author: Wright, J.

text:
    The American Express Company v. Smith.
    1. Admitting that an express company is responsible for the fault or negligence of a railroad, over which it carries, the fact that a bridge of the railroad was carried away by a freshet of unusual violence, is not such default or negligence in the railroad company as will make the express company responsible for the loss of perishable property occasioned by a delay thus made inevitable.
    2. A common carrier is not responsible for a loss of perishable property when that loss arises from the nature of the property itself.
    3. A common cai-rier is not an insurer as to time, but is bound to transfer freight to its destination within a reasonable time. If delay is occasioned by an inevitable accident the loss ensuing is not chargeable to the carrier.
    4. A carrier is transporting property of a perishable nature, and a delay is occasioned by unavoidable accident; he makes all reasonable efforts to forward the property, but fails to do so in $me to have it reach its destination before becoming totally lost. Under such circumstances he is justified in selling it for the best price which can be obtained, exercising; a sound discretion.
    5. In case of accidental delay, a carrier is bound to exercise his best judgment, and to use due diligence in forwarding perishable property, so as to save it from total loss. If the nature and condition of the property is such that this can not be done, he may sell the same, if he can thereby convert what would inevitably be a total- loss into one that is partial merely.
    6. A carrier, who undertakes to carry goods over his own route, is not responsible for unavoidable delays, such as might be occasioned by the-destruction of a railroad bridge by a flood, and if such delays occur-while the goods are in transit, it is thereupon the duty of the carrier to exercise sound discretion and reasonable diligence in forwarding the-goods to their destination. He is not bound to divert the goods from his own to another route over which he has no control, unless in the exercise of such discretion and diligence it appears that the change of' route would have prevented the loss attendant upon delay.
    Error reserved, in the District Court of Clark county.
    This action was brought to recover the value of a lot of peaches shipped, by defendants in error, from Eort Ancient,. Ohio, to New York city. The first lot, of eight bushels, were shipped Friday, September 11,1868. Saturday morning, September 12th, twelve bushels or boxes were shipped, and forty-four in the evening of the same day. At nine o’clock, p. m., of that day, a bridge, over East Canada creek, twenty-eight miles east of Utica, on the New York Central Railroad (the express route), was washed away by reason of heavy rains. Travel was thus interrupted for several days. "When the peaches reached" the break it was-found impossible to get them around it, and, as they showed signs of decay, they were sold by the express company.
    In the court of common pleas judgment was recovered,, against the express company, for the sura of $400. The-cause, having been taken to the district court, was there-reserved for decision in the Supreme Court.

      Bowman, Pringle ^ Scott, for plaintiff in error:
    The plaintiff in erijor is not responsible for the delay occasioned by the washing away of the bridge.

      A common carrier is not an insurer as to time. Redfield on Carriers, § 305, p. 224; Peel v. Railway Co., 20 Wis. 595; Parsons v. Hardy, 14 Wend. 215; Transfer Co. v. Wallace, 68 Penn. 302; Pierie on Railways, 411; Wharton on Neg., § 567.
    The accident was without the fault of either the railroad or express company, and neither is liable. Redfield on Carriers, § 28, p. 22; Read v. Spalding, 30 N. Y. 630; Balentine v. Railroad Co., 40 Mo. 491; Railroad. Co. v. Reeves, 10 Wallace, 166; Lipford v. Railroad Co., 7 Rich.. (S. C.), 409; Wallace v. Clayton, 42 Ga. 443.

      Heifer § White, and John F. Oglevee, for defendant in-error :
    Common carriers are only exempt from liability for loss or injury from the act of God, limited to inevitable accident or the public enemy. The “ act of God ” must be the direct and immediate cause of the loss ; it is no excuse that the loss was caused by the' act of God concurring with other agencies. Redfield on Car., § 24, and note 2; Merrit v. Earle, 29 N. Y. 115; Michael v. N. Y. C. Ry. Co., 30 N. Y. 571: Read v. Spaulding, 30 N. Y. 630; Sullivan v. P. R. R., 30 Penn. St. 234; Condict v. G. T. Ry. Co., 54 N. Y. 500; McArthur v. Sears, 21 Wend. 190; 5 Bos. 395; Turner v. Black Warrior, 1 McCall. (Cal.) 181.
    When the negligence of the carrier exposes him to what he might otherwise have escaped, he is responsible for losses thus occurring through the combined agency of his own negligence and inevitable accident, or the public enemy. Redfield on Car., § 28; Michael v. N. Y. C. Ry. Co., 30 N. Y. (564), 573-5; Bostwick v. Baltimore Ohio Ry. Co., 45 N. Y. 717; Lamb v. Cam. & Amboy Ry. Co., 46 N. Y. 272; 3 Lansing, 365.
    By the act of God is meant something which operates without the aid or interference of man. The act of God or public enemy will only exempt a carrier from liability when-he is entirely free from fault. Merrit v. Earle, 29 N. Y.. 115, 118, 119 ; Read v. Spaulding, 30 N. Y. (630), 639, 642; McArthur v. Sears, 21 Wend. (190), 195-8; Michaels v. N. Y. G. Ry. Co., 30 N. Y. (564), 571-5; Curtis v. R. § S. Ry. Co., 18 N. Y. 534.
    A carrier is bound to deliver goods within a reasonable time. Kent v. Hudson Ry. Co., 22 Barb. 27; Redfield on Car., § 302, note 1; Wilbert v. N. Y. & Erie Ry. Co., 12 N. Y. 245; Condict v. Grand Trunk Ry. Co., 54 N. Y. 500.
    A carrier is responsible in damages for the detention of passengers or freight. Quinby v. Vanderbilt, 17 N. Y. 306; Williams v. Vanderbilt, 28 N. Y. 217; Van Buskirk v. Roberts, 31 N. Y. 661.
    A carrier who undertakes the transportation of fruit is liable for loss by natural decay, if the transit be prolonged beyond the usual time. Place v. Union Ex. Co., 2 Hilt. 19.
    A railroad company has been held liable for delay in forwarding grain accepted for shipment, although the road was under military control — the probabilities for delay on account of blockades on the side tracks and other hinderances, being known to the company at the time of accepting the grain. Ills. Cen. Ry. Co. v. McClellan, 54 Ills. 58; 5 Am. 83 ; Rls. Cen. Ry. Co. v. Cobb, 68 Ills. 128.
    A carrier is responsible for damages resulting from a delay to transport freight in the usual time, caused by its ser-' vants suddenly and wrongfully refusing to work. Redfield on Car., § 25, note; Blackstock v. N. Y. & Erie Ry. Co., 20 N. Y. 48.
    There seems to be no doubt but that an express company is responsible as a common carrier for the negligence, defaults, or willful conduct of the railroad company or other agency by which it undertakes to transport goods.
    It is held that an express company undertakes to carry goods for hire, and adopts its own agencies to enable it to do so — and it must be held to the same responsibility that would attach, if it were the owner of its own route or lines of transportation. Redfield on Carriers, § 54, and note 27; N. Y. Steam Nav. Co. v. Mer. Bank, 6 How. 344, 378; 16 Curtis, 722.

