text:
    *Samuel E. Foote v. Jacob Burnet, Survivor of William Corry.
    In an action for the breach of a covenant against incumbrances, the rule of damages is the amount paid to extinguish the incumbrance, provided the same does not exceed the consideration money and interest.

    This is an action of covenant on an agreed state of facts, from the county of Hamilton.
    Jacob Burnet and William Corry, on September 19, 1825, sold and conveyed to John P. Foote, a lot in Cincinnati, on the east side of Vine street, for $1,020, the consideration paid. This deed eontainod the covenants of seizin, warranty against incumbrances, etc.
    John P. Foote sold the same lot of ground to Samuel E. Foote, 318] the plaintiff, and gave him possession in 1826. The *doed from John P. to Samuel E. Foote contains the same covenants as the deed from Burnet and Corry.
    Burnet and Corry held title to the lot, under a deed of mortgage from Jacob Ely to O. M. Spencer, Jacob Burnet, and William Corry, dated March 5,1817, recorded the 15th of the same mouth , but attested by only one witness. On this mortgage a scire facias was sued out from the court of common pleas of Hamilton county, adjudgment rendered at the May term of said court, 1821, levari facias issued on said judgment, under which the premises were sold to Burnet and Corry, and conveyed to them by the sheriff, by deed bearing date January 28, 1824.
    On March 8,1817, Jacob Ely executed a mortgage deed in due
      { form of law to Elmore Williams and others, of the same premises,* to secure the payment of divers sums of money, amounting in the whole to about $2,000. This money was never paid by Ely.
    319] *Elmore Williams and others, the last mortgagees, instituted an action of ejectment against the tenants of Foote, in the court of common pleas of Hamilton county, and at the November term, 1829, recovered a judgment by default, and under this judg- , ment were put in possession of the premises.
    Foote afterward commenced an action of ejectment against* Williams and others, to recover back the possession of the same premises. This case was tried at the May term, 1834, of the Supreme Court of Hamilton county, and was decided in favor of Williams and others; the court holding that the title of Foote as a legal title was defective, there being but one witness to the mortgage deed, executed by Ely to Spencer, Burnet, and Corry.
    A suit in. chancery was then instituted in the name of Foote against Williams, by the advice of Burnet and Corry, and for the benefit of all concerned. In the bill it was alleged that Williams and his co-mortgagees had notice of the first mortgage, 320] *at the time they received their deed. This fact was denied by Williams in his answer. This case was heard at the May term of the Supreme Court, 1834, and a decree entered in favor of Williams, but Foote was let in to redeem upon the payment of $1,773.95, which being paid he was restored to tho possession.

      In the declaration, it is averred that all the covenants in the deed from Burnet and Corry to John P. Foote were broken.

      W. R. Morris, for, the plaintiff:
    The plaintiff claims in this ease to recover the amount of incumbrance, charged upon the land as stated in the agreed case by the decree. The deed on which the action is brought contains all the usual covenants of warranty and seizin, quiet enjoyment, etc., and also a covenant against incumbrances.

    In this country in an action upon the covenant of warranty, tho rule of damages is different in the different states. In Massa321] chusetts *this rule is the value of the estate at the time of eviction. 1 Swift’s Dig. 673; Gore v. Brasier, 3 Mass. 523.
    In Connecticut the measure of damages, in an action for the breach of the covenant of seizin, is the consideration money and interest, while in an action for the breach of the covenant of warranty, the measure is the value of the land at the time of eviction, with the costs which the plaintiff has sustained in the action in which he was evicted. 1 Swift’s Dig. 673.
    In New York, Pennsylvania, and perhaps in most of the other states, the measure of damage in actions of the latter description, is the value of the land at the time the covenant is entered into ; in other words, the consideration paid with interest. 1 Swift’s Dig. 673; Pitcher v. Livingston, 4 Johns. 1; Bender v. Fromberger, 4 Dallas, 436.
    In the present case the plaintiff claims to recover upon the covenants against incumbrances, in relation to which covenants the 322] rule established in New York and Massachusetts is, *that the plaintiff shall recover the amount of the incumbrance charged on the land, or the amount he has been fairly compelled to pay to extinguish it. The reason for the rule is, that such covenant is a contract of indemnity. The sum to be recovered is not controlled or .affected by the consideration paid. 1 Swift, 674; Prescott v. Truman, 4 Mass. 627; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Dimmick v. Lockwood, 10 Wend. 142.
    V. Worthington, for the defendant:
    The first inquiry in this case is, as to which of the covenants in the deed of September 19, 1825, to John P. Foote, the defendant is liable to the action of the plaintiff, as the assignee of said Eoote; and the second, as to the measure of damages under the covenants upon which the action has accrued in the present instance.
    Of the ordinary and usual covenants in a deed, some arc ^purely personal and de prcesenti. These are complete and [323 perfect, or broken and impaired as soon as made. Others are real and de futuro, dependent upon posterior events, and of which there can be no breach until such events happen. This latter class is inherent in and attaches to the realty, and runs with it until the breach ensues.
    To the former class belong the covenants of seizin, of right to convey and against incumbrances, and to the latter belong the covenants for further assurance, of quiet enjoyment and of warranty. The former are in the present tense, and relate to matters and things as they are. The latter are in the future tense, and relate to contingencies which may subsequently arise.
    All these covenants, both real and personal, are unassignable at law after a breach ensues, and from rights existing in written contracts, they become mere ehoses in action.
    That the covenants of seizin and of right to convey are personal, *and do not run with the land, would seem from [324 many authorities and from reason itself. 4 Kent’s Com. 469, 2 ed.; Greenby v. Wilcocks, 2 Johns. 1; Bennet v. Irwin, 3 Johns. 359, 364; Hamilton v. Wilson, 4 Johns. 71; Abbott v. Allen, 14 Johns. 248; Booth v. Starr, 1 Conn. 244; Mitchell v. Hazen, 4 Conn. 495; Roath v. Smith, 5 Conn. 133; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; Martson v. Hobbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Pollard v. Dwight, 4 Cranch, 421; S. C., 2 Pet. Cond. 157 ; Garfield v. Williams, 2 Vt. 327; Bartholomew v. Candee, 14 Pick. 167; Andrew v. Pierce, 4 B. & P. 156; 2 Saund. 181 a, n. 10; Bradshaw’s Case, 9 Rep. 60 Innes v. Agnew, 1 Ohio, 386. That these covenants are broken as> soon as made, if broken at all, and are not assignable, being mere
      choses in action, would also seem from many authorities: Lewes v. Ridge, Cro. Eliz. 863; Marston v. Hobbs, 2 Mass. 433; Bickford v. Page, 2 Mass. 455; Porter v. Perkins, 5 Mass. 233; Walcott v. Knight, 6 Mass. 418; Warren v. Childs, 11 Mass. 223; Bartholomew v. Candee, 14 Pick. 167 ; Hamilton v. Wilson, 4 Johns. 71; Bennett v. Irwin, 3 Johns. 364; Waldron v. McCarthy, 3 Johns. 472; Kortz v. Carpenter, 5 Johns. 120; Williams v. Jackson, 5 Johns. 489; Kane v. Sanger, 14 Johns. 89; Buell v. Cook, 4 Conn. 238 ; Mitchell v. Hazen, 4 Conn. 495 ; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; 1 Swift’s Dig. 170; 1 Shep. Touch. 170; Innes v. Agnew, 1 Ohio, 386; Backus v. McCoy, 3 Ohio, 218.
    Yet there are a few cases that would seem to militate with this position. They are; King v. Jones, 4 Taunt. 418; S. C., 1 Eng. Com. Law, 139; Kingdon v. Nottle, 1 Maule & Selw. 255 ; S. C., 4 Maule & Selw. 53.
    The case in 3 Ohio, 218, of Backus v. McCoy, presents the law upon the covenant of seizin in a new aspect, and it is believed that 326] this decision is neither based upon principle nor ^authority. Upon the covenant of seizin, where there is no seizin at the time of the contract, the rule of damages is the value of the thing which is the subject matter of the contract. The consideration paid, being the estimated value fixed by the parties themselves, forms the basis of recovery. Cox v. Strode, 2 Bibb, 273; 4 Kent’s Com., 1 ed. 462; Staats v. Ten Eyck, 3 Caine, 11; Pritcher v. Livingston, 4 Johns. 1; Waldo v. Long, 7 Johns. 173; Caulkins v. Harris, 9 Johns. 324; Bennett v. Jenkins, 13 Johns. 50 ; Duvall v. Craig, 2 Wheat. 62 , Baldwin v. Munn, 2 Wend. 399; Cushman v. Loker, 2 Mass. 108; Bender v. Fromberger, 4 Dallas, 436 ; King v. Kerr, 5 Ohio, 154.
    Where the loss is partial, then the rule.of damages changes, and ■is only commensurate with the injury. Wager v. Schuyler, 1 Wend. 553; Morris v. Phelps, 5 Johns. 49 ; Guthrie v. Pugsley, 12 327] Johns. 126; 4 Kent’s Com. 464, 1 ed.; Hubbard *v. Norton, 10 Conn. 422 ; Backus v. McCoy, 3 Ohio, 211; King v. Kerr, 5 Ohio, 160.
    Like the covenants already referred to, the covenant against in•cumbrances is also held to be a personal covenant, not running with the land, nor passing to the assignee. 1 Shep. Touch. 170; 1 Swift’s Dig. 370; Mitchell v. Hazen, 4 Conn. 495; Mitchell v.
      Warner, 5 Conn. 497; Dart v. Dart, 7 Conn. 250 ; Hubbard v. Norton, 10 Conn. 433; Prescott v. Truman, 4 Mass. 627; Wyman v. Ballard, 12 Mass. 304; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105; Stanard v. Eldridge, 16 Johns. 254; 8 Pick. 346 ; Wetmore v. Green, 11 Pick. 463; Brooks v. Moody, 20 Pick. 474; Bickford v. Page, 2 Mass. 455; Chapel v. Bull, 17 Mass. 213; Dimmick v. Lockwood, 10 Wend. 142.
    It is equally well settled upon this covenant, that the damages are nominal before the incumbrances are paid off; but the party may recover the amount of money fairly paid to remove *the [328 incumbrance, whether paid before or after the action had been commenced. Pritcher v. Livingston, 4 Johns. 1; Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Burdick v. Green, 15 Johns. 247; De Forest v. Leete, 16 Johns. 122; Baldwin v. Munn, 2 Wend. 399; Dimmick v. Lockwood, 10 Wend. 142; Kellogg v. Ingersoll, 2 Mass. 97 ; Prescott v. Trueman, 4 Mass. 627; Wyman v. Ballard, 12 Mass. 304; Leffingwell v. Elliott, 8 Pick. 455; S. C., 10 Pick. 204; Tufts v. Adams, 8 Pick. 547 ; Wetmore v. Green, 11 Pick. 462; Brooks v. Moody, 20 Pick. 474; Mitchell v. Hazen, 4 Conn. 495; Mitchell v. Warner, 5 Conn. 497; Davis v. Lyman, 6 Conn. 249; Hubbard v. Norton, 10 Conn. 433. But in no case can the recovery exceed the amount of consideration money paid, and interest. Dimmick v. Lockwood, 10 Wend. 142.
    The plaintiff then can not recover ujmn the covenant against incumbrances, because that covenant is a personal covenant not running with the land, and was not assigned, and could *not [329 be assigned to him, by the deed from his immediate grantor. If he can recover'upon this covenant, he can not recover an amount greater than the consideration money paid, and interest.
    He can not recover upon the covenant of seizin for the same reason.
    He can not recover upon the covenant of warranty, because although evicted, he has not lost the land. But he may recover upon the covenant for quiet enjoyment, having been disturbed in the possession. And for the injury thus sustained he is entitled to damages.
    The foregoing are but brief abstracts of the arguments of the learned counsel, who enforced the different positions by them assumed with great force and ability.

