text:
    John McCoy v. Corporation of Chillicothe.
    Bill in chancery to obtain a perpetual injunction against collecting a tax assessed in the ordinary way, and unaccompanied by any circumstances of peculiar injury, can not be sustained, even if the law authorizing the tax is unconstitutional.
    This was a bill in 'chancery to enjoin the collection of a tax, assessed by the corporation of the town of Chillicothe, upon the complainant’s mercantile capital. The bill set forth, that the complainant was an importer into the town of Chillicothe, from •Philadelphia,New York, and Baltimore, semi-annually, of merchandise to a large amount, a great proportion of which had been imported from foreign countries. That the merchandise thus imported by him into the State of Ohio was immediately exposed to sale, eiither by wholesale or retail, as best suited his convenience and customers ; that he also purchased, in New York, Philadelphia, and Baltimore, commodities, the manufacture of those cities, and of the States of New York, Pennsylvania, and Maryland, or which had been previously imported into those states from other states of the American Union; that he was also a purchaser at Pittsburg, in Pennsylvania, and at New Orleans, in Louisiana, of like commodities, all of which he imported into the State of Ohio for sale, which, with a very small portion of the products and manufactures of the State of' Ohio, constituted his stock of merchandise, upon which he transacted business as a merchant.
    *The bill further stated, that the mayor and commonalty of the town of Chillicothe on May 21,1827, had passed an ordinance, declaring, amongst other things, that the capital stock of merchants, employed within the corporation, should be subject to taxation for corporation purposes; and that by a subsequent ordinance, the tax of two mills on the dollar of the capital stock of merchants, should be assessed and collected for the year 1827. The bill further stated that the complainant’s capital stock had been rated at twenty thousand dollars, and assessed accordingly, and that the corporation were about to collect the amount, by distress, through the instrumentality of its officer, who was also made defendant. This collection, it was alleged, was contrary to law, and against equity, and prayed an injunction to stop it. The injunction was allowed by an associate judge of the court of common pleas of Ross county. The corporation answered, setting out their authority under their charter, and the laws of the state, to assess the tax in question, which they allege was legally assessed, and setting forth the ordinance assessing the same, and asserting the legal right to collect the amount assessed upon the defendant. The answer admitted the general character of complainant’s importations, except as to the amount of the products and manufactures of Ohio, admitted the intention to collect the tax, and denied the equity of the complainant’s bill. The collector answered, by a reference to the answer of the corporation, and by admitting his intention to collect the tax, unless restrained by injunction.
    Some testimony was taken as to the character of the stock, showing the proportion of it that was of the produce and manufacture of Ohio. But as this fact has no connection with the point decided, it is unnecessary to report it.
    Upon a final hearing, the court of common pleas dismissed the bill, and the complainant appealed to the Supreme Court. The cause was adjourned here for decision from Ross county.
    G-rimke, for complainant:
    The cases in which injunctions are now granted are very numerous. They have multiplied very much in modern *times. Formerly, for instance, waste was the only injury to real property which was enjoined. But now it is granted in innumerable cases of trespass. It is true it is sometimes said the mischief must be irremediable, but, in looking into the cases, we will find that as liberal an interpretation is given to that term as to the word necessary, in McCulloch v. Maryland, 4 Wheat. It may be said that it is impossible to appeal to any similar case in which an injunction has been granted. The answer is, that in England, whence we principally draw our judicial precedents, there is no distinction between the law and the constitution—the law is their constitution. Those few cases, the regency question and the coronation oath, which, in consequence of their solemnity and the importance of the statute on which one of them reposes, have been considered as of the nature of constitutional questions, have only been brought before Parliament. Indeed, it is doubtful whether Englishmen would permit anything fundamental, as they are considered. to be discussed before a forensic tribunal, even if a fit case could be made. In this country, the proceedings in analogous cases have been of a remedial nature, as in Cohens v. Virginia, McCulloch v. Maryland, and Biddle v. Commonwealth, 13 Serg. & R. 405, and, besides, the tax has not been collected by distress, but it has been necessary to determine the question before the levy. It is not asserted that this is a case of injury to personal property, which must be very special in order to authorize an injunction. There are certainly a great abundance of cases where injunctions are awarded, besides injuries to personal or to real property. The prevention of the negotiation of a bill of exchange, or the use of a partnership name, are neither of these classes. Indeed, he who looks for an exact precedent in every case, must be very little aware to what an infinite extent the affairs of men are ramified by experience, and by the ever-varying exigencies of society. The power to grant injunctions, however, in order to prevent a multiplicity of suits, is one which is familiarly exercised by a court of ehancery, and this is precisely that case. It is true the greater number of instances in which it has been exercised have been where a multitude of persons have been concerned ; but in 9 Wheat. 842, the court have extended it to the case of a multitude of suits by one and the same person, and although it *may be said that in that case this principle standing alone was not considered as of sufficient weight to decide the question, but was combined with a number of other considerations; yet it appears from 4 Mod. 135, that the prevention of a multiplicity of suits is, independently of any other consideration, a ground for an injunction. Indeed, that is the way in which the proposition is stated in every book on the subject.
    It is an exceedingly rare thing to find a number of inconveniences made the foundation of a general elementary principle. If one is not sufficient all are not. The greatest inconvenience would result from such a doctrine. What number of injuries must exist, two, three, or four; and in what proportions must they be combined? See 3 Bac. 653; Johns. Ch. Cas. 474. The only two objections of any weight which can be made, are, that the injury is the proper subject of an action of trespass, and that the right ought to be tried at law. The first is answered already, by showing that an individual trespass, and a multitude of trespasses, stand upon very different ground. With regard to the second, the law has been very much relaxed. Formerly, injunctions, in all cases, were preceded by a suit at law; now, if the right is clear, and there are no facts to be tried, they are awarded in the first instance. In 9 Johns. 507, the injunction was granted without the right having been previously tried. It is never necessary to establish the right at law, previously, where it appears of record, or is grounded on an act of the legislature. 9 Johns. 533 Mitf. 129; Coop. 150, 157. It will be admitted that if attempts were ropeat.edly made to collect a tax after a judgment at law, that a court of chancery must then interpose by injunction. But the only reason why it would be necessary to wait, must be because the right does not appear of record, and must, therefore, be tried by jury.
    The court say, in 9 Johns. 571, 588, that there is no necessity for a jury, for “there are no facts in dispute, the right must depend on the validity of the statutes; ” “ the single point is, the constitutionality of the statutes.” So, in page 570, it is said, “the prevention of a multiplicity of suits is one of the most salutary powers of a court of equity.” It may be said that the principle on which the court proceeded *in 9 Wheaton was, that the tax was a violation of the franchise of a corporation. But it may, with the same force, be said, that the case was decided on both principles. The truth is, that both are adduced by the court as singly sufficient to authorize an injunction. He who avers that the first ground {the prevention of a multiplicity of suits) is dispensed with, is bound to prove why the second is not equally dispensed with. There is one view of the subject which is important. It is, that even where a trial at law is deemed expedient, the court of chancery does not dismiss the suit, but only awards a feigned issue to try the fact. 3 Bac. 653. And this course is adopted with more facility in Ohio, under our statute, which gives the court of equity power to summon a jury on the spot, and itself to try the question. So, that even if any facts are to be found, this gets rid of the difficulty. It has sometimes been said that a court of chancery is an improper tribunal to try a constitutional question. And yet, in Livingston v. Van Ingen, 9 Johns., the fact that the validity of the statutes of New York was the only matter in controversy, is assigned by some of the judges as the very reason why the court should retain jurisdiction. The constitutionality of the various laws in contestation, in Osborne v. The Bank, and Gibbons v. Ogden, was as well settled as they could have been in a court of law. It may be said, that although you have a right to restrain Individuals by injunction, yet you can not enjoin a government, or even a subordinate jurisdiction. But it has been conclusively settled, in 2 Johns. Ch. Cas. 162, that there is no difference between the cases. Indeed, the case of Osborne v. Bank of the United States ias determined the same point. And if public officers may be compelled to abstain from carrying into effect the laws of a state, they may be also compelled to desist from executing the ordinances of a corporation. If such were not the case we should have, indeed, imperiumin imperio; and our whole system of government would be a mere jumble of powers instead of a regular and well-defined system, animated by harmonious principles, and presided over by some common umpire.
    Leonard, for respondents:
    We insist that chancery has no jurisdiction over the present controversy.
    ^Instead of the present being a case of great and impending mischief, of lasting destruction, or irreparable ruin, the smallness of the amount in litigation, is a sufficient reason to exclude the action of a court of equity. Moose v. Lytle, 4 Johns. Ch. 183; Fullerton v. Jackson, 5 Johns. Ch. 27, 36.
    It is not the novelty or importance of the principles involved in a controversy, or its constitutional features, which gives chancery the right to interfere. The right is based upon the ground, that an adequate remedy can not be had at law. And when the subject is proper for the recognizance of courts of equity, they will not act if the matter in dispute is trifling. There is no instance where an injunction has been awarded for the sole purpose of restraining trespasses upon personal property. None, where the trespass was on real property, unless in cases of great and impending mischief, tending to irreparable ruin, or of private nuisance; or where there was some distinguishing circumstances existing, as the relation of landlord and tenant, vendor and vendee, etc. I can not do better, than to refer the court to the collection of cases contained in the argument of counsel in Osborne v. Bank of the United States, 9 Wheat. 751-754. The elementary books are equally decisive. Coop. Eq. 150, under the head Demurrers to Relief, section 8, and particularly from page 152 : “ Formerly, in case of trespass, unless it grew into a nuisance, an injunction would have been refused.’ “Lord Thurlow first granted an injunction in a case of trespass, attended with irreparable injury, in working a mine.” That the co.urt never interferes, simply to prevent a trespass on real property, or repeated trespasses; and the multiplicity of suits growing out of the repetition, is most emphatically laid down by Chancellor Kent, in 1 Johns. Ch. Cas. 320, 321. It is not to prevent a multiplicity of suits which may be brought by an individual, but a mub tiplicity by many individuals, that equity interferes. There are a class of suits in which the court interferes to prevent a multiplicity of suits, where the trespasses are unattended with irreparable injury; as in disputes between a lord of a manor and his tenants; between the tenants of two manors, and between a parson and his parishioners. For here, there would be no end to bringing actions of trespass, and therefore a bill of peace maybe exhibited, and the court will direct an issue. *So, where the corporation of York claimed the .exclusive right of fishing upon the Oun, for nine miles together, and this right entangled them with different lords of manors. 2 Atk. 483; 1 Atk. 282; Coop. Eq. 153, 154.
    The cases of Gardner v. Village of Newburg, 2 Johns. Ch. Cas. 162, and Belknap v. Belknap, Id. 463, have been referred to. And it is asked, if the case of Osborne v. Bank of the United States was not determined on the principle that chancery might interfere to prevent a multiplicity of suits? •'Whether it was determined on that principle, and some others combined with it? Whether, if one principle is not sufficient, the addition of two others, neither of which, separately, will suffice, gives equity jurisdiction ? Thai neither of these cases were determined on the ground that chan eery will grant relief in trespasses on real property, is apparent from the fact that Belknap v. Belknap is settled upon a case before Lord Ilardwicke, when all the books say Lord Thurlow was the first who relieved in trespass. The case of Gardner v. Village of Newburg was a case of private nuisance. The principles on which Belknap v. Belknap was settled, appear in the case of Van Bergen v. Van Bergen, 3 Johns. Ch. Cas. 287. “When a statute authorizes commissioners or others to interfere with private property (all the cases relate to real property), and it is charged and shown that they are about to exceed their powers, the case seems not to be governed by the ordinary rulos ; the interference of the court is more prompt, and is called for by greater necessity;” and cites Belknap v. Belknap. All the cases referred to in page 473 of that case are of the same precise character.
    “ The observation of Lord Hardwicke alludes to its pre-eminent utility. This is not the case of an ordinary trespass impending, but one great and special, leading to lasting mischief, and the destruction of the estate, and tending to multiplicity of suits.” It is apparent from the case cited, 1 Johns. Ch. Cas. 320, 321, that multiplicity of suits, arising from the apprehension of repeated trespasses on real estate, is insufficient to authorize chancery to take jurisdiction. The expression “ tending to a multiplicity of suits,” is thrown in as a make weight. It is manifest that the apprehension of a continued repetition by an ordinary trespass, even on *roal estate, will not warrant equity in interfering. It must bo great and special, tending to lasting mischief, and the destruction of the estate. This may be accomplished by one or by many trespasses, and chancery will doubtless act as well in the first as last case.
    In the case of Osborne v. Bank of the United States, the chief justice says, the original bill prays an injunction to restrain the execution of a law, “to be destructive of the rights and privileges conferred upon them by the charter.” The chief justice does not consider it a case of a light and trivial trespass. He considers the law as passed with a view to expel the bank from the state; that if executed it would have that effect, and necessarily deprive the bank of its chartered privileges and franchises. The auditor’s “duty was to be repeated until the bank should abandon the exercise of its chartered rights.” He observes, that the counsel for 'Osborne admit that injunctions are awarded for the protection of parties in their franchises. But these were casos where the restraint had been imposed to prevent the violation by participation. 'To show the fallacy of this distinction, the chief justice remarks: •“ To deprive a party absolutely of his corporate rights and fran■chises is a greater injury than to diminish their value by sharing ’them. The single act of levying a tax in the first instance is the cause of an action at law, but this affords a remedy only for a single act, and is not equal to the remedy in chancery, which prevents its repetition, and protects the privilege. The same eon■■servative principle which induces the court to interpose its authority for the protection of exclusive privileges, to prevent the ■ commission of waste, even in somo cases of trespass, and in many •cases of destruction, will, we think, apply to this.” The whole amount of this is, that the bank has a franchise, a corporate privilege of banking within the State of Ohio, that the state laws will deprive them of this privilege if carried into execution, by expelling the bank from the state, and that therefore the court will prevent the destruction of their franchise, by restraining the execution of the state law. Does any one imagine if the law had assessed only one tax upon the bank instead of an annual tax, the court are to be understood as saying they would not interfere; or, that the court in this instance interfered *simply because this trespass was to be repeated ? The court say chancery ■“ interposes its authority to prevent the commission of waste even in some cases of trespass.” This is an admission that it is not every trespass, nor its repetition, which constitutes a foundation for the jurisdiction of chancery.
    The court does not finally decide the case on these grounds The chief justice says, if the state could have been made a party it can no^be denied this would have been a strong case for an injunction. But in the actual circumstances it is still stronger. Having no remedy against the principal, the court can justly restrain the agent from levying. When the money was collected and paid over, “the remedy against the agent would be for compensation-only,” “ and what agent could make compensation for such an injury ?”
    The chief justice finally concludes, “ the amended bill makes out a clear case. The court will interfere to prevent the transfer of a specific article, which if transferred -will be lost to the owner as negotiable securities and stock.” McCullough v. Maryland, Cohens v. Virginia, and the case cited from 13 Serg. & Rawle, are said to be remedial cases.
    They are all actions at law, and inapplicable as authorities to the present question. Finally, if an injunction can be sustained in the present instance, the whole revenue system of the government, both state and national, and of every political corporation within its limits, may be arpsted, and equity will be bound to- take cognizance of every trespass apprehended, when the trespasser professes to act under the color of any legal authority, whatever it may be.
   By the Court :