      It is the duty of carriers by express to know the condition of the route over which they ship. Place v. Union Ex. Co., 2 Hilt. 19 ; Redfield on Car., 54, 55, note 16, par. 6.
    It is quite clear that but for the failure of the railroad company to have a good and permanent bridge at the creek named, Smith’s peaches would have gone through in safety. The American Express Company having received the goods as common carriers, and not having delivered them safely, to the consignee, in due time, takes the burden on itself to show there was no negligence in the loss, and that the loss occurred from one of the excepted causes. Davidson v. Graham, 2 Ohio St. 181; Graham, v. Davis, 4 Ohio St. 862 ; Walsh v. P. Ft. W. & C. Ry. Co., 10 Ohio St. (65), 69 ; 2 Green. Ev., § 219; Clark v. Barnwell, 12 How. 272 ; Rich v. Lambert, 12 How. 347.
    The carrier must show clearly that the damages occurred entirely without its fault. 18 How. 233.
    The common carrier’s contract ivas to carry the goods to New York city; within a reasonable time; and not to carry them by any particular route. The defendant must show affirmatively that he could not deliver the goods by some other route. Harmony v. Bingham, 2 Neman, 99, 115 ; The Brig Collenberg, 1 Black. 170.
    When an unexpected emergency arises, the carrier is bound to take such precautionary measures as prudent and skillful men in the same business and under like circumstances might be expected to take. Davidson v. Graham, 2 Ohio St. 139; Nash. & Chat. R. R. Co. v. Davis, 6 Heisk. (Tenn.) 261; 19 Am. 594; Holliday v. Kennard, 12 Wall. 254; 42 Ga. 443.
    The true rule is that a non-performance of a contract to carry goods is not excused by the act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance impossible. Williams v. Vanderbilt, 28 N. Y. 217, *223; 2 Par. on Con. (3d ed.) 185 ; White v. Mann, 26 Maine, 361.
    Whether a company has discharged its duty, to use due care and diligence, is determined from the circumstances of the case. Holliday v. Kennard, 12 Wall. 254; Shoemaker v. Kingsbury, Id. 369.
    When a party makes a duty to charge upon himself, he is bound to'make it good, notwithstanding any accident or delay by inevitable necessity; because he might have provided, against it by contract. Harmony v. Bingham, 2 Kernan, 107, 115 ; Beebe v. Johnston, 19 Wend. 500 ; Hadley v. Clarke, 8 T. R. 259; The Brecknock Co. v. Pritchard, 6 T. R. 571; 48 N. H. 455 ; Swan’s Treatise (10th ed.) 523.
    It is the duty of the carrier to make all reasonable exertion to save incipient damage to goods — although he may not be in fault. Redfield on Car., § 237; Chanteaux v. Luce, 18 (Penn. St. 224; Ang. on Car., §§ 160, 210.
    Under a contract for carriage of goods at sea, when vessels become disabled, by inevitable accident, it is the duty of the carrier to forward them by another ship, if practicable. His duty is not ended until the property is delivered at the port of destination, or returned to the owner, or stowed away for his use. The Maggie Hammond, 9 Wall. 435, 458; The Niagara v. Cordes, 21 How. 24, 26; The Brig Collenberg, 1 Black. 170; Abb. on Shipping, p. 3, ch. 3, § 8, c. p. 242.
    The carrier master must forward goods by another vessel, and he is entitled to charge the goods with the increased freight arising from the hire of the vessel so procured. The Maggie Hammond, 9 Wall. 459; Propeller Niagara v. Cordes, 21 How. 7, 25, 26 ; McArthur v. Sears, 21 Wend. 190 ; Elliott v. Rossell, 10 John. 1, 7.
    The obligation in case of accidental detention, is more imperative to forward goods than passengers. 2 Par. on Con. 223.
    A deviation from the usual route is only culpable when unnecessary. Powers v. Davenport, 7 Blackford, 497, 499; 21 How. 24.
    If the ordinary line of transportation fails, another conveyance should be provided. Van Buskirk v. Roberts, 31 N. Y. (661) 670; Williams v. Vanderbilt, 28 N. Y. (217) 223-4 ; The Maggie Hammond, 9 Wall. (435) 458; The Ni

      agara v. Cordes, 21 How. 24-26; Collier v. Swinney, 16 Mo. 484; Abb. on Shipping, p. 3, ch. 3, § 8, c. p. 242.
    Carriers are not justified in adopting a particular mode of forwarding the goods, and thereby delaying the delivery, merely because that is the usual mode adopted. Redfield on Carriers, § 302, n. 1; Hales v. London and Northwestern Ry Co., 8 L. T. (N. S.) 421; Collier v. Swinney, 16 Mo. 484.
    The loss or damage to perishable articles in consequence of the weather, will not excuse the carrier, if it could have been prevented by due care and diligence. The carrier must show not only that it did all that was usual, but all that was neeessary to be done under the circumstances. Red. on Car. 22 n.; Wing v. N. Y. & Erie Ry. Co., 1 Hilt. 235 ; Philleo v. Sandford, 27 Texas, 227.
   Wright, J.

The first lot of peaches, shipped on the 11th of September, Friday, reached Buffalo so as to leave that point Saturday night, the 12th, arriving at Htica three o’clock Sunday morning. Here the car was stopped by the railroad company, as no means could be found to get around the break, which was twenty-eight miles further on. Dpon the evidence we do not think the express company can be charged with a want of diligence in failing to get their freight past the obstruction. They seem to have used every exertion in their power to discharge their duty in this behalf. In order to get the goods over the break, it was necessary to wagon them about a mile and a quarter. As soon as the agents of the express company heard of the accident they repaired to the spot, and endeavored to forward their merchandise. They attempted to hire wagons, but the railroad company had anticipated them, and engaged all the teams and vehicles that could be found in the country, for the purpose of transporting passengers and their baggage. It was, therefore, not until Tuesday, the 15th, that any facilities of the kind could be had, and then the company began the movement of express stuff, but this was too late, as far as the peaches were concerned. Nor was the express company in fault in the matter of the falling of the bridge, as is claimed. And for the purposes of this case it may' be conceded that the express company is responsible for the default or negligence of the railroad company, if any there be.

The railroad company were about removing an old bridge at East Canada creek, for the purpose of building a new one of iron. As a temporary matter, a number of bents were put under the old bridge, to strengthen it. There then came a heavy rain; the testimony shows it to have been of unusual violeuce. The water rose rapidly, broke away dams, and carrying down logs and drift against the bridge, swept it off.

The evidence leaves it beyond a doubt that the storm and the freshet were altogether beyond any thing of an ordinary character, and responsibility for this can not be charged upon the railroad company. Nor can we find any fault in the railroad company in not repairing the damage sooner than was done, as would have been the case under ordinary circumstances. It is shown to be well provided against disasters of this kind. ■ Duplicate bridges are kept on hand all the time, and as a general thing a bridge can be replaced in from six to twelve hoars. TJpon this occasion, however, it was long before the water in the stream resumed its natural level, and this delayed the operations of the bridge builder’s.

But it is said that the express company, as soon as they heard of the break, should have diverted the peaches by some other route, so as to have gotten them to New York more speedily. It seems there was a route from Buffalo to New York, over the New York and Erie Railroad, upon which the United States Express Company ran ; and it is also said that the peaches might have been brought from Utica back to Syracuse, and then delivered to the United States Express Company and shipped to New York by way of Binghampton; and again, that the peaches might have been delivered at Columbus, Ohio, and so have gone to New York by the Pennsylvania Central.

As to this last suggestion, the last lot of peaches left Fort Ancient at 6:20 Saturday night, and probably reached Columbus not far from the time the bridge was swept away, and there is nothing to show that the disaster was known at Columbus before the peaches reached there, so as to make the diversion a profitable thing.

As to bringing them back to Syracuse, this would have required a cartage at that point of about three-quarters of a mile, forty-eight hours to reach New York, and cartage again at Jersey City and ferriage across the river, all of which would almost certainly have involved a total destruction of the fruit, from the condition they were in, as will be hereafter seen.

As to diverting them at Buffalo. The first lot of eight bushels passed that point, leaving there at 6 p. m., three hours before the break. There can, therefore, be no possible reason for saying they should have been diverted there, as suggested. The other two lots left Buffalo during Monday. The United States Express Company, which ran from that point to New York, was a rival route, and there is no certainty it would have taken the property, which was perishable in its nature and already perishing in its condition. A re-shipment would have involved delay, and such delay, as seems to us, would have been destructive.

Under ordinary circumstances this bridge might, and probably would, have been repaired in six hours, and travel resumed; it was fair for the express company to assume that this would be done, as doubtless would have been, had the water gone down at any usual rate, and they can not be said to have béen in fault in not anticipating what perhaps nobody thought was a probable or possible event.

There is an ex post facto wisdom, which, after every thing has been done, without success, can suggest that something else should have been attempted, but this is a sagacity much more astute than ordinary human foresight, and can hardly furnish a fair rule by which to determine the propriety of what has been done in good faith, and with judgment exercised under the best lights affoided.

Had the plan suggested been in fact pursued, and the peaches transhipped either by way of Syracuse or Buffalo, the delay which would have ensued, together with the rough jolting attendant upon the necessary cartage, would, as it seems to us, have ensured their entire destruction. Thereupon the shippers might, with much force of argument, have said, we shipped by your route, and you had no right to make a deviation ; by so doing you subjected our property to unusual delays and risks not contemplated, and loss having ensued, you are responsible. You should have gotten it around the break with all speed, or if that were impossible, you should have sold it to the best advantage, instead of taking a course which must have necessarily led to its entire loss.

But in our view of the facts, this loss was occasioned by the condition of the property at least as much as from any other cause. These peaches were picked and shipped on Friday and Saturday, the 11th and 12th of September. The overwhelming testimony is that the weather of that week was most destructive upon this kind of fruit. It was damp, rainy, warm, and murky up to Thursday night, Friday being bright, warm, and sunny. The effect of this temperature is described by the man who shipped the peaches as having a peculiar effect upon them. They rotted rapidly. An apparently sound peach would rot in twenty-four hours. A speck on a peach would, in a few hours, develop into rot. He says the week ending September 12th was the most disastrous he ever saw. There is no controversy at all about the condition of the weather, and of its being exactly that kind that would destroy peaches in a very short time.

The first lot, shipped Friday, was to have reached New York for Monday’s market, and could not have reached there earlier. They were stopped at the break, and the express agent at once concluded they ought to be sold. They were sold. This was on Sunday, before, it will be observed, they could by any possibility have reached New York, had they gone straight on without any break. "What was their condition then ? If spoiled and worthless, or nearly so, in Utica, could they have been any better in New York ten or twenty hours later in point of time? The express agent went to a fruit dealer in Utica to get him to buy the articles. The dealer went to see the peaches Sunday, and told the agent he would take them, if they were unloaded that night so as to get air, otherwise he would not take them on any condition. This dealer, who is a witness, describes Friday and Saturday as having been hot, sultry, rainy days — the worst kind of weather for fruit. He was on the car in which the peaches were, and says it was so close and sultry that it was very unpleasant to remain in it; that the condition of the weather was such that had they gone straight through, they would have been worthless upon reaching New York. He examined them Monday, after they had been unloaded and given air, and none of them were sound. There is much testimony of this kind, all tending to show the unfavorable condition of the weather, that the car had been close and hot, that it was wet with moisture and vapor arising from the fruit, which had become heated and in such condition as to be past saving before it could have reached New York in the ordinary time. It therefore seems to us that the best thing to do under the circumstances was that which was done — namely, to sell the stuff at once. The express company did get one lot to Albany, but were compelled to sell them there.