      Until about the middle of the seventeenth century, the common assurance of title to real estate in England was the warranty. That operated in four wavs to the benefit of the tenant who had it:
      1. It was a perpetual bar against the warrantor and his heirs from ever claiming any right in the land,

      2. If the tenant was disturbed by an elder title for years, or suffered any other loss that did not take away the freehold, he might use the warranty as a personal covenant, and recover damages upon it. But whenever the freehold was evicted, or called in question, no such action lay.

      3. When the freehold was attacked, a writ issued in most cases, at the instance of the tenant, warning his warrantor to eome into court and defend the suit. If the warrantor took on himself the defense, the tenant left the court, • and the suit was carried on between the demandant and the warrantor. If the demandant prevailed, the same judgment that gave him the land demanded also gave the tenant other lands of the warrantor of equal value. When there was a series of warrantors, as if A. was tenant, and B., 0., and D., successive warrantors, if B. was called by writ to defend the tenant, B. had a like writ against O., and O. against D., and so on ad infinitum, to the last warrantor. The tenant then counted against the last warrantor, and .if the last warrantor was cast in the suit, one judgment only was rendered, and that gave to demandant the land in dispute, and to the tenant, other lands of the last warrantor, of equal value, no mention being made of the intermediate warrantor. If D., the last warrantor, had no lands wherewith to satisfy the tenant, then G. was bound to recompense the tenant and wait himself for bettor times, till D. could recompense him; and the same thing was to be done by B., if neither O. nor D. had anything to satisfy the tenant. If the last warrantor could satisfy only a part, the remainder was to be supplied by the intermediate warrantors, observing the same order, “ ab ultimo usque primu.”
         But where the tenant once recovered other lands in value, if he was afterward impleaded of those lands, he could not again call upon his warrantor, for the warranty was executed.

      If the warrantor, on being served with the writ, neglected to appear and make defense, another writ issued at the instance of the tenant, upon which the sheriff seized into the king’s hands other lands of the same valuó, and there he held them, to abide the issue of the suit,  But if he had no land in fee that might be taken into the king’s hands, or by which he might be distrained, then a writ went to the sheriff, quod habeat corpus,

      "Whenever the tenant chose to take on himself the defense of the suit without issuing a writ to warn yi his warrantor, when the law allowed it to be done, if he lost the land, it was counted his own folly, and no remedy was left to him.

        The heir of the warrantor was in like manner called into court¡ and if at the time of the recovery against him he had no lands descended to him, execution was stayed; hut if afterward lands fell to him by descent, a resummons lay against him to reach the lands.
      4. The tenant at any time before exeoution had against him, might sue out the writ of warranty of charters, and recover a judgment binding all the land the warrantor had at the test of the writ, into whose hands soever it might afterward pass. This writ might he sued either before or after the tenant was impleaded, so that it was done before execution had against him, for till execution, the tenant was in of the estate warranted; hut if execution was once had, then the warranty failed with the estate,
         But the tenant, being impleaded, was nevertheless bound to call the warrantor into court, to defend the suit, or request the warrantor to minister to him a bar, where voucher did not lie; otherwise, if the tenant lost the land, the judgment availed him nothing, and he had no remedy over against the warrantor. If, however, the tenant, without any such default of his,-lost the land, a scire facias lay upon the judgment, and the tenant recovered other lands of the warrantor of the value of those he lost.

      A like judgment might he had against the heir of the warrantor binding all the land he had by descent.
      The warranty of charters could he sued only by the tertenant. But if A. was tertenant, and B., 0., and D. successive warrantors, and A. either quia timet, or ponding the action against him, sued warranty of charters against B., then B. became in law tertenant, and might sue a like writ against 0., and O. against D., and so on to the last warrantor,

      An assignee might sue warranty of charters.

      For the loss of his land the tenant could seek no other recompense than other lands of the warrantor. The personalty was beyond his reach. It was other lands or nothing,

      The warrantor was liable only for the value of the land at the time he entered into the warranty, and not for any improvements made by the tenant, or for any increased value of the land,

      At common law, no damages were recovered in any real action, because the tenant for the time being, was bound to perform the feudal duties to his lord, and was therefore entitled to the issues and profits; but afterward, damages in certain cases were allowed by statutes. They were assessed by deducting from the value of the issues and profits, the improvements made by the tenant.  But if the tenant expended in improvements more than the issues and profits, he had no remedy for the excess; for it was of his own folly,

      Damages thus assessed against the tenant were recoverable by him on the warranty.

      The warranty was express or implied,

      It might be annexed to all estates of freehold or of inheritance.
      To estates incorporeal, as advowsons, rents, Ammons, estovers and the like.
      It could not be annexed to chattels real, nor to the estate of tenant by statute, or elegii; the warranty of such estates was a mere personal covenant on which damages only were recoverable.

      Such is a brief sketch of the law of warranty as it appears to have been practiced down to near the close of the seventeenth century. It seems to have been found defective in three principal points: Because of the great delay which always accompanied voucher and warrantia chart!»: because a tenant upon judgment in voucher or warrantia chartse, could by no possible means reach either the person or the personal estate of the warrantor; and because, if a purchaser acquired a bad title, so that he could neither sell the land nor improve it, yet he had no redress, until he who had the paramount title might choose to assert it against him.

      To remedy the evils of the old law, it is said that Sir Orlando Bridgman, who, with other eminent counsel during the civil wars, betook himself to conveyancing, invented what are called the modern covenants for title,
         and from that period, the warranty gradually fell into disuse; and it is said to be now nowhere found, in England, as an assurance of title to freehold estate, except as a part of the ancient mode of conveyance by fine,

      These modern covenants are: Seizin, right to convey, quiet enjoyment, against incumbrances, and for further assurance. Bach one requires a few observations.
      IN ENGLAND.
      Seizin. — This covenant is an assurance to the purchaser, that the grantor has the very estate in quantity and quality, which he purports to convey; whether the same be in fee, for life, or for years.
         And a vendor who makes a had title is liable in damages upon it, at once, before any disturbance of his grantee. If one, under an impression that he is seized of land in fee, or possessed for a term of years, aliens, and covenants that he is lawfully seized, or possessed, or that he hath a good estate, or that he is able to make such an alienation, etc., when in truth the estate is in some other person at the time, the covenant is broken, as soon as it is made,

      In 1813, this covenant came before the king’s bench in a new aspect. (e) Lands had been conveyed with the covenant of seizin, etc. The grantee entered, made his will, and died. The devisee entered, and while he was in the uninterrupted enjoyment, the executor brought suit for a breach of the cove- . nant of seizin, seeking to make the damages assets. And the great question in the ease was, whether the executor,.or the heir, was entitled to the action. Under the ancient warranty, before the covenant of seizin was invented, the right to recover was of course in the heir, and the king’s bench now applied the same doctrine to the covenant of seizin, and ruled against the executors holding, that if they gave the action to the executor the right of the heir was cut off in ioio; which is not there the policy. The devisee afterward, still retaining the possession, prosecuted his action upon the same covenant, and recovered.

      In assigning a breach of this covenant, the plaintiff need not set out any adverse title, but it is enough to allege in the direct negative that the party was not seized, etc.

      Bight to Convey. — The covenant of right and power to convey and the covenant of seizin are called synonymous, yet they aro separate and independent covenants; for although if the vendor is seized in fee, he has power to convey, the converse does not hold; for one may have power to convey though not seized in fee.

      If the vendor has not at the time good right to convey, the covenant is broken as soon as made; and an action lies, at once, without waiting for a disturbance.  And the breach, as in the covenant of seizin, may be assigned in terms as general as the covenant.