The facts set out in the bill and answer present the ordinary caso of a proceeding to collect a tax assessed for the single purpose of revenue. The collection is to be made in the common manner, by the sale of the personal goods of the party. There is no allegation or pretense that, to make the collection by distress, would, in any extraordinary manner, prejudice the complainant. Neither is there any suggestion that the parties complained of are insufficient to respond in damages for the injury they are about to commit,’ should it *be unauthorized by law. No circumstances distinguish the ease from one of a common trespass except that the act sought to be enjoined is about to be committed under color of law. In a mere matter of simple trespass, a court of equity has not yet interfered by an injunction. This is agreed upon both sides, and we are too well satisfied with the doctrine, as it is now settled, to make a precedent for disturbing it.

The pi’oposition that chancery may interfere by injunction to prevent a multiplicity of suits, has no application, that we can perceive, to this case. If the tax was levied by distress, one action at law would setttle the right and secure to the party his redress. If, notwithstanding, another tax were levied, it would be the subject of a single suit. The separate repetition of trespasses, laying a ground for separate suits, between the same parties, is not that description of multiplicity of suits which induces equity to interfere. Where many parties and different rights are involved in the same transaction, all of which can not be legally adjusted without several suits, this state of things is sometimes held a sufficient ground for chancery to interfere. And we are by no means satisfied that what is said, by way of argument, in the opinion, in the case of Osborne v. Bank of United States, warrants the conclusion that equity should take cognizance and jurisdiction between two individuals, where one apprehended a series of trespasses would be committed upon him, for each one of which, if perpetrated, the law gave him a full and adequate remedy.