These remarks as to the condition of the fruit apply to all the various lots. When they reached Utica, the testimony is without contradiction that they were in such plight that they could not have been got to New York in any way, or by any route, so as that they would at all have been marketable.

"We have not gone into the evidence in extenso, but these conclusions are abundantly supported by it. We therefore feel bound to say that the loss of the peacnes was occasioued, not by any fault or negligence of the express company, but by the perishable nature of the article, in connection with the condition of the weather; and the delay which occurred at the break was something for which the express company was not responsible.

The jury, however, proceeded to render a verdict, an analysis of which shows that it was predicated upon the idea of the peaches reaching New York in a perfectly sound condition, as it is based upon the highest market price; it being at the same time perfectly apparent that had there been no break, the peaches could not have reached New York in a sound condition.

Among other things the court charged the jury:

“ Rut if the defendant was prevented from sending them by that route in consequence of the washing away of a bridge, which did not happen through the negligence of the railroad company or the defendant, then it was the duty of the defendant, after first ascertaining that it could not send forward the peaches by that route, so as to get them to New York city in time to preserve them, to use ordinary care and diligence to employ some other safe and reliable route or agency, or express company, if such was then known and available to the defendant, by which the peaches could be carried through to New York city in time to save them.”

This was misleading, in that it drops out of view’ the actual condition of the peaches at the time when they ought to have been sent forward upon this supposititious other route. Clearly, if they were rotten and entirely worthless upon reaching the point where this transhipment could have been made, there would have been no sense in sending them on. The jury should have been told to take into view the circumstances as they actually were — the condition of the weather and of the fruit — and under proper instructions should have determined whether the company were bound to seek some other route for transportation.

In the view, however, that we take of the evidence, plaintiffs made no case for recovery, and the judgment should be reversed.

Judgment reversed,.


source: Caselaw Access Project

author: Scott, J.

license: Public Domain

text:
    Collier et al. v. Bickley.
    In an action for the recovery of specific personal property, where the order of delivery is issued and served with the summons, by taking and delivering the property to the plaintiff, the plaintiff’s right to proceed to final trial and judgment can not be defeated by an assignment of the property by defendant, for the benefit of his creditors, after the commencement of the action, and before the service of the order of delivery.
    Error to the Superior Court of Cincinnati.

      Matthews, Ramsey $ Matthews, for plaintiffs in error:
    We claim:
    1. That the action was properly brought, and was fully pending before the transfer was made, and that nothing could be done thereafter by the defendant to defeat it.
    2. That the Us fendens was complete as to defendant and all his privies, except innocent purchasers, and that Young, being an assignee merely, was not an innocent purchaser, and would have been bound by a judgment in favor of the plaintiffs in the action.
    3. That even if the goods had been transferred before seizure, to an innocent purchaser, who could have held them, still the action of the plaintiff against the defendant, being rightly brought, should have proceeded to judgment upon the merits, for the following purposes :
    1. Eor judgment against defendant for value of the goods, if not taken by plaintiffs from the third person.
    2. Eor judgment for damages for detention up to the commencement of the action.
    3. Eor judgment for costs.
    The rights of parties to an action are to be determined by the law applicable to the state of facts existing at the date of the commencement of the action. They may be changed subsequently, but it must be by the act of the parties.
    We are now speaking of the rights of the parties only.
    An action, then, is commenced in Ohio by the filing of the petition and the issue of summons, so far as parties and privies are concerned. Code, §§ 20, 55; Spinning v. Trust Co., 2 Disney, 336.
    Section 78 of the code provides what shall constitute a lis pendens as to third persons, innocent purchasers. Such are protected until service. An assignee, under the insolvent law, is not a purchaser. He steps into the shoes of his assignor. We insist, therefore, that Young, the assignee, being in privity with Bickley, stood in no better position, and that the sheriff’ was justified in taking the property, and that Young would have been bound by a judgment for plaintiffs. For this reason the plaintiff's should have had a verdict and judgment.
    Suppose that the position above taken be incorrect, and that the assignee is to be regarded as an innocent purchaser, as to whom there was no lis pendens until service, we still claim that the plaintiffs were entitled to try the question of title with the defendant. The plaintiff' in replevin is not bound to take the property at the inception of the action, or at any other stage of it. He may elect to proceed for damages, recovering the value of the property; or he may omit or fail to give bond, and the sheriff will be obliged to redeliver the property to the defendant. In either case the action proceeds as one for damages, without change of pleadings. Vogel v. Badcock, 1 Abbott, 176; Pugh v. Calloway, 10 Ohio St. 488.
    The seizure of the property is not only at the plaintiff’s option, but it is auxiliary. It is like the writ of attachment in an action for recovery of money. If the plaintiff elects to take the property, and takes it, the case is within section 185 of the code. If he do not take it, the case is within section 186.
    We are clear that this was a case within the 185th section. The gist of the action is detention.

      The right of the sheriff to make inquiry, and- to take the property from a person other than the defendant, is clearly recognized in State v. Jennings, 14 Ohio St. 73.
    That the liability of the defendant in replevin is fixed by the fact of detention at the time of the commencement of the action, see Tracy v. R. R. Co., 9 Bos; Grace v. Mitchell, 31 Wis. 533; Craft v. Franks, 34 Iowa, 504; 7 Minn. 331; 12 Mich. 100; 98 Mass. 343.

      Thomas Powell, and Hoadly, Johnson § Colston, for defendant in error:
    If the writ does not, and we contend that it does not, take effect until it is served, then the plaintiffs’ case must fall ; for the gist of the action is detention, and if the property was not legally in defendant’s possession at the time the writ took effect, the judgment below was not erroneous, and must be affirmed by this court. See Ramsdell v. Buswell, 54 Me. 546.
    Moreover, if, without making him a party, an assignee could be deprived of any portion of the assets of his trust, the whole purpose and aim of the insolvency laws — namely, the receiving of an equitable pro rata distribution of an insolvent’s assets among his creditors — would be defeated; and a way would be opened by which preferences might be obtained even after the time at which it is provided they shall cease to be lawful.
    Plaintiffs say: “ An assignee, under the insolvent law is not a purchaser. He steps into the shoes of his assignor. We insist therefore,” etc.
    We admit that “ an assignee is not a purchaser,” but we refuse to grant that his functions are fully indicated by the phrase “ he steps into the shoes of his assignor.” We contend that he is, first and foremost, a trustee for his insolvent creditors, and, as such, is at least not bound by any less notice than such as would bind a purchaser in good faith. See the case of Hallett and others v. Fowler, 10 Allen (Mass.), 36.
    Plaintiffs cite State v. Jennings, 14 Ohio St. 73. We -fail to see what assistance they can draw from it in the case at bar. There is no evidence in the record of the case at bar that the assignment and transfer were not bona fide. In 98 Mass. 343 (also cited, 8), we can not find any thing supporting plaintiffs’ position, that the liability is fixed by the fact of detention at the time of the commencement of the action. It merely decides that where the defendant shows a better title than the plaintiff, in replevin, defendant is entitled to judgment as to the time when the writ attaches, so as to hold the property; we contend that, as in case of attachment, property is not held until the writ is served.
    Plaintiff s say : “Section 78 of the code provides what shall constitute a Us pendens as to third persons, innocent purchasers. Such are protected until service,” and cite sections 20 and 55 of the code, aud the case of Spinning v. Trust Co., 2 Disney, 336. These citations go to support the theory that a court obtains jurisdiction by the issuing of summons, etc. Suppose that we admit this. The court obtains jurisdiction of the cause, but, in replevin, the process is not a necessary part of the proceedings, hence, the court might obtain jurisdiction, if no process for a levy were ever issued, but would any one, in such case, contend that the property could not be transferred while the suit was pending, within the meaning of the above cited sections of the code. Further, in the syllabus to that case, the 78th section of the code is cited, and it is said •“ The 78th section of the code refers solely to questions of title in the specific property in controversy, viz: ‘When the summons has been served, or publication made, the action is pending so as to charge third persons with notice of its pendency, and while pending, no interest can be acquired by third persons in the subject-matter thereof.’”
    Now, we claim that an assignee in his capacity as trustee for his insolvent’s creditors, is as truly a “ third person,” in the sense of this section, as any one can be.
    If this be so, then, in the case at bar the courts below could not have ruled otherwise than they did, unless there should be some evidence that the transfer was not bona fide, and in the case at bar there is not a scintilla of evidence to that effect.
   Scott, J.

