author: Read,. J. Birchard, J.,

text:
    Martin Thayer and Thomas T. Mason vs. Benjamin King.
    An action will He, at the suit of the owner of negotiable paper, which has been lost after it fell due, at law j but if lost before due, the remedy is in Chancery, where the owner can be required to indemnify the maker.
    This is an action of Assumpsit, reserved in the County of Miama, upon an agreed statement of facts, as follows
    The plaintiffs declared upon three several promissory notes, given by the defendant to one Joseph Layman; one dated Dec. 5, 1837, for $65; one dated November 16, 1839, for $8, and the-other dated January 3, 1842, for $105.69; all payable on the day of their date, and duly indorsed by the plaintiffs.— Plaintiffs proved, by Robert C. Schenck, that, as attorney for plaintiffs, in the spring or summer of 1843, having a claim to collect for them, he called upon Joseph Layman, against whom the claim was, and received from him an assignment of the above notes; that the notes were all due at their respective dates aforesaid, stating their dates and amounts, as in the declaration; that they were payable to Joseph Layman, dr order, who then indorsed them, in blank, and delivered them to the plaintiffs. On the same day, being on his way to Cincinnati, he lost said notes, in a package of papers, dropped somewhere upon the turnpike; that every effort had been made, by inquiry and advertisement, to find them, but without avail.
    In Bank.
    Dec. Term, 1846.
    On this state of facts, the defendant’s counsel.moved to non-suit the plaintiffs, upon the ground, that an action at law cannot be maintained upon a lost note, payable to order, and indorsed in blank, after it became due; which question the Court reserved for decision at the Court in Bank. ■

      Odlin Sf Schenck, for Plaintiffs.
    The question, reserved by the agreed case, is, whether there is relief, at law, upon a lost negotiable promissory note, indorsed after, due? '
    In Story’s Equity Jurisprudence, vol. 1, page 102, sec. 85, it is said, equity will not entertain jurisdiction for relief upon a lost negotiable note,. so as to decree payment, upon the mere fact of loss; for no such supposed inability exists to recover at law, as exists for want of a .profert of a bond, at law. No proferí is necessary; and a recovery can be had, at law, upon mere proof of the loss. Walmsley v. Child, 1 Vesey, 345; Glynn v. Bank of England,, 2 Yesey, 38, 41.
    The first case was a bill in chancery, to be decreed payment of Goldsmith’s notes, payable to bearer, (and, by the custom of merchants, passing as cash,) which had been lost. Lord Chancellor Hardwicke says: “ Upon' the whole, therefore, the plaintiff must bring an action at law for the money.” And, again: “ I see no doubt of maintaining the action.” He.also remarks* that, so far as concerned inland bills of exchange, the merchants, procured the passage of the act of 9 and 10 William hi., by which the drawer of a bill of exchange, lost, and never indorsed* is not bound to pay, without indemnity. .

      The second case was for the amount of Bank of England notes, averred to be lost. The Chancellor decided, that the remedy on a lost note is at law; and he takes the distinction between a note and bond, on the ground of oyer, at law, of sealed - instrument's. The bill in this case was filed for relief, and with an offer of indemnity. 2 Vesey, sen. 38, 41.
    In Glover v. Thompson, Ryan & Moodie’s Rep. 403; 21 Eng. Com. Law Rep. 472, it was decided that an action may be maintained on a lost bill of exchange, if the loss did not happen until after the bill became due.'
    ■ In the case of Hansard v. Robinson, 14 Eng. Com. Law Rep. 20; 7 Barn‘&. Cress. 90, inT827, Lord Tenterden, C. J., held, that “ the holder of a bill of exchange cannot, by the £ custom of merchants, insist upon payment by the acceptor, ‘ without producing and offering to deliver up the bill;” and therefore it was held, “ that the indorsee of the bill having lost £ it, -could not, in an action at law, recover .the amount from the ‘ acceptor, although the loss was after the bill became due, and ‘ the indorsee offered an indemnity.” This case, being upon a bill of exchange,, the Court say, that the acceptor, paying the bill, has a right to the possession of the instrument, for his own security, and as his voucher and discharge in account against the drawer. The case is determined on the custom of merchants, and contains reasoning not applicable to promissory notes. Upon this question, it is admitted by the Court, that the decisions are not uniform, and cannot be reconciled.
    Story on Promissory Notes, page 114, sec. Ill; the authorities are collected in a note. “ There is,” says he, £C as in £ England, a diversity of judicial opinion as to- the right of the £ holder,' at law, to compel payment of a- promissory note from £ the maker, without a delivery or production thereof. In £ some of the States, the affirmativé has been maintained. In £ others, the English doctrine prevails; and in others, the- holder £ is entitled to recover at law, if he executes a suitable indemc nity.” To these authorities, as there collected, we refer, remarking that, in the case of Renner v. The Bank of Column

      bia, 9 Wheat. Rep. 581, the Supreme Court of the U. States permitted a recovery upon a negotiable promissory note, which had been lost during the pendency of the suit, it having been in Court a few days before the trial, but had been mislaid, and, upon thorough search, could not be found.
    Judge Story, in his work upon Bills of Exchange, sec. 449, page 522, after noticing the discrepancy of the authorities upon this subject, remarks:
    “ Which doctrine (to wit, the recovery at law, or not) will £ ultimately prevail in America, is not for the Commentator to £ conjecture.” “ It may be difficult,” he says, “ upon satisfac- £ tory grounds, to overturn the reasoning of Lord Tenterden, ‘ already referred to.” ' /

      That difficulty consists, in the reasons assigned, of throwing the burden of proof upon the drawer as to the' loss, and of preserving and commanding the proof, in a future action. With all deference to this opinion, it may be answered, that, at law; the fact' of loss, and that the plaintiff is the true owner of the note, must be fully made out; and that all this difficulty equally arises in a court of equity; so that it is narrowed down to the simple question of indemnity. Neither will this indemnity be perfect; for the securities are equally liable to removal and insolvency, with the plaintiff. It must be judicially proved that the plaintiff, and the( plaintiff alone, is entitled to recóver; and that by disinterested testimony. It is true, that the defendant may be made liable, in future, upon the presumption, that the holder of the note, indorsed in blank, received it before it became due. But indemnity does not help him, except to increase his prospect of the ultimate recovery of his money. We are not aware of any decision in Ohio upon this subject. If the Court are free to adopt a rule amid these conflicting authorities, would it not be the better rule, if indemnity is required, to leave the defendant to his bill in equity, in cases where he may deem it necessary to require that indemnity ? — the presumption of future liability being against the direct proof at law.

      jt; Parsons, for Defendant. ‘
    _ The authorities relied upon to sustain the motion for a non-suit in this case, are, Chitty on Bills, 9th edition, 291, 297; Pintará v. Tackington, 10 Johns. Rep. 104; Swift v. Stevens, 8 Conn. Rep. 431; Holmes v. He Camp ', 1 Johns. Rep. 34) Angel v. Felton, 9 Johns.. Rep. 149; Cummings v. Hacliley, 8 Johns. Rep. 202.
   Read,. J.

This case was reserved for the determination of the single question, .whether a recovery could be had upon lost negotiable paper, at law, or whether the remedy, in such case, was in equity.

Upon this question, there is a conflict of decisions, both in England and the United States. In the decisions which have been made, different'and various reasons have been assigned in support of either side; but from a careful review of the authorities, and a full comprehension of the principles of law controlling the transfer and fixing the right of holders of negotiable paper, it would seem -that the only difficulty in the case grows out of the question of indemnity. All other matters, and the rights of parties, can be governed, controlled and modified in a court of law as well as equity.

It isa necessary and fundamental principle of negotiable paper, that the innocent holder receiving it before due, is entitled to its proceeds. This-is the essence and life of its negotiability. . Hence, if the maker should be compelled to pay in case of negotiable paper lost before due, such payment would be no bar to the recovery in , the hands of an innocent holder, who had received it before due; and in such case a double recovery might be had upon the same instrument.. But if former payment or recovery would be a complete bar to any subsequent payment or recovery, the reason of the rule ceases, and the objection to a recovery by the owner, no longer exists. Hence, if the circumstances of the case are such that- the negotiable paper can never be produced for payment a second time, or if produced would permit no right of recovery in the hands of the holder, no indemnity in such cáse being required, to • • " guard-against..a second payment, recovery may be had in a 'court of law. ' Thus, if the instrument be .totally destroyed, or if it. pass into the hands of the holder, .charged with alb the equities which exist against the original holder, the action may be at law. Now, it is a well .recognized principle, that negotiable paper received after it is due,.is charged with all the equities existing between the original p'arties. So, if payment be made to the original holder, and a recovery.be had by him, it would constitute a complete bar to another' action - brought by any person who should receive' it after due. But if it be lost before due, and the original holder commence suit, there is á possibility that the paper may be outstanding in' the hands of .an innocent .holder — -upon which recovery could be had; ■and hence the law will not permit, in such case, a recovery to be ‘had until complete indemnity is furnished against such possibility. ■ Now, a court of law has not the.power to compel this indemnity;. and hence is forbidden to give judgment or to entertain jurisdiction of the case. A court of law proceeds upon ■fixed principles, and if the party' is entitled to judgment, he is entitled to execution without limit or restraint. But a court- of equity being called upon'to give its aid, will guard'the rights of all parties, and will not permit a recovery until the party seek-. ing it will guard the opposite, party from a danger which exists by the misfortune of the very person seeking its aid. It will say, Y.ou have been unfortunate in the;loss of your instrument — we-will relieve you from this difficulty, provided you will fully guard the other party from all harm which may, ,by possibility, result from what, except from our aid, would be a misfortune.to you. It has the power to determine the nature of the indemnity and the security.. Hence, in those cases in which indemnity is to be given, relief must be had in equity. A court of law, it is true, -might do the same thing, if it had the .power; and théré is no direct impossibility to prevent its having such powers; yet, as such is not the case in the distribution of law and equity- jurisdiction, as the systems now stand, ■’ relief can only be had in equity. - . '

In the case, however, before the Court, no such difficulty exists, as those notes were lost after they were due.