The bill proceeds upon the hypothesis that the law authorizing the assessment of the tax in question is unconstitutional, and therefore can confer no authority. But this does not make a case for chancery jurisdiction. Whatever may be the principal question in a cause, the attendant circumstances must be such as to give the court jurisdiction of the subject,-or between the parties, before it can be considered or decided. If the ground assumed in the bill is correct, then the collection of the tax is a trespass, and, without the assistance of other facts than are here alleged, the remedy is at law, not in chancery. In the case of Osborne v. Bank of United States, tbe jurisdiction was sustained evidently upon tbe ground that the trespass apprehended, if permitted, would operate the destruction of the bank. The undisguised object of the *act to be enjoined, was to destroy the franchise. For this, tbe court were of opinion compensation in a verdict and judgment for damages would not be a full and adequate remedy, and therefore the preventive remedy of injunction became necessary. This case does not resemble that in any of its features, but the single one that, in both cases, the collection of a tax was tbe subject in controversy. We think tbe jurisdiction can not be sustained upon safe and proper principles. The bill is dismissed on that ground, the other branch of the case not having been considered.


source: Caselaw Access Project

author: Judge Hitchcook :

license: Public Domain

text:
    D. S. Bell v. J. S. Bates.
    In an action of trespass, assault and battery, and false imprisonment, if the damages found are under five dollars, plaintiff can not recover any costs.
    This was an action of trespass, assault and battery, and false imprisonment. On the trial the jury found a verdict for the plaintiff, and assessed his damages to one dollar and seventeen and a half cents. The trial was had before the Supreme Court in Champaign county. Theplaintiff moved for judgment for costs, and the motion was adjourned to be decided by the court in special session.
    Mason, in support of the motion,
    argued that the case was not within the provisions of section 67 of the judicial act, which, being in restriction of a common right, ought not to be enlarged by construction. He cited 1 Bos. & Pul. N. R. 255; 1 Selw. 47; 2 Selw. 1259; 2 Tidd, 870.
    There was no argument on the other side.
   Opinion of the court, by

Judge Hitchcook :

There were no costs, eo nomine, at common law, although in actions sounding in damages, a practice prevailed of allowing to the plaintiff, in the assessment of the damages, a sufficient sum to re-numerate bim for his necessary expenses. But, in consequence u{ the hardship which a plaintiff must sustain, in expending large sums of money for the purpose of obtaining his right for which he would have no amends, the statute of Gloucester, 6 E. 1, cap. 1, was passed, allowing *costs in certain cases. The subject was frequently, at subsequent periods, before the Parliament of England, and such provisions made as justice and necessity seemed to demand.

In this state costs, as a general rule, have never been allowed to the party recovering judgment. The amount to be taxed, however, has been varied from time to time, the whole being regulated by statute. In order to decide the question, in the present case submitted to the court, it is unnecessary to refer to any of those statutes, except such as are now in force, and have a bearing upon the subject. Those parts of the statute which do bear upon this question are section 67 of the act organizing the judicial courts and regulating the practice, commonly called the practice act, sections 52 and 56 of the act defining the duties of justices of the peace and constables in criminal and civil cases.

The practice act determines the jurisdiction of the court of common pleas, and section 67 provides “that in all actions for libel, slander, malicious prosecution, assault, or assault and battery, action on the case for a nuisance., or against justices of the peace for misconduct in office, if the jury on the trial of the issue, or on inquiry of damages, shall find or assess the damages under five dollars, the plaintiff shall not recover costs.” By the act defining the duties of justices of the peace, jurisdiction is conferred on those officers, in all civil cases, where the matter in controversy does not exceed one hundred dollars, except such cases as are expressly excepted. Section 52 enacts “ that nothing in this act shall be construed or understood to extend to actions of trespass with force and arms for assault and battery, for malicious prosecution, or actions against justices of the peace for misconduct in office, except in cases provided for in this act; actions of ejectment, brought to obtain the possession of lands and tenements; actions of replevin; actions of slander; actions on contracts for real estate, or where the title of land is called in question, except for trespass on real estate, as provided for in this act.” Here we have a list of actions in which justices of the peace have no jurisdiction; in all other cases their jurisdiction is complete, with the limitation before stated as to the amount in controversy. Section 56 of the same act provides, “that if any person or persons shall commence *or prosecute any suit, for any debt or demand by this act made cognizable before any justice of the peace, in any other court than is authorized and directed by this act, and shall obtain a verdict therein for debt or damages, which, without costs, shall not amount to one hundred dollars or more, he, she, or they, so prosecuting, shall not recover any costs in such suits, any law to the contrary notwithstanding.”

The action in the present case is an action for assault, battery, and false imprisonment. It was commenced in the court of common pleas, and the jury assessed the plaintiff’s damage at one dollar and seventeen and a half cents. The plaintiff insists that the action for false imprisonment is an action known to the law as separate and distinct from the action of assault and battery; and inasmuch as it is not named in section 67 of the practice'act, therefore he is entitled to full costs, although the damages assessed are under five dollars. To this it may be answered that if the action of false imprisonment is not named in section 67 of the practice act, neither is it named in section 52 of the justice act; and if the position of the plaintiff, as to the nature of his case, be correct, the cause of action is clearly within the jurisdiction of a justice of the peace. It follows that the plaintiff is placed in this dilemma. If the cause of action is within those specified in section 67 of the practice act, he is not entitled to costs, not having recovered damages to the amount of five dollars. If the cause of action is not included among those named in that section, then it is within the jurisdiction of a justice of the peace, not being excepted in section 52 of the justice act; and he is precluded of his right to recover costs by section 56 of that act, the jury having assessed his damages at a less amount than one hundred dollars.

Judgment must be entered upon the verdict for the-amount of damages assessed, exclusive of .costs.


author: By the Court :

text:
    *Eden Burrows v. Arthur Vandevier and others.
    Writ of certiorari lies from the Supreme Court direct to inferior jurisdictions, hut will he sustained only in extraordinary oases.
    Order for opening a county road forty feet in width is erroneous, the law directing that it must he opened sixty feet.
    This was a writ of certiorari addressed to the commissioners of the county of Warren, requiring them to certify their proceedings, upon the application of the defendants, in establishing a county road. The plaintiff in certiorari was a landholder through whose lands the road was established.
    The application was made to the commissioners on the first Monday of March, 1824, when the usual order of view was made. At the June term, 1824, the viewers and surveyor made their report in favor of establishing the road. No objections were made, and upon two readings of the report the commissioners made an order to establish the road, and directing the supervisor to open it forty feet wide. In 1828, this writ of certiorari was issued, and adjourned here for decision from Warren county.
    T. R. Ross, for plaintiff.
    T. Corwin, for defendant.
   By the Court :

It is objected that this writ ought to be dismissed, because this is not a case in which the exercise of a sound discretion requires that it should be allowed. It is admitted that the court possess jurisdiction to award it in a case like this; but urged that it ought not to be sustained, because the plaintiff in certiorari had a more easy and expeditious remedy in the court of common pleas. We assent to the justness of this argument, but under existing circumstances we have concluded to sustain the writ in question. As the jurisdiction is conceded, and no rule had been laid down with respect to cases in which it would be exercised, we are not willing to turn the party out of court in whose case a rule is first to be made known to operate in other cases. Hereafter we shall not sustain a writ of certiorari direct to any inferior jurisdiction where the court of common pleas have power to act, unless the case be attended with some extraordinary circumstances; and these must be of a highly imperative character, or the party will be sent first to the common pleas — which, in ordinary cases, is the most appropriate tribunal.

^Numerous errors are assigned in the proceedings of the commissioners in establishing the road and directing it to be opened. But as we agree to reverse the order upon a single point, it is deemed unnecessary to notice any other.

After the first application for this road, and before the order •passed for establishing and opening it, the law for opening and regulating roads and highways was changed. Although the new law contained no provision for the continuance and completion of applications pending when it took effect, we are satisfied that it so operated upon them as to preserve them in the condition in which it found them. So far as the repealed law was their foundation, they must be sustained under that law. But all that remained to be done, when the new law took effect, must be in conformity to the provision of that law.

The act of February 26, 1824, provides expressly that “all county roads shall be sixty feet wide.” This order directs the road, which is a county road, to be opened forty feet only in width. It is consequently in conflict with a positive legal provision. And for this cause is reversed.


author: By the Court:

text:
    P. Hay v. C. Ousterout.
    Tender, after suit brought betore justice, of amount due and the costs then accrued, is a bar to a recovery of further costs.
    Court may conform a verdict to the intention of the jury, without consultation with them.
    This was a writ of error adjourned here for decision from the county of Fairfield. The case was this: The defendant in error commenced a suit against the plantiff in error, before a justice of the peace. After the suit was commenced, the defendant in that suit tendered to the plaintiff one dollar and fifty cents, with the costs that had accrued. This sum the plaintiff refused to accept, and proceeded to a trial before the justice, who gave judgment against the defendant for two dollars. From this judgment the defendant appealed to the court of common pleas. The plaintiff filed his declaration in assumpsit, containing the common counts. The defendant pleaded the general issue, and gave notice that he should roly upon the tender made when the suit was pending before the justice, with whom the money tendered was deposited.
    *Upon the trial the jury returned a verdict in these words “ We find for the plaintiff in the sum, of one dollar and fifty cents; tender was good; offset might have been plead in the suit before 'Squire Bush." After the jury were discharged, and without any consultation, with them, the court directed the verdict to be entered as follows: “ FPe find for the plaintiff in the sum of one dollar and fifty cents, and that the amount of the debt due, and all the costs thereon, was tendered by the said Ousterout to said Hay, in manner and form as the same is charged in the notice given by defendant."