The action below was brought, in replevin, by plaintiffs in error, to recover the possession of specific personal property, from defendant in error. The necessary affidavit, to entitle the plaintiffs to an order of delivery, was duly made and filed with the clerk, together with a petition, in the usual form, on the 18th day of November, 1872; and at one o’clock, p. M., of that day, a summons, and order of delivery, was duly issued by the clerk, directed to the sheriff of Hamilton county. The petition was in the usual form, and contained all the necessary allegations.

Defendant in error answered, denying that plaintiffs were the owners of the property described in the petition; denying also, that he wrongfully detained said property; and averring that said property was rightfully in the possession of one Charles E. Young, his assignee, at the time said writ of replevin was executed, and said property taken under said writ of replevin.

Upon the trial of the cause to a jury, at special term, it was made to appear by the evidence, that the writ of replevin in the ease was issued at one o’clock, p. m., on Noveniber 18,1872, and that at four o’clock, p. m., of said day, defendant made an assignment of all his property, for the benefit of his creditors, to the said Charles E. Young, “ before the service of the summons or order of delivery; and that said Young, claiming the goods in question as Bickley’s property, took possession of them, and that they were taken from him by the sheriff, on the 19th of November, under said writ.” The plaintiffs offered evidence tend-ding to prove title in themselves, at the date of the writ, but the court charged the jury, that if they found the facts to be as above stated, they must find for the defendant. Under this instruction the jury found a special verdict, as follows: “We, the jury, find that, at the time of the service of the order of delivery herein, the goods and chattels described in the petition and order of delivery, were not in the possession of the defendant, and not unlawfully detained by him, but were in the possession of Charles E. Young.” On this verdict, judgment was entered for defendant; which on petition in error was affirmed by the court in general term. The assignment of error here, and in the general term, presents the question whether the court below erred in the instructions given to the jury ; and in the rendition of judgment for the defendant upon the verdict of the jury. The record shows that in executing the order of delivery, the sheriff took/the property described therein, and delivered the same to the plaintiff, upon the execution of an undertaking with satisfactory sureties, as required by statute; and the sole question in the case is, whether the right of the plaintiff, in replevin, to maintain his action, depends on the unlawful detention of the property, by the defendant, at the time of the issuance of the order of delivery, or at the date of its execution. In other words, can a defendant in replevin, after the issuance of the writ, and of the order of delivery, defeat the plaintiffs’ right of recovery, by a transfer of the possession of the property in controversy to another, before the execution of the order of delivery ? In answering this question in the affirmative, as the court below clearly did, we think it erred.

The rights of the parties to an action, ordinarily, depend on the law applicable to the state of facts existing at the commencement of the action. The proceedings in an action of replevin are regulated by statute; and we see no good reason why such an action should form an exception to the general rule just stated. The proceedings are regulated by sections 174 to 190 of the code; and in sections 183 and 184, the damages to be recovered in a certain event, by the defendant, are expressly made to depend on the extent of his rights at the'commencement of the action, which is to be ascertained by the verdict of the jury.

Section 183, provides for cases, where the property has been delivered to the plaintiff, and the defendant is entitled to judgment, upon demurrer, or on failure to prosecute. The jury in assessing damages, to defendant, shall inquire as to the right of property and possession, “at the commencement of the action.”

Section 184 embraces cases where the property has been delivered to plaintiff, or remains in the sheriff’s hands, and the issue joined is found for defendant, and fixes the same-time for determining defendant’s rights and assessing his-damages.

Section 185 provides for like cases, where the plaintiff! prevails, and for assessing his damages for detention. This' section, and the first clause of section 184, are the complements of each other, when the property has been delivered to the plaintiff under the order of delivery. Under section 184, the commencement of the suit is fixed, by statute, as the time for determining defendant’s rights. Section 185 is silent as to the time, but no reason is perceived why the same time should not determine also as to plaintiffs’ rights.

Neither of these sections provides for cases where the property has not been taken, or has been returned to the defendant. In such eases the action proceeds as one for damages only (section 186), and the common-law rule, that the rights of the parties would be determined as they existed at the commencement of the action, would govern.

This construction gives a uniform rule in all such actions, corresponding with the general rule in all other civil actions, that the rights of the plaintiff, as against a defendant, are to be. determined as they are at the time he commences his action, and are not contingent upon an uncertain event, such as the time the writ may be served.

By section 20, of the code, actions are deemed to be commenced at the date of the summons served, and by section 78, the action is pending as to third persons, when summons has been served or publication made. This action was, therefore, commenced November 18, 1872, at one o’clock, p. m., and the plaintiffs’ right to maintain it, depended on their right of property and right of possession at the date, and not upon their rights as they might be at some future day, when the order of delivery was served.

By section 174, the plaintiff, may, at the commencement of bis action, or at any time before answer, claim the immediate delivery of the property, so that the service of the writ of replevin, may be delayed many days. These delays may defeat his right to seize the property, but they can not defeat his right of action. The failure to seize the property, or the unlawful seizure of it in another’s possession, will not defeat the action. In either case, the action proceeds as one for damages. If this were not so, the plaintiff might be kept in a perpetual round of suits, without effect. If plaintiffs’ right of action depended on actual possession and detention by defendant at the moment of ‘Service of the writ, what is to prevent a defendant, after knowing that an action has been commenced, from shifting the property to another before seizure, aud so the game might be repeated as often as persons could be found to take part in the fraud. Burnley v. Lambert, 1 Wash. 403.

If we examine the decisions in the common-law action ■of detinue, which is quite analogous to our statute, in replevin, where the property is not taken, we shall find, that 'in that form of action, as well as in this, the wrongful detention of the property was the gist of the action. 3 Black Com. 151, 152; Co. Litt. 2856; Bouvier’s Law Dict., Detinue.

It was incumbent on the plaintiff to show an absolute or •special property in the goods, with the right to the immedi-ate possession, and also actual possession or controlling power over the goods, by defendant, at the date of the writ. Selwyn’s N. P. title, Detinue and Notes.

In Burnley v. Lambert, supra, it was said: “Proof of possession, prior to the suit, ought to charge the defendant, unless he has been legally evicted, which is incumbent on him ■to show.”

Lynch v. Thomas, 3 Leigh (Va.), 682, was an action in ■detinue. It was held that if the plaintiff proved he had title at the time the writ was brought, and that the defendant then had possession, the defendant, to defeat the action, must show that he had been divested by due course of law. To the same effect are Jones v. Dowle, 9 Mees & Welsby, 18, ¡and Garth v. Howard, 5 C. & P. 346.

Jones v. Dowle, was in detinue for a picture bought at .auction, with a plea of non detinet, by defendant, who was the auctioneer that had sold plaintiff the picture, but had delivered it to another. After demand, and after defendant ■had delivered the picture to the other person, plaintiff brought his action, against the auctioneer, and it was urged that the action could not be maintained against him, as the •picture was not within his possession or control, but Baron, Parke said: “Detinue does not lie against a person who never had possession of the chattel, but it does against him who once had it, but has improperly parted with the possession of it.”

So, in Garth v. Howard, it was held, that if A., without authority, pledges to C. the property of B., the latter may maintain a joint action against both, in detinue, though the actual possession is in C. alone. This principle, was applied in Nichols v. Michael, 23 N. Y. 264, where it was held that the fraudulent vendee of goods, and his assignee, were liable jointly, in an action, in replevin, under the New York •code, which is quite like ours, though the assignee only, was in actual possession. The court, per Selden, J., in an able opinion, applied the rules governing in actions of detinue, and held the fraudulent vendee, who had, before the action was commenced, assigned the goods to one Pinner, for the benefit of his creditors, was liable in replevin jointly with his assignee, though he then had no possession or control over the goods, and cited with approbation the language of Baron Parke, above quoted.

Again, what constitutes a wrongful detention, is often a mixed question of law and fact. The maxim qui faeit per alium faeit per se, sometimes applies. Thus, in Allen v. Crary, 10 Wend. 349, it was held that an execution creditor, under whose direction the sheriff seized property of another than the debtor, was liable to an action of replevin by the owner, although he never had actual possession or ■control of the property, which had remained in the sheriff’s custody. It was there said the sheriff was a trespasser, and, if the plaintiff in execution directed the levy, he also was a trespasser, and the officer was only his agent or servant.

That wrongful detention is essential to an action of replevin is clear, but that it must, in all cases, be an actual manual possession in fact, is not supported by either reason or authority; I apprehend the possession of an agent for his principal, of a partner for the firm, of one of several joint wrong-doers for his associates, as well as himself, and like cases, would constitute a wrongful detention by the principal, the partnership, or by all joint wrong-doers, as the case might be, and that, in such cases, the latter might be properly made defendants.

Ramsdell v. Buswell, 54 Maine, 546, holds that “ replevin is maintainable only against a person having possession or control of the chattels to be replevied.” We cite this because it is relied on as an authority in support of the court below, but it fails to do so. There, the proof tended to-show that, prior to the date of the writ, the defendant had sold the property, and that, at that time, it was in the possession of the purchaser.