      Quiet Enjoyment. — This is the “sweeping covenant” in English conveyances. It is an assurance against a defective title, as well as against any disturbance thereupon. By it the grantor stipulates to indemnify the purchaser at all events; and it is immaterial by what means, or by whose acts, the eviction, or disturbance takes places, so that such eviction or disturbance be lawful.
         But it extends not to tortious evictions or interruptions,

      In assigning a breach of this covenant, it is sufficient for the plaintiff to allege, that at the time, etc., A. B. had lawful right and title to the premises, and having such lawful right and title, entered and evicted him, without showing that the eviction was by legal process, or what title A. B. had: the allegation, that the party having lawful right and title entered, being tantamount to saying that he entered by lawful right and title,

      Against Incumbrances. — This covenant, in English conveyances, follows that for quiet'enjoyment, and runs in these words: “And that
         free and clear, and freely and clearly, and absolutely acquitted, exonerated, released, and discharged, or otherwise by him (the vendor), his heirs, executors, or administrators, at his or their own costs and charges, in all things, well and sufficiently protected, defended, saved harmless, and kept indemnified of, from, and against all and all manner of former and other gifts, grants, feoffments, leases, mortgages, bargains, sales, jointures, dowers, right and title of dower, uses, trusts, wills, entails, annuities, legacies, rents, arrears of rents, fines, issues, amerciaments, statutes, recognizances, judgments, executions, extents, suits, decrees, debts of record, debts to the king’s majesty, or any of his predecessors; sequestrations, estates, titles, troubles, liens, charges, and incumbrances whatsoever.”

        And that free, etc., is construed in connection with the covenant for quiet enjoyment. It is not a covenant that the estate is free, and shall remain free from incumbrances; but that the purchaser shall enjoy it free from such incumbrances. It was the opinion of Lord Cowper,  that there was a difference between a covenant that the estate was free from incumbrances. and a covenant that the party should enjoy free from incumbrances. Hence it seems now to he the rule in England, that in order to justify legal proceedings on this covenant, it is requisite that an actual interruption, claim, or demand he made on the purchaser; for the chance alone of his being disturbed, and his liability to satisfy claimants, or in other words, the mere existence of outstanding incumbrances, unless they prevent entry and enjoyment, will not constitute an immediate breach,

      For Further Assurance. — This covenant relates both to the title, and to the instrument of conveyance. It requires the vendor to perform all reasonable acts to secure the former, and to make good any defects in the latter. If he sells a had title and afterward himself acquires a good one, he shall convey it to his grantee. He may also be called upon to levy a fine, to remove the lien of a judgment, or other incumbrance, and in some cases to give up the title deeds,

      As to the amount of "damages recoverable upon a breach of the modern covenants for title, there seems to be no case in England, where the point is much discussed. Where one covenanted that he was seized of Blackacre in fee simple, when in fact it was copyhold in fee; the count held covenant broken, • and directed the jury to give damages in their conscience, according to the rato at which the country valued fee simple more than copyhold land.
         In Pomeroy v. Partington,  the consideration money and the costs of defending the ejectment seem to be regarded by the court and the bar as the proper rule; and Chancellor Kent is of opinion that when the personal covenants were introduced, as a substitute for the remedy on the voucher and warranty of charters, the established measure of compensation was not varied or affected.  Any great departure from the old rule would probably have shown itself in the English authorities before this time,

      IN THE UNITED STATES.
      Seizin and Bight to Convey. — The anthorites cited in the casa to which this note is appended show, that the construction put upon these covenants in England has been followed in most of the United States.
      In Massachusetts, New Hampshire, and Ohio, a seizin in fact, whether by right or by wrong, is held to satisfy the covenant,
         This rule seems, in some measure, to have grown out of the hardship, real or apparent, of permitting a grantee to recover back the consideration money and interest, while he, or his assignee, is enjoying a possession that by lapse of time may ripen into a perfect title. In Vermont, this hardship has been relieved by changing the rule of damages.  As where a grantee, after a quiet enjoyment of several years, conveyed, by deed of quit claim to a stranger, who entered and occupied till the adverse title was supposed to be barred by the act of limitations. Afterward, in a suit by the first grantee, the court held the covenant broken as soon as made, and so being a chose in action could not pass with the land into the hands of the second grantee, but they gave the plaintiff only nominal damages. A like principle is also recognized in North Carolina,

      In Ohio, the covenant of seizin, where the possession passes, is held to he a real covenant, running with the land, and not broken till eviction; and that, therefore, where land is sold on execution against the first grantee, the right of action is in the purchaser on execution, and not in the administrator of tho first grantee,

      These deviations from the general rule seem to leave a purchaser in much the same condition as we have seen him to be in under the ancient warrranty. In possession, with a bad title, unable to sell the land or to improve it, and yet without redress, till he who has the adverse title may choose to assert it And it is worthy of remark that the Supreme Court of New Hampshire in speaking of its departure from the general rule, says, “it has been too long settled in this state to be now questioned (and it is to be deeply regretted that it has been so settled).” (a)

      Quiet Enjoyment. — This covenant is not here, as in England, the main assurance of title,' but seems to be governed by the same general rules. It is Broken, only By eviction or some disturbance of the possession. 7 Wend. 281; 3 Dev. 200. A recovery in ejectment without execution is no Breach of it. 13 Johns. 236. Nor is a simple demand of possession By him who has title. 4 Dev. 46. Nor is a sale of the land to the grantee himself upon the foreclosure of a prior mortgage. 3 Johns. 471. But an entry By the covenantor himself, tortiously, and without title, is a Breach. 7 Johns. 376. So is actual possession taken under a Better title Before the execution of the deed containing the covenant. 3 Dev. 200. So is a decree in equity, directing the grantee to execute a deed and deliver possession to one who holds a prior right. 1 Dev. 413.
      Against Incumbrances. — See the case to which this note is appended and the cases there cited.
      . The covenant for further assurance is not in general use.
      "Warranty. — Our ancestors, who emigrated just about the time the modern covenants for title were coming into use in the mother country, and Before the warranty had Been entirely abandoned, seem to have Brought with them, Both the modern, covenants and the warranty; and while the former alone were soon found to Be a competent assurance of title in England, Both the warranty and the modern covenants continued to Be used in our early conveyances, and so have Both come down together to our own time. ¡
      It has already been seen, that in certain cases the warranty, at common law, was used as a personal covenant;  But there seems to be no instance in England, where a personal action has Been sustained upon it for an eviction or disturbance of the freehold.
         In the United Slates, however, the warranty has been converted altogether into a personal covenant, and, like the covenant for quiet enjoyment in England, it furnishes a remedy as well against a defective title as against any disturbance thereupon. No instance is found in this country, where voucher, or warraniia, charice, has been sustained upon it. It is held to Be simply a personal covenant, that runs with the land, Binding on the personal representatives, and for a breach of which damages alone are recoverable,
         This being an innovation uDon the common law, there has been no common standard of interpretation, and consequently some contrariety of sentiment is found to prevail in different states. There is room here for only a brief reference to a few leading cases.
      The covenant of warranty is not broken without eviction by paramount title; but eviction by judgment at law is not necessary; the tenant may voluntarily yield the possession to him who has better title. But he does it at his peril; and in a suit against the warrantor the burden of proof lies upon the plaintiff. 9 Cowen, 157; 4 Mass. 349; 15 Pick. 147; 5 Conn. 54; 5 Day, 282; N. Chip. 68; 3 Serg. & Rawle, 372.
      A judgment in ejectment is a sufficient breach without actual eviction; because the covenant of warranty goes to the title as well as to the possession, and the title being adjudged bad, the turning the grantee out of possession is but a ceremony, depending on the will of a stranger. And this rule holds good though the grantee, after the judgment in ejectment against him, buy in the outstanding title and continue his possession under it. 1 Aik. 233. And where a grantee, after judgment in ejectment, retains the possession under an act for the relief of occupying claimants, actual eviction is not necessary. 5 Ohio, 158. Where one made a mortgage in fee with warranty retaining the I possession, and afterward sold the same land to another who entered without ■ any knowledge of the mortgage, this is a sufficient eviction, though the mortgagee had never been in actual possession. 3 Fair. 499. If one sells land and gives the possession, and afterward, the first purchaser still being in possession sells the same land to another with warranty, the covenant is broken, and no other eviction need be shown. Martin & Yerger, 58. Where a habere facias possessionem is sued out, and the defendant thereupon yields up the possession without further compulsion, the eviction is sufficient. Hardin, 292. So it is if the 'defendant yields up the possession to a purchaser under a decree for a sale of the land. 4 Dana, 204. Whether taking water out of a brook to water a meadow, under an elder right, or, in like manner, diverting water from water-works, thereby rendering them useless, constitute a breach of the covenant of warranty, quære. 5 Conn. 497. In South Carolina, showing a paramount title in a third person is sufficient without any eviction. 1 McCord, 500; 2 Nott & McCord, 186. Where, at the date of a deed, a stranger is in adverse possession with the statute of limitations running in his favor, and the grantee, by his own laches, suffers such adverse possession to ripen into a perfect title, he has no remedy on the covenant of warranty; aliter, if the title by adverse possession was perfect at the date of the deed. 1 Aik. 150.
      Proof of a better title than that of the grantor, and that the grantee gave up the possession to the owner of such title, will support the allegation of eviction. 3 Penn. 419.

        On the other hand, it is held in Tennssee that there must he an actual execution of the writ of possession, or an actual yielding up of the possession in submission to the judgment. Martin & Yerger, 48. So in New Jersey, it is said there must he a disturbance in, or deprivation or cessation of, the possession, by the prosecution and operation of legal measures.” 4 Halst. 141.
      An eviction by legal process under an unexpired term for years is a sufficient breach. 9 Wend. 416. Or under a prior mortgage. 8 Pick. 547. And so is the delivery of seizin by the sheriff to the creditor in satisfaction of his execution. 4 Mass. 150, 512; 14 Mass. 143.
      Where a judgment is relied on as evidence of eviction, the plaintiff must show that the judgment was upon an elder and better title, or that his grantor was vouched in to defend. 2 Aik. 329. If a grantee gives notice to his grantor of the commencement of an ejectment against him, the grantor neglects to take upon himself the defense at his peril; and a recovery in such case is conclusive in an action on the covenant. And such notice may he by parol. 15 Wend. 425. Bronson, J., dissenting, who insisted the notice ought to he in writing, in analogy to the ancient writ of summons ad warrantimndum,. The same rule prevails When the notice is given by the grantee of the covenamtee. 10 Wend. 202; S. P., 3 Watts, 306; 3 Fair. 9.