    A bill of exceptions was taken to thus modeling the verdict, and the court of common pleas gave judgment for the plaintiff, for the damages found by the jury, and costs,, to reverse which this writ of ei'ror was brought.
    Irwin, for plaintiff in error.
    Ewing, for defendant in error.
   By the Court:

The jury have found that, after the commencement of the suit, the whole amount of the debt which they find to be due was tendered to the plaintiff, with the costs that had then accrued, as charged in the notice. This is finding a tender and refusal, which, upon settled principles, precludes the.party from recovering the further costs that may be incurred, by continuing to prosecute the suit. If the verdict, as directed to be -recorded by the court, can stand, the judgment is clearly erroneous as to costs, and so far, must be reversed.

It is urged against the verdict, that it involves more than the verdict, as returned by the jury, fairly warrants. But we do not think so. The general terms “ tender was good," are, in substance, the same with those recorded. The tender could have no validity to defeat the plaintiff’s action, unless accompanied by a refusal. The expressions used by the jury denoted that they had found the tender, and the matters connected with it, to be as alleged in the notice. And it was proper for the court to conform the verdict to the clear intention of the jury. Nothing more was done here ; *and there was no error in doing thus much. The judgment must be reversed as to the costs, and as to the damages affirmed.

      Note. — The Hon. Jacob Burnet, being elected a senator in Congress, resigned his office of judge of this court at this stage of the business. The subsequent causes were all decided by the three remaining judges, Pease, Hitchcock, and Sherman.


text:
    *B. Tupper’s Executors v. E. W. Tupper’s Executors.
    Action of debt on simple contract not barred by statute of limitation before the act of 1824.
    Debt on simple contract lies against executors and administrators.
    This cause was adjourned here from the county of Washington. £t was an action of debt, and the declaration contained three counts. One for money had and received of the plaintiff’s testator in his lifetime; one upon an account stated with the plaintiff’s testator in his lifetime; and one for money had and received for the use of the plaintiffs as executors. The two first counts alleged the money to have been due May 1,1813; the third laid it to have been due December 1, 1820. The writ is dated October 31, 1826. The defendants pleaded sevei'al pleas, and amongst them, the statute of limitations, to which the plaintiffs demurred. The demurrers were sustained in the court of common pleas, and the case taken to the Supreme Court by appeal.
    The cause was elaborately argued by H. Stanbery and Vinton, for the plaintiffs, and by Ewing, for the defendants.
    But as these arguments relate almost wholly to the construction of a statute, now very nearly, if nob entirely obsolete, it has not been deemed necessary to publish them.
   By the Court:

The question presented by these demurrers has been long since considered as settled. The statute of limitations of 1804, and all subsequent statutes up to that of 1824, on the same subject, are silent as to the limitation of an action of debt founded on simple contract. And where the indebtedness was evidenced by any matter not properly a subject of book account, it has been considered as not within the statute. This construction has prevailed so Iona- that it ought not now to be disturbed; more especially as the act of 1824 Unust very soon operate so as to prevent all the mischiefs which it is supposed may result from the omission in the previous acts. The subjects of the present action do not appear to be matter of book account. The demurrers, therefore, are well taken, and must be sustained. Another objection was made in argument to the plaintiffs’ right of recovery. It is urged that an action of debt is not maintainable against executors and administrators on simple contract. The uniform practice of this state has been otherwise. It was not sustained in such cases, in England, for a technical reason; but that reason the wager of law never obtained with us.

Judgment that the demurrers be sustained and the pleas overruled. The cause remanded to be tried on the other pleas.


text:
    Lessee of Ludlow’s Heirs v. William Barr.
    Plaintiff in ejectment may recover against disseizor on possessory title alone, where no title is set up by defendant, or none better.
    Plaintiff in ejectment relies on possession alone. Defendant produces paper title from the grantee of the government, plaintiff gives evidence of a conveyance by the grantee of previous date. Proof defeats plaintiff’s right of recovery.
    This cause came before the court upon a motion for a now*trial, made by the plaintiff, the decision of which motion was adjourned here from Hamilton county.
    At the triaL the plaintiff oponed his case by proving that his lessors were the children and heirs at law of Israel Ludlow, deceased ; that so early as the year 1795 or 1796, Ludlow was in possession, claiming as owner, the land being then in woods; that he continued in possession to his death, in the year 1804; that afterward his widow took possession and built a house on it, which she occupied up to the year 1814, when the defendant entered, claiming to have purchased from the administrators of Ludlow.
    The defendant then gave in evidence a deed from John C. Symmes, the original patentee of the Miami purchase, to the administrators of Ludlow, dated December 14, 1810, in which it was, in substance, recited that the conveyance was made in confirmation of a sale to Ludlow, and in trust that the administrators, under the direction of the court, should sell the land and apply the proceeds to the benefit of Ludlow’s ^estate. He also gave in evidence a deed from the administrators of Ludlow to himself, dated August 10, 1811, reciting that it was made in execution of the trust created by the deed from Symmes.
    The plaintiff then gave in evidence a deed from Symmes to Jonathan Dayton, for the same lands, dated May 31,1796, and the book of original entry made with Symmes, showing that Dayton entered the land in 1788, and parol proof that Ludlow took possession of the land so early as 1792, or 1793, claiming to be a purchaser from Dayton. He also gave in evidence a deed from Dayton for the west half of the same section, dated June, 1796, in which he calls to bind on the east by the land of Israel Ludlow, being the same land now in dispute.
    During the trial the admissibility of the evidence was strongly opposed, in every instance, by the adverse party. And the whole being received by the court, they directed the jury to give a verdict for the defendant, allowing the plaintiff to move for a new trial, on the grounds of receiving improper evidence, charging against law, and finding a verdict against evidence; the motion was accordingly made, and adjourned.
    Garrard, in support of the motion, opened the argument;
    but as the counsel in reply re-examined the whole ground, the opening argument is omitted.
    N. Wright, against the motion.
    The case, as it appears to me, so far as involves the great question in the cause, stands thus: The defendant proved a legal title from J. O. Symmes, the patentee of the Miami country, to himself, in 1810, and possession continued under it. The plaintiff proved possession, with claim of title, from 1796 to his death in 1804, and possession afterward' by his widow; and a deed to Jonathan Dayton, under whom he claimed to hold as a purchaser. This is the strongest statement of the ease for the plaintiffs ; and such, I suppose, the court will incline to give it, they having suggested a verdict for defendant.
    The question is, can the plaintiffs recover at law on this testimony? The answer is short and sure: they can not recover, because they set up a mere naked possession, without proof of any right either legal or equitable, in opposition to a complete legal title. A proof of equitable right would not aid them; yet so stands the case; there is no proof that Ludlow had any right whatsoever, merely that he claimed a right, and claimed to have purchased, but no evidence of the existence of such right or purchase. If a man purchase by contract, pay the consideration and take possession, he can not defend that possession at law, by virtue of his contract; his relief is in equity. This principle no one will question. Is not the case still stronger, where he sets up a mere naked possession against a legal title? Such is the simple answer to the question, and such must be the result of the case. If there is any difficulty about it, it has arisen from a confused view of the doctrine in the books of the right to recover in ejectment on possession only. I will, therefore, by way of illustrating that doctrine, inquire:
    1. Whether the plaintiffs can recover on their possession?
    2. What is the effect of Dayton’s deed on this right to recover?
    The right to recover in ejectment on possession only rests on this ground. Occupancy is the first right under the laws of nature; the man who is found in the possession of land has a right to remain there, till some person having title appears; precisely the same principle applies in case of chattels, the finder holds possession against all the world but the rightful owner. Possession, therefore, say the courts shall be held prima facie evidence of title, till some title in fact appears; the man who occupies the land shall not be disturbed, till a title is shown against him. In applying this principle to practice, the case soon arose of successive occupants, the occupant this year claiming adversely to him who occupied last year; and in adjusting the conflicting claims arising out of such circumstances, a set of artificial rules has been adopted in coui’ts, applicable exclusively to this kind of right, and having little or no regard to actual title. It was first settled that the first occupant should be deemed the owner, and should recover in trespass, or ejectment, against every subsequent intruder; this was the necessary ^consequence of recognizing a right by occupancy; and it preserved good order in community by preventing a constant scrambling for the possession of vacant lands. 1 East, 244; 2 Saund. 111.
    This does not conflict at all with the principle, that the plaintiff must recover on the strength of his own title alone ; it resorts to the law of nature for title, and regards the occupancy itself as a valid title, till some other title appears; and it treats the original occupancy as the elder title.
    The general rule was soon qualified with this limitation, that it must appear that the original possession had not been relinquished or abandoned ; for if the occupant had abandoned, his right was extinct, and the land was free to the world. Smith v. Corillard, 10 Johns., 2 ed. 356, 364; Jackson v. Ryghtmire, 16 Johns. 325. Hence, it was held in several cases that the second occupant, in order to be liable in ejectment, must be an actual trespasser, and shown to have entered wrongfully ; for if his entry was peaceable, the presumption would be that the prior occupant had abandoned. Jackson v. Hazen, 2 Johns. 23; Jackson v. Harder, 4 Johns. 210; 11 Johns. 509.
    It was also held that the subsequent occupant must appear to be in without any claim or color of right; and such is the language of many cases, not clearly defining what claim or color of right is sufficient to protect one in possession against one who claims to recover on prior naked possession merely, but clearly establishing a distinction between the kind of title which constitutes a defense in ordinary cases of ejectment, and that kind of right which is sufficient against a naked occupancy. Jackson v. Ryghtmire, 16 Johns. 325, and other cases above.
    From all this, it is evident that this right to recover on possession only is merely the natural right of occupancy; the decisions upon it are merely the application of general principles to that right, a right for which legislation has not provided, and therefore courts must treat it as reason dictates. Whenever legal title appears, the right of occupany is at an end; all inquiry into that state of case ceases entirely; of course we find such are the uniform decisions.
    In Jackson v. Hazen, “the defendant entered without any claim or color of right or title from any person whatever.” 2 Johns. 24. *In Jackson v. Harder, defendant “ showed no title, and the presumption is that he entered as an intruder without' title.” 4 Johns. 210.
    In Smith v. Corillard, the principles are laid down in detail: “Ejectment is a possessory action, and possession is always presumption of right, and stands good till stronger evidence destroys that presumption. If jfiaintiff shows possession, defendant may show still prior possession, and so the presumption may be removed from one side to the other, toties quoties, till one party puts an end to the doctrine of presumptions founded on mere possession, by showing a regular legal title, or a right of possession.” 10 Johns., 2 ed. 364.
    In Jackson v. Ryghtmire, Ch. Kent remarks, that the rule of recovery on possession only “ is laid down with the qualification, that no other evidence of title appeared on either side, and that the subsequent possession of the defendant is acquired by mere entry without any lawful right.” And it was hold hero, that a verdict for defendant in ejectment by plaintiff was sufficient to change the presumption to his side. 16 Johns. 325.
    That this right to recover on possession only is confined to the case where no other evidence of title appears on either side is also manifest from familiar rules in ejectment. Plaintiff must recover on the strength of his own title; a legal title only is a ground of recovery in ejectment; title to land must be by deed or writing, and if such right is shown, possession against it is of course wrongful. The more right is not settled in ejectment; it goes for possession merely; plaintiff may recover on the slightest evidence, if defendant does not rebut; and there are many artificial rules regulating such right to recover, independent of title.
    I conclude, therefore, in the present case, that when Barr showed a legal title from J. C. Symmes to himself, he put an end entirely to all right to recover on possession merely, and to all further inquiry into that matter. When title is shown, the presumptions arising from possession aro entirely out of the question, and the better legal title must prevail.