The point is thus stated in the opinion : “ In the case-at bar, the court finds that the defendant neither owned the property, nor had it in possession at the date of the writ.” There was no claim that the prior sale of the property was-fraudulent or collusive, nor that the purchase was not, in all respects, bona fide; and the holding was that the action in replevin did not lie, because there was no unlawful detention at the date of the writ. Upon the facts of that ease,, it is in harmony with the conclusion we have reached.

Our case differs from that in this-: — that, at the commencement of the action, and the date of the writ, the defendant was in possession and control, while in that he was not. In this, the question is, could defendant defeat the action,, after it was commenced, by r transfer of the property to a trustee for creditors ? while, m that, it was whether a bona fide sale, before action commenced, defeated the action.

Again, it is urged that the seizure in the hands of Young, assignee, was illegal; that to sustain this action will give plaintiff’ an advantage over other creditors; and that the real party to this controversy is not the defendant, 'but his assignee.

The plaintiff’ does not claim as a creditor. If the goods were his, creditors are not prejudiced ; if they were defend•ant’s they can not be, as neither they, nor Young, as their trustee, are parties to this action. Their rights against either the plaintiff or against the sheriff’, if any they have, remain unimpaired by any judgment in this action.

If plaintiff sustained the allegations of his petition, he was entitled to damages for the wrongful detention of the ¡property by defendant.

Judgment reversed, and cause remanded.


author: Day, J.

text:
    United States Life Insurance Company v. Frank H. Wright.
    ■I. Where an agent of a life insurance company, acting within the scope of his authority, to induce a person to apply for insurance in the company, fraudulently represents to him that, for a specified annual premium, a policy would be fully paid at a given period, and further entitle the holder to certain other specified benefits, and thereby induces such person to apply for a policy on his life, and to pay the premium therefor; if the policy issued to him is materially different from what it was represented to him it would be, he may rescind and recover back of the company the premium paid.
    :2. Where an affidavit for the continuance of a case, on the ground of inability to procure the testimony of an absent witness, contains a statement of what is expected to be proved by the witness, and such statement is given in evidence on the trial as the testimony of the witness, its credibility may be attacked in the same manner as that of a deposition, by impeaching the veracity of the witness.
    .3, Where a recovery is sought on the ground of fraudulent representations made to the party aggrieved, similar representations made by the same person to others, are admissible in evidence only for the purpose of showing that they were known to be false by the person making them; therefore, where there is no evidence tending to show such knowledge, they should be excluded.
    4. One not a party to a life policy in force, can not avoid it for fraud, nor recover back the premiums paid thereon, although he caused the policy to be effected and paid the premiums.
    Error reserved in the District Court of Summit county.
    The facts are sufficiently stated in the opinion of the-court.

      F. 8. Hanford, and F. P. Green, for plaintiff in error.

      8. Fdgerton, and J. A. Kohler, for defendant in en-or.
   Day, J.

The original action was brought in the court of common pleas, by Erank H. Wright, the defendant in error, against the insurance company, to recover back the premiums paid by him for two policies, on the ground that the premiums were procured by fraud. Judgment was-rendered in his favor. To reverse this judgment; the company prosecuted a petition in error in the district court,, which was reserved for decision in the Supreme Court.

The first question made, in the order in which they arise on the record, is that the court erred in overruling a. general demui’rer to the petition. There are two counts in the petition. In the first it is, in substance, averred that the agent of the company, acting within the scope of his authority, proposed to insure the life of the plaintiff below, and, to induce him to make application for that pui’pose, falsely represented to him that, for a specified annual premium, the company would issue to him a policy, which in sixteen years would become self-sustaining, and in twenty-two yeai-s would be paid by the company in full, together with an annual accumulation of dividends thereon; that these representations' were known by the agent to be false; that, in good faith relying upon them, he made his application for a policy, on his own life, and paid to the agent the premium for one year; that soon thereafter a policy was sent to him, which was an ordinary life policy, essentially unlike what it was represented it would be ; and that, upon, discovery of the fraud, he returned the policy to the company, and demanded the return of the premium paid, which? it refused to do. The second cause of action is, like the first, for another premium, alleged to have been fraudulently procured of the plaintiff', for a policy on the life of his wife.

The representations made by the agent of the company, as appears from the petition, amount to more than mere expressions of opinion, as to the possible or probable profits or benefits to be derived from a policy of the company; they might reasonably be understood as statements of the provisions to be contained in the policy. In this light, on failure of the company to issue the kind of policy contemplated under the representations of the agent, the applicant, either upon the ground of fraud or for a breach of contract, might rescind and demand back the premium paid. This, it is alleged, was done by the plaintiff, who was, so far as appears from the petition, the applicant, and the only party interested in the policy. He might, then, on refusal of the company to return the premiums, upon the case made in the petition, bring an action in his own name for their recovery. There was, therefore, no error in overruling the demurrer to the petition.

The company moved for a continuance of the case, on the ground of inability to procure the testimony of an absent witness; and, in accordance with the rule, the affidavit for continuance contained a statement of what. was expected to be proved by the witness. To prevent a continuance of the case, the plaintiff’ consented that the statement, might be used as the testimony of the witness, which, if he were present, would be given by him. Upon the statement being read in evidence by tire company, the plaintiff, against the objection of the company, was allowed to introduce evidence impeaching the reputation of the witness for truth. There was no error in this; for, under rule 18, the affidavit so read in evidence is to be “ treated as the evidence of an absent witness.” The consent of the plaintiff had no other effect than that the affidavit should be so treated. Its credibility might therefore be attacked in the same manner as that of a deposition — by impeaching the veracity of the witness.

On the trial, the plaintiff below, testified that the agent of the company made the representations, as stated in the petition, upon which the applications for the policies were made. He was also allowed, against the objection of the company, to prove, by other witnesses, that the agent, to induce them to make application for insurance in the company, made similar representations to them. To the admission of which the company excepted; and also, before the close of the trial, moved the court to withdraw it from the consideration of the jury.

This evidence was admissible for no other purpose than to show that the representations made to the plaintiff were known by the agent to be false. There was, however, no evidence given tending to show that the statements made to others were false, or known by the agent to be untrue. The evidence, then, afforded no light upon the point on which alone it was admissible ; and therefore should have been ruled from the jury.

On the trial, evidence was giveu, tending to prove that both policies were procured, and the premiums for one year paid, by the plaintiff; that the written application for one policy, to insure his own life, was made in the name of his wife, and the policy was made payable to her; and the written application for the other policy was made in the name of his son, to insure the life of his mother, the wife of the plaintiff, and the policy was made payable to the son. Neither wife nor son is a party to the suit.

Thereupon, the company asked the court to charge the jury, that if they find each policy was respectively made on the application of a person other than the plaintiff, and was made payable to such person, then such person is a necessary party to the surrender, release, or recision of the policy issued to him or her; and if they further find that the policy was not surrendered, released, or rescinded by such party, but continued in force and binding on the company,' then the plaintiff can not recover. The court refused to charge as requested, and the company excepted.

The charge requested ought to have been given; for, the policies not being payable to the plaintiff, he was not a party thereto, and therefore could not avoid them. The policies being in the name, and for the benefit of, other parties, and continuing in force against the company, the premiums, although paid by the plaintiff, could not be recovered back by him. North Am. Ins. Co. v. Wilson, 111 Mass. 542.

Other questions presented in the record have not escaped our notice, but are of minor importance, and need no further consideration here.

Judgment reversed.


author: Johnson, Chief Judge.