      If the eviction he by judgment of court, the record is the only evidence of it, and whether by default, or upon defense made, is immaterial, the record being evidence of the fact of eviction only, and not that it was by title paramount. 3 Bibb, 174; 4 Bibb, 4; 1 Marsh. 389. But if the warrantor had notice of the suit, the record is evidence of recovery by paramount title. 1 Marsh. 409 ; 3 Watts, 306.
      Heirs must all he made joint defendants in a suit on the ancestor’s covenant. Meigs, 138.
         So in Meigs, 187, all the heirs of a grantee were made joint plaintiffs.
      A purchaser at sheriff’s sale, in case of eviction, can maintain an action in his own name for the breach. 3 Penn. 313 ; S. P., 3 Ohio, 220. Where covenants run with the land, if the land is assigned or conveyed before the covenants are broken, the assignee or grantee can alone bring the action of covenant to recover damages; but if the grantor or assignor is bound to indemnify the assignee or or grantee against such breach of covenant, then the assignor or grantor must bring the action. 14 Johns. 89. Contra, 5 Cowen, 137; 1 Conn. 244; 2 Penn. 514, where it is held to be immaterial, whether the assignee or grantee be indemnified or not. . And such assignee or grantee may sue any prior grantor or assignor. 2 Penn. 514. Or he may, at the same time, sue separate actions against each prior grantor, but can have only one satisfaction. 5 Ohio, 157. But an intermediate covenantee who has not been damnified can not sue a prior covenantor. 1 Conn. 244; 1 Dev. & Bat. 94. A dowress can not sue upon a covenant of warranty made to her husband. 7 Ohio, 111, pt. 2.
      In a declaration upon a covenant of warranty, it is necessary to allege substantially an eviction by title paramount; but no formal terms are prescribed in which the averment is to be made. 10 Wheat. 449; 4 Kent Com. 478, 4 ed.

      There is a distinction between declaring by an assignee and against him. In the latter case, it is enough to say generally that the estate has come to the defendant by assignment, without oven specifying the different conveyances; whereas in the former, the plaintiff being privy to the mesne conveyances, must set them forth sufficiently to show the title vested in himself 1 Aik. 240. Nor is it necessary to describe the land evicted by metes and bounds. It is enough to say : “ Certain lands in the said deed particularly mentioned and specified.” 14 Johns. 372.
      It is not necessary to aver that the covenantor had notice of the suit by which the covenantee was evicted. 5 Ohio, 158; 5 Halst. 20. Nor that the title to the land had been tried. 1 Marsh. 390. Nor is it necessary to set out tho costs or counsel fees in the former suit; they are covered by the general claim of damages. 9 Wend. 416.
      The rules for assessing damages upon a breach of the covenant of warranty, and of the other covenants in common use, are found in the case to which this note is appended. See also 4 Kent Com. 475, 4 ed.
      Where a grantee is dispossessed by a term for years, the extent of that term, and the annual value, or the interest of the purchase money, with the costs and counsel fees in the prior suit, is the proper rule of damages. 9 Wend. 416. The allowance of costs by way of damages does not depend on the fact of notice by the covenantee to the covenantor of the suit by which the former was evicted. 2 Harrison, 301. If a grantee in the suit by which he is evicted, recovers a sum for his betterments, that sum is to be deducted from the consideration money and interest. D. Chip. 110; S. P., 5 Ohio, 159. Counsel fees, beyond those taxed in the fee bill, are not allowable. 3 Green, 3 13. They are, if the grantor be timely advised of the pendency of the suit and will not defend it. 3 Pair. 9. They are, at any rate. 23 Eng. Com. Law, 106.

       Co. Lit. 365, o.

       Hob. 3.

       Bracton Fol. 388.

       23 tit. Warrantia Chartæ. Ed. 3,12; Jac. Law Dic.

       Booth on Real Actions, 42.

       1 Reeves’ Com. Law, 443.

       1 Reeves’ Com. Law, 134.

       R. N. B. 135, B; Hob. 23.

       Booth on Real Actions, 240.

       Vin. Abg., tit. Warrantia Chartæ, (D).

       As if one in feoffs A. to liavo and to hold to him, his heirs and assigns, and A. jnfeofis B. and his heirs, and B. dies; in this case, the heir of B., as assignee to A., shall have the writ. So that heirs of assigns, and assignees .of assigns, and assignees of heirs, are within this word (assigns) Co. Lit. 384, b.

         2 Thos. Coke, 199, note (A) ; Sulliv. Lect. xii. 119.

       Bracton, Lib. 5, c. 13, sec. 3; 19 Hen. VI, 61; Godb. 151; Kent’s Com. 475, 4 ed.

       Thus, the plaintiff recovered the land, and no damages, because the place was amended by building. Damages of 40s. and no more was found by the assize, because the land is sown, and the house well amended, and so recouped the damages. Disseizin is done ad damnum, £9. The disseizor sows the land, which is worth £10. The assize gave the damage to £9. They shall be attainted per Cur. because they did not recoup the sowing of £10. If a disseisor fells trees and repairs the house with them, and assize be brought against him, the same shall be recouped in damages, because what was done was a commodity. Br. Damages, pl. 199 ; Vin. Ab., tit. Discount, and cases there cited; 2 Rand. 144.

       Vin. Ab., tit. Discount, 2 Rand. 144.

       F. N. B. 135.

       Com. Dig., tit. Guaranty; Co. Lit. 384 a, Mr. Butler’s note.

       Co. Lit. 389, a.

         2 Thos. Coke, 199, note (A); 1 Maule & Sel. 355 ; 4 Manle & Sel. 53.

       3 Pow. Con v. 205 ; 2 Bl. Com. 171.

       Burton on Real Property, 185.

       11 last, 641.

       Dy. 303, a; Cro. Jac. 304; 9 Co. 60, b ; Shep. Touch. 170; Platt on Covenants, 300.

       Kingdon v. Nottle, 1 Maule & Sel. 355.

       Kingdon v. Nottle, 4 Maule & Sel. 53.

         T. Raym. 14; Cro. Jac. 369 ; Platt on Covenants, 309.

       11 East, 642 ; 3 Lev. 46.

         Freem. 41; 5 Taunt. 426.

         9 Co. 60, b; Jenk. Cent. 305.

       1 Mod. 101; 11 East, 642; Platt on Covenants, 312.

         Thus, where the eviction took place under an act of confiscation of the State of New York, during the American revolution, Lord Mansfield, in 1790, would not suffer the question to bo argued before him, because it would lead to the discussion of improper topics, hut said that “the defendant does not coyehant against a rebellion, or a revolution, by an armed force. There is no color for it.” 3 Term, 584; 26 Eng. Com. Law, 400.

         4 Term, 517; 8 Term, 278.

         The pronoun is used emphatically. You shall enjoy the estate, and that free from in* cumbraneo. Sugd. Vend. 554, 6 ed,

       Platt on Covenants, 331.

       Platt on Covenants, 332.

       Gilb. 7 ; Platt on Covenants, 332.

      а) 2 Ch. Cas. 212; 2 P. Wms. 630 ; 16 Ves. 366 ; 5 Taunt. 427.

       Noy, 142; see 1 Maule & Sel. 364; 11 East, 633.

       3 Term, 678, note (a).

         4 Kent’s Com. 475, 4 ed.

       In a late case, 23 Eng. Com. Law, 106, 1832, a grantee compromised a suit against himself, paying £550. In an action against his grantor on a covenant for good title, he recovered as damages the £550, and the costs of the compromised suit, though he had given no lotice of that suit to the defondant.

         2 Mass. 437; 1 Fail. 177; 3 Ohio, 220, 307.

       2 Vt. 327.

       2 Dev. 30.

         3 Ohio, 220.

       1 N. H. 178. The insecurity of title to real estate, in the Virginia military district, is said to have given rise to a common practice there, of using no other covenant than the goneral warranty, on the ground that a grantor can not be mado liable on that covenant till actual eviction. The occupants of some large surveys in that district, who found themselves in quiet possession, hut without any title, and so could neither improve the lands nor sell them, mado application to the legislature of Ohio, and in 1815, a statute was passed, undertaking to give a grantee with a covenant of warranty a remedy before eviction. The act is said to have been so inartificially penned as to be incapablo of any reasonable construction. It was repealed in 1831. Ohas. L. 855, 1000; see 1 Ohio, 389; 2 Ohio, 346; 3 Ohio, 525.

         The language of Lord Hobart is this: “ This action of covenant will He, because that though tiro warranty was annexed to a freehold, yet the breach and impeaching was not of a freohold, hut of a chattel (that is to say) of a lease for years, for which there could neither bo avoucher, rebutter, nor warrantia chart, and, therefore, a real warranty is a covenant real, when the freehold is brought in question. But when a leaBe is in question, or any otlior loss that doth not draw away the freehold, it may be used as a personal covenant, whereupon damages may be recovered; so it is both a real and personal covenant to several en is and respects.” Hob. 4.

      q) The two eases in Brownl., cited in 3 Mass. 549, are not upon the covenant of warranty,

       4 Cent Com. 471, 4 ed., and cases there cited.

         By the civil law, by the law of France, and by the Louisianian codo, if a buyer, who is sued, fails to cite his vendor in warranty, the latter is not liable for the costs and damages resulting from defending the action. By the Spanish law, a buyer who fails to cite bis vendor in warranty, loses all rocourso on him. 4 Kent Com. 469, 4 ed.; Martin’s Louis. 356.

       Where thero are two parceners, they have moieties in the lands descended to them, yet they are both but ono heir, and one of them is not a moiety of an heir, but both of them are but unus hieres. Co. Lit. 163, b.

       Covenants which run with the land, are exceptions to the rule of the common law that choses in action can not he assigned. They can not be separated from the land and transferred without it, but they go with the land, as being annexed to tho estate, and hind the parties in respect to the privity of estate. But this is to he understood with tho qualification that the covenants will pass where the possession goes from one person to anothor by deed, and there is afterward a total failure of title, and a subsequent eviction. 4 Kent Com. 471, note b, 4 ed.; 21 Wend. 120.