Judgment for Plaintiffs.

Birchard, J.,

argued that judgment should be entered for the plaintiffs, but doubted the accuracy of the position taken by the majority of the Court. He held that the weight of the evidence showed that the notes sued for were lost and out of circulation. Also, that the Court might order a stay of execution until an indemnifying bond should be filed by the plaintiff. On the hypothesis that the negotiable paper had been found and put in circulation, and had come to the possession of a bona fide holder, for a valuable consideration, in the regular course of trade, without notice, he was of opinion that, under the rules of the commercial code, such holder might collect it. That the defendant, whether the paper was past due when negotiated or not, could not set up as á defence > any matter that arose subsequent to the good title acquired by the bona fide holder.


source: Caselaw Access Project

author: Wood, C. J.

license: Public Domain

text:
    Elisha Wilson and others vs. Robert Chalfant.
    If one enter upon the land of another by virtue of a parol license, given for a consideration paid, and erect fixtures, trespass will lie against the owner of the land for destroying them.
    A parol license executed, is irrevocable.
    A license to erect fixtures upon the land of another, executed, gives the right of possession to control, repair and protect the fixtures against the owner of the fee.
    What is the nature and extent of the estate or interest in him who erects the fixtures — query Í

    This suit comes into this Court by a Writ of Error to the Court of Common Pleas of Perry County.
    The original action was trespass, brought into the Common Pleas by an appeal from a justice of the peace. In the Common Pleas, the plaintiffs in error were declared against by the defendant in error, plaintiff in the court below, for breaking and entering the close of the defendant in error, on the 1st day of November, 1842, with a continuando, and with force and arms, in the township of Hopewell, &c., tearing down, breaking to pieces, damaging, demolishing and destroying divers, to wit, two abutments of a milldam of the defendant in error, erected by him across a watercourse called Jonathan’s Creek, for the purpose of supplying a certain sawmill with water, &c., of the value of $50, &c. This is the first count.
    In Bank.
    Dec. Term, 1846.
    The declaration contains a second count in trespass, for destroying one abutment of a certain milldam, the property of the defendant in error, of the value of $50, &c., &c., without any averment, in express terms of the breach of the close.

    The plaintiff in error plead: The general issue to both counts, liberum tenementum, and that' the said abutment, so demolished, was upon the freehold of the plaintiffs in error.
    The replication now. assigns the locus in quo, specially, and avers that the plaintiff in error, for a valuable consideration, a part of which was paid, agreed to permit the defendant in error .to abut a milldam upon his land, and in pursuance of this agreement, and with the consent of the plaintiff in error, he entered and erected the abutment on the land of the plaintiff in error, and that plaintiff in error afterwards broke and entered the close on which the abutment was so erected with his consent, and demolished it, &c. This replication was demurred to, and the demurrer overruled ; and, thereupon, the defendant rejoined, averring the contract set up in the replication was by parol, without any note or memorandum in writing, and, therefore, void, under the statute for the prevention of. frauds and perjuries. ■
    To this rejoinder, the defendant in error demurred.
    The Court of Gommon Pleas sustained the demurrer to the rejoinder, which disposed of this special issue, and the cause was submitted to a jury in the Common Pleas, at the November term, 1845, on the general issue of not guilty, by all the plaintiffs in error, and verdict and judgment for the defendant in error.

      A bill of exceptions was taken during the trial, from which it appears that the defendant in error gave to the jury evidence tending to show that the defendant in error had constructed the abutments, mentioned in the pleadings, on the soil and freehold of one of the plaintiffs in error, Elisha Wilson, by the parol license and consent of the said Elisha, given for a consideration agreed upon between the parties, and that the said abutment had been maintained from the 4th day of September, 1838, until the time of the alledged trespass, when the plaintiff in error, E. Wilson, with the other plaintiffs in error, by his orders, destroyed the same; and the evidence being closed, the counsel for the plaintiffs in error asked the Court to instruct the jury, that'if the act complained of,was done by the plaintiffs in error, on the freehold of said E. Wilson, by himself and by his orders, and if the defendant in error had no other right than what was conferred by a parol license to construct the abutment thereon, and the construction and maintenance thereof, for the term aforesaid, and if there • was no written paper ornóte, in writing, evidencing said license, the defendant in error could not maintain the action; which instructions the Court refused to give, but, on the contrary, charged the jury, that, on those facts, the action would lie, and they ought to find for the defendant in error. To this, charge of the Court, the counsel for the plaintiffs in error excepted.
    Several errors are assigned:
    1. That the declaration is insufficient.
    2. That the Court erred in overruling the demurrer to the defendant in error’s replication.
    3. In sustaining the demurrer to the plaintiffs in error’s rejoinder.
    4. That the Court erred in not instructing the jury as prayed, and in the instructions given.

      T. Ewing, for the Plaintiffs in Error, contended— ’
    First: ’That Chalfant acquired no right to the locus in quo, by the parol license, the same being void under the statute of frauds, and that he was himself a trespasser in erecting the abutment; and,
    Second: That even if the grant were binding and valid, as conveying an easement, the action was misconceived; it should have been case instead of trespass quare clausum fregit. He relied upon the case of Miller v. Auburn and Syracuse Railroad Company, 6 Hill’s Rep. 61, and the cases there cited.

      P. Van Trump, for Defendant.
    That a parol contract relating to lands, executed, can be enforced, has been decided or recognized’ so often as no longer to be an open question. The Ohio cases are, Wilbur v. Paine, 1 Ohio Rep. 151; Buck v. Waddle, 1 Ibid. 357 ; Waggoner v. Spick, 3 Ibid. 292; Moore v. Beasley, 3 Ibid. 294; Reed v. McQrew, 5 Ibid. 375.
    A parol license is also recognized by courts, and, when executed, is not coiintermandable. Winter v. Brockwell, 8 East Rep. 508; Webb v. Paternoster, Poph. 151; Rerick v. Kerr, 14 Serg. & Rawle. Rep. 267; Lefevre v. Lefevre, 4 Ibid. 241; McKellip v. Mcllkenny, 4 Watts’ Rep. 317; Gay v. Bartlett, 20 Pick. Rep. 186; 7 N. H. Rep. 237; 7 Bing. Rep. 682. ■
    The contract being a binding one, and the right of Chalfant under it such an one as the law sanctions, it is necessary, to his full enjoyment of it, that the interest of Chalfant in the abutment should be regarded and protected as an exclusive freehold interest. This being so, of course, trespass lies for an injury to it, such as this. This view of the case is sustained by the following authorities: 2 Johns. Rep. 22; 8 Ibid. 220; 18 Pick/ Rep. 385.
   Wood, C. J.

Whether the declaration, as originally filed in this case, was sufficient to maintain this action, is now of no moment. The new assignment in the replication, places it before the Court, as to the whole cause of action, in trespass quare clausum fregit. In such case, the gist-of the action is the breach of the close', and other wrongs laid are merely in aggravation of the damages.

The other assignments, all of them, may be considered as presenting, substantially, the same question, whether there was a breach of the close of the defendant in error..? Whether the locus in quo was merely the right of the defendant in error • to an easement in E. Wilson’s land, or a freehold, it would not aid us, in this-case,.to inquire; but had he, in plain English, a right of possession, as against the owner in ■ fee, or a wrong doer ? This is necessary, or the .action fails.. It is argued, that ' the license being by parol, and no note or memorandum in > writing, it is void and does not authorize an entry under it. If this be so, it follows, that the defendant in error was. himself a trespasser, in .the entry and erection which he made on the land ■ of the plaintiff in error, E. Wilson; was liable to'an action, and, if sued, his license could not have been pleaded in bar. 'On this subject, the decisions of the judicial tribunals.of our-sister States differ ; 6 Hill’s Rep. 61; 4 Watts’ Rep. 317 ; 4 Serg. & Rawle Rep. 241; 10 Johns. Rep. 426. But in Ohio, we think it. can, at this day, be hardly considered as an open question. Part performance of parol contracts, especially when the non-execution would operate as a fraud'on the rights of the vendor, have repeatedly been enforced in equity, and a parol license executed has been held to be irrevocable, in numerous instances upon the circuit, at law. A license to ditch and flow water through a race, to. dam a stream and set back water on the plaintiff’s land, are instances within my own knowledge, where a license executed was held to be irrevocable, and a bar both-in trespass and in case. . In the case at bar, the license was executed and' consideration paid, and as the defendant in error had the right to make the abutment, it follows, as incident to that right, that he acquired the lawful possession of the locus in quo for that purpose, and the right of egress and regress to keep it in repair and control it, so long as it remains for the purpose, at least, for which -it was constructed. This right of possession is"exclusive, and may be maintained against the owner of the freehold, at law, and trespass .against him for any wrongful invasion of such possession, in our opinion, lies. The Court were, therefore, right in overruling the demurrer to the replication, and in sustaining the demurrer to the rejoinder,, and, also, in the charge given, and refused to be given to the j™7-

. Judgment Affirmed.