text:
    Culver v. Rodgers.
    In an action to enjoin actual and threatened trespasses to land by an adjoining proprietor — such as throwing down plaintiff’s fences, closing up his road, erecting fences on plaintiff’s land, etc., under a claim of right growing out of a dispute as to the line and a road between them — the defendant, by answer, joined issue and asserted his rights in the premises, and the case was, without objection to the kind of relief sought, twice tried as a suit in equity; first, in the common pleas, and again on appeal to the district court, upon an agreed statement of facts, and the injunction was granted: Held, That it is now too late to object to the jurisdiction of the court to grant, equitable relief, on the ground that the plaintiff had an adequate remedy at law, although such an objection might have been sustained if made by demurrer or answer, before hearing on the merits.
    Error to the District Court of Morrow county.
    The original action was brought by Rodgers, to enjoin ■Culver, an adjoining land-owner, from closing up a private road, and from throwing down his fence and carrying away the rails. It is alleged that Culver’s land adjoins Rodgers’ on the east, bounded by a partition fence; that, in 1865, Rodgers deeded to Culver a strip of laud, ten feet wide, off the east side of his land, for a road only; and that, for the purpose of throwing open a road for his use, to enable him to get to a creek to water his stock, the-plaintiff set his fence eighteen feet from the original line, beirg eight feet west of the ten feet conveyed to Culver off his own land. It is charged, that Culver daily closes up this eight feet, by a fence, under a claim of right to do so, and threatens to keep, the same closed up, and that bebas thrown down the fences of Rodgers and carried away the rails, and that great and irreparable injury will be done,, unless Culver is enjoined. The demand for relief is that Culver be enjoined from closing up said road, or from keeping the same closed, or from throwing down, removing, or destroying the plaintiff’s fences, etc.
    The defendant first moved that plaintiff be ordered to-separately state his several causes of action, which motion was overruled, without exception, and he then answered to-the merits, denying the material averments of the petition, and setting up an exclusive title to the strip of ten feet and part of the partition fence, and the right to join his-fences to plaintiff’s.
    Before trial in the common pleas, a motion was made to-dissolve the temporary injunction, which had been allowed when the petition was filed, on the ground that the facts-did not warrant it; but the record does not show what, if any, disposition was made of the motion, and the case proceeded to trial on its merits.
    - In the common pleas, the case was, without objection,, heard upon the pleadings, proofs, and arguments of counsel, which resulted in a decree, in part, for each party, and,, in enjoining Culver from closing up the strip of eight feet, and from tearing down or carrying away plaintiff’s fence.
    Both parties gave notice of appeal, and, on their respective applications, the appeal bonds were fixed by the court. Rodgers alone perfected his appeal, and the ease-was again heard upon the pleadings and an agreed statement of the facts, and the court found the equity of the-ease with the plaintiff, and made the injunction perpetual,. as prayed for. Culver moved the district court for a new trial on these grounds:
    “ And now comes the said defendant and moves the court for a new trial in this action, for the following reasons, to wit:
    “ 1. That the finding and judgment of the court in this case is against and contrary to the weight of the evidence’ and the law of the case.
    “ 2. That said court erred in finding that the equity of this case was in the plaintiff.
    “ 3. That said court erred in finding and holding that, said defendant wrongfully built his fence across said ten feet of land, and upon plaintiff’s land, and attaching the-same into said line fence.
    “ 4. That said court erred in holding and decreeing that said defendant he forever enjoined from closing up the said road, and from joining his fence into said line fence.
    “ 5. Said court erred in enjoiniug said defendant perpetually from throwing down said fence across said ten feet deeded for a road, in the plaintiff’s petition described.
    “ 6. That said court erred in decreeing that the said defendant pay the costs of this action.
    “ 7. That said court erred in finding and holding that said plaintiff had a right of way in said strip of ten feet deeded for a road.”
    On this motion being overruled, a bill of exceptions was. taken, making the agreed statement of facts and exhibits, parts of the record.
    The petition in error filed in this court, in additiou to-the errors assigned in said motion, makes the following assignment of error:
    “ 1. That the said court had no jurisdiction in chancery' over the subject-matter of this action, and that said court erred in entertaining the same.
    “ 8. That the original petition filed in this action does not state facts sufficient to constitute a cause of action in chancery.”

      Olds § Dickey, for plaintiff in error.

      Andrews $ Allison, for defendant in error.
   Johnson, Chief Judge.

The only errors now insisted on in the argument, are the first and eighth in the petition in •error, in this court. They are, in substance, that the court had no jurisdiction to grant the relief obtained in this case, and that the petition did not state a cause of action for such relief, for the reason that plaintiff had a plain, adequate, and complete remedy at law. No objection of this kind was made before final trial and judgment, by demurrer, .answer, or otherwise. The point is now, for the first time, made in the petition in error, filed in this court.

On the hearing, in both the lower courts, it was assumed by both parties, that the case was one for equitable relief, and it was twice tried on that theory. Judgment against plaintiff in error, was rendered in the common pleas, on the pleadings and evidence, and again, upon appeal in the district court, upon an agreed statement of facts.

If the case was one for a jury, it was not appealable, and yet plaintiff not only failed to object to the jurisdiction of the court, but consented to a second hearing upon an agreed statement of facts. So far as it was possible for consent to give jurisdiction to grant such relief, it was given, in both •courts below, by unequivocal acts.

In view of these acts, it is claimed by defendant in error that it is now too late to object, on the ground that the relief should have been at law, and not in equity.

The general jurisdiction of the court of common pleas, both at law and in equity, and its power to' permit amendments, either in the statement of facts, or in the demand for relief, in furtherance of justice, render the questions involving the boundary line between law and chancery of less practical importance in the administration of justice, than under judicial systems, where courts of law and chancery were distinct tribunals.

By section 3 of the code, the distinction between actions at law and suits in equity and the forms of all such actions and suits were abolished. The court of common-pleas had jurisdiction of this cause of action, whether it be regarded as legal or equitable. Had plaintiff' in error made the question in the courts below, by demurrer or answer, before the hearing, or even at the trial, an amendment of the prayer for relief might have been permitted, in furtherance of justice, and the controversy ended in one-action, without further litigation and costs.

This was not done. Can the defendant below, after neglecting to make this question, by demurrer or answer, and after a full, and, so far as we know, a fair and impartial trial, where each party sought the aid of the chancellor to-determine the matter in dispute, now object that the caséis one for damages only?

Whether the facts in the case called for relief in law or in equity, is a question not altogether free from difficulty. It lies near the vague and indefinite boundary line between the jurisdiction of courts of law and equity. The books abound in cases lying near this line on either side, where-unsuccessful attenrpts have been made to define, with some degree of precision, the limits of equity jurisdiction in eases-of this class.

The alleged trespasses relate to a disputed boundary line and partition fence, and right of,way, involving a construction of a deed between the parties, and their respective rights as adjoining land-owners, to the right of way, the line fence, etc.

The object of the petition was to settle these disputed matters, which might otherwise involve vexatious litigation, and probably a multiplicity of suits. The plaintiff in error was acting under a claim of right, and not as a trespasser, and submitted the controversy to the chancellor, claiming that the equity of the case -was with him. Can he now object, on the ground that relief in equity was not the proper remedy ?

It is not beyond question that the plaintiff was not entitled to equitable relief. Authorities are not wanting to ¡support the court below. No good reason can be suggested why, under our system of jurisprudence, in which the same court is vested with law and chancery jurisdiction, and in which the distinction between actions at law and suits iu chancery are abolished, the defendant should not raise this objection before final judgment. By so doing, the plaintiff' would have been permitted to amend, and obtain the relief to which he was entitled, without being driven to another action. To permit the defendant to remain silent on this question, and by answer and trial to contest the ■case on its merits, as a suit in equity, and then, after being ■defeated, to assign, in this court, as error, the defective prayer of the petition, as a ground of reversal, comports neither with the terms nor with the scope of the civil code. Such a practice would tend to multiply actions, rather than to put an end to controversy. Nor is it sustained by authority, either under the present or former ■system 'of practice, where law and equity were administered by distinct tribunals.

Gilbert, in his History and Practice of the Court of Chancery, says : “ Where the common law would give the same relief as a court of equity, then, if the defendant would ■deny the deed, and demur to the relief, the demurrer would be allowed; but if the defendant doth not demur to the relief, the court will proceed for the plaintiff, on the hearing, ¡after the deed is properly proved, because the defendant admitted the jurisdiction by answering and putting it in issue, and not demurring.” Page 219. Again, on page 51: •“ Where a plaintiff goes into a court of equity for damages, which are uncertain and not to be settled but by a jury, the defendant may demur to the relief, after having first answered to the damages; because it is alienifori, since the ■court can not settle the damages.”

In Ludlow v. Simond, 2 New York Cases, 41, Thompson, J., adds: “ But this must be ante litis contestationem, for, if he answers and contests with the plaintiff he can take no .advantage of it at the hearing; for he has submitted to .•the jurisdiction of the court, and the court will not try at law the quantum of damages by a feigned action. . . . This appears to me to be a reasonable rule, and calculated to save expenses. It is a good general pi’inciple that when a party objects to the jurisdiction of a court, he ought to do it at the earliest opportunity.”

In the same case (p. 5), Kent, C. J., says : “ By answering in chief, instead of demurring, he submitted his defense to the cognizance of the court; and equity will, and ought, in such cases, to retain the cause, provided the court be competent to grant the relief, and has jurisdiction of the subject-matter.”

This remark, “ provided the court be competent to grant the relief, and has jurisdiction of the subject-matter,” as well as that of Thompson, J., on page 40, that he would not extend this rule “to cases where the subject-matter is not within the jurisdiction of the court,” expresses in terse language the limit of the rule.

In Penn v. Lord Baltimore, 1 Vesey, Sen., 446, Lord Chancellor Hardwieke states the rule and its limitation thus: “ To be sure, a plea to the jurisdiction must be offered in the first instance and put in primo die-, and answering submits to the jurisdiction; much more when there is a proceeding to hearing on the merits, which would be conclusive at common law ; yet a court of equity which exercises a more liberal discretion than common-law courts, if a plain defect of jurisdiction appears at the hearing, will no more make a decree than where a plain want of equity appears.”

Ludlow v. Simond was affirmed in Underhill v. Van Cortlandt, 2 John Ch. 869, where Chancellor Kent, speaking in a ease where the jurisdiction of the court was probably doubtful, says: “ But, at any rate, by answering in chief, instead of demurring, the defendant submitted' the cause to the cognizance of this court, and they come too late at the hearing on the merits to raise the objection. It would be an abuse of justice if the defendants were to be permitted to protract a litigation to this extent, and with the expense that has attended this suit, and then at the final hearing interpose with a preliminary objection.”

