author: Judge Hitchcock :

text:
    McCormick v. Alexander.
    Under the execution law of 1824, judgment creditors, who had not sued out and levied execution within twelve months from the date of judgment, lose their lien and preference, as against subsequent judgment creditors, who had sued out and levied execution within twelve months; and this in case of judgments before the enactment of the law, as well as after it.
    This cause was certified from the Supreme Court of Clark county. It was an action against the sheriff, and the question in controversy was who, of several parties, was entitled to a sum of money made upon execution. The facts of the case, as agreed between the parties, were as follows:
    Several judgments had, at different periods of time, been rendered against the same defendant.
    The first for the Urbana Bank, November term, 1820, upon which a fi. fa. issued May, 1821, and another in February, 1822, both of which were returned, no goods, but not levied upon land.
    A second judgment, for the same plaintiff, rendered March, 1822, upon which execution issued in May, 1822, which was regularly levied upon the property, the proceeds of which are the subject of dispute, and process to enforce a sale regularly continued to July, 1823.
    Another judgment, and the second in order of date, was obtained by Joseph Evans, March, 1821, upon which execution issued in November, 1822, and was levied on the same property, which was not sold, and to enforce a sale of which, proper process was regularly issued up to the time of sale.
    On July 21, 1821, the plaintiff in this action obtained a judgment, and on January 10, 1822, sued out execution, and had it levied upon the same property, *which was returned, not sold. In April, 1822, a vendi. issued, upon which the same return was made. No other process issued until January 8, 1824, when an alias vendi. was issued, which was returned and renewed until March term, 1825, when the property was sold under the vendi. on the plaintiff’s judgment. The different parties all claimed the money, and this suit was brought to determine who was entitled to it. The claim of the Urbana Bank being pretty much abandonod, the controversy rested between Evans and McCormick. The first had the elder judgment, rendered in March, 1821, upon which no execution was sued out until November, 1822, more than twolve months after the rendition of the judgment. The latter, McCormick, had the junior judgment, but his execution was first issued and levied, and was levied within twelve months from the rendition of the judgment.
    Anthony, for Evans:
    Evans’ judgment being obtained under the act regulating judgments .and executions, which took effect June 1, 1820, was, when obtained, a good lien upon the real estate of the debtor, and preferable to any other judgment afterward obtained under that act; the act pointing out no time when execution should issue, but declaring generally that the lands and tenements of the debtor should be bound from the first day of the term, at which judgment shall be rendered, when the lands, etc., lie in the country where judgment is so recorded. The house and lot, in controversy, lie in the town of Springfield, in the county of Clark. This judgment, therefore, attached upon the real estate of the debtor, and vested in the plaintiff, Evans, a right which the legislature never intended to divest from him; but, on the contrary, show clearly, they meant to preserve inviolate; for by the sixteenth section of the act regulating judgments and executions, which took effect June 1, 1822, and which provides for several distinct classes of cases, it is made lawful, in all cases where judgments had been before that time rendered, and on which execution had not been taken out and levied, prior to the taking effect of that act, for the plaintiff, in any such judgment, to have execution thereon, *and cause the same to be levied according to the provisions of that act, at any time within six months after the taking effect of that act. Evans having a good and existing lien under the act of 1820, availed himself of this provision in the act of 1822, by making a levy within six months after the taking effect of the act of 1822, viz: on November 23, 1822. Here, then, is a compliance with the law then in force, which preserved the lien of Evans; and had Evans purchased the property under this first execution, could any of those judgment creditors have disturbed his title? It will not be pretended. Then how is his lien affected by the act of 1824? Evans stands in the same situation as if he had purchased the property; executions having issued, regularly, ever since the first, and the law requiring no more, for it does not compel the creditor to purchase the property of his debtor. The legislature never intended to give the act of 1824 such a retrospective operation as to divest from creditors rights which they acquired by a strict compliance with the law in force prior to the passage of that act. It is, if not directly contrary to the constitution, at least contrary to the spirit of it, to give such construction. The provision in the act of 1824 (seventeenth section) is applicable to a different class of cases entirely; to those where judgment had been rendered under the act which required execution to issue within one year; to those cases when under the existing law the party was guilty of laches; a contrary construction would shake a large portion of the title derived from judgment and execution in Ohio, and most unreasonably too, as it was utterly impossible that judgment creditors could foresee that a little lenity toward their debtor when the law permitted it should afterward be made a ground for destroying their security altogether. It may be alleged that as the language of the seventeenth section of the act of 1824 is express, that no judgment heretofore rendered, on which execution shall not have been taken out within one year, shall be a lien, etc., that this court will feel bound to give it a strict and literal construction. But, however plausible that argument may sound, this court, I conceive, is confined by no such narrow limits, but will enter into the spirit of the law, and endeavor to arrive at the meaning of the legislature.
    *Cooley, for McCormick:
    It is contended, on the part of the plaintiff, that the rights of the parties are to be decided under the. act of 1824, regulating judgments and executions. By the seventeenth section of that act it is expressly declared that “ no judgment which heretofore has been, or hereafter may be, recovered, on which execution shall not have been taken out, and levied before the expiration of one year, next after the rendition of such judgment, shall operate as a lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor.”
    In the investigation of this case, no embarrassment can arise from either of the judgments of the Urbana Banking Company. The first judgment obtained by them, and which was older than any of the judgments, has not been followed by a levy under either the statute of 1822, or that of 1824, and the last judgment obtained by them is subsequent to that of McCormick, which was levied within the year.
    It is admitted that the judgment of Evans would, from its seniority in date, have been entitled to have been first satisfied, had Evans perfected his right by a levy within the year, and it is contended for Evans, that by his judgment, he had such a vested right that the legislature could not divest, and that it will impair the obligation of the contract to say that the lien of McCormick, under a junior judgment, is better and preferable to that of Evans’. The correctness of this reasoning is not perceived. The language of section 17 of the act of 1824 is clear and explicit; and unless the' legislature had no power to enact such a provision, unless the court are prepared to say that the act is clearly repugnant to the constitution, judgment must bo rendered in this case for the plaintiff. And even were the constitutionality of the law doubtful, unless in the language of Judge Chase, “ the case is very clear,” the court will not declare a legislative act void. 3 Dal. 395; 6 Cranch, 128; 4 Wheat. 625.
    A contract is defined to be an agreement by which a party undertakes to do or not to do a particular thing. The law binds the party to perform what he has undertaken to perform, and this constitutes the obligation of the contract. But it is well settled that a judgment is not a contract. *3 Burr. 1548. Admitting, in the present case, that the judgment of Evans was founded upon contract, what is the undertaking ? Not surely that the party will pay the money by a given day, or that the property in question shall pay it. The distinction between the contract, and the remedy to enforce that contract, is obvious, and has been well settled. The latter the legislature have always a right to regulate as expediency may require. The remedy may be changed or modified without impairing the obligation of the contract. The act of 1824 does not impair the obligation, or the validity of the contract. The contract remains in full force, and the creditor has a right to enforce it either against the person, or the property, or the future acquisitions of his debtor. The property which the debtor might possess at the time of the contract is certainly not the principal inducement to enter into it. It is the character and integrity of the party that forms the party’s inducement to trust him. 4 Wheat. 198.
    The policy of our law has been to induce the creditor to liquidate his debt by purchasing the estate of his debtor, to prevent his destruction by a ruinous accumulation of interest, and also to prevent one creditor, who might have a judgment which he did not intend, or was unwilling to enforce, from preventing other judgment creditors from obtaining their just demands. For this purpose, the act of 1820 (sec. 23), under which the judgment of Evans was obtained, provides “that when lands are sold under judgments, the purchasers shall hold the same free and clear of all judgments rendered more than one year before the judgment upon which the sale was made, upon which execution had not been taken out and levied before the time of sale,” and by the act of 1822 (sec. 16), it is provided, that in all cases where the party shall have obtained judgment, and shall neglect for the space of one year next after the first day of the term in which such judgment shall have been recovered, to sue out execution thereon, and cause the same to be levied, etc., such judgment shall not operate as a lien upon the debtor’s estate, to the prejudice of any other bona fide judgment creditor. It is urged that Evans, under the last-mentioned act, has proceeded to levy within the time prescribed, *and that his right should be as much regarded as if he had actually purchased the property. The correctness of this-position is denied. Had Evans purchased the property under the law then in force, no subsequent legislation certainly could have disturbed his title. But he did not purchase, and it would be saying too much to say that he shall now be considered as having done what he could or might have done. The law favors the'diligent creditor, not him who sleeps upon his rights.
    That lands are liable to be taken and sold upon execution at all, is matter of statute regulation. The same power that says they shall be liable to be sold for the payment of debts, may say that they shall only be extended, and the creditor be entitled to the rents and profits until his dobt is satisfied, or that they shall not be sold for less than their full appraised value. And it might with as much propriety be urged, that a law exempting certain articles of personal property from execution, which might be passed subsequent to the contract, was a violation of the contract, as that the law in question is a violation of it.