Birchard, J., doubte.d whether the parol license.was not void, under the provisions of the act for 'the prevention of frauds and perjuries.


author: Hitchcock, J.

text:
    William Kramer and others vs. The Trustees of the Farmers' and Mechanics' Bank of Steubenville and others.
    A mortgage given to indemnify a person against loss or damage growing out of indorsements thereafter to be made by the mortgagee for the mortgagor, is valid, and •constitutes-a lien preferable to the lien of a judgment rendered after such indorsements have been made.
    When such mortgage indemnity has been given, and indorsements made, and judgment rendered against the mortgagee upon his indorsements, under a bill in chancery, brought by others having liens upon the land mortgaged, to ¡Subject the same to sale> • In which all parties interested áre before the court, such mortgagee has a right to require that the avails of the sale be applied in discharge of the judgment against him, though he has not actually paid the money.
    This is a Bill of Review, appealed from the Court of Common Pleas of Jefferson County, to the Supreme Court, and reserved for"decision here.- ■ '
    The decree, sought to be reviewed, was rendered in the Court of Common Pleas; at the August term, 1843, and the error complained of is supposed to be apparent upon the face of the decree. The statement of the case is embraced in the opinion of the Court.
    In Bank.
    Dec. Term, 1846

      Daniel Peck, for the Complainants.

      Roswell Marsh, for the Defendants.
   Hitchcock, J.

The facts of the original case which is sought to be reviewed, as the same appear from the pleadings and evidence, are as follows :

Alexander Wells, on the 16th of July, 1838, executed to the Farmers’ and Mechanics’ Bank of Steubenville, a mortgage to secure the payment of certain moneys, which were then due, or that might thereafter become due, from the firm of Wells, Henry & Co., of which said Wells was one, to the said bank. On the 30th day of the same month, the said Wells executed to the same bank another mortgage, covering other property, for the same object as expressed in the former mortgage. Alexander Wells afterwards died testate. His executor, having power under the will so to do, conveyed the real estate included in the aforesaid mortgage to Francis A. Wells, James Henry add Robert Hanlin, who, subsequent to the death of said Alexander Wells, constituted the firm of Wells, Henry and Company.

On the 4th day of February, 1839, Francis A. Wells, another member of the firm'of Wells, Henry & Co., also executed a similar mortgage to the said bank for the same purpose as before stated.

On the same 4th day of February, 1839, Robert Hanlin,' another member of the firm of Wells, Henry & Co., executed to the said bank a mortgage for the same purpose as expressed in the deeds before referred to.

On the same 4th day of February, 1839, James Henry, another member of the firm of Wells, Henry & Co., executed a similar mortgage to said bank, and for a like object.

The said Wells, Henry & Co., having obtained loans of the said bank, which it was claimed were secured by said mortgage, and which were unpaid, the bank at the'May term of the Court of Common Pleas, 1842, filed a bill in Chancery to have these several mortgages foreclosed, and to compel the salé of the mortgaged premises for the payment of the amount due from the said Wells, Henry & Co. To this bill the said Francis Á. Wells, James Henry and Robert Hanlin, were made defendants. Alexander Doyle was also made defendant, it being charged in the bill that said Doyle had procured a mortgage upon the same premises, subsequent in date to the mortgage of the bank, for the purpose of indemnifying him, as security on said indebtedness of the said Wells, Henry & Co., to said bank.

Afterwards, Robert Hanlin and Francis A. Wells answered said bill, admitting their indebtedness to the bank, and the execution of the mortgages.

At the November term of the Court, the complainants in this bill of review, together with others, were made defendants to the original bill in their own motion, they being judgment creditors of the said Wells, Henry & Co.; and at the same term the then complainant had leave to file an original and supplemental bill, which ■ amended and supplemental bill was filed on the 15th of April, 1843.

In this supplemental bill, it is charged that, subsequent to the filing the original bill, certain deeds of mortgage, made by Hanlin and Francis A. Wells, to John McDowel, executor of Alexander Wells, bearing date the 28th day of February, 1839, had been left for record and recorded on the 30th September, 1842, which deeds cover the whole, or a part of the premises, included in the mortgage to the bank. McDowel is made a defendant. It is further charged that, subsequent to the filing of the original bill, certain persons named in said supplemental bill, had recovered judgment against the said Wells, Henry & Co., that said judgment creditors had been made defendants, as their own motion to the original bill makes them defendants to the amended bill, and prays that they may be ruled to .answer, &c¿

On. the 16th January,. 1843, Richard Ellison, one of the judgment creditors, filed his answer, setting forth his judgment, claiming that it was a lien upon the lands mortgaged, and to be preferred to. the mortgages to the bank. This judgment was- rendered at the March term of the Court of Common Pleas of Carroll county, 1842. Execution was issued and levied upon a part of the lands in controversy.

At the.May term of said Court of Common Pleas, 1843, the other defendants, who were judgment creditors, filed demurrers to the bill, and at the same term John McDowel filed his answer. In this, he sets forth his mortgages upon thé premises in controversy — claims that his is the preferable lien — charges that' complainants had notice of his mortgage — prays a sale of the mortgaged premises, &c.

At the August term of the Court, 1843, Hanlin and F. A. Wells filed their answer to the supplemental bill.

At the same term Alexander Doyle filed his answer to the original and supplemental bill. In his answer he sets forth his mortgages, which bear date the 25th day of May, 1840. The conditions of these mortgages were, that whereas the said Alexander Doyle had theretofore indorsed-the paper of the said Wells, Henry & Co., and had also promised to make further .indorsements, it was provided that if the said Wells,. Henry & Co. should indemnify and save harmless the said Doyle, then the said deed to be void, &c. The respondent stated further, that, relying upon this indemnity, he had continued to indorse the paper of the said Wells, Henry & Co.; that he was liable to the bank as. security for them; that his mortgages were preferable liens to the mortgages of McDowel, or to the liens of the judgment creditors; that they were next in point of time to the mortgages of the bank, and if those mortgages were held not to be valid, then that his lien was to be preferred to all others; and in such event he prayed that the premises might be sold, and the avails applied to his indemnity, &c.

At the May term of the Court, 1843, the case came on for hearing upon the demurrer of the judgment creditors, which were overruled, and the cause referred to a master to ascertain the amount due the complainant, and upon their respective claims, with the origin of said debt, and the nature thereof; the amount due to McDowel, and the several judgment creditors, with the interest thereon; the dates, and nature of the respective liens, &c., with power to take testimony, &c., and with orders to have the mortgaged premises appraised, &c., return to be made at the next term of the Court.

In pursuance of this order, the premises were appraised, and at the August term, 1843, the master made his report.

In this report he ascertained the amounts due the several creditors having liens upon the property, either by mortgage or otherwise, with the date of the commencément of the respective liens, the consideration of the several debts secured by mortgage, &c. By this report it appears that there was due to the bank on the mortgage of Alexander Wells, $2,636.64; and that the amount due from Wells, Henry & Co., was $14,-549.18.

That the amount of liabilities secured by the mortgages to Alexander Doyle, was $14,968.09, and that judgments have been rendered against him upon these liabilities, in favor of the trustees of the bank.

That the amount due John McDowel, was as follows: From Francis A. Wells, $15,240; from James Henry, $7,948; from Robert Hanlin, $4,238.93.

To this report, no exception was taken.

At the same term of the Court, to wit, at the August term, 1843, the case came on for hearing upon the bills, answers, exhibits, testimony, and master’s report. On the hearing, the Court found that the mortgage deeds purporting to be executed by Alexander Wells, on the 16th and 30th days of July, 1838, were duly executed, and that there was due to the then complainant the sum of $2,636.64, which was intended to be secured by said mortgages. That the several mortgage deeds, dated February 4, 1839, executed by Francis A. Wells, James Henry, and Robert Hanlin, respectively, to the bank, were intended to secure the sum of $14,549.18, due, at the date of the decree, for principal and interest, from Wells, Henry & Co. The Court further found that the said Wells, Henry and Hanlin, did execute the several mortgages to Alexander Doyle, mentioned in the bill, and made part of Doyle’s answer; and that the same were valid and subsisting liens upon the premises therein described; and that the said Doyle, relying thereon, had indorsed the paper of Wells, Henry & Co., and had become, and was then liable, by reason of his indorsements, in the sum of $14,549.18, for principal and interest. That the said mortgages to John McDowel were duly executed, in manner and form as set forth, and for the purposes in said bill specified; but that the same had lost their priority in consequence of not being recorded in due time ; and that the other judgments and mortgage liens were correctly stated and set forth in the master’s report.

The Court thereupon adjudged and decreed, that the said mortgages given to the bank, being given to secure other debts than those previously contracted, and due at the time of their respective dates, were void under the charter of said bank, and that the mortgages to Alexander Doyle, and filed with his answer, were the first valid and subsisting liens upon the premises therein described. That the said Doyle, having indorsed the paper of the said Wells, Henry & Co. to a large amount, which was not paid by them, but returned under protest, and the said Wells, Henry and Hanlin, having failed to indemnify and save harmless the said Doyle, from all lossand harm the re-from, and that judgments by reason thereof have been rendered against Doyle to a large amount, to wit, to the amount of $14,549.18, in favor of the trustees of the Farmers’ and Mechanics’ Bank of Steubenville, the Court thereupon found, that the condition of the said mortgage deeds to said Doyle had been forfeited, and that the said Doyle was well entitled to be saved from all loss and harm by a sale of the premises in said deeds mentioned, as prayed for in his answer; It was, thereupon, ordered, adjudged, and decreed, that unless the said Doyle, within five days from the rising of the Court, should be indemnified against said judgments, and secured from all loss and harm in respect thereto, by the said Wells, Henry and Hanlin, or by some incumbrancer or incumbrancers of said premises, subsequent to said Doyle, that the said premises, in said mortgage deeds described, should be appraised and sold for that purpose. And it was further ordered,- that the proceeds of said sale be applied, first, to the payment of the costs of the suit; second, to the payment of the judgments in favor of the trustees of the bank against Doyle; third, to discharge the liens of other' mortgages and judgments, according to their priority, as ascertained by the master in his report; fourth, the residue, if any, to be brought into Court, to be disposed of as the Court should order.