To the same effect are, Leroy v. Platt, 4 Paige Ch. 77, 81 ; Livingston v. Livingston, 4 Johns. Ch. 287; Williams v.. Mayor, etc., 2 Mich. 584, et seq.; Nicholson v. Pinn, 5 Ohio St. 25 ; Wiswell v. Hall, 3 Paige, 313 ; May v. Gordon, 27 Geo.. 352; Bell v. McGrady, 32 Geo. 257; Reed, v. Wessell, 7 Mich. 139; Russell v. Loring, 3 Allen, 121; Munson v. Munson, 30 Conn. 425 ; Clark v. Mint, 22. Pick. 237; Krichbaum v. Bridges, 1 Iowa, 14.

Russell v. Loring, 3 Allen, 121, like the case at bar, was-heard upon an agreed statement of facts, and it was held “that the parties by agreeing to submit the case to the-determination of the court upon a statement of facts, waive-all objection to the form of proceeding, unless the point is expressly reserved by them.”

That was a suit in equity, and the point was the same as is-here made, that the complainant had a plain, adequate, and complete remedy at law, and it was therefore held that the objection on that ground “ comes too late when raised for the first time on final hearing on the merits, when the court has jurisdiction of the subject-matter.”

In the United States courts, it is said, this rule does not prevail by reason of their limited jurisdiction. It is there-held that this objection may be made at any stage of the-proceedings, and that if there is a plain, adequate, and. complete remedy at law, the court will, sua sponte, raise it' on final hearing. Parker v. W. L. C. & W. Co., 2 Black.. 545.

In the same connection, it is said, that section sixteen* of the judicial act of 1789, which provides that suits-in equity shall not be sustained in the courts of the United' States, when there is a plain, adequate, and complete remedy at law, is merely declaratory of the pre-existing rule, and does not apply where the remedy at law is not “ as* practical and as efficient to the ends of justice and to its prompt administration as the remedy in equity.” Ib. 551.. Watson v. Sutherland, 5 Wall. 78.

“ It is not enough that there is a remedy at law ; it must he plain, adequate and complete; or in other words, as practical, and as efficient to the ends of justice and its prompt administration, as the remedy in equity.” Boyce, Exr v. Grundy, 3 Peters, 210, 215.

The case before us falls within a general class, of which equity takes cognizance. Milford’s Eq. Plead. 111-151; Story on Eq. Plead. § 472. It is brought against one, who, under claim of right, is committing; and threatens to continue to commit, permanent trespass upon plaintiff’s land, and who is asserting a right calculated to produce strife and litigation. It may be conceded that the plaintiff had an adequate remedy at law; yet it is quite doubtful whether that remedy is “ practical and efficient to the ends of justice as the remedy in equity;” at all events, it was competent for defendant to waive the question, and consent that a court of equity might, in a single case, settle the whole matter, and so prevent a multiplicity of actions at law. Having elected to take this course before a court, competent to grant either form of relief, and having had the benefit of two full impartial trials,'and after much delay and cost, it would be grossly unjust to permit him now to raise the question.

Several authorities are cited, to the effect that jurisdictional questions may be made at any stage of a case; among them, The Gen. Buell v. Long, 18 Ohio St. 521. This is true when the court has no jurisdiction over the subject-matter, as in that case, where exclusive jurisdiction was held to be in admiralty, but this rule has no aplication here, for the reason the court has jurisdiction over the subject-matter to grant relief, at law, or in equity, and for that purpose may permit amendments either in the allegations of the petition or iu the demand for relief. As the facts constituted a cause of action within the jurisdiction of the court, the only question was, if these facts are proved, what is the proper relief? No question going to the jurisdiction of the court, to hear and determine the cause, existed;. for whether it be regarded as an action at law or a suit in equity, the jurisdiction of the court was undoubted.

It is said, that by section 89 of the code, a failure to ra\se the question by way of demurrer or answer, does not waive objections to the jurisdiction of the court, nor that tlie facts do not constitute a cause of action; and the argument is that, iu both eases, these objections may be made at any time. If the subject-matter is not within the jurisdiction of the court, or if the facts do not constitute a cause of action within such jurisdiction to grant relief, this is true, but in this case both exist, and the only question was whether the relief demanded was the proper relief to be granted, or whether the plaintiff should amend the prayer of his petition.

While the demand for relief forms part of the petition, jet it constitutes no part of the statement "of facts constituting the cause of action. This demand or prayer may be amended to conform the relief to the facts proved, an¿ after verdict, or finding and judgment upon the merits, a defective demand for relief may be cured. Draper v. Moore, 2 C. S. 167; Corry v. Gaynor, 21 Ohio St. 277; Phillips v. Dugan, 21 Ohio St. 466; Harkins v. Alcott & Horton, 13 Ohio St. 210.

This is especially so when the parties have tried the case on its merits, outside of the technical issues in the pleadings.

Under all the circumstances disclosed, we conclude that the objection now for the first time made, that the plaintiff had an adequate remedy at law, comes too late. The plaintiff in error has, by unequivocal acts, waived the objection.

This we think he can do, in a case like the present, where the apparent object is, not to recover damages for a series of trespasses committed and threatened to the plaintiff’s possessions, but to adjust a real difference as to the boundary between the parties and their respective rights in the premises, and avoid a multiplicity of actions for damages ■by settling the whole controversy in one action.

The case falls within one of the appropriate heads of -equity jurisdiction, to restrain the assertion of doubtful rights in a manner productive of irreparable injury, and to prevent vexatious, oppressive, and repeated litigation. 'Story Eq. Plead. § 472. It appears probable that plaintiff in error, until after his defeat, desired to waive this point, .and have the whole matter settled in one action. N© ■ other inference can be drawn from his acts. At all events, it would be a perversion of the principles of our reformed practice, where law and equity are administered by the same'tribunal, and where the power of amendment is given to the fullest extent in the furtherance of justice, to allow a party to lie by, and take all the chances of a favorable .result, with the right reserved to defeat the judgment if it proved unfavorable.

This could not be done under the old system of practice, when law and equity were administered by distinct tribunals, and for a much stronger reason, it should not be done under the code practice.

If the point had been made by demurrer or answer, and -sustained, the court would undoubtedly have granted leave to amend the demand for relief, and the case would have proceeded as an action at law.

The judgment is affirmed.


text:
    Miller v. Brown.
    An owner of ground, with whose consent an adjacent proprietor occupies a portion of his premises on which to build a joint wall, can not tear away such wall after a building has been erected thereon, upon the faith of his acquiescence in its location and construction.
    Error to the District Court of Cuyahoga county.
    In the Court of Common Pleas of Cuyahoga county, Brown filed his petition against Miller to recover damages. Plaintiff and defendant had adjoining lots in the village of Berea, defendant being east of plaintiff. The boundary line-between them was undefined, and as plaintiff was about to-erect a brick wall, the parties agreed that it should stand upon the land of each. The wall had been commenced by Brown, and the foundation, which occasioned the dispute, had been laid, by agreement and consent of both, and thereupon, the 5th of October, 1866, the parties entered into the following agreement in writing:
    “ This agreement made this 5th day of October, 1866, between S. S. Brown and John L. Miller, both of Berea,. Cuyahoga county, Ohio.,
    “ "Witnesseth: That whereas S. S. Brown is about to ei’ect a brick building on the lot now owned by him, being on the south side of Bridge street, and a part of fraction D,. in the village of Berea, Ohio. And whereas, John L. Miller owns the lot adjoining on the east side ; S. S. Brown’s-east liue, and John L. Miller’s west line being the same; and whereas, the precise line can not be exactly defined at the present time, it is, therefore, mutually agreed that the said S. S. Brown shall put up the east wall of his building, where it is now commenced, and is supposed to be the line, on the following conditions, to wit:
    “That the said John L. Miller shall pay the said 8. S. Brown, one hundred dollars on the completion of said wall, to be for him; and then the said John L. Miller is to own one-half of the said wall, be for him and his use, and his-heirs and assigns forever. And in case the said J. L. Miller neglect or refuse to pay the said one hundred dollars as aforesaid, then the said wall is to belong to the said S. S. Brown, and also the land on which it stands, by paying the said J. L. Miller $17.50 per foot, or at that rate, for whatever land may be found to belong to the said JohiAL. Miller. And it is further mutually agreed that whenever said line shall be satisfactorily established, if it is found to be-west of the center of the said wall, then the said S. S. Brown shall pay the said John L. Miller for the same at the rate of $17.50 per foot front for the same, and if it is found to be east, then the said John L. Miller is to pay tbe said S. S. Brown at the same rate.
    “ In witness whereof, we have hereunto set our hands .•and seals the day and year first above written.
    “ S. S. Brown, [seal.]