      The policy of enacting what the legislature has expressly enacted, is a different consideration, and one which will not weigh with this court. It might have been urged as reason why the law should not have been passed. It may be a reason for now recommending an alteration of it, but it can be no argument for changing the rights of the parties which have become fixed under it.
   The opinion of the court, by

Judge Hitchcock :

In the consideration of this case, I lay out of view the judgments recovered by the Bank of Columbus. The first of these was not followed by an execution sued out and levied in due time; the second was not obtained until after the judgments both of Evans and McCormick.

From the facts agreed in the case, it appears that Joseph Evans, at the March term, 1821, of the court of common pleas, for the county of Clark, recovered judgment against Jonah Baldwin, for the sum of --. To enforce collection, on November 18, 1822, he sued out his writ of fi.fa. et lev. fa., which writ, on the 23d day of the *same month, was levied on a house and lot in Springfield. The property not being sold on this execution, a venditioni was sued out returnable to the March, term of the court of common pleas, 1825. Upon this writ the property was sold to James Bishop for the sum of eight hundred dollars.

On July 21, 1821, the plaintiff, George McCormick, in the same court of common pleas, obtained a judgment against Baldwin and one McKinnen, for the sum of-debt or damages and costs. Upon this judgment a writ of ft. fa. et lev. fa. was issued on January 10, 1822, and levied upon the same house and lot in Springfield. The property not being sold, a vendi. issued ■ on April 10, 1822, and an alias vendi. on January 8, 1824.

From this statement, it will be seen that the judgment of Evans was first recovered ; theji. fa of McCormick first sued out and levied, and the property eventually sold under a vendi. at the suit of Evans. The decision of the case depends upon the determination of the question, whether Evans or McCormick had the preferable lien.

Judgments are not of themselves liens upon property, either real or personal. How far they shall so operate depends upon legislative enactment. Hence, the laws on this subject are different in different states and countries. In some states of this Union, lands are bound for the satisfaction of judgments from the time such judgments are rendered ; in others, -only from the time they have been levied upon by execution. In some states and countries they are sold under execution, in the mode prescribed by law; while in others, they are set off to the judgment creditors at their appraised value; and in others they can neither be sold nor set off, but can only be extended until the rents and profits shall satisfy the debt. In the State of Ohio, from its first settlement, judgments have operated as liens upon the lands and real estate of the judgment debtor. Lands have always been liable to be sold upon execution, under certain conditions and restrictions, prescribed by law. These conditions and restrictions, have been, from time to time, varied as policy seemed to dictate. Since the year 1816, no material alteration has been made in respect to the ^conditions of sale, although there is a great change as to the effect of the lien. In section 2 of the “ act regulating judgments and executions,” passed January 2lst of that year, it is enacted: “ That the lands, tenements, and real estate of the defendant shall be liable to the satisfaction of the judgment from the first day of the term in which said judgment is obtained,” etc. In a proviso to section 7 of the same act, it is declared : “ That judgments voluntarily contested in open court shall only have a lien on lands, tenements, hereditaments, from the day on which they are actually signed or entered.” No time is specified within which the plaintiff shall sue out his execution in order to receive the benefit of his lien. He may do it whenever it suits his convenience. It is worthy too of notice, that, although by this act, all previous laws regulating judgments and executions are repealed, yet it is confined in its operations to judgments only, which may be thereafter rendered — the legislature being peculiarly careful to provide that judgments rendered before its enactment, should be collected according to the laws in force at the time of their rendition.

On February 24, 1820, the legislature enacted another law with a similar title with the one last named. This act, so far as it respects the subject of liens upon lands, tenements, and real estate,” does not vary the act of 1816, except that it confines the liens of judgments upon lands to those lands situate in the county where the judgment is rendered, and provides that when the lands do not lie within the country where the judgment is entered, they shall be like goods and chattels,' only bound from the time they are seized in execution. This act repeals the law of 1816, but, in its operations, is confined to judgments which shall be thereafter obtained, leaving those previously obtained to be collected under the laws in force when they were rendered, except so far as relates to goods and chattels which are not to be sold without appraisal.

During the existence of this law, the two judgments in favor of, Evans and McCormick were obtained, the former being prior in point of time ; and during the existence of the same law, the house and lot in Springfield were seized in execution at the suit of McCormick.

*By the act of February 1, 1822, “regulating judgments and executions,” which repeals the act of 1820, the same principle as to the lien which judgments shall have upon “ lands, tenements and real estate,” is continued as in the last-named act. In section 2 it is provided, however, “that in all cases where the party obtaining judgment shall neglect for one year after the first day of the term, in which such judgment shall have been rendered, to sue out execution thereon, and cause the same to be levied according to the provisions of this act, such judgment shall not operate as a lien upon the debtor’s estate to the prejudice of any other bona fide judgment creditor.” This is the first law, of all those recited, which requires the plaintiff to sue out his execution within speciified time, and it was manifestly the intention of the legislature to ■extend the provisions of this law to judgments which had been .theretofore as well as to those which should be thereafter rendered. For, in section 16 it is expressly enacted, among other things, as follows: “And no judgment heretofore rendered, on which execution shall not be taken out and executed before the expiration of •one year next after the taking effect of this act, shall operate as a ■lien on the estate of any debtor, to the prejudice of any other bona fide judgment creditor.”

Under this latter law, and within six months after it took effect, Evans, on November 18, 1822, sued out his execution, which was levied upon the house and lpt as has been before stated. By pursuing this course, he secured himself, as the law then stood, his lien upon the lands and real estate of the defendant, at least upon .that part of it upon which the execution was levied. And had the ¡property been sold under this execution, or had it been sold while ¿the then existing law remained in force, there can be no doubt but his judgment must have been first satisfied. This would have been the preferable or better lien.

Before the property was sold, however, the law then in force was repealed by the act of February 4, 1824, on the same subject. Section 17 of the last act provides, “ that no judgment heretofore rendered, or which hereafter may be rendered, on which execution shall not have been taken out and levied before the expiration of one year, next %fter the rendition of the judgment, shall operate as a lien on the estate of any debtor, to the prejudice of.', any other bona fide judgment creditor.” It would seem, from an examination of this clause of the statute, that it would be difficult to have made use of words conveying a more definite meaning. Had the words “ heretofore rendered, or which hereafter may be rendered,” been omitted, we should probably come to the conclusion that the statute was intended to apply only to subsequent judgments. Where there is anything doubtful in the statute, it is the duty of the court, in expounding it, to give it such construction as will comport with what is supposed to have been the intention of the enacting power. And where the intention is manifest, but that intention is in part defeated by the use of some particular word or phrase, the court will’look to the intention rather than the words. In the clause of the statute above referred to, however, there is nothing doubtful; nothing ambiguous; no-words made use of which operate to defeat the manifest intention of the legislature. There is, in fact, nothing left for construction. We must apply it according to its literal meaning. Under this statute, the house and lot which had been levied upon by the several executions of Evans and McCormick were sold. The execution of Evans had not “ been taken out and levied before the expiration of one year, next after the rendition of his judgment.” The execution of McCormick had been “ taken out and levied ” within-one year. The judgment of Evans, therefore, would not, under the law, operate as a lien, so far as to prejudice McCormick, provided the latter was a bona fide judgment creditor. That he was such creditor is not disputed. The advantage which Evans possessed at the time of his execution was lost by the repeal of the law then in force, and, under the present existing law, the lien of McCormick must be pronounced the better, or preferable lien.

It is objected, however*, that the law of 1824 can have no effect upon the judgment of Evans, inasmuch as by the recovery of the judgr ment, and the levy of the execution, he had a right vested in him of which he cou.ld not be deprived by legislative enactment. This objection presents an important inquiry, as it calls in question the constitutionality *of the law above referred to, at least so far as relates to all judgments entered prior to the time of its taking effect. There may be, and there undoubtedly are cases, where it is proper, nay, where it is the duty of a court, to refuse to enforce a statute, on the ground that it is inconsistent with the supreme law of the land. Yet this ought not to be done, unless the statute in question is a plain and palpable violation of the constitution. It should be both against the letter and spirit of that instrument. So long as there is a doubt, the decision of the court should be in favor of the statute. Whenever courts, in doubtful cases, undertake to declare Jaws unconstitutional, they may, with propriety, be accused of usurpation. They lose sight of the object for which they were constituted, and interfere with the rights of the people, as represented in a different branch of the government.

In order to dispose correctly of this objection, it is only necessary to ascertain the nature of the right vested in Evans. It was not a right acquired by contract or agreement, it was not one which vested in' him in consequence of the recovery of judgment alone; for, as has been before observed, it is not the necessary consequence of a judgment that it shall operate as a lien upon either real or personal estate. Whether it shall so operate, and how far, depends upon legislative enactment.' Had this right vested in Evans by contract, he could not have been deprived of it, but by his own act. . The legislature are restrained from passing any law which shall impair, or even change the nature of a contract.