In pursuance of this decree, the property was sold. The foregoing is but a brief and imperfect abstract of a very voluminous record, but is believed to be sufficient for a correct understanding and disposition of the questions raised by the complainants in their bill of review.

The complainants are a part of the judgment creditors, who, at their own request, were made defendants in the original case.

The first error assigned is, that the Court decreed the mortgages made to the said Doyle to be good, subsisting and valid liens, on the said mortgaged estate, when it is apparent that the same were not good and valid liens on said estate as against the complainants.

Several reasons are set forth under this assignment, which will be considered. And first, it is said the mortgages were not good and valid as against the complainants, because they were void for uncertainty, and it could not be ascertained how or when the same became forfeited, nor how the same could or would be satisfied.

• I do not perceive that there was any difficulty in this respect. Wells, Henry & Co. had procured accommodations at the bank, and were anxious to procure further accommodation. Doyle had been security upon their paper, and he was willing further to go security for them provided he could have indemnity. He had a right to ask the indemnity, and Wells, Henry & Co. had a right to give it. It was done by way of mortgage ; and although these mortgages were intended to cover subsequent as well as previous liabilities, they could not, on this account, be objectionable as between the parties. During the existence of these mortgages, had a third person recovered a judgment against Wells, Henry & Co., the lien of such judgment might, and probably would be preferred to the lien of the mortgages for liabilities subsequently'incurred by Doyle. But these complainants are not in this situation. The liabilities of Doyle had been fixed before the rendition of their judgments. It is not perceived that there would be .any difficulty in ascertaining when the conditions of the deeds were broken and the mortgage forfeited, nor as to the manner in which they could be satisfied.

Another reason assigned why the said mortgages are void as to complainants, is, that as to them, there was no sufficient or valid consideration passing to the grantors from the said Doyle, for the same, so far as the contemplated prospective' liabilities of the said Doyle to the said Wells, Henry & Co. were concerned, for the said Doyle was in no way bound to indorse any paper for them; and so the same was and is void, for a total want of consideration. .

If Doyle had not indorsed the paper, or- made himself security for Wells, Henry & Co., the mortgage would have been void for want of consideration, or, in other words, it would not have operated as an indemnity, for there would have been nothing against which any indemnity could have been required. It is true, too, that Doyle was under no legal obligation to indorse ; but when he did indorse, and thereby made himself liable for Wells, Henry & Co., as was contemplated when the mortgage was executed, I do not perceive with what propriety it can be said there was no consideration.

Another objection to the validity of these mortgages, as against the complainants, is, that the said mortgages were never forfeited, so far as the contemplated prospective liabilities are concerned, for the said Doyle did not indorse any paper for Wells, Henry & Co.; but that the proof offered shows that Doyle was principal debtor and not security. i

The case shows that, at the proper stage, the subject was referred to a Master, to examine and report, with leave to take testimony. He took testimony and reported, ascertaining the amount for which Doyle was liable, as security for Wells, Henry & Company, and which was within the condition of the mortgages. He further reported, that .Doyle was not only liable as aforesaid, but that, upon these liabilities, judgment had been recovered against him, by the trustees of the bank, for a sum of more than fourteen thousand dollars. To this report the present complainants, who were there at their own request, before the Court as defendants,, took no exceptions. And the report not being excepted to, the Court confirmed it, and decreed accordingly. Surely, under the then existing circumstances, no other decree could have been rendered.

The second error assigned, is, that inasmuch as the original complainant could not avail itself directly, it ought not to avail itself indirectly of the said mortgage to the said Doyle; and it is said that this is the suit and decree of the bank, and not of Doyle.

The record in the case shows, that, although the original bill was filed by the bank against Wells, Henry & Hanlin, to foreclose the equity of redemption in certain premises, mortgaged by them to the bank, and also against Doyle, as a subsequent mortgagee; yet, subsequently, all those claiming to have liens upon the property, either by mortgage or judgment, came before the Court and were made parties, most of them by their own request: the defendants, who -were mortgagees, praying, in their answers, to have the mortgaged premises sold, and the avails applied as the Court might think proper. The case Anally presented to the Court was one where several persons, conflicting liens upon the same property, were calling upon the Court to ascertain their respective rights and priorities. Under such circumstances, I do not see that there was any thing wrong, although the Court found the mortgages of the complainants to be void, that a decree should be entered for the sale of the property, and for the proper distribution of the avails. The bill might have been dismissed upon this finding, but it seems to me the Court adopted the better course.

But with what propriety this can be said to be a decree of the bank, and not of Doyle, I do not readily perceive. Doyle, as the security of Wells, Henry & Company, was indebted to the bank more than fourteen thousand dollars, for which judgments had been recovered. Now, so far as the interest of the bank was concerned, it was immaterial whether these judgments were satisfied by Doyle, or by Wells, Henry & Company. But with Doyle it did make a difference. It,was for his interest that the judgments should be satisfied from the property of Wells, Henry & Company. They had pledged to him property, to indemnify him against his liability. And when the Court decreed that this property should be sold, and the avails applied to the payment of these judgments, it was but the carrying out of the original contract between Wells, Henry & Company, and Doyle, by which they agreed to indemnify him. By the execution of the decree of the Court, he would be indemnified to the extent of the value of the property. Now, although the money arising from the sale is to be paid to the trustees of the bank, the decree directing such payment is a decree rather in favor of Doyle than of the bank. It was what he asked for in his answer. He does hot complain of it, and there is no reason why these complainants should; it does them no injury.

The third error assigned, is, that it was erroneous to decree that this property should be sold, under Doyle’s mortgage, to pay the judgments of the bank, because Doyle was in no way damnified, as he had paid nothing, and was not moving in the matter.

As before stated, all the parties in the original case were before the Court, and might be considered as actors, or as moving in the matter. They were before the Court as holders of liens upon the same property, seeking to establish their respective priorities. More especially was this the case with Doyle, as is apparent from his answer, as already stated. In consequence of the rendition of the judgments against him, he was so far damnified that he might, with propriety, have the property, mortgaged to him, sold to satisfy that judgment.— Besides, I have no doubt that the bank itself, having judgments against Wells, Henry & Company, as principal debtors, and Doyje as security, might, in equity, subject the property mortgaged by the principal debtor, to the security, as indemnity, to be sold for the satisfaction of such judgments.

The next assignment is, that it was erroneous to decree certain bonds, executed by Wells, Henry & Company as principals, and Doyle as security, good, because the same were usurious, and such as the bank had no power to receive. ■

To this it is sufficient to say, that there is nothing in the record from which it can be inferred that any such error existed, or does exist. The error assigned is entirely without the record, and is not sustained by it, nor by any of the exhibits or proofs in the case.

It is, in the last place, assigned, that it was erroneous to enter up any decree in.favor of the bank, because its charter had expired, and the said bank had no legal existence at the time of the decree rendered.

It is true, that the charter of the bank expired during the pendency of the suit, but the suit did not thereby abate. The law made express provision that, in such case, pending suits should be prosecuted by the trustees. And, in this case, the decree is not in favor of the bank, as such; but it is, that the money made by the sale of the mortgaged premises, shall be applied in satisfaction of judgments recovered by the trustees 0f the bank. From this it is apparent that, in this respect, , , . there was nothing wrong.

Upon full consideration, we are of opinion that there is nothing erroneous in the decree complained of, and the bill Í8 therefore dismissed, with costs.


author: Birchard, .J.

text:
    James Crwford vs. Henry Swearingen.
    A release of all actions and causes of action, given to the acceptor of a bill of e£ Change, on a composition with creditors, does not embrace money afterwards paid as indorser, when the bill had been negotiated before due, and, at the date of the release, was bona fide held by a third party.
    Tuts is a Writ of Error to the Supreme Court of Jeffer* son County.
    The suit below was assumpsit, in which Swearingen declared as payee of a bill of exchange for ($4,000, dated June 8, 1839, drawn, by Crawford, payable sixty days after date to the order of Swearingen, on William Forse, and by him accepted.
    The declaration contained, also, the common money counts in assumpsit. Plea — general issue.
    The bill had been made for the accommodation of Forse, the acceptor, and was indorsed by Swearingen and one John Brag, with a view to being discounted in bank ; but the bank refusing to discount, Forse sold it for value to Christopher C Wolcott. Being protested for nonpayment, Wolcott sued Crawford as drawer, and Swearingen as indorser, and collected part of the amount from each. This suit was then brought against Crawford, as drawer, by Swearingen, to recover the amount he, as indorser, had been compelled to pay Wolcott.
    On the circuit, the plaintiff below had verdict and judgment, to reverse which, this writ is brought.