       In 10 Wheat. 549, a broach assigned in these words was held good on demurrer: “That tho Baid O. had not a good and sufficient title to the said tract of land, and by reason thereof the said plaintiffs were ousted and dispossessed of the said premises by duo course of law.”

   Hitchcock, J.

In the consideration of this case we have been led to inquire whether the title of the plaintiff was defeated 880] *by a paramount legal right, or whether the mortgage from Ely to "Williams and others was a mere incumbrance upon the land, which the plaintiff might remove by payment, and look to -hisj covenantors for indemnity. If the former, then the plaintiff is entitled to recover upon his covenant of warranty, and in such case, the law is well settled in this state that the rule of damages is the consideration money paid and interest. At least such would be the rule where the whole land was lost to a purchaser by a paramount title. If but a part is lost, the damages must be commensurate with this loss, estimating the same according to the consid< eration actually paid. In the suit in chancery between Foote and Williams, determined in 1834, this court seem to have considered the claim of Williams not as a paramount legal title, but as an incumbrance upon the land, which might be removed by the present plaintiff, and decreed accordingly. In pursuance of this decree, this incumbrance was removed by the plaintiff, and he now seeks 331] to recover the ^amount paid to remove it under the covenant in his deed against incumbrances.

This claim is resisted by the defendant’s counsel, upon the ground that the covenant against incumbrances in the deed from Burnet and Corry to John P. Foote was a personal covenant, that it was broken as soon as made, if broken at all, and did not pass with the land to the present plaintiff. That the covenant of seizin has been generally, by courts, considered as a personal covenant, and not running with the land, is fully shown by the authorities cited. And in this respect the covenant against incumbrances is not dissimilar to that of seizin. So far as it respects this latter covenant, the question whether it is a real or personal covenant was beforo this court in the case of Backus v. McCoy, 3 Ohio, 211. Many of the authorities which are now cited were then examined by the court, and the case fully considered. After much deliberation it was decided that the covenant of seizin in a deed, when 332] the covenantor *is in possession claiming title, is a real covenant running with the land. But where the covenantor is not in possession, and the title is defective, it is broken as soon as made, and never attaches to the land, being in the nature of a personal covenant. It is true the plaintiff’s counsel questions the authority of this case, and claims"that it is unsustained by authority. It is admitted that there are authorities against the decision, and it is clear that there are authorities which go to sustain it. But if there were no such authorities, still we shall be disposed to abide by it so long as we believe it to be in accordance with the immutable principles of right and justice.

The same train of reasoning which led the court to this decision will lead to a similar result with respect to the covenant against incumbrances. This covenant, like “ the covenant of seizin, is made for the benefit of the grantee in respect to the land. It is not understood as a contract, in which the immediate parties are alone interested, but as intended for the security *of all subsequent grantees.” If the first grantee continues [333 in possession of the land while his title remains undisturbed, and conveys to a subsequent grantee, in whose time an outstanding incumbrance is enforced against the land, justice requires that this subsequent grantee should have the benefit of the covenant against incumbrances, to indemnify himself. We hold, therefore, in accordance with the decision in the case of Backus v. McCoy, that a covenant against incumbrances is a covenant running with the land until the incumbrances are removed. And, therefore, that the plaintiff is entitled in this case to recover ior the breach of such covenant.

The next question is as to the measure of damages, and upon this question we have had much difficulty. It is said, in the books, that the covenant against incumbrances is a contract of indemnity, and hence it is argued that the covenantee may recover to the extent of the amount he has paid to extinguish the incumbrance. If this be correct, then, upon this covenant, a *re- [334 covery to a much greater amount may be had than upon the covenant of warranty, which is over considered the principal covenant in a deed. In the case before us, the consideration money paid to Burnet and Corry for the land was $1,020. If the plaintiff had entirely lost the land by paramount title, all he could have recovered would have been this sum, together with interest. But he has not boen deprived entirely of the land. He has paid off an incumbrance amounting to $1,773.95. If in the present action he can recover this amount with interest, ho recovers more than ho would have done had he entirely lost the land. There would seem to be some inconsistency in this.

That in an action for the breach of a covenant against incumbrances, the measure of damage i's the amount paid in good faith to remove such incumbrances, is sustained by the following authorities : Delavergne v. Norris, 7 Johns. 358; Hall v. Dean, 13 Johns. 105 ; Leffingwell v. Elliott, 10 Pick. 204; Brooks v. Moody, 335] 20 Pick. 474; Prescott v. Truman, 4 Mass. *627. Many other cases might be cited to the same point, but it is unnecessary, as they are referred to in the argument of counsol. But in none of these cases does it appear that the amount paid to remove incumbrances exceeded the amount of consideration money, paid for the land.

Chancellor Kent, in his commentaries, 4 Kent Com. 476, 2 ed., says, “If the subsisting incumbrances absorb the value of the land, and the quiet enjoyment be disturbed by eviction by paramount title, the measure of damages is the same as under the covenants of seizin and warranty. The uniform rule is, to allow the consideration money, with interest and cost, and no more. The ultimate extent of the vendor’s responsibility, under all or any of the usual covenants of his deed, is the purchase money with interest.”

In seeking for adjudged cases we have found but one analogous to the case before us, and that is the case of Dumrick v. Lockwood, Í0 Wend. 142. In that ease the consideration paid was $125, and the enhanced value by reason of improvements was $1,000. A moiety of the premises had been sold by virtue of a pre-existingjudgment against the grantor. The action was fpr a breach of the covenant against incumbrances. The court hold that the grantee was entitled to recover only the consideration of the purchase of the portion lost, with interest and costs, and not the enhanced value in consequence of improvements. In giving the 336] opinion of the court, Chief Justice *Savage, alter reviewing all the authorities, in closing, says, “ Among all the cases which have been cited, there is none in our court, where the purchaser has been permitted to recover beyond the consideration money and interest and costs. There is none in Massachusetts where, under the covenant against incumbrances, the purchaser has recovered any more, though there the rule allows a recovery for the value at the time of eviction. All the reasoning of our judges goes to limit the responsibility of the grantor to the consideration, with interest and cost, and I am unwilling to go further, where the principle to be established may lead to greater injustice.”

After lull consideration, and careful examination, we have been led to the conclusion that the law is as laid down in this case. That the true measure of damages, in an action'for the breach of the covenant against incumbrances, is the amount paid to remove the incumbrance, with interest, provided the same do not exceed the purchase money and interest. But in no case can a purchaser recover greater damages for the breach of any of the ordinary covenants in his deed, than for a breach of the covenant of warranty.

Judgment will be entered in favor of the plaintiff, computing the damage upon this principle. Judgment for the plaintiff.


source: Caselaw Access Project

author: Grimke, J.

license: Public Domain

text:
    Jonathan Warner v. Sereno Lucas.
    A witness is not bound to answer any question that will directly or indirectly criminate himself.
    Although in such case the witness is his own judge, yet he is liable to an action by the party, if his refusal to testify be willful and his excuse false.
    This is a writ of error to the common pleas of the county of Ashtabula.
    Wade and Ranney, for the plaintiffs in error:
    To permit a witness to judge whether his answer will tend to criminate himself, will go far to prevent the due administration of justice. The true rule is laid down by Chief Justice Marshall, in . *the United States v. Burr, 1 Rob. 215. When a question [337 is propounded, it belongs to the court to consider and to decide whether any direct answer to it can implicate the witness. If this is answered in the negative, then he may answer it without violating the privilege which is secured to him by law. If a direct answer to it may criminate him, then he must be the sole judge what his answer would be.
    The same principle is recognized in Southard v. Rexford, 6 Cow. 254; Parkhurst v. Lowten, 2 Swanst. 216; State v. Edwards, 2 Nott & McCord, 13; 1 Stark. Ev. 142.
    E. Wade, Giddings and Chaffer, for the defendant in error:
    We apprehend the rule to be, that a witness may be his own judge, and if he pleases, may object, in limine, to giving any testimony at all, on the ground that his evidence may tend to criminate himself. Some obscurity has been thrown over this subject by attempting, in the course of an examination, to take from the witness and give to the court the right to determine, whether an answer to any particular question will or will not tend to criminate the witness. The true doctrine seems to be, that if a witness, when sworn, will say under his oath, that he can not give testimony without criminating himself, he can not be compelled to testify, but if he answers at all, he is bound to disclose the whole. State v. R., 4 N. H. 562 ; Southard v. Rexford, 6 Cow. 254. Starkie thus lays down the rule, that a witness, although he may refuse to answer at all, on the ground that his answer might subject him to an indictment, yet if he answers at all he is bound to disclose the whole. 1 Stark. Ev. 143, ed. 1834; S. P., Dixon v. Dale, 1 Carr & Payne, 278; East v. Chapman, 2 Carr & Payne, 570; State v. Edward, 2 Nott & McCord, 13; Parkhurst v. Lowten, 2 Swanst. 215; People v. Mather, 4 Wend. 236; Story’s Eq. Pl 438; Mitford’s Eq. Pl. 174; Paxton v. Douglas, 16 Ves. 242.
   Grimke, J.

The error relied upon appears in a bill of exceptions. 388] The defendant in error was summoned as a witness *in a trial before a justice of the peace, in which the plaintiff in error was a party, and questions being put to him by the plaintiff in error, he refused absolutely to answer, on the ground that his answers would criminate him. This action was brought by the plaintiff in error against the witness, for refusing to testify, under section 105 of the justice act, 29 Ohio L. 189. On this trial the plaintiff produced evidence to show what were the questions proposed to the defendant, and also to prove that any answers to the same could not possibly implicate him. But this testimony was excluded by the court, on the ground that the witness was the sole judge whether his answers to any questions put to him would have the effect of criminating him. The plaintiff also offered evidence to prove that the justice of the peace, on the trial before him over, ruled the objection of the witness, and directed him to testify. But this evidence also was excluded.