Neither can a law regulating judgments and executions be considered as a law which enters into the nature of contracts, or which the parties have in view when they contract. Judgments are recovered as well for injuries sustained by torts, as for those which are sustained by reason of breach of contract. Judgments, too, are recovered not only for breach of contracts entered into in our own state, but for the breach of those which are made in other states and countries. When these judgments are once rendered, they operate equally as liens, without reference to the eonsideration for which they are rendered. The law of the Aplace where a contract is made, or is to be executed, may be said, in a certain degree, to constitute a part of the contract. It is always to be taken into consideration in construing, but never in enforcing the contract. A contract made in Yirginia, and to be executed in that state, must be construed according to the laws of Yirginia; but if that contract is enforced in Ohio, it must be done according to the laws of Ohio. This right, then, was not vested in him by contract, neither was it vested in him by the operation of a law, which could, with propriety, be said to constitute a part of the contract, if, perchance, his judgment was founded upon a contract

- Neither was this right founded in any principle-of natural justice; because if it were founded in natural justice we might suppose all the laws on this subject would be similar in all countries, whereas we find them variant. Further, if natural justice had anything to do with the case, it would seem to dictate that the debt first contracted should be first paid, whereas we well know that the priority of the judgments does not at all depend upon the priority of the demands upon which they are founded. If any creditor suffers, it is generally the one who is most indulgent. Inasmuch, then, as this right was vested in Evans, not by any contract of his own — not by any principle of natural justice — but by the mere operation of a law, which can not, with propriety, be said to enter into the nature of, or constitute a part of the contract, I see no reason for saying that the legislature had not power to repeal this law, thereby depriving him of his right. To determine otherwise would be to curtail very much the power of legislating. It is believed that no laws, especially in new states, are more frequently revised and amended than those relating to judgments and executions. In the short space of eight years, there have been no less than four different statutes on this subject in our own state, each succeeding one repealing the former. Whether such frequent changes are dictated by sound policy, it is not for the court to say; and we are not prepared to say that these sevei*al statutes are or were in whole or in part unconstitutional. It has long been a part of our system, that real estate should not be sold under execution, ^without valuation. Should the legislature repeal this provision of the statute, no doubt an immense majority of the-people would say, and with reason, that such repeal, was impolitic, but few, if any, would say it was in violation of the constitution.

Another objection which has been urged, is, that by giving to the statute its literal meaning, manifest injustice will be done. To this it may be replied that so far as relates to the case before the court, Evans and McCormick have equal equity. They both appear to be bona fide judgment creditors, equally in justice entitled to a satisfaction of their debts. If but one only can be satisfied, it must be him who has obtained a legal advantage. It is easy to conceive, however, that great injustice may be done in consequence of this statute. A creditor previous to 1820 may have recovered a judgment against his debtor. In one year and a day after its rendition he may have taken out his writ of fieri facias and caused it to be levied upon the real estate of his debtor. Repeated attempts may have been made, under the writs of vendi. and alias vendi. to dispose of the property, until at length, in 1824 or 1825, a sale is effected. But the creditor, who for five years has been striving to avail himself of his judgment, finds the property of his debtor swept from him and paid over to another, who recovered a judgment subsequent to the “first of June, 1824.” Again, a creditor previous to the year 1820 may have long had a demand against his debtor. At length he commences his suit and recovers judgment. Having proceeded thus far, being willing to indulge his debtor, and resting secure in his lien, he takes no steps to collect his judgment. At length, under the law of 1822, being fearful of losing his lien, he sues out hi execution and seizes upon the lands of his debtor. These lands are not sold until after June 1, 1824, and then the avails are taken to satisfy a judgment, not only junior in point of time, but a judgment recovered upon a debt contracted long subsequent to the rendition of the prior judgment. The indulgent creditor loses his demand, while the one who is less so is rewarded for what is termed his diligence. These considerations, however, are more properly addressed to a legislature, whose province it is to make, than to a court *whose duty it is to expound law. That the statute may, in some instances, operate unjustly, is no reason why it should not be enforced.

Upon the whole, the court are of opinion, as before expressed, that the lien of McCormick is the better lien, and that judgment must be entered for the plaintiff.

      Note by the Editor. — Eor a summary of the law of judgments and other liens, and of the rules as to priority between incumbrances, see note a, x. H, and the case to which the note is appended. This decision reaffirmed, iii. 336. Same doctrine, vi. 30. See also iii. 136, that a levy under an elder judgment, though after its year, has priority over a junior judgment levied within its year, if the elder’s levy was made before the junior was rendered. •
      Between several judgments not levied within a year, there is no priority, and the one first levied afterward gains a priority, iii. 336 and v. 398. For other decisions under this statute, see ii. 135, 395; ix. 142; xiv. 318; xvi. 533; xvii- 518.


source: Caselaw Access Project

author: By the Court :

license: Public Domain

text:
    Elisha Fitch v. Heirs of James Dunlap.
    "Where a newspaper is printed in a county, it is sufficient for a sheriff to advertise sales upon execution in it. Advertisements need not he set up in other places.
    This case was adjourned .from Ross County Supreme Court. A motion was made to confirm a sale of lands made by the sheriff upon execution. The lands were situate in the county of Ross; and it was proved that the sale had been advertised for the time required bylaw, in a newspaper printed in the county, and of general circulation within it. But no advertisements had been set up, either on the court-house door or elsewhere. It was suggested that this also was required by law, and to remove all possible doubt as to what should bo the practice, the final decision of the motion was reserved to be made in this court.
   By the Court :

The provision of the statute is, that notice shall be given “ for at least thirty days before the day of sale, by advertisement in some newspaper printed in the county, or, in case no newspaper be printed within such county, then in some newspaper in general circulation therein, and by putting up an advertisement upon the court-house door, and in five other places in the county, two of which shall be put up in the township in which such lands and tenements lie.”

It is suggested that the terms of this act require the advertisement to be set up on the court-house door and at the other places named in the law, in all cases of' sale of lands upon execution. A different practice has prevailed in most, if not in all, parts of the state; and the court think that *the practice is a correct one. The terms of this statute are somewhat ambiguous; but where that is the case, the construction should be preferred that may work the least mischief or inconvenience. The member of the sentence preceding the disjunctive “ or ” contains a full and ample provision for giving notice of sales upon execution. The disjunctive is introduced to provide for cases not embraced in the first provision; and the terms, as well as the grammatical construction of the sentence, are both satisfied by referring the direction for setting up advertisements to the latter case only. Where a newspaper is printed in the county, it is sufficient to advertise in that paper; but where no paper is printed in the county, then the advertisements must be set up — one on the court-house door, five in other places in the county, two of them in the township where the land lies. The order for confirming the sale is accordingly made.

      Note by the Editor. — One insertion, thirty days before sale, is sufficient, xiii. 120; xvi. 563. For another decision touching this notice, see ix. 19.


author: Judge Hitchcock:

text:
    Conrad Reed v. Samuel D. Carpenter.
    In replevin, a plaintiff may appeal from a voluntary judgment of nonsuit.
    This was an action of replevin, adjourned from the Supreme Court of Huron county).upon a question whether the appeal was correctly taken.
    The suit was brought in the common pleas. The plaintiff replevied the property, and on the return of the writ filed his declaration. The defendant pleaded non cepit, with notice of special matter in bar. At the term when, by the rules and usages of court, the cause stood for trial, the plaintiff became nonsuit, and judgment of nonsuit was rendered against him. At the request of the defendant a jury was impanneled to ascertain the value of the property replevied. A verdict of the value was returned, for which judgment, with a penalty of fifty per cent., was rendered. The plaintiff gave notice of appeal, executed a bond, as required by law, and brought up the record to the Supreme Court, where the cause was docketed. The defendant Amoved to quash the appeal upon the ground that the law did not permit the plaintiff to appeal from a voluntary nonsuit.
    Latimer, Williams, Whittlesey, and Newton, in support of the motion:
    The counsel for the defendant submit that the appeal is not sustainable,, and that the appeal-ought to be dismissed for want of jurisdiction.
    A remedy by which one or two litigants may acquire the custody of property, in the peaceable, and apparently in the legal possession of the other, is so harsh, and so liable to abuse, and may be made the instrument of so much injustice, that policy requires its discouragement.
    The legislature have adopted this policy, and from the manner in which they have treated the subject, it is manifest that it should be employed, in those cases only, where the right is clear, and it is equally manifest that it should not be adopted, to settle rights which are doubtful and contingent.
    With these feelings the rights of the parties are so modified by the statute (especially the statute in force at the institution of this suit), that the common law practice is abrogated, and a new course prescribed, by which a judgment for the value and damages is rendered against the plaintiff in case of failure, and this judgment is to be considered, not as an adjudication of the rights of the parties, but as a penalty upon the plaintiff, for rashly employing a remedy not adapted to his case.
    If we have illegally taken this property, he may still recover his damages in trespass, but he is not permitted to employ the arm of the law to take property from our possession, without abiding the risk of his proceeding, and paying the forfeit if he fail in maintaining his rights.
    The title of the vessel in dispute has never been acted upon, and he may still recover his damages for the taking in an action of trespass; the reason why he may not make another replevin, is, not because a former judgment concludes the rights of the parties, but because the possession of the property is already his.
    If this view be correct, we can discover no reason to distinguish *the practice in this suit from an ordinary nonsuit. We repeat, the rights of the parties to the property have not been adjudged; as in all eases, if the plaintiff fail, he incurs the liability of the costs, which were intended as a penalty for asserting unfounded claims; so here he incurs a penalty similar in kind, and only differing in degree because the nature of the remedy requires a greater security against abuse.
    It may still be urged that the suit requires both parties to be actors — that any termination of the suit necessarily concludes their rights; if such be the opinion of the court, then we submit that the plaintiff, by becoming nonsuit, has made a voluntary abandonment of his claim, which, in this suit, he is not permitted to revive; that the only open question is the value of the vessel, which the statute secures to us, and which alone he will be permitted here to contest.
    Hopkins, in support of the appeal:
    It is contended, on the part of the defendant, that a nonsuit of this kind can not be appealed from. In answer, it might be conceded, that if it were any other action except replevin, the position taken by the defendant’s counsel would be tenable; for in every Other action the plaintiff would have no need of appealing. He could reinstate himself before the same court by commencing a new action, and suffer no injury by the former, except the trifling cost which had accrued thereon, and thereby have his day in court. But in the present action the defendant is virtually plaintiff, because both parties are actors in it. Under this view of its nature., this court has recognized the genius of the action by retaining the cause in this court. This is giving the defendant the full advantage of the plaintiff, which he has become in fact. The next question is, could the defendant have appealed and had a trial before this court, had he made default and a judgment been entered in favor of the plaintiff for his damages on that default? I think the court would have entertained no doubt in the last case; for by section 99 of the judiciary act, in civil cases, an appeal shall be allowed of course to the Supreme Court from any judgment or decree rendered in the court of common *pleas, in which such court had original jurisdiction. Now shall the plaintiff, after having become defendent by operation of law, for he must be so considered by section 52 of said act, which recites that “it shall be lawful for the plaintiff in replevin, and for the defendant or tenant in every other action, to plead in any court of record, with leave of said court, as many several matters as he shall think necessary for his defense,” etc., be put in a worse situation than he would have been had he been the original defendant? I think the genius of our laws and that of the action will not allow it. The whole cause is, I think fully in this court, over which the court can exercise all its judicial authority. ■
    By section 3 of the judiciary act, the court are not confined, in their jurisdiction, to the particular processes therein named, but may issue all other writs not specially provided for by statute, which may be necessary to enforce due administration of right and justice throughout the state, and for the exercise of their jurisdiction agreeable to the usages and principles of law. By the authority given here, the court have full power to issue a judicial writ out of the original record to replevy as often as the plaintiff becomes nonsuit, which, is given by the usages and principles of common law, and by which the return of the property to the defendant was never irreplevisable, in this action, whether the non-suit of the plaintiff had been before the avowry or after, or before or after issue joined; because where the defendant had judgment for a return on a nonsuit, though after verdict, that judgment was not founded on the verdict, but on the default of the plaintiff by withdrawing himself at any continuance day after the verdict; so that though the defendant had return, yet he had not the justice or legality of his caption established by such judgment; and therefore as long as the caption and detention was not determined by the judgment of the court so long they allowed the plaintiff, after his own nonsuit, to take a new replevin. Gilbert’s Law of Replevin, 233. By deduction from both the above authorities, this court has full power to issue a new replevin; or this court has, by the above section of our statutes, authority to follow the usages and principles of laws which were in force and in use at *the adoption of the constitution of the United States, and which are in no wise invalidated by any law or custom of our state, to issue a writ of second deliverance, which is given by statute of West. 2, c. 2, and, like that of the new replevin, is a judicial writ issuing out of the original record of the first replevin, in which the nonsuit was; or this court may waive the formality of either of the above writs, issuing, in fact, as they do, in cases of writs of inquiry of damages, and order the sheriff again to call the plaintiff in this court, and, if he answer, the cause shall be fully before this court on its original merits and pleadings. By all the. usages and principles of law, from which we can gain any authority for a precedent, the plaintiff could always be reinstated before the court, after his non-suit, and have his day in court upon the merits of his cause; and if he can not, in this instance, it will be an anomaly in the annals of civilized jurisprudence. Suppose the judgment, in the present case, had been de retorno habendo, with fifty per cent, damages, by the court for the defendant, would there have been any doubt in the minds of the court but that a new replevin, or a writ of second deliverance, or some other appropriate and adequate proceedings might have been had by the plaintiff, to bring his whole cause before the court and put the defendant upon the defense of the justice and legality of his caption and detention of the property. An assessment of the.value of the property is, by our statute, awarded to the defendant instead of the judgment de retorno habendo. The principles of law, then, are not at all altered, and the same proceedings may be had as upon that judgment.
    It was not, nor could it have been the intention of the legislature, that by changing the form of the judgment from a return of the property in specie to an assessment of the value to the defendant, should take away all the common-law usages, and former precedents, which have been so satisfactorily established in principle, by all former ages, when the action of replevin has been known. One of the vital principles of this action is, to try the justice and legality of the defendant’s caption and detention of the property. The legislature could never have intended that such a judgment of nonsuit should be final and irreplevisable, in the first instance, and all remedy against the wrong-doer gone, with not only the loss of his property, but fifty per cent, by way of fine for his non-attendance. If this was the intention of the legislature, they have completely destroyed one of the most salutary actions for the unjust caption and detention of property which was known to the law.
    In the present case, the defendant denies the caption, and sets forth three several matters in a notice which is no part of the record. Now, upon which of these several counts, as it were, has the court below assessed; or will this court re-assess the value of the vessel to the defendant? There is no record authority to ground that judgment upon. He has spread nothing upon the record to show that he had any right to have the value of the property assessed to him. Therefore, the moment the plaintiff is out of court; the defendant is also, unless his word is tantamount to a record.
    Had the defendant set forth the several matters, in an avowry, which he has in his notice, under the issue of non cepit, it would have been bad on general demurrer, upon a motion in arrest or upon error. The avowry being in the nature of a declaration, the avowant, as all other plaintiffs in all other actions, ought to show to the court a definite right in himself to have return, or the value of it, by the record of the case before the court; because, unlike all other actions in the law, he turns round, when the plaintiff has become nonsuit, and continues on the action to judgment, as plaintiffs do in all other actions on the default of the defendant. It would be a perfect novelty in law, either in debt or assumpsit, where the defendant had pleaded an offset, that after the plaintiff became nonsuit, and out of court, the defendant should proceed to obtain judgment for a larger sum of debt or damages; for the judgment is, that the defendant go without day, and the plaintiff in mercy, etc. But in the replevin alone do both parties act, and when one party makes default the other proceeds on with the suit; for, by the above section 52 of the judiciary act, the defendant is considered to act most properly as plaintiff. Here is a plain and evident exception of this action from the laws and rules which govern all other actions, and the laws and rules which govern non-suits of all other ^actions are not at all applicable to this action. If they were in any way applicable, the defendant could not appeal from a judgment on his own default, and therefore the provision of. section 99, above recited, would be a nullity.
    This case is a new case, and will, in all probability, not only stand as a precedent and authority for all the inferior courts throughout the state at the present day, but will be considered as a law to govern posterity. And what will future generations think of a decision where no positive statute applicable to the case, no course of common law or ancient statute was pursued, and no record evidence of any definite right which the defendant had to the property appears,’ and still the plaintiff could not have the justice of his cause tried? If such a precedent should be established at this time, they must be struck with the injustice of the practice, and strike out and pursue a contrary course shortly, or this action must become obsolete altogether.

      This court has, from section 3 of the judiciary act, authority to. make new writs where none can be found appropriate, like the old officina brevium, or establish any new course of' practice for the advancement of justice or equity throughout the state.
    It would be highly opprobrious to a republican government, and especially to a state whose greatest boast is that she has cast off all the shackles of ancient monarchial barbarism, and that her citizens are alone to be protected and governed by equal laws which give every man his due, if a solitary case could be found upon her records in which a villain had triumphed over justice for want of a precedent to guide and direct the injured party, in case of accident, or against the finesse of artful knavery. Yea, more so would it appear, when viewed in comparison with the ready means afforded the parties, which were ever devised, on the spur of the occasion, by the ancient judges of that monarchy, in times of ignoi’ance and’ferocity, who adopted a course of practice so conformable to the spirit of justice that, by a succession of ages it became settled law, that if any defect of justice happened at the trial by surprise, inadvertence, or misconduct, the party might have relief in the court above by obtaining a new trial; or if, not-withstanding '-¡:the issue of fact be regularly decided, it appeared that the complaint was not objectionable in itself, or not made with sufficient precision and accuracy, the party might supersede it by arresting or staying the judgment. And the courts adopted, even in those early times of monarchy, a maxim, that in all cases of moment, where justice is not done upon one trial the injured party is entitled to another. And those judges, if they transcended their authority, they erred on the side of justice, in whose aid they did it, and that posterity might have a guide and example.
    And this court, although they may at this time have to act without any direct authority in this state, are about to make one for future generations ; and it would be altogether more satisfactory, in forming a precedent, that it should be in aid of justice, where no positive statute could be found to govern them, rather than the party should be driven from the court, without an investigation of his complaint, with great loss and injury, and the doors of justice closed against him forever. And it is much to be hoped, that among the innovations of this enlightened age, while the courts forego and cast off many of the ancient formalities of coming to justice in a cause, that they do not lay aside the substance, and substitute the shadow for the reality.
    It is urged by the defendant’s counsel, that this is an action altogether given by the statute of this state, and that no common law principles or ancient statute comes in to govern any part of the proceedings in it. But I would ask the gentlemen in what part of the statute the form of the declaration, the plea, the kind of testimony to be given, are to be found? How far, I would ask, could this, or any other court, proceed in the unsettled state of practice in this state, were they to bo confined to the letter of the statute only, and call no other authority or precedents to their aid? The statute merely gives the skeleton of the action of replevin, and the usages and the principles of common law and ancient statutes, in force at the adoption of the constitution of the United States, must give that cadaverous figure life, strength, and activity. Prescribe these and you prescribe all common sense. Even the incipient and all the subsequent movements can not be had without them.
    *It would derogate from the dignity of this court .to be thus confined to the letter of the statute, and assimilate it to that of a common justice of the peace, who is confined to one act only, and who does not think himself authorized to bring to the aid of his judgments any principles of common law, and often very little common sense.
   Opinion of the court, by

Judge Hitchcock:

At an early period of the judicial history of the State of Ohio, it was determined that an appeal could not be sustained from the court of common pleas to the Supreme Court from a judgment of nonsuit.