      Much is said on the other side about the right of the defendant to show an outstanding title. I differ in my view of the facts on trial, and must'refer the court to the state of case drawn up at the time. The deed from J. C. Symmes to the ’’’administrators, and from them to Barr, was given in evidence by defendant, and of course we show not an outstanding title, but a title in ourselves.
    The matter of estoppel, suggested on the trial, that we can not deny Ludlow’s title because it is recognized in our deed, I suppose is not now before the court. The idea of such an estoppel seems to me a monstrous one. An estoppel affects only the parties to-the deed and those claiming under them, and must operate both ways reciprocally; if it estops one it must the other. Here we are told we have acquired, or claimed to acquire, Ludlow’s title, and therefore can not deny it, and at the same time have not acquired it, and must abandon it to them. Because our deed, which conveys us a legal title, recites that Ludlow had held the title, we can not set up the legal title which that deed conveys to us. Again, recitals in a deed, which may be true or false, are never estoppels; they may be used as admissions of title by the party making them where other evidence is not to be had, but not asestoppels. Where the title in fact is shown they have no effect.
    Again, a grantee is estopped by nothing in the deed which he has not executed. A grantor «with warranty is estopped from denying his own title; without warranty it is different. But is even a grantor estopped from denying the title of any third person that may be suggested in the deed, much less the grantee ?
    It has been said that a vendee can not deny the title of his vendor. Suppose this to be law, it would not affect the case, for we are. purchasers under J. C. Symmes by a legal conveyance to Eindlay, Ludlow, Eisk, and Pearson; not under Ludlow’s representatives. So runs our title, and such is the legal operation of it; and if the principle is sound, it estops us from denying the title of J. C. Symmes, and Findlay, Ludlow, Eisk, and Pearson; nothing more.
    But the doctrine is not sound law. A vendee, when he has acquired his deed, holds adversely to all the world. He stands upon his own title, owes allegiance to no one, and may deny or recognize any title that he pleases. The moment he claims in his own entire right, he stands as much adverse to his grantor as to any other person. Blight’s lessee v. Rochester, 7 Wheat. 547; 3 Marshall, 49; 17 Johns. 167.

      *The cases in New York, which have been supposed to hold the contrary, will be found, on careful examination, not to conflict with my position. They show three classes of cases where a defendant has not been admitted to deny plaintiff’s title, not strictly on principles of estoppel, but because good faith and fair dealing do not allow it, viz :

      First. A tenant can not deny his landlord’s title.

      Second. A vendee by contract before a deed executed, or the contract perfected on his part, having acquired possession on the faith of that contract, can not deny his vendor’s title till he has surrendered up the possession so acquired. This rests on the same principle of good faith as the case of landlord and tenant. A possession acquired on the faith of a contract shall not be used as a weapon of defense to assist the vendee in violating that contract and holding the property.

      Third. The case of sales on execution, when the judgment debtor or his grantee after judgment, remaining in possession, is not allowed to deny that he had an interest in the land at the time of the judgment. In New York any right, even the bare possession of lands, may be sold on execution, and their courts say it would open a door for unlimited fraud if a judgment debtor were allowed to retain possession by denying his own right. He would need only to conceal his deed, and the creditor is defeated.
    These three cases, together with various instances of deeds, etc., used by way of evidence, and presumptions drawn from them and from the manner of holding, embrace all the New York eases on the subject. 1 Caine, 444; 2 Id. 215; 3 Id. 188; 1 Johns. Cas. 153; 3 Johns. 223, 497; 4 Id. 210; 6 Id. 34; 7 Id. 157, 187; 10 Id. 238, 301, 366; 12 Id. 429; 14 Id. 224.

      Second. As to the effect of Dayton’s deed:
    If this deed has any operation, it shows an outstanding title out •of the plaintiffs, and so must defeat this recovery. I will examine it both ways:

      First. Was it an operative deed ? A deed to be operative, either as an outstanding title or as a title in the party, must be shown to make a title which is still subsisting. Even the plaintiff must show possession • under his title, actual or constructive, within twenty-one years, or he can not recover; *much more an outstanding title. 2 Stark. Ev. 507. In this case no deed was produced, the record of it merely not shown ever to have been delive-red, or that Dayton ever held under it, or recognized it, or held it, and it was thirty-two years old. Ludlow claimed to have purchased of Dayton, but he knew nothing of the deed, nor does it appear that he had in fact any right under Dayton.