      In Bank.
    Dec. Term, 1846.
    The bill of exceptions and depositions annéxed, will exhibit the defence set up:
    And now, viz: at this term, this cause came on to be tried before the Court and jury, when the plaintiff, to maintain the issue on his part, gave in evidence to the jury, the bill of exchange described in the declaration, and, also, gave evidence to prove, that the bill, within one or two days of the day of its date, was sold by William Forse, the acceptor, to Christopher C. Wolcott, for a full consideration, who held it until it became due, and that when due, it was duly presented for payment, and protested for nonpayment, and that due notices were given to the drawer and indorsers of such demand and protest. He also gave in evidence, a record of a judgment in favor of Christopher C. Wolcott against Henry Swearingen, the plaintiff in this suit, in an action against him, as indorser on the same bill of exchange; and, also, gave evidence to prove, that said Wolcott had collected from said Swearingen, a part of the amount of said judgment, the residue of the amount of said bill having been paid by said James Crawford, Jr. to said Wolcott. The defendant, to maintain the issue on his part, then proved the execution of an instrument, of which the following is a copy, by Henry Swearingen, and gave the same in evidence to the jury =
    “ Know all men by these presents: Whereas, William Forse, c by his deed, duly executed, bearing date the 26th of June, ‘ 1839, assigned all his estate to Peter Graaf, in trust for his ‘ creditors, to which reference may be had; wherefore, know c ye, that the undersigned, creditors of the said William Forse, ‘ in consideration of the said assignment, have remised, released ‘ and forever quitclaimed the said William Forse, his executors ‘ and administrators, from all claims, demands, action or actions, ‘ cause or causes of actions, whatsoever. Witness our hands ‘ and seals, the 27th day of June, in the year of our Lord one ‘ thousand eight hundred and thirty-nine.”. Signed and sealed by Swearingen, and other creditors.

      Both the defendant and the plaintiff gave evidence to prove, that there were other dealings between the said Forse and the said Swearingen, at the time of the execution of said release, besides the said bill of exchange, which appears in the depositions hereto attached, marked A, B and C, filed herewith.
    The defendant thereupon prayed the Court to instruct the jury, that the only claim of the plaintiff against defendant, or the acceptor, upon the subject matter of this suit, was upon the bill of exchange, and that the release given in evidence, was a discharge of the acceptor from the bill,, in the hands of the plaintiff, and that the defendant was thereby discharged; which instruction the Court refused to give, but did instruct the jury, that if they should find that the bill had been indorsed by the plaintiff before the execution, by him, of said release, and that he had no interest in it at the time, and it was then held by an indorsee for a valuable consideration, that the plaintiff would not be barred by the release, (after he should have, subsequently to said release, been compelled to take up said bill, and have paid money on account of it,) from recovering in this suit for the money so paid, and that the defendant would not be thereby discharged; to which instruction the defendant, by his counsel, excepted, and prayed the Court to seal this, his bill of exceptions, which is accordingly done.
    By the assignment of errors, it is averred —
    First: ' That the Court érred in refusing to instruct the jury, that the only claim of the said Swearingen against the said Crawford, as acceptor, was upon the bill of exchange, and that the release was a discharge.
    Second: In instructing, that if the bill had been indorsed, and Swearingen had no interest in it at the time, but that it was held by Wolcott, as bona fide indorsee, the release could not operate to bar the recovery, &c.

      Roswell Marsk, for Plaintiff in Error.

      The errors assigned and relied upon, are two, and arise upon a bill of exceptions sealed upon the trial of the cause in the Supreme Court.
    The first error assigned, is, that the plaintiff in error prayed the Court to instruct the jury “ that the only claim of the plain- £ tiff against the defendant, or the acceptor, upon the subject £ matter of this suit, was upon the bill of exchange; and that £ the release given in evidence was a discharge of the acceptor ‘ from the bill in the hands of the plaintiff, and that the dec fendant was thereby discharged.” Which instruction the Court refused to give.
    Was the plaintiff in error legally entitled to such instructions ? I submit that he was, and that the refusal deprived him of his rights. It is too well settled to be controverted at this day, that if the holder of a bill give time to the acceptor, even for a day, he thereby discharges all the intermediate parties from liability on the bill in his hands, unless it was done with their consent. It is equally well settled, and on much stronger grounds, that a release of the acceptor discharges all such parties. The ground of both is, that the acceptor is the real debtor, and has the funds in his hands. The drawer and indorsers are securities for him, and liable only. on his default. Now, if a party to the bill gives further time, or in other words extends the time of payment before the bill falls due, or releases the acceptor, he is not entitled to demand payment at the maturity of the bill, and, as a necessary sequence, could not, with truth, notify the. securities that the acceptor had violated his contract, and that they would be looked to for payment. The reason is obvious. There was no such subsisting contract to pay at that day. It had been changed for a contract to. pay at the next or some subsequent day, or released. The drawer and indorsers are not securities for the new contract, if any; and the old is gone. Hence their discharge.

      A release of the acceptor, instead of postponing payment f°r a day or so, merely, extinguishes the debt forever. With what propriety could Swearingen, in the face of the release, demand payment of Forse ? He had given up all claim on him, personally, and agreed .to look to his estate in the hands of the trustees for payment. When, therefore, he demanded payment of Forse, as stated in his declaration, he set up a false claim. Forse owed him no such debt. His notice to Crawford, the drawer, could only be valid to charge him on the hypothesis that a subsisting and valid debt had been duly demanded. Swearingen could not, with truth, assert that such a demand had been made ; for Forse owed him nothing on the bill. But it may be answered that Swearingen did not make the demand and give the notices, hot being the holder when the bill fell due, and that the then holder had a valid right to make such demand and fix the securities by notices.
    This, if conceded, cannot help his case'. It is, undoubtedly, true that an indorser, when he receives notice of demand and protest, may rely upon the holder’s diligence to charge those to whom he is entitled to look for payment; or he may give notice himself, in which case he has a day after he gets notice, to do so, and may fix them to him, although the holder had failed to make them responsible to himself. The holder, however, cannot avail himself of a notice given by his indorser. The reason, I apprehend to be, that the indorsee, the holder, has no interest in the bill in the hands of'his or any prior indorser; but all prior parties have such an interest in the bill in the hands of the holder as makes his act their act, if , they choose to claim it. He is pro hac vice their servant. The principle applies quod facit per alium facit per se. His demand and notice are their demand and notice; and in this case, as in all others, are declared upon as such. But can a party make demand and give notice by a servant or another, when he would have no right to do it himself if the bill were in his own possession? It seems to me that one need only ask the question, • to expose, in strong light, the absurdity of an affirmative reply. In wha't character had he an interest in the bill ? Long established principles admit of but one answer to this question: It was as payee. As payee, he declares uporf it; and you look into the declaration in vain to find that he ever had an interest in any other character. True it is, that ?ome weak attempts have been made in some cases in England, and perhaps in this country, to make out a new title by a circuitous set of indorsements coming back to a former holder, but they were promptly met and defeated.
    His declaration, then, is right. He holds his original title, or none. He holds it precisely as if it had never been out of his power or possession, and is just as much bound by any act of his, in the mean time, as if he had never indorsed it. But this point does not rest upon principle only, however clearly it may admit of demonstration. The question has been before the courts, both in England and in this country.

      Scott v. Lifford, 1 Camp. Rep. 249, was an action by the payee, against the acceptor, on a bill of exchange. The defendant called the drawer as a witness, and he was objected to, on the ground of interest. The drawer executed a general release to the acceptor, when he was still objected to, because, when he had taken up the bill, he would have a new .cause of action. But Lord Ellenborough decided, that he would have no other than his old title, which was barred by the release, and admitted the testimony.
    In Cóe v. Hutton, 1 Serg. & Rawle, 398, the case was, Coe & Son, Jan. 20, 1804, gave a promissory note to Hutton, for $800, at ninety days, which Hutton indorsed to Bernard. Bernard sued Hutton on the note, and recovered the money. On the 13th of April, 1804, the Coes made an assignment of all their estates, for the benefit of their creditors; and Hutton, amongst others, in consideration thereof, executed to them á general release, dated April 14, 1804. The note fell due with the days of grace, April 23, 1804, and must have been in Bernard’s hands at the time of the release. The Common Pleas held that the release did not bar him, because the note was not in his hands when the reléase was executed, and therefore Coes owed him nothing -on- the note until he. had' paid, it to Bernard. The declaration was for money paid, and' for -money had and received: .On error in’the Supreme Court, Tilgliman, C. J., denies that proposition entirely. After stating the. position, he says:' £?N’owf,. the present action cannot-be supported, £ but by reason, pf'the note which was given before the release. £ It cannot be shown.that 'the plaintiffs paid money oii.account £ pf. the defendants, without producing that rióte,-and accord- £ ingly-it was given in evidence on ;the part of the plaintiff. — - £ To'say that.a man, who knows he is liable to pay- a-sum of ‘.money-on any account, may'not bind' himself not to'have re- ■£ course to one, after he shall 'have paid the money, is, in,my ,£ mitad,'.unreasonable in' the highest degree. Some of the old £ cases go' á. great way against such- a release.. But of late there £ has been more liberality of principle. The case of ■ Scott v. ‘'■Lifford, is in point.” Yeates, Justice, holds language equally decisive; .and the judgment-Was reversed.' ' •.
    .Two reasons have -been urged why the release- is not', a bar, and probably will be' again— ■ • - '
    .' First: .■ That the bill was not due by lapse, of time ;■ and,

    Second: . That the releasor had' not'.the bill then in- his hands. • ' ’ .