The reason which operated upon the court in giving this construction to the statute undoubtedly was, that such judgment did not conclude the rights of the parties. It was not final. The plaintiff might, at any subsequent period, recommence his action, and prosecute it to final judgment. The judgment of nonsuit would be no bar. So uniform were the court in enforcing this rule, that the legislature thought proper to interfere, and on February 4, 18Í3, enacted a statute, providing, in substance, that where the nonsuit was ordered by the court of common pleas in consequence of a defect of testimony, or for any other cause, the plaintiff should have the right of appeal. From, this statute no other inference with respect to the intention of the legislature, than this, can be drawn, that where the nonsuit was voluntary, the plaintiff should not have this right; and from that period to the present, such has been the uniform decision of the court. Such being the case, the court would not hesitate to sustain the present motion, were the action of a different description, and did we suppose that by pursuing that course we should be carrying into effect the intention of the legislature, in securing to parties litigant the right of appeal.

The action of replevin is one of a peculiar nature; both parties are actors. In this state it is regulated by statute. By section 5 of the act of January 22, 1813, the statute in force when this suit was commenced, it is provided, that “if the plaintiff becomes nonsuit, or on trial the jury find the defendant not guilty of taking the goods and chattels *from the possession of the plaintiff, or find that such goods and chattels belonged to the defendant, the value of such goods and chattels shall be ascertained by the jury, and the court shall render judgment for the defendant, for the value so found, with fifty per cent, damages, and interest from the time of their being replevied.” By this section it appears, that after the plaintiff becomes nonsuit, a judgment is not thereupon, as in ordinary cases, rendered for the defendant to recover his costs. The situation of the parties is changed. The defendant becomes plaintiff, or actor. He claims to recover not only his costs, but also the value of the goods and chattels replevied, together with damages. A jury is impanneled to ascertain this value, and return a verdict accordingly. Upon.the verdict of the jury the court render a judgment for the value of the property, together with fifty per cent, penalty, or damages and interest.

This judgment is final. It is not, strictly speaking, a judgment of nonsuit. The plaintiff can not afterward recommence his action of replevin, for the property is already in his own possession. It is a judgment whereby the defendant recovex-s the value of the propex-ty and damages after he becomes actor in the case ; and in its effects may, with more propriety, be assimilated to a judgment by default, than to a judgment 'of nonsuit. The propriety of sustaining an appeal, under our statute, from a judgment by default, has never been doubted, and the same reason applies for sustaining the appeal in the present case, as in one of that description.

The motion to dismiss the appeal is overruled, and the cause continued.


author: by Judge Sherman :

text:
    *Ellis v. Bitzer.
    Where, in an action of trespass against five, plaintiff accepts a note from two for a sum of money, to be paid at a future day, in satisfaction as to them, but not to operate as a satisfaction for the other defendants, the cause of action is discharged as to all.
    This was an action of trespass, assault, and battery.
    The original writ was sued out against five defendants — Bitzer, Townsend, Whitacre, Williams and Adkins. As to Williams and Adkins it was returned non est. The declaration was filed against the other three making this suggestion. They appeared and pleaded not guilty. They also pleaded two special pleas, the substance of which were, that after the commencement of the suit, one W. S., as agent for the plaintiff, made an agreement with the defendants, Williams and Adkins, to receive their note for one hundred and fifty dollars, payable at a future, but certain day, in satisfaction for the trespass as to them, and to forbear further prosecuting the suit against them; .and that in performance of this agreement, Williams and Adkins made and executed their note for one hundred and fifty dollars to Smith, and delivered it to him, who, as agent for the plaintiff, accepted it, in satisfaction for the plaintiff. Issues were joined upon both these pleas. The testimony was reduced to writing and agreed by the parties, as follows:
    W. S. testified that he was authorized by the plaintiff to conduct the'suit against the defendants, but had no special authority to make a compromise. He made the settlement with Williams and Adkins, and took their note payable to himself, in consideration of which he agreed that they should not be further prosecuted. He believed he had influence enough with the plaintiff to prevail upon him to acquiesce in what he had done. The note had Dot been paid, and no offer had been made to restore. it to the makers. It was in the hands of the plaintiff’s attorney.

      J. E. testified that when the compromise was agreed upon, it was distinctly understood to be made for Williams and Adkins alone, and not to be a satisfaction for the rest, Williams and Adkins were to be entirely discharged from the civil suit, and the prosecutors were to do what they could to make the prosecution as light as possible.
    J. G. testified the same as the last witness, and in addition, that after the note was given Smith directed Eaton to ^indorse eighty-five dollars upon the note, as paid; Smith at the same time said the real agreement was that sixty-five dollars was to be received, but that the note was given for one hundred and fifty, that the plaintiff might the more readily obtain from the others a considerable sum upon compromise. But this he did not wish disclosed.
    J. M. G. testified that he heard the plaintiff say to his attorney, “ What S. has done I suppose I must agree to.”
    As to Williams and Adkins, the suit had neither been prosecuted nor discontinued. The plaintiff’s counsel produced the note in court, and offered to cancel it.
    In the court of common pleas a verdict was taken for the plaintiff, subject to the opinion of the court upon this point reserved, whether in law the testimony adduced supported either of the special pleas. The court of common pleas gave judgment for the defendants,'and the plaintiff appealed. In the Supreme Court of Belmont county, where the cause originated, the cause was submitted to the court upon the foregoing statement of the testimony, and an agreement as to the sum for which judgment should be given, if the court should decide for the plaintiff. The decision of the cause was adjourned to this court.
    Hammond, for defendants:
    It is settled that an agreement not to sue upon a particular cause of action amounts to a release. It can not be pleaded as a release, but the fact may be pleaded, and its operation, upon being proved, is to bar the plaintiff’s action. Cuyler v. Cuyler, 2 Johns. 187; Harrison v. Wilcox and Close, Id. 449.
    The agreement not to sue in this case was made upon good consideration. The note accepted'reduced the plaintiff’s claim for the injury sustained to a certain amount, and totally changed its character. By making the note on one side, and accepting it on the other, the agreement was completely executed. The payment of the note was not necessary to the making it a satisfaction, because that was not a part of the agreement.
    Wright, for the plaintiff:
    Accord without satisfaction is not a good plea. A bare *promise of future satisfaction is not good. If it remain executory it is no bar. 1 Esp. N. P. 239; 1 Strange, 23, 573; 1 Bac., Accord, A, 24; Cro. Eliz. 304, 306; 2 Term, 246; 5 Johns. 386; 3 Johns. Cas. 143.
    An agreement not to sue a single debtor has been held to operate as a release. But where two are liable, an agreement not to sue one does not operate to bar a suit against the other. 2 Salk. 575; 8 Term, 168; 2 Saund. 48, note 1; 2 Johns. 449; 5 East, 232.
   Opinion of the court,

by Judge Sherman :

This case is presented to the court in the form of an agreed case, but it is so only in name. The parties, instead of agreeing upon the facts, have agreed upon the testimony which the defendants could give in support of their second and third pleas, and ask the determination of the court whether that testimony sustains either of those pleas. This is in effect submitting the issues in fact to the court instead of the jury, upon a written statement of the testimony of the witnesses, a course of proceeding not sanctioned by our practice. The parties, however, having agreed that if the evidence, contained in the written statement, does not support either the second or third plea, that judgment may be entered in favor of the plaintiff for a specified sum, the court will not delay the parties, or put them to the expense of having the finding of a jury upon the issue in fact made upon those pleas.

Upon the pleadings and proofs in the case three questions have been made. Was the note mentioned in the plea executed and received in satisfaction of the trespass complained of in the declaration ? Is a discharge of one of several joint trespassers a discharge of the whole, where the parties have expressly stipulated it shall not have that effect ? Is a note given for a trespass, which remains unpaid and in court to be canceled, a satisfaction ?