Two questions seem to be involved in the present inquiry:

I. Was the decision of the magistrate that the witness ought to testify so conclusive as to render his silence inexcusable, and thus to authorize a suit against him for falsely and willfully refusing to give evidence? 2. Admitting that the witness is himself the exclusive judge whether his testimony will tend to criminate him, does this privilege, therefore, absolve him from a suit, the object of which is to show that his refusal was without foundation, and that he might have afforded his testimony to the person calling him, with perfect safety to himself ? These two questions are very distinct, and must not be confounded. The rule laid down on the trial of Col. Burr, 1 Rob. 242, was the first attempt to give a clear and detailed exposition of the practice of the court as to the first branch of the inquiry. It is there declared, that “it is the province of the court to judge whether any direct answer to the question proposed, will furnish evidence against the witness.” The rule had before been laid down in general terms, that the witness is himself to be the judge, and it is difficult to perceive how the court can be the judge, if the bearing of the testimony which is sought to be disclosed is a secret locked up in *the [339 bosom of the witness, and if to give a reason why he declined to testify, should have the effect of partially revealing that secret, The court can only.be enabled to judge, when if understands the situation of the witness. To understand that, may require a disclosure from the witness of his reasons for withholding his testimony, and yet in giving these reasons he may furnish a necessary link ,in the chain of testimony against himself. The rule laid down in the case of Col. Burr, therefore, must not be considered as one of universal application, because there may be cases in which the court are absolutely unable to judge. But the rule was undoubtedly correct .in that particular case; for the witness did voluntarily give his reasons for refusing to testify. He was desired to decipher a certain letter, and the witness was asked if he understood the cipher. He was afraid of being implicated in the misprision of treason which that knowledge might imply, but inasmuch as his present knowledge, his knowledge at the trial, did not necessarily imply that he was before acquainted with the meaning of the cipher, and the contents of the letter, so as to involve him in the guilt of knowing and concealing the treason, it was held that he might testify. The court did not decide that he must testify. A case was supposed in which the witness might safely answer the question proposed, without undertaking to decide whether that was the case of the witness. The chief justicej therefore, very properly limits the generality of the rule which he had before laid down. He says, “ if tho answer may disclose á fact, which forms a necessary and essential link in the chain of testimony, which would be sufficient to convict the witness of any crime, he is not bound to answer it.” “ In such a case, the witness must himself judge what his answer will bo, and if he say on oath, that he can not answer without accusing himself, he can not be compellod to answer.” That is, inasmuch as it is impossible for the court thoroughly to understand the situation of the witness, or to comprehend the bearing which his testimony may have on his past actions and conduct, he must necessarily, in the last re-840] sort, be the judge himself what will be the effect *of that testimony. And thus, the rule laid down on that celebrated trial does not, after all, differ materially from the rule as before understood. To make the witness the judge what will be the effect of his answers, might seem to be fraught with great danger and inconvenience, but in reality it has none of these inconveniences. It happens in this, as in a great many other instances, that as soon as a theoretical rule is reduced to practice, it becomes perfectly harmless. For a witness to refuse to testify, because his testimony may criminate him, is at once to pronounce his own turpitude. Not one man in a thousand would, without reasont venture upon so perilous a situation. The mischief to the witness is so onormous as to counteract the mischief on the other side, and to render the rule in its operation both a wise and salutary one.

In the United States v. Smith, 4 Day, 123, which was an action to recover a penalty for transporting slaves from one foreign port to another, a particeps criminis, after the expiration of two years from the commission of the offense, without any prosecution commenced against him, was compelled to testify against the defendant, although it was objected that he had fled from justice, and consequently was excluded from the benefit of the statute of limitations. The court declared that they would take care that no prosecution should be commenced against the witness. I do not know that the principle of this decision can be defended to tho extent to which it goes, even admitting that a witness is bound to answer, where his answers will only disgrace, and not criminate him, a very disputed question even at the present day. But two things are to be noticed as worthy of observation: fltst, that tho witness himself placed the court in possession of his situation, and secondly, that the court forbid the attorney general from instituting a prosecution against him. The court supposed, at any rate, that these circumstances furnished a sufficient exception to the general rule.

In the case of the People v. Mather, 4 Wend. 229, which was a prosecution growing out of the Morgan affair, a witness was offered, who refused to testify, because his testimony *might [341 have a tendency to criminate him. It was at first suggested that inasmuch as a prosecution for the abduction of Morgan was barred by the statute of limitations, the witness might safely testify, but, on the other hand, as there was no statute of limitations to the murder, it was decided that the witness was not bound to testify. I confess I do not see how he could be compelled to testify, if there-had been no murder, provided a witness is not bound to answer any question which will disgrace him, or involve him in shame or reproach. The People v. Herrick, 13 Johns. 82.

The bill of exceptions in the present ease states that the magistrate overruled the objection of the witness, and directed him to testify; but what were his reasons for so doing, under what circumstances he made that decision, is nowhere disclosed. To determine that the court of common pleas erred in refusing to hear testimony that the magistrate did so decide, without understanding what'were his reasons, would be to determine at random. There are cases in which the decision of a court speaks for itself; but this is one in which it is indispensable to know the ground on which it has proceeded, as well as its final determination. It does not appear but what the witness was right, and the magistrate wrong. The mere fact that the magistrate overruled the scruples of the witness, is not sufficient to enable .this court to say whether the witness willfully and falsely refused to testify.

But as to the second branch of the case, it seems to be supposed that if the witness is in the last resort, the exclusive judge of what will be the tendency of his answers to certain questions, that this not only protects him fro"m giving testimony, but protects him also from a suit the object of which is to show that his refusal was without foundation, that it was both willful and false. It is supposed, in other words, that the decision of the witness is without appeal, not merely on the trial where he is offered, but in any future proceeding which may be set on foot for the purpose of elucidating the truth. Such, however, does not appear to me to be a fair inference; and the protection which is thrown around the 31-2] witness as such *is rather a reason why he should be subjected to an action if he has abused that privilege. It will be remarked that the reason why the witness is not bound to testify,- is not because he may not be proved to have been guilty of a crime, but because he shall not be compelled to prove the fact himself. The existence of the privilege as such has no connection with any after-proceedings which may be had where the question of privilege does not arise. The law simply declares to the witness that if his answers may tend to criminate him, he shall not be compelled to answer, that in making his determination, he must judge for himself, but that in so doing he acts at his peril. He must not expect so extraordinary a protection to be afforded him, without some corresponding protection to the rest of the community. If, therefore, it can afterward be proved on a direct issue made for that purpose, that he has willfully and falsely refused to testify, he shall be answerable for the consequences. It is supposed in the argument that the privilege exists, not only in a case where an occasion for its exercise arises, but in one also where no such occasion can possibly occur. For it is of the essence of the privilege that it only exists where the person concerned occupies the position of a witness and not that of a party. The inquiry, and the purpose for which the inquiry is made, are entirely different in the two cases. In the first, it is not established as a fact that the witness told the truth when he refused to testify, whereas the action against the witness is brought for the very purpose of ascertaining that fact. Because on one occasion a witness is excused from testifying, it does not, therefore, follow that on another and a totally different occasion the truth and reasonableness of the excuse should be taken for granted. As a witness he is protected because his answers might criminate him; but the object of the suit instituted against him may be to prove that he is innocent, and not guilty of any offense. It could hardly be contended that if a witness were to confess that he had been guilty of perjury in refusing to testify, his confession would not be proper evidence against him. And if it could not, then the argument advanced 3é3] for the purpose of showing that in no instance *can a suit be instituted against him, falls to the ground, for Confessions are only one species of evidence to establish a fact sought to be proved. The refusal of a witness to testify, therefore, if it is willful and false, seems to me to stand upon the same ground, as every other species of misconduct of one person which produces an injury to another. He who undertakes to prove that an answer to a question put to a witness-can not possibly criminate him, has, to be sure, a very difficult task to perform. The difficulty, indeed, is all on that side, for not only is a witness excused from answering, where the effect would be to involve him in guilt, he is excused where his answers would furnish one essential link in a chain of testimony conducing to the same end.

The result is, that the court of common pleas erred in rejecting the testimony which was offered to prove what were the questions proposed to the defendant, and that any answers to the same could not possibly criminate him. Judgment reversed.


text:
    *George W. Oaks v. Eliphalet Wyatt.
    This was an action of replevin. The declaration was in the common form. Plea, non detinet.

    On the trial, before Judges Lane and Grimke, in the county of Cuyahoga, the defendant, offered to prove that he levied upon and held tho property in dispute, as á constable, by virtue of three executions against the goods and chattels of one George B. Sperring.
    The plaintiff objected to the admission of this testimony under the issue of non detinet, without special plea or notice. The objection was overruled, and a bill of exceptions taken. Application was made for the allowance of a writ of error, but a non allocatur was indorsed by the four judges.
    Payne & Wilson, for the plaintiff in error.
    S. J. Andrews, contra.