      Coe V. Hutton, is a direct authority to both points y' and Scott v. Lifford, to the iast. Coke lays it down expressly —- Coke, 291, b. 3;'Th. Coke, 340 — that, by a release of all de-, mands, a;bond‘ not yet'due is released; and, by a reléase of all covenants, a covenant, to do a specific thing, is. released, although not ’ yet broken. Another direct authority on both points, is, Cuyler. v. Cuyler, '2 Johns. R.ep. 186; suit on a promissoiy note, dated May 13, 1803, at nine months, made by defendant, payable to the plaintiff. The note was indorsed by the plaintiff do one Smith, as security for a debt due, him from the- defendant; and the plaintiff, as indorser, had paid the note to Staiith. The defendant, on the trial, .gave in evidence a writing, dated February 10, 1804, six days- before'the note was due, in which the plaintiff bound himself in a penalty to the defendant, not to sue him unless on a future contract. The Court ruled that the writing did not operate as a release of the note. On error, the ground was urged, in argument, that Smith held the note at the date of the release, and that Cuyler had then no right of action on the note, and that the release could not operate upon a right which did not exist; that future contracts were expressly excepted, and that the claim' of the plaintiff was on a contract subsequent to the bond.
    But to this the Court reply: “ The plaintiff prosecutes upon £ the note itself, given by the defendant to him, which bears £ date nine monthjs before the bond set up as a release. We £ therefore cannot take into consideration the circumstances, £ that the note was given for a debt due from the defendant, to £ Smith, for which the plaintiff became surety, and was obliged £ afterwards, and after the date of the bond, to pay to Smith.” The Court, then, consider the suit on the note as standing precisely as if the note had never been out of the plaintiff’s hands, and that the bond barred the note, although not yet due by lapse of time. The Court express the opinion, that an action for money, paid as surety,-might have been sustained; but that point was not before them; and, with deference, it is not easy to see how he could prove his case without the note, which would bring it directly within Coe v. Hutton. Besides, it would be very like trifling with such solemn instruments, to reduce them to performing the miserable office of adding a count to the declaration. But however that may be, as between the real debtor and the holder of the bill or note, I apprehend that, if the action or right on the bill or note itself is gone by the release, the drawer or indorser incur no liability on a new contract, arising by implication, upon the payment of money for the acceptor long subsequent, with which they had nothing to do. :
    An attempt may be made to distinguish this from Coe v. Hutton, Scott v. Lifford, and Cuyler v.- Cuyler, on the ground, that the releases in those cases contained clauses of a prospective character. But such clauses do not, so far as they aPPty to matters in which the parties to the release were previinterested, enlarge the scope of the instrument at all, and are not relied upon by the courts as grounds of decision, but the reverse evidently; and, beyond that, they are clearly void. Had Hutton or Cuyler, the day after the releases were executed, taken indorsements of notes or bills, to which the defendants were parties, the releases would not have applied to them, although subsisting paper at the time, because the releasors would have acquired a new right in them, which they were not prohibited by the releases from doing. I need not urge, that they could not release a contract not yet made. The cases, then, must rest upon there being a subsisting contract, capable of being released, and, as such, must govern this case, being, in point,'to show that the acceptor was discharged. The effect of the discharge upon the liability of the drawer, is a corollary, respecting which there can be no doubt.
    There is another test to which I will, for a moment, call the attention of the Court. The release is in consideration of an assignment, to trustees, for the benefit of creditors. Were the assignment, as in Coe v. Hutton, restricted to the releasing creditors, which is the fact in nearly or quite all Pennsylvania assignments, could there be a doubt that Swearingen would be entitled to put in the bill for a dividend, before the trustees, as a released debt in his hands ? It seems to me there could not. If this be so, surely he cannot call upon Forse, on his personal responsibility, for payment, and, therefore, surely not upon his sureties.
    The second error assigned, is, that the Court instructed the jury upon the points made, directly the reverse of the instruction prayed by the defendant below. The examination of the one involves the other, and I need not repeat what I have already said.

      E. M. Stanton, for Defendant in Error.
    By referring to the release, set forth in the bill of exceptions, it will be found to have been executed upon a composition by Forse with his creditors, for whose benefit the assignment was made to Graaf, they being willing to receive the proceeds of the assignment and discharge Forse from all further liability.
    The release declares upon its face, that the consideration was the assignment by Forse in trust “ for his creditors;” that it was executed by the “ undersigned creditors,” who, therefore, release him from “ all claims, demands, action or actions, cause or causes of action whatsoever.” The assignment being thus made, solely for existing liabilities, the release could operate only upon such existing liabilities, unless, by express terms, its operation was further extended. The transaction, as stated in the instrument, had'reference only to an existing relation of debtor and creditor, and contains no reference to any future or contingent liability or relation. It appears, moreover, from the proofs, that at the date of the release, the relation of debtor and creditor existed between Forse and Swearingen for flour sold, amounting, as Forse states in his deposition, to between one and two hundred dollars. ' This constituted the whole amount of ForseJs then existing liability to Swearingen. It further appears, that Swearingen was not then holder of the bill, and, hence, that he had no claim by reason of it, and never would have, unless it should be dishonored and Swearingen compelled to take it up. It appears, then, from the instrument, as well as by the statement of Forse, “that the release related ‘ only to the indebtedness for flour, and not to the draft. The ‘ draft, at that timé, had not matured, and was not intended to ‘ be included in the release.” . .
    Does the release, by operation of law, constitute a discharge more general than is expressed by its terms, and contrary to the intention of the parties ?
    To show that it does, the following cases have been cited by the plaintiff in error: Cuyler v. Cuyler, 2 Johns. Rep. 186;
      Coe v. Hutton, 1 Serg. & Rawle 398; Scott v, Lifford, 1 Camp. 249.

      Cuyler v. Cuyler, 2 Johns. 186, was assumpsit ón a note dated 13th May, 1803, payable to the plaintiff nine months after date. The note had been indorsed by the plaintiff to one Smith, as security for a debt due to him from the defendant, and the plaintiff, as indorser, paid the note to Smith. On the trial, the defendant gave in evidence a writing, dated 10th February, 1804, executed by .the plaintiff and one John Cuyler, in which they bound themselves to the defendant, in the penal sum of ten thousand dollars, with a-condition not to institute any suits against the defendant, “ unless on a future contract, either ‘ as partners or separately, and that the plaintiff should dis- ‘ continue his suit, and no more prosecute the same.” This instrument was held to operate as a release, and the Court said:
    “ The plaintiff prosecutes upon the note itself, given by the ‘defendant to him, which bears, date nine months before the ‘ bond set up as a release. We, therefore, cannot take into ‘ consideration the circumstances, that the note was given for a ‘ debt due from the defendant to Smith, for which the plaintiff ‘ became surety, and was obliged afterwards, and after the date ‘ of the bond, to pay to Smith. Had the suit been- for money ‘ thus paid, as surety, the cause of action would have arisen ‘ subsequent to the date of the bond, and would not have been ‘ affected by it.”
    Now, in applying the principles recognized in Cuyler v. Cuyler to the case before the Court, it would appear to be an authority directly sustaining this action. -For, in Cuyler v, Cuyler, the .action failed, because the suit was brought upon the note alone, which, on its face, expressed an absolute contract between' the parties, prior to the date of the instrument set up as a release, and was, therefore, expressly within its terms. And it is distinctly stated by the Court, that, had the suit embraced, as in the present instance, a claim for the money paid, the action would have been sustainéd. The case, therefore, fully justifies the ruling of the Supreme Court .below.

      In Coe v. Hutton, 1 Serg. & Rawle 398, the release was: ££ All actions or causes of action, suits, bills, bonds, writings, £ obligations, debts, dues, duties, reckonings, accounts, sums of ‘ money, claims, damages and demands whatsoever, which they £ ever had, then had, or thereafter might have, claim or de- £ mand, by reason or means of any act, matter, cause or thing ‘ from the beginning of the world to the day of the date of the £ assignment.” The Court, according to the express import of its terms, held this to be a release, not only of present and existing, but of future causes of action — having reference to any preceding £i act, matter, cause or thing;”
    ££ It is,” said Tilghman, C. J., ££ a release of all actions, causcs of action and demands which the releasee then had or £ might in future have against the defendant, by reason or means £ of any act, matter, cause or thing, from the beginning of the £ world to the date of the release.” The payment, although occurring after the execution of this instrument, was included in its terms. And Yates, J., places his opinion upon what he terms, ££ the most comprehensive words ” used in the release.
    Now, the instrument executed by Swearingen does not contain these words, or any word or. expression referring to a future cause of action or contingent liability, but is limited to positive and existing liabilities..
    So, also, in Scott v, Lifford, 1 Campbell,'250, referred to in the preceding case, the decision went upon the comprehensive terms used in the release, which was for ££,alí actions and causes ‘ of action which he, the said defendant, then had or which he, ‘ his heirs, executors or administrators should or might at any ‘ time thereafter have, for or by reason of any matter or thing £ whatsoever, from the beginning of the world unto the day of ‘ the date of said writing of release.”
    Lord Ellenborough said; ££ the transaction was already past which was to lay the foundation of future liability;” and, hence, as the subsequent cause of action had reference to the prior transaction, it was included in the terms and operation of the release.

      But, in neither of these cases was it pretended that an imstrument, including only the terms employed in the writing executed by Swearingen, would have operated to discharge the future cause of action. And, as we have already seen, it was held, in Cuyler v. Cuyler, 2 Johns. Rep. 186, that such release does not discharge the liability arising upon the subsequent payment of the money upon a preexisting note.
    The doctrine held by the Court on the circuit, is also directly established by Chitty on Bills, 342. “ And it seems, that if a £ creditor for goods sold is also indorsee of a bill of exchange, £ which he has indorsed to a third person for valuable con- £ sideration, who, at the time of the execution of a composition £ deed by the creditor, is the holder of the bill, and the creditor ‘ sign the deed containing a release, but without specifying the £ amount of his debt, the composition would extend only £ to the amount of the goods sold and bills actually in his hand £ at the time he executedChitty on Bills, 342. The present case is within the terms of this authority.
    Swearingen was creditor for goods sold, viz., flour to the amount of one or two hundred dollars, as stated by Forse. The bill had been indorsed for valuable.consideration to Wolcott, and was outstanding in his hands unmatured, ££ at the time of the execution of the composition deed.” The release was executed by Swearingen without specifying his debt; but, as Forse says,.was not intended to embrace the bill; The release, therefore, could ££ extend only to the amount of goods sold.” Two cases are cited by Chitty, Harrhy v. Wall, 2 Starkie Rep. 195 ; and Margetson v. Aitkin, 3 Carrington and Payne, 338. In Harrhy v. Wall, the bills being in the hands of the indorsees, Buckle & Co., merely as agents for the plaintiffs, they were considered as being in the plaintiff’s hands, and' therefore discharged by the release. But on a motion to set aside the nonsuit, the Court held, that if Buckle & Co. were indorsees for value, then they would have been the creditors of the defendant for the amount, so that the release would not have operated; 2 Stark. Rep. 195. So, if Wolcott had held the bill as the mere agent of Swearingen, at the execution of the composition deed, there would have been ground to consider the bill discharged by the release. But Wolcott being holder in his own right, according to the authority just cited, he, and not Swearingen, was F.orse’s creditor upon the bill, which, therefore, could not be affected by Swearingen’s release.