The first is purely a question of fact, and depends upon the testimony. The proof is that Smith, the agent of the plaintiff to conduct the suit, but without any special authority to settle, compromised with Williams and Adkins, who were jointly concerned with the defendants in the trespass ^complained of, and whose names'were inserted in the writ, took their note for one hundred and fifty dollars, and agreed to forbear to sue them; that it was distinctly understood that the compromise was only for Williams and Adkins; that they were to be wholly discharged from liability for damages on account of the trespass, but that it was not to be a satisfaction for the other joint trespassers, and that tha plaintiff, after being informed of the compromise made by his agent, said he supposed he must be bound by what Smith had done. Without going into a particular discussion of the facts, the court are satisfied that the note mentioned in the third plea was executed in satisfaction of the trespass complained of, so far as Williams and Adkins were concerned therein; and that it was received by the plaintiff in satisfaction is apparent from the fact of the note being in his possession and by him brought into court, as well as from the testimony that it was so received by Smith, bis agent for conducting the suit. It was executed and received with tho intent and for the purpose of discharging Williams and Adkins, the makers, from all further liability on account of their being jointly concerned with the defendants in the trespass, but with an express stipulation that it should not discharge the other co-trespassers.

That a release of one of several joint trespassers operates a discharge of all is a position too clear to admit of doubt. The authorities on this point are uniform, full, and clear. 1 Hob. 66; Co. Litt. 232, a. An accord and satisfaction of a joint trespass by one is good for all concerned. The act of one of several joint trespassers is the act of all; they all unite to do an unlawful act, and each is responsible for the acts of the others. The plaintiff may elect to sue them jointly or separately, and may pursue them until he has obtained satisfaction, but he can have but one recompense in damages for the same injury. Tho plaintiff here agreed to take the note of Williams and Adkins, two of the trespassers, for one hundred and fifty dollars, and to forbear to sue them; the note was given, and it was understood they were fully discharged, and he has thus made his election not only as to the amount he would receive as a recompense for the injury he sustained from the assault and battery committed *by the defendants jointly with Williams and Adkins, but also of the persons from whom ha would recover that recompense. He has been satisfied for the trespass committed upon him, and to permit him to recover in this action would give him another recompense for an injury already satisfied. It can make no difference that it was part of the agreement between the plaintiff’s agent and Williams and. Adkins, that the giving and receiving the note mentioned in the pleas was not to be a satisfaction for the other trespassers. Each joint trespasser being liable to the extent of the injury done by all, it follows as a necessary consequence that satisfaction made by one, for his liability, operates as a satisfaction for the whole trespass, and a discharge of all concerned. Williams and Adkins could make no agreement impairing the legal rights of the defendants, nor cede to the plaintiff the privilege these defendants had of availing themselves of any matter forming a legal defense to this action. The accord and satisfaction mentioned in the third plea operated in law as a discharge of these defendants from liability for the injury complained of by the plaintiff, and it was not in the power of other persons to deprive them, by any agreement of theirs, of the benefit of this legal discharge. The plaintiff can not complain, for he has agreed upon the quantum of damages he sustained by the trespass, and has received the note of Williams and Adkins in satisfaction from and discharge of them; and they can not complain, for, as joint trespassers, they are liable to make the plaintiff a full recompense in damages for all the injury he sustained by the commission of the trespass.

The remaining question is, whether a note given for a trespass which remains unpaid, and in court to be canceled, is a satisfaction. An- accord without satisfaction is not good. The party must not only have agreed to accept, but he must actually have accepted, before it will amount to a satisfaction in law. A naked promise to make satisfaction at a future day, for a trespass, is not a bar to an action brought to recover damages for that trespass. It must be shown that the promise has been executed, by the payment or delivery of what was agreed to be received in satislaction, or the injury in law remains, and with it the right to *recover a recompense. In this case the evidence shows that the accord was executed and the satisfaction actually made. The plaintiff agreed to accept the note of Williams and Adkins, two of the joint trespassers, for a specified sum, in discharge of their liability for the trespass. The note was accordingly made and accepted by the plaintiff. The discharge of Williams and Adkins was immediate upon giving the note, and did not depend upon payment of the money. The agreement was to receive the note in satisfaction, and the accord was executed when the note was made and delivered. The contract of the parties looked only to the execution and delivery of the note, and Williams and Adkins were to be discharged, not on the payment of one hundred and fifty dollars, but upon their giving to the plaintiff their note for one hundred and fifty dollars. It was not an accord without satisfaction, or a mere promise to make satisfaction at a future day, but an adjustment between the parties of the amount of recompense to which the plaintiff was entitled, and a present satisfaction. The plaintiff’s right of action for the trespass was gone by the acceptance of the note, and it will not revive, either against the makers or the other joint trespassers, by the non-payment of the. money at the time stipulated in the note, or by the plaintiff producing it in court and offering to cancel and deliver it to the defendants. The plaintiff has, by his agreement, substituted one cause of action for another, and he can not resort to both, or either, at his election. He has accorded with, and received satisfaction from part of the joint trespassers, and thereby discharged the whole; and he can not deprive the defendants of the benefit of that discharge by offering to surrender that which he has received in satisfaction for the trespass. Judgment must be entered for the defendants on the third plea.

        Note bt the Editor. — See note to Lathrop v. Wrignt, ii. 33.


text:
    *David Beggs v. John Thompson.

      A purchaser of lands at sheriffs sale can not sustain an action of trespass for the crops where he does not obtain possession by ejectment.
    This was an action of trespass, guare clausum fregit, adjourned from the Supreme Court of Columbiana county, upon a case agreed, embracing the following facts:

      Thompson, the defendant, mortgaged the premises in question to Robert Patterson and others. A scire facias was prosecuted upon the mortgage; the land taken in execution, sold by the sheriff, and purchased by the plaintiff. At May Term, 1823, the court made an order confirming the sale, and the sheriff made a deed to the plaintiff. The defendant was in possession; the plaintiff demanded possession of him, which was refused. He then served a notice on him in writing, and instituted a proceeding in forcible detainer, in which the plaintiff obtained a judgment; that was reversed on certiorari. In April, 1824, the defendant, who had been in possession of the premises, and used them and received the crops from the time of the levy, abandoned that possession, and the possession was taken by the plaintiff; after which he brought this action to recover of the defendant for the rents and profits of the land. And whether it could be supported was the question submitted to the court.
    J. C. Wright, for the plaintiff:
    This is, in substance, an action of trespass for mesne profits. It is objected to the plaintiffs having judgment:
    1. That he can not recover without having obtained the possession by judgment and habere facias.

      2. That he can not recover, after possession, for any time before possession, or any rate for any time anterior to the time of the demise laid in the declaration in ejectment.
    A person having title may enter peaceably into possession, without judgment or suit, and having so entered, his possession inures according to his title. Jackson v. Horiland, 13 Johns. 235, Adams on Eject. 98.
    A sheriff’s deed relates back to the time of sale. Jackson v. Dickinson, 15 Johns, 309; Adams Eject. 71.
    Where once an entry has been made, it will have relation *to the time the title accrued, so as to enable the claimant to recover the mesne profits from that time. Adams Eject. 335.
    A sheriff, though not bound to do so, may put a purchaser into possession, and any person having title may enter into possession, if they can do so without breach of the peace. Chief Justice Gibbs, in Rogers v. Pitcher, 6 Taunton, 202, says, “I am aware it has, in several places, been said, that the tenant in elegit can not obtain possession without an ejectment, but I have always been of a different opinion. There is no case in which a,party may maintain ejectment, in which he can not enter. The ejectment supposes he has entered ; and that the lessor may do it by another, and not enter himself, is not very intelligible.” This is supposed to be the correct doctrine on the subject; and would not the contrary doctrine border upon absurdity? A trespasser intrudes into my farm, and uses and abuses it for several years, until my patience being exhausted, I threaten to bring ejectment. When he abandons the place, and is about to clear out, I can not sue him for the trespass, although complete. I must bring ejectment to recover possession of the premises that are left vacant, on purpose to let me enter to avoid the necessity of the suit; and in the meantime the trespasser leaves the country; my remedy for the mesne profits is gone, and I have a bill of costs to pay in the ejectment! This is unreasonable; and where the reason of the rule fails, or rather the want of reason, shows that the rule was never founded in law.

    The refusal of a judgment debtor, whose land is sold on execution, to give possession, makes him a trespasser. He is not a tenant, or liable for use and occupation, which, unless upon express promise, is a statutory remedy. 11 Geo. ch. 11, p. 19, adopted in New York laws, vol. 1, p. 146, but never adopted in Ohio. He is liable to be turned out as a trespasser, and is responsible, in that character, for the mesne profits. Smith v. Stewart, 6 Johns. 49.
    A lessor of the plaintiff in ejectment may bring trespass for the mesne profits in his own name, or that of his anonymous lessee. If in bis own name, he may recover for rents and profits for the time anterior to the demise in the ejectment-; *and he may do the same if the recovery in ejectment be against the casual ejector. Adams Eject. 330.
    In trespass for the mesne profits, it is not necessary to prove a writ of habere facias executed. Bul. H. P. 87 ; Adams on Eject. 336. And .in such case, where the judgment has been in favor of the casual ejector, and no habere executed, the defendant may controvert the plaintiff’s title. 2 Strange, 960; Esp. N. P. 495. The defendant can not pay the money into court, because the action is for a tortious occupation, from the time the tenant had notice of the title of the plaintiff. 2 Wils. 115; Esp. N. P. 495. If the plaintiff seek to recover the profits antecedent to the demise, or bring ms action against a precedent occupier, the record in ejectment can not be given in evidence, but the plaintiff must prove Ms title and an

      entry on the land. Bal. N. P. 8; 2 Burr. 667; Adams on Eject. 334. It would seem, from these authorities, there could be little doubt as to the law in such cases. The action of trespass existed in use long before the action of ejectment, and give place to it only so far as necessary to try the right of possession to land, and effect a restoration of the possession to the owner, if ejected. This the action of trespass could not do; it only gave damages for the trespass till the time of suing out the writ. The action of trespass still remains with all the virtue it ever had. We may admit, for the sake of the argument in this ease, that a legal right to possession does not carry with it evidence of legal possession sufficient to maintain trespass, because here the plaintiff was in possession before suit. The true rules are supposed to be: Where trespass for mesne profits isbrought, a plaintiff who has recovered in ejectment, and seeks to recover only from the time of the demise laid in his declaration, the record in ejectment is conclusive; but if he seek to recover for a longer time, as to that longer time the title and possession are open to litigation ; and where he seeks to recover, having obtained possession without ejectment, the whole subject, as to title, is open .for controversy; except, that when the defendant is a judgment debtor, and the plaintiff a purchaser at sheriff’^ sale, the defendant can not set up an outstanding title in a stranger. 3 Caine, 188.
    *Loomis and Metcalf, for the defendant:
    Trespass can not be sustained for an injury to real or personal property without possession. In the case of personal property possession may be merely constructive; but in the case of real property the possession must be actual.