text:
    William Marsh v. Samuel Reed.
    After the right to real estate has been satisfactorily established at law, equity-will quiet the title against any further disturbance. It is not material what number of trials have been had, whether two or more, so that the right be satisfactorily established.
    In government surveys, a corner made by the surveyor arbitrarily or by mis. take can not control the field notes as returned to the proper office.
    This is a bill in chancery from the county of Scioto.
    It is brought by the complainant to be secured, by the decree of this court, in the possession of a tract of land which has been the subject of litigation in repeated suits at law. The bill alleges that the complainant is in possession of the land, and that he has the legal title to it. That the defendant, on April 2, 1832, instituted an ejectment against him, which was appealed to the Supreme Court, and being tried by a jury, a verdict and judgment was rendered for the present plaintiff. That the defendant not 348] being satisfied with this result, ^commenced another ejectment for the same land, in the common pleas of Scioto county j that this suit, like the former, was appealed to the Supreme Court, where, like the last, it was tried by a jury, and that on substantially the same testimony the present plaintiff again recovered a verdict and judgment. That the defendant moved for a new trial for misdirection of the court, that this motion was taken & the court in bank, where it was elaborately argued, and that the court, after a very full consideration, were of opinion that there was no error in the instructions of the court who tried the cause, and thus refused to grant a new trial.
    The bill thon alleges that notwithstanding this apparently final determination of the matter, the defendant has instituted a third action of ejectment against him. The plaintiff, therefore, in consequence of these repeated efforts to disturb a title, which has so-often been adjudged to be good in the proper forum, has filed this bill to quiet his title.
    The answer relies principally on the misconstruction which was given on the former trials to the laws of the United States under which both parties claimed; for it admits the possession of the plaintiff, and the various recoveries which have been hitherto had.
    Mr. Vinton, for the complainant:
    The complainant is entitled to relief on two grounds: First, by the general rules of equity, and, seóond, under the statute.
    When litigation has been carried on till the chancellor is satisfied, or, in other words, till in his opinion the merits of the case have been fully and fairly investigated, he will interpose and quiet the title. Nor is it necessary that there should be any precise number of trials at law. The chancellor is to be satisfied, and then he gives relief. 2 Story’s Com. 152; Huntington v. Rickall, 3 Johns. 601; Tenham v. Herbert, 2 Atk. 483.
    The case made by the complainant comes within section 14 of the chancery act. It is a question of metes and bounds, and in such cases the court will look to the several ^verdicts which [349 find the true boundaries. Porter v. Robb, 7 Ohio, 211, pt. 1.
    T. Scott & Son, for the defendant, insisted that the complainant had made no case for equitable relief, and they cited East India Co. v. Keighley, 4 Mad. Ch. 21; Lenox v. Prout, 3 Wheat. 527; Hughes v. Blake, 6 Wheat. 468; Leeds v. Marine Ins. Co., 2 Wheat. 380 ; Handy v. Harding, 11 Wheat. 103 ; English v. Foxall, 2 Pet. 612; Vattier v. Hinde, 7 Pet. 274; Boone v. Chiles, 10 Pet. 209.
   Grimke, J.

The issue which the defendant attempts to make in this ease, appears to me to be entirely irregular. It contradicts all the most settled principles by which a court of chancery is governed. I doubt whether it would be competent for this court to re-examine a title which has been heard and determined in a court of law, and of which a court of law appropriately and exclusively had cognizance. It is not like an issue directed out of chancery, where the court is at liberty, notwithstanding the finding of a jury, to make up a decree upon its own opinion of the merits of the controversy. In that case the proceedings originate jn a court of equity; the issue at law is not a matter- of course, it depends upon the discretion of the court, and the verdict in the other court is so merely auxiliary to the proceedings in chancery that it does not necessarily constrain this last court to renounce an opinion which may be directly adverse to it: I admit, indeed, that if this bill were filed under section 14 of the chancery act, it would be competent for the court to examine the title, because there also the proceeding is an original one in chancery. But neither of these is the case here; the bill is framed under the general jurisdiction which a court of.chancerv exercises in cases of this kind, which is to quiet a party in the possession of a title which has been already tried and determined at law, and which fact alone almost gives a complainant a peremptory right to demand a perpetual injunction against any further disturbance of his -350] right. Section 14 of the ^statute, to which I have referrodj confers upon a complainant a greater advantage than he before possessed, inasmuch as it does not require a previous trial at law. •But this complainant has not pursued this summary remedy; he • is satisfied with procuring the more difficult and arduous relief which a court of chancery, independently of statute, is in the ordinary habit of granting. He presents a case, where, upon a controversy relating to the boundary of land, he has obtained two verdicts and judgments in ejectment, and where, in addition to this, the validity of his title has been still further fortified by a re-examination of the law of the case in the court of highest resort. The extreme inconsistency and confusion which would be produced, if in the present suit the merits of the original controversy were to be tried, will be evident on the slightest reflection.

This proceeding could not be here if the title had not been previously determined at law. It is that which gives the equity court its whole jurisdiction, because the controversy involving a matter which pertains exclusively to a court of law, the court of chancery can only determine, not whether the title has been rightly found at law, but whether sufficient effort has been made in order to its being rightly found. If this were not the case the j>arties and the court would be moving in a perpetual circle, and the controversy could never be terminated. I do not mean to say that a court of chancery may not decline the relief asked, but that will still be, not because it puts a different construction on the title, but because the case does not assume a shape for equitable interposition.

Now what is tho rule which is usually and habitually administered in cases of this kind? It is that a complainant shall be in possession, and that he shall have established his right at law. No precise number of trials -is necessary. “I am inclined to think,” says Kent, C. J., in Huntington v. Rickall, 3 Johns. 601, “that there is no positive rule as to the number of verdicts which must precede the bill of peace.” Story, in his Commentaries, vol. 8, p. 152, says' the same : “If,” says he, “the trial has been satis.laetorily established at law, it is not material *what number [351 trials have taken place, whether two or more.” Can there be a doubt, then, but that this complainant is entitled to the relief he asks? The mere history of the case, in its progress through the other court, demonstrates that the title has been satisfactorily es. tablished. The questions of law were elaborately argued and carefully examined by the court; and although we have properly nothing to do with the nature of the title now, yet we have again re-examined it, and are satisfied that the principle which was determined at law was correct. That principle was, that in executing surveys under the laws of the United States the mere marking s corner by the surveyor establishes no boundary, but each marked corner is controlled by the actual division linos made, field notes of which are returned to the proper officers and preserved according to law. This is no more than declaring an acknowledged principle, that in surveys executed by the officers of the United States the lines legally run and established by them, and not those which are arbitrarily and mistakenly drawn, constitute the true boundaries of the land. The plaintiff is therefore entitled to a decree for a perpetual injunction, securing him against any further disturbance of the title and possession of the land. Decree for the complainant.


author: Lane, C. J.

text:
    Harman Stidger and wife v. Madison Reynolds.
    A partner who takes on himself the entire control of the business of the firm is chargeable with the ordinary profits of the business he undertakes to conduct, and it lies on him to explain by proof the causes of his failure to make ordinary profits.
    This is a bill in chancery, from the county of Stark.
   Lane, C. J.

In 1833, Mrs. Betsey Eeynolds, now the wife of Harman Stidger, made an agreement with her brother-in-law, the defendant, to enter into partnership in farming, milling, and merchandise. The fixed capital was furnished by Mrs. Eeynolds; 352] the floating capital was to be provided on their *joint credit. The defendant was to take charge of the entire business, and to exert his utmost attention and time in carrying it on; the losses were to be equally shared, and the profits, after paying Mrs. Eeynolds $200 per annum, were to be equally divided.

The partnership subsisted, and was properly managed for more than two years, and terminated by mutual consent. The present suit is brought to enforce a settlement of its accounts.

The case has been twice referred, and it is now before us upon exceptions to the last master’s report. It is reserved to determino if the principles are just upon which he acted in taking the account.

The plaintiffs insisted that they had a right to hold the defendant “ accountable for such profits as could or ought to have been made by judicious management and ordinary success, in the several branches of business conducted by this firm, in the situation it occupied at the time, and under the circumstances apparently attending its operations.”

The defendant admitting this was the proper general rule, claimed that where he could show the amount invested and the amount drawn out by each, the amount of property on hand, and the amount of debts due, the profits may be computed from these elements, although he is unable to exhibit a running account of all the receipts, expenditures, profits, and losses of the business of the firm.

The master, finding no evidence tending to excite suspicion of the want of integrity in Reynolds, or that his property had increased in any direction in a ratio disproportioned to his admitted resources, and that a son of Mrs. Stidger, whose moans of knowledge of the operations of the firm were ample, testified he never supposed any money or goods of the partnership were ever appropriated by Reynolds without account, and that he believed Reynolds made every proper effort to make the business profitable, has thought it most consistent with equity to adopt the plan of the defendant as the basis of his account.

The master is correct in his apprehension that the evidence *in the case in no degree leads to the belief of any want of [353 integrity and good faith in Reynolds, or that there has been any want of effort to render the business productive ; and it is highly probable that whatever be the principles of taking the account, the results will not differ widely from those reached by the master.

But these principles may be applied to other cases, and they should be such as are calculated to produce a just account in all settlements with trustees. The defendant placed himself in a situation where he assumed “ to take the charge of the entire business, and exert his utmost attention and time in carrying it on.” To this situation the duty of account was of necessity incidental, and the plaintiff had a right to demand of him, either the profits which the business ordinarily affords, or an explanation of the causes which have rendered it less productive. It would not do to permit a guardian or a trustee intrusted with the management of another’s property, to discharge himself from his responsibilities, by showing the amount received, the amount on hand, and his expenditures, with proof of his general fitness and integrity. He has incurred the obligation to render the subject of his trust productive, and he does not meet his duties unless he shows ordinary profits or the causes of failure. The adoption of a rule less stringent would give opportunity in many cases for the trustee to abstract from the funds with little risk of detection.

The master was not at liberty to change this general rule, and the account must be retaken. In the absence of a full and regular account, he must ascertain ordinary profits of such business, and require of the defendant proof to relieve him from this liability.

The allowance of a commission (or collecting since the dissolution of the partnership, of which .the plaintiffs complain, appears to us just. When, the partnership was dissolved, the uncollected debts might have been divided, but there was no liability on the defend-354] ant to collect thorn. If, with the consent *of his partner, be assumed this labor, a compensation for his trouble was a proper charge against thefirm.

H. Griswold, for the complainants.

Harris and Brown, for the defendant.