      Second. But suppose it a subsisting title, then the plaintiffs show title out of themselves. It is precisely the ordinary case, and the defendant might have offered that deed to defeat the plaintiff. The principle is this: Plaintiff must recover on the strength of his own title, not the weakness of ours; and if our title had been defective, and we had shown the title in Dayton, plaintiff could not recover. No matter where the title is, if not in the plaintiff, defendant is not to be disturbed in his possession. There may be twenty better titles than ours, bui they can not aid the plaintiff until he acquires some one of them. What! is a man to recover in ejectment by showing that A., B., or 0., his friends and neighbors, have title to the premises ? It is said that J. C. Symmes, when he deeded to the administrators, had nothing to convey, having before deeded to Dayton. But how do we know that till some one comes into court with a title sufficient to enable him to try it ? Ejectment is not to settle the absolute right as relates to all the world ; it is to try the rights arising on the titles exhibited. If this position were sound, there would be no such thing as preventing a recovery by showing an outstanding title, for it would at the same time show that the defendant had nothing. If defendant shows a title prima facie good, plaintiff must show a better in himself, or he does not make himself a proper party to dispute the title of defendant. He has no more right to do so than any stranger.
    Neither can possession under Dayton, nor a contract of pur -chase from him, if such had been proved, assist the plaintiffs. Suppose evén a contract, and surely that is stronger than possession without a contract, it would be merely an equity, and we need not now repeat, that equity is not a ground of recovery in -ejectment; and how obviously unjust it would be, in the present case, aside from the rules of law; for who knows what the equitable rights may be between Ludlow and Dayton ; whether Ludlow has any right at all; *or could ever corapel a deed from Dayton; still plaintiffs ask to recover by reason of some sort of right or claim under Dayton, when, from aught that appears, Dayton himself would turn them out the next moment. Dayton himself could certainly recover against them, and if they have purchased, they must resort to this bill in equity. Surely, then, they have no legal title under that deed, by which they can recover against us. So far as can be inquired into in ejectment, every man in Cincinnati has the same right to recover on that deed.
    It is said that court will presume a deed to them from Dayton. I answer, much more will court presume a deed to us from Dayton, for such a presumption is never even admitted, except in favor-of long unequivocal possession, clear right, and strong equity. Ludlow had something like possession of the land or its vicinity, was agent for Dayton, and might have been in possession seven or-eight years, and an equivocal possession appears by his widow a few years after; no actual right or equity is shown. The defendant has purchased for full value in good faith, and had possession and improved for'eighteen years.
    But the case is, in fact, not one for such presumption at all. Twenty years’ adverse and peaceable possession, by analogy to the statute of limitations, is the shortest period in which a court will allow a grant to be presumed. It must be such a period, and under such circumstances as really to settle the rights between the parties, and especially in the case of a contract for purchase; for otherwise you cut off all inquiry in chancery into the state of the contract between the parties, oust the jurisdiction of equity, and bring all equitable titles to be tried in ejectment. 2 Stark. Ev. 1244; 1 Phil. Ev. 121; Foley’s lessee v. Wilson, 11 East, 56.
    And it is a matter of law for the court to say whether they will allow the presumption to be made. Storer v. Whitman’s lessee, 6 Bin. 41.6.
    Such presumptions are admitted only for the sake of quieting-ancient possession ; as thirty-five years in this case. Jackson v. Lunn, 3 Johns. Cas. 117.
    Or near forty years in this. Jackson v. M’Call, 10 Johns. 330.
    “ Presumptions of a grant are never made, unless the lapse of time is so great as to create belief that a deed was *actually made, or the facts show that the party to whom it is presumed to have been made was legally or equitably entitled to it.” Jackson v. Moore, 6 Cowen, 723.
    It must be a case of clear and undoubted right, no conflicting or uncertain equity, and is confined mostly, if not entirely, to-trustee and cestui que trust, where the former was bound to convey. Estrick’s lessees v. Wey, 1 D. & E. 737.
    “ In favor of long possession, and strong apparent equity, much may be presumed; but when the presumption would defeat possession, where the equity is doubtful, and the parties rely upon strict law, courts will be cautious of presuming that which does not appear. Blight’s lessees v. Rochester, 7 Wheat. 546.
    So it will be found in all the cases, that it is only in cases of clear right, and in favor of long possession, such presumptions are allowed. Against a bona fide purchaser, with eighteen years’ possession, they never could be suffered for a moment. But suppose lapse of time and possession with plaintiffs, consider the equity merely. On the case, as it stood before the court, would they have suffered an inquiry at law into the equity between Dayton and Ludlow? Were the circumstances such as to show clearly all matters of equity settled conclusively between them ? They ■showed no contract, no equitable right; and if they had attempted it, it was manifest it must have been an open uncertain matter, to be settled in chancery only. Surely the court could not have told the jury that this was a case of such clear right to a deed in the plaintiffs, of such ancient and meritorious possession by them, that .a deed ought to be presumed. They could not say that a deed ought to be presumed, without inquiry in chancery between the parties to the contract. If the cases on this subject be carefully ■examined they will be found to result in this : in certain cases of trust and the like, where the trustee has no beneficial interest, and is bound by the terms of the trust to convey, and ought not in good faith to set up the legal title against the cestui que trust, a deed has been presumed in a shorter period; but in all cases of adverse claim, or where the right is open to controversy, as between a vendor and vendee by contract, the presumption is not allowed, even in favor of possession and apparent equity, in a less time than the statute of limitations. No other safe rule *can be adopted in a case like this; no other which will not break down the distinction between law and equity, and do manifest injustice by stepping over the real merits between the parties to the contract. Even after that lapse of time, it must depend entirely on the special circumstances, whether the presumption will be admitted. And it must be the province of the court to decide whether or not the presumption is admissible at all, for they can not otherwise instruct the jury whether the matter is cognizable in equity or at law.
    Hammond, in reply;
    The whole object is now open before the court, upon the facts-of the case, and we can not have a new trial, unless we satisfy the court of these positions :

      First. That the evidence upon which we rested, until answered,, entitled us to a verdict.

      Second. That the evidence offered by the defendant was inadmissible ; or,

      Third. That the rebutting evidence given by us was admissible,. and presented a legal answer to that given by the defendant.

      First. The right to recover upon a first and prior possession, in an action of ejectment, is too well, and has been too long settled, to be now disturbed. To bar this recovery, the defendant must connect himself with a better or a perfect title.
    This doctrine is fully recognized as early as 1595. Croke Eliz. 438. In this case, it was held that the lessee of a disseizor might recover against a defendant without title. Afterward, in 1671, 2 Saunders, 111, where prior possession was found in plaintiff, and no title for defendant, the matter was held too clear for argument, and judgment for plaintiff. 8 East, 353; 4 Taunt. 547; 2 Johns. 22; 3 Johns. 388; 6 Johns. 218; 9 Johns. 197; 10 Johns. 363, are-all full in point to support this position. In the latter case, it is distinctly held, that a prior possession of less than twenty years, under a claim of right, shall prevail over a subsequent possession of less than twenty years, where no paper title was produced on either side.
    It is, however, useless to argue this point, because we consider it the settled law of this court. It is so treated in *Devacht v. Newsam, 3 Ohio, 57, and in Ludlow’s heirs v. McBride, Id. 254.
    The principles urged and authorities cited on the other side need no review. They do not, indeed, disturb the doctrine as we contend for it. The suggestion that the production of a paper title in the defendant, without establishing the validity of that title, defeats the right to recover on possession, is gratuitous, and directly at war with the decision in McBride’s case, just quoted.