    The general ownership of goods and chattels carries with it prima facie evidence of possession; but if the general owner parts with his possession, and a bailee have, at the time of an injury committed, an exclusive right to the use, the evidence of possession, by the general owner, is rebutted, and he can not maintain trespass, but case only. Putnam v. Wiley, 8 Johns. 432; Van Brant v. Schenck, 11 Johns. 385.
    The general ownership of lands does not carry with it prima facie evidence of possession. Actual possession is an essential ingredient in the title requisite to support trespass guare clausum fregit.

    A right of possession, not coupled with- a possession in fact, at the time of an injury committed, is not sufficient. That action is grounded upon an injury to the possession, and can not be maintained, unless the plaintiff has actual possession, though he may have the freehold in law. 2 Phil. Ev. 132, 133.
    The adjudications upon this point are numerous, and appear, so far as our researches have extended, to have been uniform from an early period in judicial history to the present time. A brief review of authorities will test the correctness of this remai'k.
    Only the person who has the possession in fact of the real estate, to which an injury has been done, can maintain an action of trespass, quare clausum freg'it; a general property not being in the case of real property, as in the case of personal property, sufficient to found this action upon. 6 Bacon’s Abr. 566; Bro. Tresp., pl. 38, pl. 315, pl. 346; 2 Lev. 209; 2 Bulstr. 268.
    A person in whom the freehold of the land is can not maintain the action for an injury to the land whilst in the possession of another. 2 Roll. Abr. 554; 6 Bacon Abr. 566.
    An heir at law may make a lease of land, descended to him before entry; but though he have an indisputable right *of possession and an absolute estate, he can not maintain trespass until he have, by entry, regained the possession in fact of the land. Browning v. Beston, Plowd. 142.
    If a man who once had possession in fact of real estate quit it, or be deprived thereof, he can not maintain an action of trespass, quare clausum fregit, for an injury done thereto, which was done betwixt the time of his quitting or being deprived of the possession, and his regaining the same by re-entry. Bro. Tresp., pl. 365, and 6 Bac. Abr. 567.
    Possession alone is a sufficient title to sustain trespass, quare clausum fregit, against a wrong-doer. Van Nuys v. Ferhem, 1 Johns. Cas. 82.
    It is possession at the time of the injury committed, and not at the commencement of the suit, that is requisite to maintain trespass for an injury to real estate. In fact, when an injury has been done to a person’s land, whilst he was in possession, he may bring trespass after he has abandoned the possession, and sustain the action. Bro. Tresp., pl. 12; 2 Roll. Abr. 569; Plowd. 431; 6 Bac. Abr. 568.
    The defendant in this cause having had peaceable and lawful possession of the premises at the time it is claimed, the plaintiff’s title accrued, and the plaintiff never having had a possession in fact until’ a period subsequent to the injury alleged, the foregoing authorities conclusively show that he can not recover in the form of action which he has elected. They clearly specify the injuries to which this species of action is to be limited; and define with certainty the title which is requisite to its successful prosecution. They clearly establish the fact that the law on this subject has been settled in England for centuries, upon principles free from ambiguity, and within limits exempt from doubt or uncertainty. But we rest not here. The decisions in onr own country are equally clear, pointed, and conclusive.
    This question was presented for adjudication in the case of Campbell v. Arnold, 1 Johns. 511. On the trial of that cause the plaintiff proved that in the year 1776 he was in the actual possession of the premises on which the trespass was committed; that at the time of the defendant’s entry upon the land and the commission of the trespass, one Archibald was in possession as a tenant, under *the plaintiff, to whose agent he paid rent. Upon the production of this evidence the defendant’s counsel moved for a nonsuit, upon the ground that the plaintiff was not in the actual possession at the time the trespass was committed. The motion was overruled, and a verdict passed for the plaintiff. Upon a motion to set aside the verdict for misdirection of the judge, the court said: “ The rule appears to have been long and well established that there must be a possession in fact of the real property to which the injury was done, in order to entitle a party to maintain an action of trespass guare clausum fregit. A general property in the case of real estate is not, as in the case of personal, sufficient to support this action.”
    Here is an express adoption of the principle for which we contend, and a direct restriction of the remedy by trespass, guare clausum fregit, to an invasion of the actual possession. A person having title to real estate, not coupled with possession, is not, by this decision, left remediless. Another form of action may be successfully prosecuted.
    In the case of Tobey v. Webster, 3 Johns. 468, the authority of the preceding decision was expressly recognized, though Kent, Chief Justice, said he had been of a different opinion before looking into the cases, after which he concurred with the other judges in the opinion delivered in the case of Campbell v. Arnold. The principle that a party must have actual possession of real property to enable him to maintain trespass, is also advanced in the case of Stuyvesant v. Tompkins and Dunham, 9 Johns. 61.
    The case of Wickham v. Freeman, 12 Johns. 183, establishes the principle that to sustain the action of trespass the plaintiff must show an actual possession of the premises, or that he is entitled in remainder or reversion, or in case the premises are vacant, that he has the legal title which draws to it the' possession. The facts in this case show that the plaintiff was not in actual possession; that he did not claim in remainder or reversion, and the premises were not vacant. The action of trespass could not, at common law, be sustained by a remainder-man or reversioner; that remedy was given them in England and New York by statute. No such statute exists in Ohio, and of course the action could not be ^sustained in our courts. In the last-mentioned case the decision in Campbell v. Arnold is referred to as settling the law on the subject now under discussion. See also Taylor v. Townsend, 8 Mass. 411; Starr et al. v. Jackman, 11 Mass. 519.
    It is conceded that a judgment in ejectment, against the tenant in possession, is, in an action for mesne profits, conclusive evidence of the plaintiff’s title from the time of the demise laid in the declaration, and that a judgment by default against the casual ejector, with a writ of possession executed, will have the same operation. The defendant can 'not, in either case, put the plaintiff to proof of actual possession, because, in the one instance, the plaintiff’s possession is sufficiently .shown by the common consent rule, in which lease, entry, and ouster are confessed; and in the other, an entry under the writ of possession will be referred, by fiction of law, to the time of the demise. 2 Phil. Evidence, 211, 212.
    But the judgment in ejectment is conclusive only as to the subject matter. It is conclusive of the right of possession and title only from the time of the demise; beyond that period it proves nothing. Van Allen v. Rogers, 1 Johns. Cas. 283; 2 Phil. Ev. 210, 211; Aslin v. Parkin, 2 Burr. 668.
    Should the plaintiff seek to recover for a period anterior to the time of the demise, it would be competent for the defendant to controvert his title, and possession being an essential ingredient in a complete title, would have to be proven. It has been decided iin Pennsylvania that the plaintiff, in an action of trespass for mesne profits, after a recovery in ejectment, shall not give evidence of' the annual value of the premises beyond the time of the demise laid on the declaration, though he be the lessor of the plaintiff in ejectment. Shotwell v. Boehen, 1 Dallas, 172. And Lord' Mansfield was careful to remark, in the case of Aslin v. Parkin, 2 Burr. 668, that it appeared in evidence that the time of the defendant’s occupation was within the time laid in the demise. The better opinion appears to be that the plaintiff, in an action for mesne profits, shall recover only from the time of the demise. But admitting *that he may go beyond that period, and that by entry after a judgment in ejectment, his possession shall he referred to the time when his title accrued, and that he shall not be put to proof of actual possession; the plaintiff in this cause can derive no benefit from the concession. Had he successfully prosecuted an action of ejectment, and thereby established a legal title, he would have been entitled to all the advantages flowing from the judgment and the consequential action for mesne profits. But his entry not having been made after a judgment in ejectment, he can thereby derive no benefits that would not have resulted had that action never been invented.
    The position assumed by the plaintiff’s counsel, that a person having title may enter peaceably into possession without judgment or suit, is granted. We are willing to go further, and concede that he may enter in all cases without suit, when ejectment can be sustained, and even enter forcibly without making himself liable to a civil action. Title would be an adequate shield for his protection against any civil action that might be instituted for such entry. But it is said that, having entered without suit, his possession inures according to his title. “Adams on Ejectment,” one of the authorities quoted in support of this position, is, unfortunately, not within our reach at this time; but, from our recollection of the doctrine advanced in that work, it is believed that, they do not directly controvert the principles for which we contend.
    But should it be ascertained that they do, we reply that they are not of sufficient authori ty to overturn the numerous decisions which we have quoted. The case of Jackson v. Horiland, 13 Johns. 235, also cited in support of the foregoing position, merely shows, that a party having' title may enter without the aid of the law, but it does not establish the principle, that an entry without suit will refer his possession to the time his title accrued, so as to enable him to maintain trespass for an injury committed before he ever had actual possession. In the last-cited case, no entry whatever was made during the term recovered in ejectment.
    It is believed that there is no case in which an entry, without suit, will enable a person to maintain trespass guare *clausum fregit, for any injury committed upon lands before he ever had a possession in fact, or when he was not in actual possession, unless, perhaps, by a disseizin for an injury committed between the time of his disseizin and re-entry.
    It is said by the court, in Tobey v. Webster. 3 Johns. 470, thipt “the re-entry in such cases deduces the possession from the time of the first disseizin, and an action'of trespass may be maintained,” but it is expressly said by the court, in the same cause, that the possession can not be rendered effective by relation in any other case. The plaintiff in this cause will not pretend that he was disseized, as the defendant was in lawful possession until his title accrued, and as he never had a possession, in fact, until after the reception of the rents and profits to recover the value of which, this suit has been instituted.
    It is clear, that by common law, in case of intrusion, abatement, or deforcement, the party kept out of possession can not maintain trespass against wrong-doer; and the reason assigned is, that that mode oí redress is calculated merely from injuries committed on the land while in the possession of the owner. The statute of 6 Ann, ch. 18, sec. 5, declaring persons continuing in possession of an estate, after the determination of their interests, trespassers, shows that they were not viewed in that light,' and could not be made liable, in that character, at common law.
    Tappan, for the plaintiff, in reply :
    A multitude of authorities are cited to prove, that to maintain this action the plaintiff must have possession. This is not disputed. The plaintiff must have actual or constructive possession. Here the plaintiff had actual possession at and before this suit was brought. He claims to recover damages for a time before the actual, and while he had only the constructive possession; and whether he' can so recover, is the only question. Now, there is no authority, either of those cited by the defendant’s counsel or others, which says that the plaintiff can not recover, except the cases in Johnson. No case in the books supports the dicta that the plaintiff in trespass can recover damages only for the time he had
      actual possession. The cases cited in the ^opening argument prove that in trespass for mesne profits, the record of a recovery in ejectment is conclusive as to the time laid in the demise; and also, that the plaintiff may recover for time, anterior to the demise; upon other proof. This shows that the law is not as contended for by the defendant’s counsel. The plaintiff here has taken peaceable possession; is he in a worse situation than he would be had he been put in possession by the sheriff? In the other case he would undoubtedly recover for the whole time, whether the demise covered it or not. The right to recover for trespass anterior is as clear; it only is to be sustained by other evidence than .the record in ejectment. It is said that the action of trespass, for mesne profits, is something different from this action ; and the difference is neither pointed out nor perceived.
    In the case of Proprietors of Kennebeck v. Call, 1 Mass. 483, it is admitted that after actual entry by plaintiff, he may recover in this action for the time he has been held out of possession. The cases cited by defendant from 1 Johns. 511, and 3 Johns. 478, are fully considered, and shown to be erroneous by the court in the ease of Starr et al. v. Jackson, 11 Mass. 519.
    A disseizee may obtain trespass for injurious acts subsequent to the disseizure, and acts done while he was out of possession, after he has re-entered. 3. Black. Com. 210.
    But the case now before the court has been expressly decided in the case of Langdon v. Pother, 3 Mass. 215, and Gon v. Brazier, 523.
    Our statute law gives to the purchaser of lands, sold on execution, “as good and as perfect an estate,” “as was vested in the party” (defendant in error). This good and perfect estate includes the right of possession and constructive seizin of the fee. Suppose the land in question to be inclosed woods (and it does not appear but what it is), and the trespass complained of, the cutting down and carrying away timber; a good and perfect estate exists in the plaintiff, at least as soon as his deed is executed, and yet trespass upon this estate is not a trespass upon his property, according to the argument of defendant. What, then, is it? The plaintiff has purchased the estate and has a deed, as good and perfect a conveyance as the defendant himself *eould have given. The delivery of the deed is livery of seizin, if by the party, so by the sheriff. The defendant holds possession by no claim or color of right; he continues to trespass upon the plaintiff’s property, and now says because you did not bring an ejectment against me and put me out by force, you can not recover for the injury. The distinction attempted between taking possession under and by virtue of an habere, and taking peaceable possession, is not founded in law or good sense, and I apprehend can not prevail.
   By the Court :