      The partnership agreement was in these words: “It is agreed between Betsey S. Reynolds and Madison Reynolds to enter into partnership in the business of farming, milling, and merchandising, for and during the term of three years from the first day of September next, by the name, style, and firm of M. Reynolds & Co. The said Betsey S. Reynolds to furnish the mills and farm, comprised of the mills, half of section 21, and the south, west quarter of section 16, of township 3, of range 8, in Stark county, Ohio; and the. capital for the purpose of carrying on the farming, milling, and merchandising is to be furnished by the parties respectively in equal proportions; and if at any time a larger proportion than one-half should be furnished by either of the parties, the excess is to be charged to the firm, with interest. The said Madison Reynolds is to take charge of the entire business, and to exert his utmost attention and time in carrying on the business, and in endeavoring to make it profitable. The said mill and farm, during the time, to be kept in good repair, and taxes upon all the active capital, and also taxes upon the north half of section 21, are to be paid at the expanse of the firm ; and all loses arising out of the business to be equally shared by the parties, except unavoidable accidents and losses to the real property by fire. And the profits of the business to be shared by them as follows, to wit: The said Betsey S. to have set off to her §200 per annum, and the balance of the profits to be equally shared by the parties. And it is also understood by the parties, that either one shall hav-e power to dissolve this contract, by giving the other six months’ notice of their wish so to do.”


author: *Wood, J.

text:
    *Thomas Parker v. Elisha T. Sterling and William Sargeant.
    The act of 1838, to abolish imprisonment for debt, operates to discharge a debtor confined on the prison limits before the act look effect.
    The act effects the remedy, not the contract.
    This is an action of debt, from the county of Cuyahoga.
    The declaration avers, “ that the defendants and one Charles L. Ogden, whom the sheriff has returned not served, on December 27, 1837, at Cleveland, in said county, made their certain writing obligatory, the said Ogden as principal, and the said Elisha T. and William as sureties, signed with their hands and sealed with their seals, etc,, whereby the said Ogden and the said defendants acknowledged themselves to be bound unto the said plaintiff in the sum of $440.40, to be paid to the said plaintiff on demand; to which said writing obligatory there was attached a condition, reciting, 1 That whereas the said Charles Ogden had that day been committed to the jail of Cuyahoga county, and was then actually imprisoned therein, by virtue of an execution issued by the court of common pleas of said county, demanding $220.20, including debt and costs, at the suit of the said Parker; and whereas the said Sterling and Sargeant had that day become bail for the said Ogden, for the prison limits of said county, and provides, that if the said Ogden should continue safely on the said prison limits, in the custody of the sheriff of said county, and in no instance depart or go off the same, until he should be legally discharged, then the said writing obligatory should be void, otherwise to remain in full force and virtue.’ ” .
    The breach assigned is, “ that the said Charles L. Ogden did not safely continue on the prison limits aforesaid, in the custody of the sheriff aforesaid, until legally discharged, but that the said Charles L. Ogden, aiterward, to wit, on *February 2, 1889, [358 without being legally discharged, departed and went off from the prison limits aforesaid, and from the custody of the sheriff, into the State of Michigan, wherefore,” etc.
    To this declaration the defendants plead : First, non est factum; second, a special plea in bar, in substance, that after the making of the said writing obligatory, and before the said Ogden left the prison limits and the custody of the sheriff, as alleged, the general assembly, to wit, on March 19, 1838, passed an act to abolish imprisonment for debt, which, among other things-, provides, that no person shall be arrested or imprisoned for debt, etc.; and by the true intent and meaning of said act, the said Charles L. Ogden became and was legally discharged from the custody of said sheriff and the prison limits aforesaid, as in said declaration mentioned, etc.
    To this special plea there is a general demurrer and joinder.
    No argument for the plaintiff came to the hands of the reporter.

      H. Foote, for the defendants,
    cited Young v. Whitton, 9 Ohio, 100; Phelps v. Barker, 13 Wend. 68; Somers v. Johnson, 4 Vt. 278; 2 Kent’s Com. 397, 462 ; 3 Story’s Com. on Const, 251, 367 ; Sturges v. Crowninshield, 4 Wheat. 200; Mason v. Haile, 12 Wheat. 370; Wood v. Funk, 7 Ohio, 196, pt. 1; Lodge v. Phelps, 1 Johns. Cas. 139; Smith v. Spinolla, 2 Johns. 198 ; White v. Canfield, 7 Johns. 117; Sicard v. Whale, 11 Johns. 194; Whittomore v. Adams, 2 Cowen, 626 ; Hinckley v. Marian, 3 Mason, 88 ; Titus v. Hobart, 5 Cowen, 378; Woodbridge v. Wright, 3 Conn. 523; Atwater v. Townsend, 4 Conn. 47; Wood v. Malin, 5 Halst. 208; Morris v. Edes, 11 Louis. 730; Webster v. Massey, 2 Wash. C. C. 157; Dash v. Vankleek, 7 Johns. 477; Perkins v. Perkins, 7 Conn. 558; Calder v. Bull, 3 Dall. 386; Webster arguendo, 16 Mass. 245; Call v. Hagger, 8 Mass. 423; Goshen v. Stonington, 4 Conn. 209; Man. Co. v. Lathrop, 7 Conn. 550.
   *Wood, J.

It is admitted in this ease that the arrest and commitment of Ogden, and the execution of the bond by him and his sureties, were all acts done in pursuance of the provisions of the law as they existed at the time. It is supposed, however, by the defendants, that the act of March 19, 1838, though passed subsequently to his commitment, operates ipso facto to discharge him, and this is the question raised by the demurrer. It is not claimed that the execution, issued for the arrest of Ogden was founded on any affidavit, or that Ogden came within any of the exceptions enumerated as cases in which it should be lawful to arrest, for all was done, and whatever the rights of the plaintiff were, they accrued at the date of the bond, in December, 1837, and the act in question was not passed until the following March. But it is said the right of the plaintiff to the custody of Ogden in the sheriff, within the limits of the prison, was already vested before tlie passage of the act, and that right could not be impaired or affected by subsequent legislation.

The answer to this is, that the execution and commitment, and the bond for the liberties of the prison, are not the contract, which it is unconstitutional to impair, but they are the remedy, which the law has provided as a moans to enforce the contract, and which are at all times subject to legislative control. The remedy may be enlarged, or restrained, or taken away altogether, without affecting the obligation such remedy was given to enforce. The undertaking of bail is a part of the means given to obtain payment. If a plaintiff have no right to imprison a defendant, he has not the right to compel his surrender by the bail. When the principal debtor is discharged, such discharge exonerates the bail. These principles are all discussed and recognized in 1 McLean, 231; 9 Pet. 329 ; 21 Wend. 670. It follows, then, that the bond and imprisonment being given as a part of the remedy, the general assembly, by the act of March 18, 1838, affected the remedy only, and not the contract; that the act aforesaid discharged the said Ogden from imprisonment, and the discharge of the principal is a discharge of the defendants. *The demurrer will be over- [360 ruled and judgment given for the defendants on the special plea.

Judgment for the defendants.


text:
    The Ohio Railroad Co. v. The State of Ohio.
    The judges of the Supreme Court in their private capacity have no power to direct proceedings in the nature of a quo warranto.
   Grimke, J.

This is an information in the nature of a quo warranto from the county of Cuyahoga. It comes before the court on a motion to quash the proceedings. The first reason assigned is, because the information was filed without any leave previously given, either by the Supreme Court of the state, or any judge thereof, pursuant to the provisions of the statute in such cases provided, entitled an act relating to informations in the nature of quo warranto'and regulating the mode of proceeding therein, and without any application for such leave being made by the prosecuting attorney of Cuyahoga county, and without any direction to file the same being given either by the governor, the general assembly, or the Supreme Court of the state, other than is contained in a paper in the words following :

“ To the prosecuting attorney of Cuyahoga county : The undersigned judges of the Supreme Court of the State of Ohio, in obedience to the statute relating to proceedings in the nature of quo warrantoi, passed March 17, 1838, require you to institute proceedings forthwith against the Ohio Railroad Company, returnable at the next term of the court in Cuyahoga county, commanding them to show by what warrant they exercise the franchise of a bank) either by the issue of notes, bills, drafts, or evidences of debt- designed to circulate or be used as money, or in any other way.” To this order is signed the names of all four of the judges of the Supreme Court.

861] ^Section 1 of the act of March 17,1838, enacts that “ the prosecuting attorney of any county of this state shall, when directed by the governor, supreme court, or general assembly, or he may upon his own relation, or the relation of any private individual, upon leave granted by the supreme court in' term time, or any judge thereof in vacation, file an information in the nature of a quo warranto’’ etc. This is the only provision in the act which it is necessary to notice; and the mere recital of it is sufficient to show that the order in this case was unauthorized. It was not directed by the governor, the supreme court, or the general assembly, and the names of the judges which are signod must bo considered as placed there in their individual capacities. If the order had been granted upon the relation of the prosecuting attorney or of any private individual, it would have been good, because in that case the law provides that a single judge in vacation may do that which, without such application, can only be done by the court, and the fact that the writ was directed by all four, instead of by one only, of the judges, would not in that event have lessoned its authority. There is no way, therefore, of avoiding the effect of the motion, and the proceedings must be quashed. And the court having now retraced their steps, and admitted their orror, will proceed to do that which they intended to do before, and will direct an order to be made requiring the prosecuting attorney of Cuyahoga county forthwith to institute proceedings against the Ohio Railroad Company as is directed by the act of March, 1838.

Motion granted.

No arguments came to the hands of the reporter.


text:
    Pierre Mathinet v. Giddings and Merwin.
   Grimke, J.

This is an action of covenant from the county of Cuyahoga.

It is brought for an alleged breach of one of the covenants in a lease. The defendants crave oyer, set out the deed, and demur. The lease was executed on March 27, 1835, and conveys the property described from April 1, 1835, until March 1, 1841, securing the payment of $125 rent per year, to be paid at the expiration of each quarter. The plaintiff, to whom the premises are leased, covenants that if the rent shall, at any time, be in arrear and unpaid, that then the defendants may avoid the lease and enter into possession. It is further agreed that the plaintiff is at liberty to remove the improvements made upon the land, provided the rents are paid, which may be due on the lease at its expiration.

There can be no difficulty in giving a construction to this last clause. The rents have not been paid, nor has the term expired, which are conditions precedent to the right to remove the improvements, and therefore the defendants are entitled to judgment.

Judgment for the defendants.

No arguments came to the hands of the reporter.