      Margetson v. Aitkin, 3 Carrington and Payne, is thus reported: “Assumpsit, by the plaintiff, as indorsee, against the ‘ defendant as indorser of three bills of exchange, amounting ‘ together to £41 13s. 6d.”
    The defence was, that after these bills had been given', but before two of them became due, the defendant had compounded with his creditors, and that the plaintiff had executed the deed of composition, the plaintiff’s debt being there stated at £27. However, it also appeared, that the two bills that had not become due at the time of the executing of the deed of composition, had been indorsed over by the plaintiff, and were not then in her hands; but that the other bill, which was for $10, was then in her hands as a dishonored bill.
    Lord Tenterden, C. J. “The utmost effect that can be ‘ given to Mr. Gurney’s argument, and to the deed, is, that the * plaintiff releases whatever debt is due to her. But I am of 1 opinion that that deed cannot be taken as a release by the ‘ plaintiff, as to the bills then outstanding, undishonored, in * other hands. It does not, I think, apply to two of the bills. ‘ As to the remaining bill, I think that the plaintiff cannot re- ‘ cover on it, as that was dishonored at the time of executing ‘ the deed.” Verdict for plaintiff.
    It would thus appear, from all the cases, that in order to make the release operate upon the bill, the person releasing should have been actually, or constructively, its holder, at the execution of the release. Story on Bills, treating of releases, and their operation, sec. 263, 269, 270, 430, 431, 432, 433, and 440, has reference, in every instance, to releases by the holder. So also in Story on Promissory Notes, sec. 422, et sequente. And unless the release, by express terms, has relation to- a future or contingent, as well as present liability, as in Coe v, Hutton, and, Scott v. Lifford, it will not operate to discharge such liability.
    The release in question, being upon composition by Forse with his creditors, a relation existing between him and Swearingen for goods sold, and having no reference to the bill of which Swearingen was not holder; and the release, moreover, by its terms and intention, applying only to present and not to future or contingent liability, it cannot be set up to defeat this action. And the ruling in this case, by the Court below, seems to be fully established, not only by the authorities cited in behalf of Swearingen, but also by those cited for the plaintiff in error.

      Marsh, in reply.
    The counsel for the defendant in error, insists and bases his whole argument upon the principle that the term “ holder,” as used by Story and other elementary writers, is applied to the person holding the bill at the time of his executing the release. This is an entire misconception. It is used as synonymous with plaintiff; that is, the holder at the time of trial; and every case cited will require this to make it intelligible. I cannot find the quotation from Chitty in the copy I have here, but I have the authorities cited to sustain the position, and I thank the counsel for them.
    In Harrhy v. Wall, the release did not contain any prospective words in the instrument. It was shaped to specify the amount of the claims released by each, but the plaintiff declined- to specify the amount of his. When afterwards called . upon to specify the amount, he claimed that the note was to be paid. He did not specify the amount of his claim. He had a claim besides the note. It does not appear whether or not he had taken up the note when he claimed that it should be paid. It is very clear he was not the holder when he executed the release. He had indorsed it; a bank had discounted it and credited him with the amount. They owed or had paid him the money. The note was theirs. The plaintiff put it on that ground and insisted, as in this case, that he then had no claim to be barred. The Judge says not a word of Buckle & Co. being his agents, but distinctly sustains the principle of his own decision in Scott v. Lifford, and says Harrhy was entitled, under his release, to the composition on the note. He had taken it up when due and dishonored, after the release. On the motion to set aside the nonsuit, it is said, the Court concurred with Lord Ellenborough. So far, is perfectly intelligible. A blundering reporter has given a reason which is not only at variance with the grounds of the decision, but he puts it on a matter of fact which that Court would never have decided without the intervention of a jury, viz: whether or not Buckle & Co. were the agents of the plaintiff? This, then, is a full authority for the plaintiff in error. In Margetson v. Aitken, 3 Car. & Payne, 338, the release was of a debt amounting to £27. The plaintiff sued on three bills, amounting to £41 13s. 6d. The case is very loosely reported. At the time of the release, the plaintiff held one of them and had indorsed the other two. The syllabus is, that the bill he held exceeded the amount stated in the release. The text states it at £10. Under this special release, the Court held, at nisi prius, that the bill then in his hands was released, and that the others were not. The case was not moved in Bank. Any general language reported as used by the Court, is, of course, to be taken as applied to the terms of that release. The general expressions beyond that, are not authority, and are at variance with all the decided cases.
    The effect of a release cannot be controlled by the intentions of the parties, not expressed in the instrument. The statement of Forse, therefore, that the release was not intended to cover this bill, cannot affect the matter, even if true; but he admits that nothing was said, so that any such intention was a mere mental reservation, which none but Omnipotence could know, so far as Swearingen was concerned. See Story on Bills, sec. 431.
    The case of Cuyler v. Cuyler, is nearly confessed to be a direct authority against the plaintiff below, so far as the counts on the bill, and recourse is had to the dictum of the Court to SUS(;ajn this judgment on the common count. That was a suit against the maker of the note, the principal debtor; this is a suit against a security on the bill. If, according to that dictum, a.new cause of action accrued to Swearingen against Forse, after the release on an implied contract for money paid to Wolcott, (which I deny,) what had Crawford to do with that contract ? He was no party to it as security or otherwise. If Forse was not liable to Swearingen on the bill, in consequence of the release, his appropriated demand of payment, protest, and notice to Crawford, were all false assumptions, which he had no right to make, and, therefore, cannot claim them when done by others. Without the bill, as a valid claim against Crawford, Swearingen has no cause of action against him.
   Birchard, .J.

The instructions given, may well be considered in connection with .those refused. There can be no doubt in this case, as to the intention of the parties. If the release has the effect to bar the claim of Swearingen, it effects what he never intended. The object of Forse and those of his creditors who signed his release and compounded with him, was merely to discharge him “ from all claims, demands, action or actions, cause or causes of action whatsoever,” which they then had against him. Swearingen had such a claim or demand , as these words would embrace, at the time. It was an existing liability for flour sold, which created betvveen him and Forse the relation of debtor and creditor. Upon that claim, thp release was designed to operate, and, as to that, it was a discharge.

Whether it could operate upon the liability that grew out of the nonpayment, protest, &c., of the bill of exchange, depends entirely upon the intention of the parties, to be gathered from the language of the release and state of facts then existing. It must be borne in mind, that Swearingen, at the date of the release, was not the holder of the bill, he had no right to it, it was not matured, but was in the hands of an indorsee for value. Let üs.inquire what effect this release could have ■ upon the bill, admitting ■ that ■ its terms'- were intended to embrace i't. The answer is -plairi. The bill in Wolcott’s hands could not be affected by any discharge of-Swearingen.- He could not re-' .lease the rights of Wolcott.• This being so, the law will'Hot raise -the presumption .that he intended, or that Fprse- expected ■ the .release would, operate, a discharge. We-must look,’then, .to the'words contained.in the reléase. The terms, “action or 'actions-,’’will not embrace-the'bill-.; nor,-will, “'cause or causes . of action,” for-the.reason thátthere was, by reason of the bill, neither'.action ór'cause-of,action-then subsisting" against Forse,- and in’favor of Swearingen.-... The same. may. be said of “ claim' : or demand.” 'As -used, those' terms.comprehended only such ■weye ...then, .present, subsisting claims or demands, held, by.'the . i-eléásbr against'thevrtífeuseé... The-'in.strúctioris, then', effected .-.'what'--was the-' actual- intention: Of;.-the" parties, -as. shown-by'•the evidence, and,'wmV-con'sistent'w'ith'.;'the forcé ahd effect of the .language offthe release, construing.the words -according to the . common. acceptation! of their' meaning. ' But we must look to ' decided pases, in order to determiné whether we'have given to' .them all the force they-will bear,-in a legal sénse. The -co'uri- . sel for the plaintiff in error; submits,, that we have not. • order that our opinion may-be as satisfactory, as can be -expectedj-.T will notice, briefly,-the several'.positions taken, authorities referred to; ■ ■■

The.first' claim is,, that,.if a holder of a bill discharge's the acceptor or even’gives time for a day,' (on a-valuable consi.deration,). he thereby discharges all -intermediate parties on the bill in bis hands,-unless it is-donó with their consent. We unanimously. assent to-this proposition, and -need not recur to authorities'upon the point.' .Yet, it moveth vei-y little towards estabfishing the position, that the court below erred; .because Swearingen was not the “ holder of the billit was not “-in his hands ” at the delivery of the' release,' and was not discharged by it. ' , - <

Again — it is contended that Swearingen holds the bill, as of his original title, precisely as if the bill had never been out of his possession, and, otherwise, that he has no claim. -We think this is not precisely accurate, and, therefore, deny the position, and assert that the authorities sustain us. The cases which are relied upon by plaintiff in error are, first, that of Scott v. Lifford. It merely decides, that a release by the drawer, of the acceptor, by words general, retrospective and prospective in their terms, is a discharge of the acceptor, and made him a competent witness for him, and that he would have no new cause of action after taking up the bill. The release in Scott v. Lifford, was, of all actions and causes of action which he then had or might thereafter have, by reason of any thing or matter whatsoever, from the beginning of the world to the date of the release. That, most certainly, was sufficient to embrace the acceptance, and the supposed fund upon which it was drawn. , They were past matters, which must be relied on after redeeming the bill. In Coe v. Hutton, the terms of the release were equally comprehensive, and were, therefore, held to-embrace, not only present and subsisting causes of action, but any future actions growing out of any past and prior act, matter or thing. Cuyler v. Cuyler, 2 Johns. Rep. 187, is an authority, so far as applicable, which would sustain the right of Swearingen to recover on the common counts upon the implied contract, (p. 188,) but, for want of which common counts, it would seem that action was not sustained.