      “ John L. Miller, [seal.] ”
    The wall was built of brick, upon a foundation of stone. This foundation extended some four inches beyond the brick wall, and when defendant, Miller, started to build on his own lot, as he subsequently did, he dug below the brick wall, and began to build right upon its east line. When he reached this foundation, which extended beyond the brick wall and upon his own land, some four inches, he cut it .away. This is the injury complained of. Plaintiff Brown says this caused the brick wall to settle, cracking his house, and occasioning him damage.
    Defendant Miller claims that this projection of four inches, extended wholly upon his land, and therefore he hud the right to cut it away or do with it what he would.
    It will be seen from the written contract, that Brown •was to build the wall and Miller was to pay $100, and own • one-half of it; then the line between them was to be fixed, .and if it turned out to be west of the center of the wall, Brown was to pay Miller $17.50 per foot for the ground of Miller’s occupied, if it were east of the center of the wall Miller was to pay Brown at the same rate.
    Defendant Miller offered in evidence the record of a -cause between the same parties, wherein Brown had sought specific performance against Miller, to compel him to convey the land upon which the wall had been built, in accordance with the terms of the written contract above. In this record it appeared that when they came to survey the premises, it was found that the wall stood fifteen inches on Miller’s, this fifteen inches including the four inches projection of the foundation. Brown wanted a deed for this fifteen inches, so including the projection, but the district court said he was not entitled to it, but only to eleven invehes, which was the width of the brick wall within the projection. As Brown was not satisfied to take the eleven’ inches, but claimed more, the district court dismissed the petition, entering the following decree :
    “ This cause came on to be heard upon the pleadings and exhibits, and the agreement of the parties that the pleadings show correctly the length of the wall, and a projection of the foundation for the distance of seventeen feet, at the-rear end of the wail. They also agree that a projection in the foundation, of four inches, on the east side of the brick wall, was left at the request of the defendant, which request was made after the execution of the contract; that • the fifteen inches from the street back to the projection claimed by the plaintiff, included this four inches of foundation, east of the brick wall, in front of the seventeen feet, was not, at the date of the contract, completed; and was-argued by counsel, on consideration whereof, the court find that under the contract of October 5, 1866, plaintiff was only entitled to a conveyance of that part of the defendant’s land covered by the brick wall, being about eleven inches wide from the street to the rear end of the wall, and that because the plaintiff demanded more than he was, by the terms of his contract, entitled to, he did not put himself in position to claim that the defendant was in default and the plaintiff refusing in open court to receive a conveyance for the lands covered by said brick wall, the court dismisses the petition, at the cost of the plaintiff, to be taxed, to which ruling of the court the plaintiff excepts, and this-decree is entered without prejudice to the right of either party to hereafter compel a performance of said contract in pursuance of the finding of the court herein.”
    Defendant, Miller, claims that this decree settles the case-before us now; that Brown had no right to occupy beyond the east line of the brick wall, thus depriving him of all interest in the four inches of projection, which, of course,, would preclude his right of recovery for cutting it away.
    The plaintiff in error asked for a great number of charges, which we compress into two propositions: 1. That owning-the land on which the four inch pi-ojection stood, he had the absolute, unqualified right to cut it away. 2. That the district court had already so determined, which was conclusive in the matter.
    The court refused to charge, and verdict was against-Miller, defendant below, who is plaintiff here.

      S. Burke, for plaintiff in error,
    claimed that Brown had no right to occupy any land east of the east line of the brick wall, either with the foundation to his brick wall, or in any other manner.
    The law governing the rights of adjoining proprietors,, in cases of this kind, is exceedingly well settled. It is settled by many authorities, that one adjoining proprietor has no right, by digging upon his own land, to remove the natural support of the soil of the adjoining land. But it is also very well settled that the adjoining owner has no right,, by building or constructing buildings upon his own land,, to increase the servitude of the adjoining land. In other1 words, the only servitude owed by adjoining land is that-of supporting the natural soil in its natural condition, and does not extend to buildings ; and in this case there is no pretense that any digging done by the defendant, upon his own land, in any way interfered with the natural soil upon the plaintiff’s land. The nature of the soil wholly forbids such a conclusion.
    The cases upon this point are plain and uniform. See 2 Hilliard on Torts, 12-15, and the numerous cases cited in note a, where many authorities upon this point are collated; Washburn on Easements, 54-3 ; Thurston v. Hancock, 12 Mass. 226 ; Farrand v. Marshall, 19 Barbour, 880-386 ; Richardson v. Vermont Central Railroad Company, 25 Vt. 465 ; La Salla v. Holbrook, 4 Paige, 169; Radclife v. Meyer, etc., 4 Comst. 195; cases cited in Washburn on Easements, note 1, page 546; Id. 550 ; Wyatt v. Harrison, 3 Barn. & Adolf. 871.
    The only thing which the district court decided in -the action for a specific performance, was the amount of land to which the plaintiff was entitled to a conveyance; and if this is the interpretation to be given to that decision, then it was immaterial in that case, and of no consequence in the case either way while the projection in the wall was left; and there certainly is nothing in this case to indicate why it was left; there is no writing in respect to it, and all that the record shows is that it was left at the request of the defendant, and we maintain that this request conferred no lights whatever upon the plaintiff.
    This principle is fully recognized by the Supreme Court, in the case of Hieatt v. Morris, 10 Ohio St. 523. The court, in that case, substantially recognized the doctrine that an agreement, even in regard to a party wall, is not to be so •construed as to create a perpetual easement by one party, in the land of the other; and that such agreements are to be reasonably construed. Now, can it be said in reason, that the defendant, by requesting that this projection should be left, in any way obligated himself not to occupy that strip ■of ground of twenty-three feet in length and four inches in breadth ? Can it in reason be maintained, that by such a request he abandoned that four inches of ground to the plaintiff', and deprived himself of the right to own and control the same, or to collect pay of the plaintiff for the same? Such an interpretation would certainly do very great violence to the intention of the parties, and to the language employed by them.
    In 2 American Leading Cases, 558, under the head of License, it is laid down : “ That an easement in land, such as is claimed here, can only be granted by deed or writing.” It is there said that parties will not be allowed to do that by indirect means which the legislature have forbidden to he done directly.
    Title is the right to possession and enjoyment; and an irrevocable authority to possess and enjoy is virtually a title.
    If I can use the land of another for a purpose of my own, under an authority which he can not recall, the ownership is, relatively to that purpose, in me and not in him. To give an oral license an effect which is denied to a con-tract, is, therefore, to virtually abrogate the statute of frauds. See 2 Hills, s. c., 534; 38 Missouri, 560; 46 New Hampshire, 505; 4 Sandford Ch. 72. In this last case, the court said, that there was no middle ground between a license and an easement.
    If it was an easement the grant must be in writing, under the statute of frauds; if a license, it could not descend or be transferable, and was revocable at pleasure by the grantor.

      S. J. Andrews, for defendant in error:
    As to the law of easements and servitudes, see Wash-burn on this subject (3 ed.), 566, 568.
    The immunity from any injurious interference with the wall by one party, after it is constructed by the other party,
    ■ depends not upon long occupation nor upon formal license or grant, but upon the agreement of the parties and the rights, legal or equitable, growing out of it, and it is practically immaterial whether the agreement is written or verbal, if it is executed.
    It may be true that at common law an easement could be created only by grant, but it is just as true that an easement can be acquired without grant, in the enjoyment of which a court of equity will protect a party as effectually .as if his title was indefeasible at law. A verbal contract for the sale of land is utterly void at law, yet if the party takes possession and expends his money in making improvements he can compel a specific performance. Washburn (3 ed.), 97; Platt v. Eggleston, 20 Ohio St. 414.
    So while at common law a parol license is revocable, yet it has been held that after it has been acted upon, and expense incurred by the licensee, it can not be revoked to his prejudice. Le Fevre v. Le Fevre, 4 Sargent & Rawle, 241.
   Wright, J.

Before the written contract had been entered into, Brown had begun his Avail and had partially ■constructed the stone foundation, and it was built where it was by the consent of defendant, and the mutual agreement of plaintiff and defendant. It was not then certainly-known where the lines would be. There was perhaps as-much reason to suppose that the four inches would turn out to be upon Brown as upon Miller. But even if it were upon Miller, as it is now ascertained to be, if he allowed Brown to goon, and in good faith build upon his premises in the way he did, it is too late now to retract. Brown spent his money upon the wall which was to be for the-benefit of both; Miller saw him do it, saw him put thefouudation just where he did. He can not tear it away. Washburn on Easements, ch. 1, sec. 3, par. 43, p. 97 (3 ed.) ; ch. 3, sec. 4, par. 23, p. 406.

As to the decree of the district court. That action was-for specific performance under the written contract of 5th October, 1866. But rights in Brown had vested prior to that contract, and no decree upon it could affect their prior-rights.

The sole purport of that decree was that Brown was entitled to a deed for eleven inches and not.fifteen. Nothing-else was determined. No other rights were in issue. The-court did not attempt to settle -what rights Brown had in the four inches beyond the eleven. They said he was not entitled to a deed for those four inches, but they did not say he had no interest therein whatever. They did not say that circumstances could not create an easement therein. The decree only settled the rights between the-parties as to what portion of the land specified in the contract Brown was entitled to have conveyed to him by Miller.

The court, therefore, were correct in holding that this-record did not conclude the parties in the pending cause.

Judgment affirmed,.