      Second. The deed from Symmes to the administrators, and from them to the defendant, I shall consider together, as they both constitute the entire defense of the defendant, and must be regarded as connected together, in making out his title;
    "Upon these papers, and the facts admitted in evidence, on the part of the plaintiffs, it is too palpable to be disguised that the parties both claim the same title. Symmes, in his conveyance, recites a sale to Ludlow, in his lifetime, and makes that sale the foundation of the grant to the administrators, and he declares the object of the conveyance to be, that the conveyance shall create a trust, to be executed under the direction of the court of common pleas, for the benefit of Ludlow’s estate. Mrs. Ludlow was in possession, in right of her husband, and that possession had existed for sixteen years. The deed from the administrators to Barr recites the same facts, so that there can be no doubt that Barr claims against Ludlow’s heirs the title of their ancestor. In such predicament, can he be permitted to set up a supposed title, in Symmes, against the title he claims? I say a supposed title, for, in this case, it is nothing else.
    Symmes, who was the original grantee, received the title from the government, in trust for his copartners in the purchase and himself. The possession of the land in question was in Ludlow, claiming as owner, and acting as owner, in 1795, or 1796. It continued in him for fourteen or fifteen years, Symmes being in the country, and cognizant of his claim of ownership. Suppose, instead of making a second sale, Symmes had brought an ejectment against Ludlow’s heirs, in 1810, could he have recovered, upon the evidence in this case? Would not the length of time of the possession, and the descent cast, connected with the nature *of Symmes’ original title, be held sufficient to warrant the presumption of a deed from him to Ludlow ? The time when a deed may be presumed, depends upon circumstances.' 6 East, 215; 7 Wheat. 110. And we insist that the circumstances of this case would have warranted the presumption in 1810.
    But our right against this deed of Symmes continues to this day, because Barr did not come in under Symmes adverse to us, but claiming our title. He succeeded to our right, and our possession is consequently continued in him against a claim in Symmes. Let us test this proposition by supposing a case.
    Let the deed from Symmes be informal, and suppose this ejectment brought by Symmes against Barr, could he not connect himself with our possession, so as to obtain the protection of the statute of limitations? Could Symmes separate Barr from that possession, so as to make the' possession commence with the conveyance in 1810 ? The attempt to do this in the case supposed, would cut a sorry figure, and it seems decisive of this question that Barr could thus connect himself with our possession, and shelter himself under it.
    There was a suggestion at the trial, by one of the judges, that the taking possession by the widow was, or might be deemed, a disseizin of the heirs. This can not be maintained. She can not be made a disseizor against her intention, to the prejudice of the minor children. On the contrary, her entry during the infancy of the heirs, must be deemed to have been in their right. 1 Johns. 163; 5 Johns. 66; 7 Johns. 157; Coke Lit. 88, B. n. The possession received by Barr from the widow, in virtue of a deed from the administrators, was undoubtedly our possession, for Symmes, as to whom we held adversely, had never been in possession, except by implication, as trustee of the title, and our actual possession had continued more than fourteen years. If, therefore, Symmes could not recover on this deed, how can it be made to protect the defendant against the possessory title it could not overthrow? As a mere intruder, unconnected with us, Barr could not use it; because, unless he went into possession under it, it can not be held a subsisting title, which alone would be sufficient to protect him. Bul. N. P. 110; 4 Johns. 210.
    *The attempt to evade the force of the position by claiming as a purchaser from Symmes, and to be in under him, can not succeed. Fiction must not be admitted to prevail against fact. It is true that a vendee who has obtained his title, in many cases stands upon it -against all the world. But there are cases where this can not be allowed. For instance, if A. purchase from B., and get into possession under him, he can not take a conveyance from a third person, out of possession, and who once had title, and thus infuse new life into what was obsolete, and stand upon it against his real vendor. Such is the case here. Barr bought our title, and obtained our possession, and he can not now be permitted to set up any title adverse to it against us. This position is fully sustained in 10 Johns. 292. The case of sale by administrators is as strong as that upon execution.
    We therefore conceive that this claim of title from Symmes, being adverse to us, and adverse to our possession, ought not to have been admitted in evidence. First. Because it could not be deemed a subsisting title against us. Second. Because the defendant actually claimed our title, and, therefore, could not avail himself of this deed from Symmes.
    But if we are wrong in this position, then the admissibility and effect of the rebutting testimony remains to be considered.
    The plaintiffs rested their case upon proof of possession, claiming right and continuing uninterruptedly for fourteen years. The defendant then produces his defense, consisting of a deed from Symmes, originally trustee of the title, made when out of possession, and fourteen years after the plaintiffs’ possession commenced. Now this deed surely can not avail the defendant, unless title remained in Symmes ; for where a party stands solely upon a paper title, he must show a right in him that makes it, and consequently he may be answered by showing that right divested before his paper title commenced. The plaintiffs having chosen to commence with their possessory title, surely would not be precluded from ■answering a title paper adduced by the defendant by deducing a paramount title from the same grantee. The deed from Symmes to Dayton being of earlier date than that to the administrators, is ■conclusive that Symmes could convey no title by the latter deed. What, then, is to be the effect *upon the plaintiffs’ title ? •Certainly it is admissible evidence for the plaintiffs if they can legally deduce title from Dayton. No question could arise, had the plaintiffs a conveyance from Dayton for the lands. Does it make any difference that they seek' to couneet themselves with him by other means, if those means are admissible evidence of a right in the premises, upon which they can recover?
    The plaintiffs having given the deed in evidence from Symmes to Dayton, then produce further evidence of the nature, origin, .and character of their possession for the purpose of connecting themselves with Dayton. Was it not perfectly competent for them to connect their possession with Dayton’s title by parol proof?
    The foundation of every title in our state lies in grant, and it oar. only pass by descent, devise, or grant. The two latter are paper titles. He who claims to recover or hold possession in consequence of having possessed, for a time longer or shorter, does not assume that he can hold in virtue of possession alone. Far otherwise. If he stand on possession alone, and of short duration, he stands upon his priority, and is necessarily supposed to be connected with an original legal paper title. His priority of possession entitles him against all who do not show this paper title. In a question of priority of possession, it is not enough for a defendant to show a grant of the same lands to A. JB. at a time antecedent to the eldest possession. If that evidence would entitle an intruder to retain what he had intruded himself into, no person could recover upon a possessory right without paper title in Ohio, because a grant or certified copy of it could be shown in every case. In the Miami purchase the patent to Symmes would protect every intruder, unless the plaintiff could connect himself with Symmes by conveyance. This shows the true character of the position, that we, claiming to recover upon possession alone, are precluded from our recovery by Symmes’ deed to Dayton, and can not connect ourselves and our possession with it, except by deed.
    Instead of stopping when we had shown our possession when opening the cause, we might have proceeded to show Dayton’s deed, and then to prove the possession of Dayton antecedent to ours, and our taking possession, claiming under Dayton. In the case of Ricord v. Williams, 7 Wheat., it is ^distinctly laid down that the declarations of the party in possession, made at the time, and when no controversy existed as to the nature and extent of his title, are competent proof to establish that fact. They are received to show in what character he possessed, and are the best, indeed the only proofs, by which the extent of his claim can be established.
    Ludlow succeeded to Dayton’s possession, claiming to have purchased from Dayton. He possessed until he died, and his possession descended to his heirs. If, at the end of sixteen or eighteen years, Dayton had sued an ejectment, surely Ludlow could have stood on his possession, not on the statute of limitations, but on the ground of right, founded upon the presumption of a conveyance supposed to have been made and lost. For this presumption, I have shown, may arise upon a possession of less than twenty years; and in 6 East, 215, already quoted, the judge very clearly asserts that the presumption is not always raised upon the actual belief that the deed was made, but is substituted for the deed that right and justice may be done. The presumption would be greatly fortified by the facts of the case, especially that one, of Dayton’s reciting, in another deed, that the land in question was owned by Ludlow, and reciting it, too, as a boundary. It is clear, therefore, that as against Dayton himself, the plaintiffs could give evidence-of their possession and claim of right to protect themselves from the consequence of his deed. And the purport and effect of this evidence would not be to invalidate Dayton’s deed, but to connect themselves with it. Can it be reasonably contended that the defendant may use Dayton’s deed against the plaintiffs, in a way that he himself could not employ it ?
    But it is said that the plaintiffs introduce Dayton’s deed and not the defendant. This does not vary the effect. The plantiffs do’ not introduce it to destroy, but to protect their title. They introduce it to show that Symmes’ deed could not operate, because he had conveyed the same lands fourteen years previously. They introduce it to show that their possessory claim is consistent with it, and to defeat the second conveyance of Symmes, which is equally inconsistent with it and with the possession under it. And it seems to me *that there could not be a piece of more pertinent or legitimate evidence.
    It is somewhat instructive to compare the opposite argument on this point with what it has said on the right to recover upon possession alone. It is there argued that the mere production of a deed, without anything further, puts a total end to possessory title. Here, the reasoning is altogether about the antiquity of the deed, and possession under it, 'being necessary to preserve in it any operative character. And in this doctrine we agree. True, the deed from Symmes to Dayton is thirty-two years old. It was executed in May, 1796, just about the time we took possession, claiming title as purchaser from Dayton. It is asserted that Ludlow knew nothing of the deed, and that it does not appear that Dayton ever claimed under it. This assertion is not borne out by the testimony. Wade testified that Dayton was esteemed the owner, and that Ludlow claimed to take possession under him at a time that corresponds with the date of the deed. At this distant day, stronger proof could not be required of both the facts, which it is asserted are unsupported by proof. True, a copy only was produced from the record, but it was duly authenticated. True, there was no proof of delivery; was such proof necessary? That upon the proof in this case, Dayton’s deed was and is a subsisting operative title admits of no reasonable doubt.
    This point conceded, it is argued that we show title out of ourselves, and therefore can not recover. I think I have already •pretty well disposed of this argument. The general reasoning on the other side is admitted. There was no necessity to tell us that the plaintiff must recover on the strength of his own title, and that in certain cases the defendant may show title in a third person to defeat the plaintiff. Have we not shown sufficient title in ourselves ? Ho we not claim under the deed to Hayton ? These are the points for discussion. The reasoning I have offered to maintain these positions seems to me abundantly sufficient for the purpose. How is it answered? Only by arguing as if the whole were a transaction' of yesterday, in which a purchaser, by* contract only in possession without conveyance, claimed to set up his possession against the legal title in the vendor. It is only by this misconception of the true state of *the facts that a loop ■can be found to hang a doubt on. The assertion that every man in Cincinnati might as well recover as the plaintiff, has not even a peg or loop to support it.
    We say, that as between us and Dayton, the court ought to presume a conveyance. The opposite side say, much more should a deed be presumed from Dayton to Barr-. Our possession was equivocal—the possession of the widow but for a few years. We show no actual equity. This is the view of our opponent. We think he was never more mistaken about facts in his life. The court must judge between us.
    But it were more proper to presume a deed from Dayton to Barr. The nature, character, and extent of Barr’s title, as relied upon for his defense, is before the court. It has no reference to Dayton. His title papers are deduced from Symmes, and they declare the equity to have been in us. They recite that very right and equity, of which it is asserted there is no proof. How, then, can a deed be presumed from Dayton to Barr, who never claimed under him, was never in possession under him, except as he came into our possession; and who now disclaims all connection with him, insisting to stand alone upon his deed from Symmes?
    I have already noticed the doctrine as to presumptions of title. I maintain that my position is not impugned by the authorities introduced to impugn it. They show the ajjplication of the principle to each particular case, and we insist that a rightful application of it to the case before the court warrants the presumption of a deed from Dayton to Ludlow.
    There is certainly nothing in the suggestion of Ludlow’s claim upon Dayton being a mere equity. The occupation of Ludlow, the silence of Dayton; the claim of purchase alleged by Ludlow; his exercise of ownership; the total abandonment of all pretense of title by Dayton for thirty-two years—puts all idea of an equity out of the question. Suppose Barr fairly possessed of Ludlow’s right, could Dayton recover in ejectment against him?’ Most certainly he could not, for in Barr’s favor the statute of limitations would operate; and, beside, a deed would be presumed. Disconnected from us, Barr is disconnected from Dayton, because an intruder in 1811, and might be ejected by Dayton. Claiming to come in under us, as his deeds show, he stands protected against *the title of Dayton, not as holding an equity from us, but as holding a legal title. If he have not obtained that legal title from us he can not resist our recovery by merely calling it an equity.
    The principles that govern this case are familiar in every day’» practice. The facts, to which we seek to apply them, lie in a narrow compass, and are, in truth, incontrovertible. The amount of property in dispute is all that creates difficulty. At the trial great efforts were made to give the case a direction that would obscure rather than elucidate it. Hence I think arose all the difficulty. The early and continued possession of-Ludlow, claiming as owner, was fully established; the subsequent possession of the widow, and the universal acknowledgment of Ludlow’s ownership was equally well established. Nothing could be clearer than the plaintiff’s right to recover, unless the defendant justified his intrusion by making title in himself.
    The deeds he offered in evidence went fully and clearly to prove the facts relied upon by the plaintiff—the possession and asserted right of Ludlow. They showed, too, that it was this very right which the defendant had intended to obtain by purchase; and that, supposing he had purchased it, he took possession. Without further regard to the plaintiff’s title, and in direct contempt and violation of the law providing the mode of disposing of it, a deed direct was taken from the patentee; thus attempting to overreach the very title he set out to purchase. It would seem plainly incompetent for a defendant to use a deed thus obtained for such a purpose. But when he is permitted to give it in evidence, if admissible at all, surely the title of the heir can not be concluded by it. If, before it was given, a contrivance to which the heir was ■no party, that heir could have stood upon his possession under Dayton, and could have dispossessed Symmes upon that possession; nothing can be plainer than that this right could not be prejudiced by the intermeddling of Symmes in making a conveyance. It must be competent for the heir to show what was his true condition when the papers were manufactured, under which the defendant claims. This he has shown; and the proof admits of no doubt. Symmes had conveyed to Dayton — Dayton had conveyed to Ludlow. For this, we maintain, is the presumption *of the law ■upon the facts. Where, then, is the difficulty of the case?
    In 1810 the plaintiffs, minor children, were in possession, claiming title under Dayton, who had received .title from Symmes. Had Symmes disseized them, they could have recovered against Mm upon their possession. The law would not permit him to show title in Dayton to defeat them. Can this be controverted? Nevertheless, the whole effort of the defense is to prove that Symmes could enable Barr to do that which he could not do himself. Every lawyer who sees the case rightly, must see that this is a hopeless effort. If the defendant’s evidence was rightfully admitted, the proof in rebuttal was also correctly received. It presented a full and conclusive answer, and the verdict for the defendant was against both law and evidence.
   By the Court :

