that “ rights purely public are to be enforced in the name of the state or the officer intrusted with the conduct of public suits.” If the rights of the county of Butler .are violated or threatened, redress must be sought in the name of the county or its acknowledged agents. 5 Ves. 29 ; Swans. 244; 5 Ohio, 189. The case relied upon by the complainants’ counsel, in 3 Munf. 358, was brought by Murckie, a surviving trustee of Manchester, to prevent an injury to the common right of the inhabitants of the town. There is no pretense in the bill that the complainants have any individual interest in this square, as ten•ants in common or otherwise, which they ask us to protect. They -are mere volunteers to take charge of public or county interest, without ever having been intrusted by the county with the performance of such duty. They ask to be permitted to act for the public without offering any reason for taking the business from the public agents. If the court was right, in 5 Ohio, 189, in deciding that a supervisor of highways had no authority to proceed in ■chancery to restrain from the destruction of a public highway, the right of the complainants is much less apparent. The bill must be dismissed. The leave asked to amend, would not avail the complainants if granted.

The court designedly leaves untouched the right of the, commissioners to lease the ground, as proposed.