Judgment Affirmed.


author: Wood, C, J.

text:
    In Bank.
    Dec. Term 1846.
    George Leggett vs. The State of Ohio.
    For the,purpose of proving a bargain and sale, the declarations of the parties thereto, at the timo, are a part of the res gesta, and competent evidence for the accused, to rebut the inference of guilt arising from the possession of stolen property.
    This is a Writ or Error to the Court of Common Pleas of Tuscarawas County. \
    The defendant below was indicted, and, at the October term of said Court, 1S46, tried and convicted of stealing a certain flea-bitten grey mare, the property of one Henry W. Smith, and sentenced to imprisonment in the Penitentiary for the term of three years. The plaintiff in error now seeks, by this- writ, to reverse the said judgment and proceedings. On the trial, a bill of exceptions was taken, which is made a part of the record ; and it appears, amongst other things, that the State gave evidence tending to prove the loss of the mare on the 14th or 15th of June, 1845. The plaintiff in error, to maintain the issue on his part, called a witness, who testified that about the middle of June, 1845, at Salineville, in the county of Columbiana, in the State of Ohio, one Delany then and there offered to trade to the witness a flea-bitten grey mare, which the plaintiff in error claimed was the one described in the indictment; and that, on that day, the plaintiff in error came to Salineville, traveling with a companion, in a sulky, and driving a black or dark brown mare; and the State having previously given evidence that, the evening before the mare mentioned in the indictment was taken, the plaintiff in error was traveling in such manner, with such black or dark brown mare, the plaintiff in error then asked the witness, who had already stated that Delany bantered the plaintiff in error to buy said grey mare, at the time above mentioned, at Salineville, to state what was said by said Delany and the plaintiff in error, at the time, as to the terms of said sale, and what was said by said Delany and the plaintiff in error, at the time of the transaction,, as to the fact 'whether .said-'sale 6f said grey mare was complete. To this so .offered, the', counsel'for the State' objected;' and-the Court yuled; that it was- incompetent for the accused to give, evidence to the jury of conversations had between him' and' 'Délány; .that'the .'plaintiff in' error might prove any facts connfected with ..the- sale, but that' Ms and Delany’s -declarations could.npt be detailed to'the-jury, to .prove.such ■ bale was madie. ■Exception -was taken .to this mpinioff;.Of. the .Court,, and the counsel for. the'plaintiff in error have assigned the same as error on the.record. ■ . ., .. '. . '' '•

      Hume Bingham; and-D.-K. Carter, tor Plaintiff in-error'.

      H. .Stanbery,. (Attorney General,).for the State.
   Wood, C, J.

-The question presented' is one'of evidence. There are.-two' billsóf exception in the.record; but'the same '. principle, precisely, is involved in 'each, and both are, therefore, ' '¡concluded, by a decision-upon either. The .statement of- the' case is extracted from the last bill .of .exceptions'in the record, •■and raises but .a single point: y Did the Court-of Common .'Pleas err in rejecting the 'evidence, offered to "the jury by the .Plaintiff in error?

The casé shows the prosecution had proved,- that the , night ■before the mare was-taken, the. plaintiff'in'error, was . traveling, .in.-a sulky,-with- a .black or dark brown mare, and, at. Saline-ville, Delany bantered him to'buy a flea-bitten grey, which the plaintiff in error claimed to be the identical mare for the stealing of whiph he was" on trial.' : , ■1 . ' .

. The-.St-áío'. -had proved him in the- possession; of course; of the ..one described in tlie indictment, and it became necessary for. the. accused, .'to ’explairi that'.possession, and'was'directly material to the issue beforé -.the jury. To do this, he did not offer his own declarations that hé ,had bought the mare, as one thing inter-alios acta, as'' .the. Court seemed to suppose, but the conversation between both himself and Delany,.by which it was claimed a bargain' and' sale was. completed, and- the ownership ' of the mare transferred to the accused, and his possession, therefore, innocent.

It was the fact that such a contract was made, that was material for the plaintiff in error to prove, and the Court admitted its competency, but ruled against the mode in which it was sought to be established. We think the.Court of Common Pleas erred in rejecting this proof. If it was competent to show a contract of bargain and sale, which would explain the inference of guilt the law raises from possession of. the goods, when a larceny has been committed, and which is undoubted, the best evidence of the agreement was the declarations of the parties to it at the time, for such;declarations constituted the contract itself. When they were proved, the bargain was complete. Such declarations, under such circumstances, are . a part of the res gesta, and equally admissible with any act done. This rule is supported by unquestionable authority. Ros. Crim. Ev. 23, 24 , 1 Phil. Ev. 233; 2 Phil. Ev. (note,) 592.

The judgment and proceedings of the Court of Common Pleas must be reversed, and a new trial directed.


text:
    Lessee of Wilkins’ Heirs vs. Huse and Swindle.
    Under the Occupying Claimant law, if the occupying claimant elect to convey the . land and receive its value, as assessed by the Jury, it is necessary that he tender a »deed with covenant of warranty 3 but* it is not necessary that the deed should be made by himself, provided it convey the title..
    In such case, she occupying claimant is not entitled to interest upon the valuation, until his election is made.
    This case was reserved for decision here, from the County' of Licking.
    It is an action of ejectment, for a certain parcel of land, in Licking county. In October, 1840, judgment was entered in favor of the plaintiff, in the Supreme Court of Licking county, and an order was made for the valuation of the improvements, under the occupying claimant law.
    In Bank.
    Dec. Term, 1846.

    This order remained unexecuted until January, 1845, when an order was issued, on the application of the defendants, directing a jury to be summoned, according to the statute ; and a jury was summoned accordingly. On the first day of March, of the same year, the jury were convened and sworn, and, upon examination of the premises, estimated the personal improvements made on the land, at the date of' the commencement of the suit, to be of the value of one thousand dollars; the value of the yearly rents and profits, at thirty-three dollars; and the value of the land, at the date of the judgment, exclusive of improvements, to be seven hundred dollars. At the last term of the Supreme Court in Licking county, the lessors of the plaintiff appeared in Court, and elected to take the value of the land, and convey the same, rather than to pay for the improvements. It appeared that, since the commencement of the suit, the land had been conveyed to one Israél Dille, and the attorney for the plaintiff offered the deed of Dille to the defendants, with covenants of warranty. To this the defendants objected, insisting that, under the statute, they were entitled to a deed direct from the lessors of the plaintiff. The plaintiff further claimed, that he was entitled to interest on the seven hundred dollars from the date of the-judgment; which claim was resisted by the defendants. These questions were reserved for decision here.

      Geo. B. Smythe, for Plaintiff.
   Hitchcock, J.

The 10th section of the act for the relief of occupying claimants of land, provides, “ that if the success- ‘ ful claimant, his heirs, or the guardian of such heirs, they ‘ being minors, shall elect to receive the value of the land, with- ‘ out improvements, so as aforesaid assessed, to be paid by the ‘ occupying claimant, within such reasonable time as the Court ‘ may allow, and shall tender a general warranty deed of the ‘ land in question, conveying such adverse or better title, within £ the time allowed by the Court for the payment of the money £ in this section mentioned, and the occupying claimant shall refuse or neglect to pay said money (the .value of the land £ without the improvements) to the successful claimant, his £ heirs or their guardians, within the time limited as.aforesaid, £ then a writ of possession shall be issued in favor of said sue- £ cessful claimant, his heirs or their guardians.” The object of this section is to secure to a defendant in ejectment, a good title to the lands in controversy, provided the successful claimant shall prefer to take the value of the land, as assessed by a jury, rather than to pay for the improvements and keep the land. So that this object can be secured, it is immaterial from whence the title is derived. In this case, this Court have decided that, at the time of the commencement of the suit, the title was in the lessors of the plaintiff. But, since that time, this title has been transferred to Israel Dille. If the defendants can get this title from Dille, secured by warranty deed, they get all that the law intended to secure to them. We think that a tender of such deed, executed by Dille, will be a substantial compliance with the requisitions of the statute.

The, lessors of the plaintiff claim that they are entitled, not only to the assessed value of the land, but also to interest upon that assessed value. ■ We think not. Had the delay in bringing this matter to a close been entirely on the part of the defendants, such claim might have been reasonable. But it is not so. An order of the Court, for the valuation of improvements, may be made on the application of either party; and, when made, either party may proceed to have it executed.— The lessors of the plaintiff might, six years since, have brought this matter to a close, but they neglected to do it. The defendants being in possession, without title, were not anxious to move in the matter. Had the plaintiff elected to pay for the improvements, the accruing rents would have been deducted from the amount of their assessed value; but, electing to take the land, he can receive no more than the seven hundred dollars.