The first point presented in this case is, can ejectment be maintained on a possessory right only? It has been decided by this court that it can against a disseizor, who shows no right at all, or none better.

The second point to be decided is, were the deeds from Symmes to Ludlow’s administrators, and from them to the defendant, admissible to defeat the possessory right on which the lessors of the plaintiff founded their claim to recover ? The original title of ],Symmes is universally admitted; consequently a paper title from him is prima facie evidence of better title than mere possession, and was rightly admitted.

| The third question presented is, does the deed from Symmes to iDayton rebut the defendant’s evidence, or fortify the plaintiff’s?

Although it rebuts the defendant’s title, yet it at the same time defeats the plaintiffs’ right to recover. The order of introducing the evidence may be likened to a case of special pleading, and, in that view this part of the proof, when offered by the plaintiffs, is a departure. The plaintiffs set out by claiming a right by possession only. This the defendant met and answered by producing a paper title in himself. The plaintiff then proposes to show a better title in a third person. This is clearly a departure from, his first *claim, and no way fortifies it. But the plaintiff replies that he connects himself with the title thus adduced, and holds under it. Where is the evidence of this? In what character did Ludlow hold under Dayton ? If as a disseizor, his case is no better. If a tenant at will, ejectment can hardly help him. If as a purchaser, where is the evidence of his purchase?

It is argued that Ludlow’s claiming to hold as a purchaser from Dayton, raises a presumption in his favor. A man can not raise a legal presumption in his own favor, by his own act merely, to the prejudice of others. Nor can we presume a deed to have existed from his possession and claiming title, unless the possession is continued until the statute of limitations comes in to aid him. If the presumption of a grant can be raised in this case, without any evidence of payment to Dayton, or without any acts or acknowledgment of Dayton, to fortify such presumption, what is there to prevent the same pregumption arising in favor of every squatter who gets possession and claims to be a purchaser, and holds possession twelve or fifteen years. There would be no need of resorting to the statute of limitations, for protection of possession, when the doctrine of presumption would aid much sooner. The statute must then be the only rule in presuming title?

In this case the lessors of the plaintiff!, by showing a paper title in Dayton, paramount to their possessory right, without connecting themselves with Dayton’s right, show the right of possession -in Dayton, and not in themselves, and, therefore, can not recover.


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    *Matthias Ross v. Ichabod Corwin, Francis Dunlevy, and others.
    This cause was adjourned here for decision from the Supreme Court of Warren county. It was a bill in chancery alleging fraud in the execution of a trust created by the complainant in the dependants, to secure them as his indorsers. The bill answers, and depositions are very voluminous, and as a question of fact upon testimony was alone involved, the court deemed a report of the whole case unnecessary.
    The cause was argued, at great length, by G. J. Smith, for complainant, and T. Corwin, for the defendants.
   The bill was dismissed, with costs.


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    Solomon Churchill v. Maria Kimble.
    Declaration for slanderous words good where distinct sets of words are laid in the same count.

      Qucere: If it be sufficient to charge the substance only of words spoken.
    This cause came before the court upon a writ of error, to the court of common pleas of Lawrence county, and was adjourned here for decision. It was an action for defamatory words, in which the defendant in error was plaintiff. The declaration commenced with the usual recitals, and proceeded to state the defamatory words as follow, alleging that the defendant “ spoke and published of and concerning the plaintiff, in substance, the following false, scandalous, and defamatoiy words: that is to say,” — setting out the words spoken — “ and the said Solomon of his .further malice did then and there, in presence of divers good people, falsely and maliciously speak, publish, and declare, of and concerning the plaintiff, in substance, that she was, etc.” — again setting out the-words used. In this manner five different sets of words were enumerated, as for one count. There was a second count, which was withdrawn, or a nolle prosequi entered upon it, before trial. There was then a third count, containing four different specifications of words, in different terms, but charged in the same manner as in the first count. Plea, “ not guilty.” General verdict for the plaintiff;* damages ^eleven hundred ninety-five dollars. Motion fora new trial overruled. Motion in arrest of judgment also overruled. Judgment for plaintiff, and writ of error.
    Two errors were assigned and relied on: 1. That it was not sufficient to set forth the substance of the words. 2. That each set of words constituted a separate count; and some of the sets, taken, separately, were not actionable.
    King and Allen, and -, for the plaintiff in error,
    argued that the declaration was bad, because the words were not set out as spoken, but only the substance of them, at least as to two sets, which they treated as separate counts. They cited 1 Chit. Pl. 384; 3 M. & S. 110; 1 M. & S. 287. 2 Chit. Pl. 299; 2 Salk. 417, 660; 2 Mod. 78, 84, 95; 6 Taunt. 169; Cro. Eliz. 857; 6 Bac. Abr. 241; 3 Mod. 71; 2 Johns. 12, 13.
    They contended also that the different sets of words, as charged in the declaration, were charged as being spoken without any connection, and so introduced as to constitute separate counts. They cited the case of Cheatham v. Tillotson, 5 Johns., as an authority direct in point, that two substantive and direct charges embodied in the same count, are to be considered separate counts; and upon this ground reversed the judgment.
    Brazee and M’Connell, for the defendant in error,
    cited in support of the declaration on the first point, 2 Starkie Ev. 844, and many other authorities, to show that it was sufficient to prove the substance of the words as laid; from which they argued that it' was sufficient to charge the substance as spoken. And they cited as direct authorities 1 Rich. Prac. 108; 4 Mun. 260; 2 Johns. 12; 1 Bin. 399. On the second point, they cited Willes, 442; 2 Johns. 287; 2 Rich. Prac. 149; Lilly’s Entries, 79; Anthon Amer. Prec. 285; 2 Swift Dig. 428.
   By the Court :

It is not controverted but that in each of what the eounsel for the defendant in error admit to be two counts, there is at least one set of actionable words. If it can be permitted to embody different, distinct, and separate allegations in one count, then it become^ unnecessary to decide upon the *first point made, with respect to the validity of charging in the declaration the substance of the words only. We conceive it is the better opinion that different sets of distinct words may be charged in one count. And we are inclined to adopt this opinion from respect to the precedent in Lilly. No work upon the subject is of higher authority; and the precedent cited fully sustains the declaration in this case. The ease of Tillotson and Cheatham is undoubtedly against it; but that ease is not authority here. We can only receive it as the opinion of a respectable judicial tribunal. When we receive it as such, we can not shut our eyes to the fact that the Supreme Court of the state decided differently in the same case, and that the chancellor delivered an argument against the-principle of the decision. It was a case decided between adverse political partisans, by a party tribunal, and, so far as we can see, by a party vote. Under these circumstances we can not allow it to control our own judgment.

Without committing ourselves to any positive opinion, as to the manner of charging the slanderous words, we take the occasion to say, it is safer to set them out as spoken, and not rely that to recite the substance is sufficient. The judgment must be affirmed.