It is impossible to maintain that the purchaser of land, in Ohio, at sheriff’s sale, can be considered as in the actual or constructive possession, in consequence of such purchase. ■ He obtains a right of possession only; and where adverse possession is persisted in, he must resort to legal process to invest himself with it. A summary process of forcible detainer is given to him, and when he proceeds in that manner, his possession can only commence from the time he obtains it, in virtue of the writ of restitution.

From a careful examination of all the authorities cited, we are satisfied that a plaintiff can not maintain this action of trespass without showing an actual possession in himself, at the time the trespass complained of is committed. The action for mesne profits, founded upon a recovery in ejectment, rests on grounds peculiar to itself. The doctrines that govern it have never been extended to cases where possession of lands, held adversely, has been obtained by other means.

The cases cited from Massachusetts do not apply. They are all predicated upon the particular provisions of the statutes of that state. There the growing crops are valued with the lands, and the whole together set off to the plaintiff in discharge of his claim. The officer is commanded by his writ to deliever seizin and possession to the plaintiff. Thus an actual possession commences, and a price is paid for the emblements. It is not so here. The land is valued without reference to the crop. The officer has nothing to do with giving possession. The person to receive it *is uncertain until the sale is effected — and at the sale the purchaser pays for the land only. The cases are essentially distinct in all their principal features. Judgment must be given for the def'endant.

      NoTE by the Editor. — The doctrine of this case, that possession is necessary in the plaintiff to maintain trespass, will be found in the following Ohio cases: iv. 433 ; viii. 40; xv. 248.


text:
    Thomas Byers and others v. State of Ohio.
    Where the proportion of the land tax due to the county has not been paid, the collector, in an action on his official bond, can not sell off county orders against the claim.
    This was a writ of error to a judgment of the court of common pleas of Morgan county, adjourned from that county for decision here.
    The case was this: Byers was appointed collector of Morgan county for the year 1824. The other defendants executed with him the official bond required by law, upon which the original suit was brought. The cause was submitted upon an agreed state of facts, which it is not material to recapitulate, as the decision turned upon a single point.
    When Byers paid into the state treasury the land tax collected, he did not pay the proportion due to the county, and which, under the law, is transmitted by the auditor to the county treasurer; but he obtained a letter from the auditor of state to the county treasurer, authorizing him to receive the amount of Byers, and give a receipt for it. Byers produced this letter to the county treasurer, and at the same time tendered and offered to pay the amount due to the county, in orders issued by the county, and payable at the county treasury. These orders being depreciated, in consequence of the state of the county treasury, the treasurer refused to receive them, and brought suit on the collector’s bond. The court of common pleas gave judgment for the plaintiff for the amount, and Byers obtained a writ of error.
    Silliman, for plaintiff in error,
    claimed that the county orders were an equitable offset against the suit, because the money was in fact due to the county. He cited Wench v. Keely, 1 Term, 619, and Bottomley v. Brooke, and Rudge v. Birch, quoted in that case. Also, 2 Cranch, 342; 1 Ben. 496; 1 Johns. Ch. 57, 63.
    ^Goddard, on the other side,
    cited the assertion of Mr. Marryat, 7 East, 148, that Bottomley v. Brooke, and Rudge v.
      Birch, had been overruled. He cited the dictum of the reporter to the same effect, 16 East, 36, and the dictum of Lord Ellenborough in the latter case, that he felt much more inclined to restrain, than extend the doctrine of those cases.
   By the Court :

The collector is, by law, bound to pay all the money he collects, for state tax, into the state treasury. His contract or bond is in conformity with the law, and if he does not make the payment ac cordingly, he becomes liable. No tender of payment at the county treasury could discharge or prevent this liability. The condition of the bond was forfeited by the failure to pay within the time prescribed by law, at the state treasury, and the right of action upon it then accrued.

The doctrine, that a debt due from the county to the defendant, may be offset against the debt due from him to the state, is altogether inadmissible. The claim of the county, for its proportion of the land tax collected, is upon the state, not upon the collector. The county can, in no form of action, subject the collector. There is no privity between them. Nor can the county be considered as, in equity, the owner of the money sued for. Although it may be admitted that the collector is indebted to the state, the .state to the county, and the county to the collector, yet these debts 'have not been so contracted, or rather have not originated in such ■manner as to be subjects of offset.^ The case is not within the ■principle of any of the cases referred to. The judgment must ^therefore be affirmed.